Everitt v Cuscal Shared Services Pty Ltd and anor [2005] NSWIRComm 319

Everitt v Cuscal Shared Services Pty Ltd and anor [2005] NSWIRComm 319

Orders sought by the applicant in so far as they relate to the second respondent would directly conflict with, and are inconsistent with, the provisions of clause 17 of the relevant Federal award, especially regarding redundancy and notice on termination. Pursuant to s 109 of the Constitution and s 152(1) Workplace Relations Act 1996, the Commonwealth instrument prevails and so much of the applicant’s claim against the second respondent must be dismissed as invalid to the extent of inconsistency. Leave to amend is granted except for certain claims which would also be inconsistent and are struck out. Costs follow the event subject to the reservation about costs occasioned by an adjournment...

Parties
Applicant: Lesley Everitt; First Respondent: Cuscal Shared Services Pty Ltd; Second Respondent: Credit Union Services Corporation (Australia) Limited (ACN 087 822 455)
Jurisdiction
Australia
Judgment Date
21 December 2005
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Application – Strike Out Motion, Orders on Amendment and Dismissal of Part of Claim
Outcome
Claim against the second respondent dismissed to the extent filed in summons of 6 May 2004; leave granted to amend summons, with specific claims struck out; orders as to costs made.
Legal Topics
Unfair Contracts, Jurisdictional Inconsistency, Redundancy, Commonwealth Award Preclusion of State Orders, Amendment of Summons, Strike Out Applications
Employment Law Industrial Law Constitutional Law Unfair Contracts Jurisdictional Inconsistency Redundancy Commonwealth Award Preclusion of State Orders Amendment of Summons +1 more

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Parties

Lesley Everitt

Applicant

Cuscal Shared Services Pty Ltd

First Respondent

Credit Union Services Corporation (Australia) Limited (ACN 087 822 455)

Second Respondent

Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Application – Strike Out Motion, Orders on Amendment and Dismissal of Part of Claim

Legal Issues

  1. 1 Whether the second respondent was the applicant's employer for the relevant period
  2. 2 Whether an order under s 106 of the Industrial Relations Act 1996 would be inconsistent with the terms of a Federal award and is therefore invalid per s 109 of the Constitution
  3. 3 Whether claims for bonus entitlements and calculation upon redundancy are matters covered by the Federal award

Ratio Decidendi

Orders sought by the applicant in so far as they relate to the second respondent would directly conflict with, and are inconsistent with, the provisions of clause 17 of the relevant Federal award, especially regarding redundancy and notice on termination. Pursuant to s 109 of the Constitution and s 152(1) Workplace Relations Act 1996, the Commonwealth instrument prevails and so much of the applicant’s claim against the second respondent must be dismissed as invalid to the extent of inconsistency. Leave to amend is granted except for certain claims which would also be inconsistent and are struck out. Costs follow the event subject to the reservation about costs occasioned by an adjournment...

Court Disposition

Claim against the second respondent dismissed to the extent filed in summons of 6 May 2004; leave granted to amend summons, with specific claims struck out; orders as to costs made.

Orders

  • Applicant has leave to amend the summons as per proposed amended summons except claims 3(e) and (i) which are struck out; applicant to file and serve amended summons within 28 days.
  • So much of the applicant's claim against the second respondent by reason of the summons filed on 6 May 2004 is dismissed.