O'Brien v Australian Native Landscapes Pty Ltd [2001] NSWIRComm 145

O'Brien v Australian Native Landscapes Pty Ltd [2001] NSWIRComm 145

The contract of employment and collateral superannuation arrangement were held to be unfair due to underpayment relative to award obligations, improper provision for annual and long service leave, failure to make annual superannuation contributions as agreed, and unfair provisions regarding redundancy and termination. The applicant was entitled to monetary orders calculated by reference to the hours actually worked, appropriate award rates, and statutory entitlements, as well as a proper accounting of superannuation contributions, with interest awarded from date of filing. The contracts and arrangement were declared wholly void from commencement, except for benefits already received.

Parties
Applicant: Edward Joseph O'Brien; First Respondent: Australian Native Landscapes Pty Limited; Second Respondent: Patrick Noel Soars; Third Respondent: Sharon Atkinson (Soars)
Jurisdiction
Australia
Judgment Date
27 June 2001
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 Re Unfair Contract / Judgment
Outcome
Application allowed. Contracts and arrangement declared void. Monetary and costs orders to be made.
Legal Topics
Unfair Contracts, Employment Termination, Superannuation, Redundancy, Underpayment of Wages
Industrial Law Employment Law Unfair Contracts Employment Termination Superannuation Redundancy Underpayment of Wages

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Parties

Edward Joseph O'Brien

Applicant

Australian Native Landscapes Pty Limited

First Respondent

Patrick Noel Soars

Second Respondent

Sharon Atkinson (Soars)

Third Respondent

Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 Re Unfair Contract / Judgment

Legal Issues

  1. 1 Whether the contract of employment and collateral superannuation arrangement were unfair within the meaning of s 105 of the Industrial Relations Act 1996
  2. 2 Whether the contract and arrangement should be declared void or varied under s 106
  3. 3 Proper assessment of underpayments, leave entitlements, and superannuation

Ratio Decidendi

The contract of employment and collateral superannuation arrangement were held to be unfair due to underpayment relative to award obligations, improper provision for annual and long service leave, failure to make annual superannuation contributions as agreed, and unfair provisions regarding redundancy and termination. The applicant was entitled to monetary orders calculated by reference to the hours actually worked, appropriate award rates, and statutory entitlements, as well as a proper accounting of superannuation contributions, with interest awarded from date of filing. The contracts and arrangement were declared wholly void from commencement, except for benefits already received.

Court Disposition

Application allowed. Contracts and arrangement declared void. Monetary and costs orders to be made.

Orders

  • Declaration that the employment contract made circa July 1980, as varied, is wholly void from commencement except as to benefits received by the applicant.
  • Declaration that the superannuation arrangement is wholly void from its commencement.