Peace v BHP Refractories Pty Ltd; Peace v BHP Refractories Pty Ltd [2000] NSWIRComm 235

Peace v BHP Refractories Pty Ltd; Peace v BHP Refractories Pty Ltd [2000] NSWIRComm 235

The contract was unfair because the respondent unilaterally imposed a policy withholding redundancy payments from Port Kembla employees until STC determined its labour requirements, in order principally to protect the respondent's commercial interests in completing the sale, without proper consideration of the applicant's particular circumstances and employment insecurity, while more favourable treatment was afforded to Mayfield employees. Although the manager's words created an expectation that redundancy pay might be available, they did not amount to a misrepresentation or promise. It would not be just to reduce the redundancy payment by the applicant's earnings from Dux. The applicant...

Jurisdiction
Australia
Judgment Date
23 November 2000
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 and Application for Recovery of Money Under S 12 of the Long Service Leave Act 1955 / Judgment
Outcome
Applications upheld; contract declared unfair and varied; respondent ordered to pay redundancy-related amounts, proportionate long service leave, interest and costs.
Legal Topics
['unfair Contract' 'contract of Employment' 'redundancy Pay' 'sale of Business as a Going Concern' 'long Service Leave' 'domestic or Pressing Necessity' 'mitigation']
['industrial Relations' 'employment Law'] ['unfair Contract' 'contract of Employment' 'redundancy Pay' 'sale of Business as a Going Concern' 'long Service Leave' 'domestic or Pressing Necessity' 'mitigation']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 and Application for Recovery of Money Under S 12 of the Long Service Leave Act 1955 / Judgment

Legal Issues

  1. 1 ["Whether the applicant's contract of employment was unfair within the meaning of s 105 and s 106 of the Industrial Relations Act 1996 because it did not provide for redundancy pay when his employment ceased before completion of the sale of the business." "Whether statements by the respondent's manager about employees who found other employment before the sale amounted to a misrepresentation or promise that redundancy payments would be made." "Whether the respondent's different treatment of employees at Port Kembla and Mayfield in relation to redundancy payments made the applicant's contract unfair." "Whether any redundancy payment should be reduced by earnings from the applicant's alternative employment." 'Whether the applicant resigned for domestic or pressing necessity so as to be entitled to proportionate long service leave under s 4(2)(a)(iii) of the Long Service Leave Act 1955.']

Ratio Decidendi

The contract was unfair because the respondent unilaterally imposed a policy withholding redundancy payments from Port Kembla employees until STC determined its labour requirements, in order principally to protect the respondent's commercial interests in completing the sale, without proper consideration of the applicant's particular circumstances and employment insecurity, while more favourable treatment was afforded to Mayfield employees. Although the manager's words created an expectation that redundancy pay might be available, they did not amount to a misrepresentation or promise. It would not be just to reduce the redundancy payment by the applicant's earnings from Dux. The applicant...

Court Disposition

Applications upheld; contract declared unfair and varied; respondent ordered to pay redundancy-related amounts, proportionate long service leave, interest and costs.

Orders

  • ['An order declaring that the contract whereby the applicant performed work for the respondent was unfair.' "An order declaring void ab initio the contract insofar as it permitted the respondent to avoid making, or permit it to fail to make, any payment in respect of redundancy upon or in relation to the cessation...