Gregory Cartaar v Australia Post [2009] NSWIRComm 186

Gregory Cartaar v Australia Post [2009] NSWIRComm 186

The applicant was an independent contractor, and the contracts were not shown to have been designed to avoid award provisions. However, although the contracts were fairly entered into at inception, they became unfair in performance because Australia Post increased the applicant's workload and hours, including by adding work and geographic areas, without agreed fair remuneration, while the contractual dispute procedure failed to resolve the remuneration dispute. Australia Post also acted unfairly in changing its practice concerning goodwill and preventing reassignment for goodwill. The contracts were therefore varied and compensation was ordered for underpayment, superannuation savings and...

Jurisdiction
Australia
Judgment Date
20 November 2009
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 for Declarations That Mail Pickup and Delivery Contracts Were Unfair and for Just Compensation / Judgment After Hearing
Outcome
Application allowed in part; contracts found unfair in performance; contracts varied; goodwill clauses void ab initio; compensation, interest and costs ordered.
Legal Topics
['unfair Contracts' 'independent Contractor or Employee' 'award Remuneration Comparison' 'contract Variation' 'dispute Resolution' 'goodwill on Assignment' 'just Compensation']
['industrial Law' 'contract Law'] ['unfair Contracts' 'independent Contractor or Employee' 'award Remuneration Comparison' 'contract Variation' 'dispute Resolution' 'goodwill on Assignment' 'just Compensation']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 for Declarations That Mail Pickup and Delivery Contracts Were Unfair and for Just Compensation / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the applicant's three mail pickup and delivery contracts with Australia Post were unfair, harsh or unconscionable or contrary to the public interest under s106 of the Industrial Relations Act 1996." 'Whether the contracts were designed to avoid award or industrial instrument provisions or provided remuneration less than an employee performing the work would receive.' 'Whether the applicant was an employee or an independent contractor.' 'Whether increased workloads and hours under the contracts without agreed fair remuneration made the contracts unfair in performance.' "Whether Australia Post's enforcement of clauses barring goodwill on assignment was unfair." 'What just compensation should be ordered.']

Ratio Decidendi

The applicant was an independent contractor, and the contracts were not shown to have been designed to avoid award provisions. However, although the contracts were fairly entered into at inception, they became unfair in performance because Australia Post increased the applicant's workload and hours, including by adding work and geographic areas, without agreed fair remuneration, while the contractual dispute procedure failed to resolve the remuneration dispute. Australia Post also acted unfairly in changing its practice concerning goodwill and preventing reassignment for goodwill. The contracts were therefore varied and compensation was ordered for underpayment, superannuation savings and...

Court Disposition

Application allowed in part; contracts found unfair in performance; contracts varied; goodwill clauses void ab initio; compensation, interest and costs ordered.

Orders

  • ['In the performance of Contracts 1116, 1088 and 1129 there was an unfairness.' 'The terms of each contract were varied to reflect that the applicant be paid a just rate for the hours worked under each contract and an extra payment allowing for superannuation.' 'The respondent was ordered to pay $72,450 as just...