Hansen Yuncken Pty Ltd v Andreas Costopoulos [2004] NSWIRComm 249

Hansen Yuncken Pty Ltd v Andreas Costopoulos [2004] NSWIRComm 249

The respondent was employed on a weekly hire basis under cl 10.1(e) of the Agreement and was entitled under cl 10.2(a) to one week's notice of termination. The description of him as permanent did not create a separate contractual category of engagement, and his overaward classification or payment at CW4 did not remove the application of the Award and Agreement. Because the Agreement prescribed notice in unambiguous terms, the s 106 order requiring 12 months' payment as notice was inconsistent with cl 10.2(a) and Kavanagh J erred in finding no inconsistency.

Jurisdiction
Australia
Judgment Date
31 August 2004
Procedural Posture
Application for Leave to Appeal and Appeal in an Unfair Contract Matter Under S 106 of the Industrial Relations Act 1996 / Full Bench Appeal From Judgment and Orders of Kavanagh J
Outcome
Leave to appeal granted; appeal upheld; judgment at first instance set aside and orders quashed; costs reserved.
Legal Topics
['unfair Contracts' 'termination of Employment' 'notice of Termination' 'federal Award and Certified Enterprise Agreement Coverage' 'inconsistency Between State Orders and Federal Industrial Instruments' 'overaward Payments' 'weekly Hire Employment']
['industrial Relations' 'employment Law' 'constitutional Law'] ['unfair Contracts' 'termination of Employment' 'notice of Termination' 'federal Award and Certified Enterprise Agreement Coverage' 'inconsistency Between State Orders and Federal Industrial Instruments' 'overaward Payments' 'weekly Hire Employment']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal in an Unfair Contract Matter Under S 106 of the Industrial Relations Act 1996 / Full Bench Appeal From Judgment and Orders of Kavanagh J

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 188 of the Industrial Relations Act 1996.' "Whether the respondent's description as a permanent employee created a type of engagement outside the Award and Agreement." "Whether overaward payments or classification at CW4 meant the Award and Agreement did not apply to the respondent's employment classification or notice entitlement." "Whether an order under s 106 of the Industrial Relations Act 1996 requiring 12 months' notice payment was inconsistent with cl 10.2(a) of the Agreement providing for one week's notice."]

Ratio Decidendi

The respondent was employed on a weekly hire basis under cl 10.1(e) of the Agreement and was entitled under cl 10.2(a) to one week's notice of termination. The description of him as permanent did not create a separate contractual category of engagement, and his overaward classification or payment at CW4 did not remove the application of the Award and Agreement. Because the Agreement prescribed notice in unambiguous terms, the s 106 order requiring 12 months' payment as notice was inconsistent with cl 10.2(a) and Kavanagh J erred in finding no inconsistency.

Court Disposition

Leave to appeal granted; appeal upheld; judgment at first instance set aside and orders quashed; costs reserved.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The judgment of Kavanagh J in Matter No IRC 3868 of 2001 made on 6 November 2003 is set aside and the orders made by her Honour on 19 February 2004 are quashed.' 'The parties have liberty to file short minutes of consent orders in respect of the stay granted of...