Bowker & Anor v Software Engineers Australia (NSW) Pty Limited & Ors [2004] NSWIRComm 104

Bowker & Anor v Software Engineers Australia (NSW) Pty Limited & Ors [2004] NSWIRComm 104

The contracts and arrangements between the applicants and respondents were unfair within the meaning of s106 of the Industrial Relations Act 1996 (NSW), due to unfair contract terms and the respondents' course of disparagement and coercion, both during and after the employment relationship. The contract is to be varied ab initio to prohibit disparagement, and consequential money orders, including compensation, are just and appropriate. The March, June, and December 1998 employment agreements, the Deed of Release, and Deed of Consultancy are declared void ab initio, save for sums paid.

Parties
Applicant: Geoffrey Bowker; Second Applicant: Bonket Pty Limited (ACN 069 224 764); First Respondent: Software Engineers Australia (NSW) Pty Limited (ACN 006 513 499); Second Respondent: Timothy Arundell; Third Respondent: Prophecy Technologies (Southern Region) Australia (NSW) Pty Ltd (ACN 087 222 419); Fourth Respondent: ACN 087 222 357 Pty Ltd; Fifth Respondent: Prophecy People Pty Ltd (ACN 007 248 286)
Jurisdiction
Australia
Judgment Date
23 April 2004
Procedural Posture
Application Under S106 Industrial Relations Act 1996 (nsw) / Final Judgment at First Instance
Outcome
Applications partly allowed
Legal Topics
Unfair Contracts, Employment Contract Variation, Disparagement, Remedies for Unfairness
Employment Law Industrial Law Unfair Contracts Employment Contract Variation Disparagement Remedies for Unfairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 32 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

Geoffrey Bowker

Applicant

Bonket Pty Limited (ACN 069 224 764)

Second Applicant

Software Engineers Australia (NSW) Pty Limited (ACN 006 513 499)

First Respondent

Timothy Arundell

Second Respondent

Prophecy Technologies (Southern Region) Australia (NSW) Pty Ltd (ACN 087 222 419)

Third Respondent

ACN 087 222 357 Pty Ltd

Fourth Respondent

Prophecy People Pty Ltd (ACN 007 248 286)

Fifth Respondent

Procedural Posture

Application Under S106 Industrial Relations Act 1996 (nsw) / Final Judgment at First Instance

Legal Issues

  1. 1 Whether employment-related contracts and arrangements between applicants and respondents were unfair under s106 of the Industrial Relations Act 1996 (NSW)
  2. 2 Whether the respondents engaged in unfair conduct, including disparagement, against the applicants during and after employment
  3. 3 Whether the Court has power to vary contracts to prohibit post-employment disparagement and make consequential money orders

Ratio Decidendi

The contracts and arrangements between the applicants and respondents were unfair within the meaning of s106 of the Industrial Relations Act 1996 (NSW), due to unfair contract terms and the respondents' course of disparagement and coercion, both during and after the employment relationship. The contract is to be varied ab initio to prohibit disparagement, and consequential money orders, including compensation, are just and appropriate. The March, June, and December 1998 employment agreements, the Deed of Release, and Deed of Consultancy are declared void ab initio, save for sums paid.

Court Disposition

Applications partly allowed

Orders

  • The March 1998, June 1998 and December 1998 employment agreements and the December 1998 Deed of Release and the Deed of Consultancy are declared void ab initio, except as to money sums paid thereunder.
  • The first applicant's contract of employment is varied ab initio by prohibiting the first and second respondents from engaging in conduct, whether during or after the term, that damages, or is calculated or likely to damage, the reputation of either applicant and their prospects of further employment, or that causes...