Kevin Graham Scott v Bruce Wallace Picone and ors. [2002] NSWIRComm 239

Kevin Graham Scott v Bruce Wallace Picone and ors. [2002] NSWIRComm 239

The respondents' s 109 challenge failed because they did not establish with sufficient evidence that the Federal award covered the applicant's work or that the respondents were respondents to that award, did not establish with precision the matter dealt with by the Federal award, and wrongly treated s 106 as operating in the same field as award provisions. The Federal award was a minimum rates award and did not, by itself, cover the field or preclude operation of s 106 in relation to contractual unconscionability. In addition, substantial aspects of the applicant's claim, including alleged conduct surrounding releases and superannuation arrangements, were not shown to be matters dealt...

Jurisdiction
Australia
Judgment Date
17 September 2002
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract; Respondents' Notice of Motion Alleging Inconsistency With Federal Award Under S 109 of the Constitution / Interlocutory Notice of Motion
Outcome
Respondents' notice of motion dismissed.
Legal Topics
['unfair Contract Under S 106 of the Industrial Relations Act 1996' 'inconsistency Under S 109 of the Constitution' 'federal Award Coverage' 'workplace Relations Act 1996 (cth) S 152' 'minimum Rates Award' 'respondency to Award' 'premature Strike Out or Stay Application']
['industrial Relations' 'constitutional Law' 'employment Law'] ['unfair Contract Under S 106 of the Industrial Relations Act 1996' 'inconsistency Under S 109 of the Constitution' 'federal Award Coverage' 'workplace Relations Act 1996 (cth) S 152' 'minimum Rates Award' 'respondency to Award' 'premature Strike Out or Stay Application']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract; Respondents' Notice of Motion Alleging Inconsistency With Federal Award Under S 109 of the Constitution / Interlocutory Notice of Motion

Legal Issues

  1. 1 ['Whether s 106 of the Industrial Relations Act 1996 and any order made under it would be inconsistent with a Commonwealth law or Federal award so as to be invalid by operation of s 109 of the Constitution.' 'Whether the respondents established that the applicant and respondents were covered by the Pastoral Industry Award 1986.' 'Whether the Federal award dealt with the same matter as the relief sought under s 106.' 'Whether the proceedings should be struck out or stayed before final orders were made.']

Ratio Decidendi

The respondents' s 109 challenge failed because they did not establish with sufficient evidence that the Federal award covered the applicant's work or that the respondents were respondents to that award, did not establish with precision the matter dealt with by the Federal award, and wrongly treated s 106 as operating in the same field as award provisions. The Federal award was a minimum rates award and did not, by itself, cover the field or preclude operation of s 106 in relation to contractual unconscionability. In addition, substantial aspects of the applicant's claim, including alleged conduct surrounding releases and superannuation arrangements, were not shown to be matters dealt...

Court Disposition

Respondents' notice of motion dismissed.

Orders

  • ["The respondents' notice of motion is dismissed." 'The Court will hear the parties on the issue of costs.']