Mark Cotton v Harpoon Investments [2001] NSWIRComm 198

Mark Cotton v Harpoon Investments [2001] NSWIRComm 198

The contract of employment, the representations about back pay, and the 12 July 1997 letter concerning directorship and shareholding were contracts or related conditions or collateral arrangements within s 106 and had a real and substantial connection with New South Wales because the applicant performed the bulk of his employment in Sydney, the Sydney site was central to the business, and the respondents acquiesced in and benefited from that work. The arrangements were unfair because the applicant was induced to remain employed on reduced salary by a promise of back pay that was not honoured, did not receive superannuation in accordance with the contract, received no bonus and the bonus...

Jurisdiction
Australia
Judgment Date
12 September 2001
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment in Court Session After Hearing; Proposed Orders Made With Short Minutes to Be Filed and Matter Listed to Make Final Orders
Outcome
The contract of employment was found unfair and was to be varied from commencement; the first and third respondents were to pay back pay, superannuation shortfall, interest and costs, while no money order was made for bonus, notice, redundancy, or against the second respondent.
Legal Topics
['unfair Contract' 'contract of Employment' 'proper Law and New South Wales Jurisdiction' 'back Pay' 'superannuation' 'culpable Association of Company Directors' 'costs']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contract' 'contract of Employment' 'proper Law and New South Wales Jurisdiction' 'back Pay' 'superannuation' 'culpable Association of Company Directors' 'costs']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment in Court Session After Hearing; Proposed Orders Made With Short Minutes to Be Filed and Matter Listed to Make Final Orders

Legal Issues

  1. 1 ["Whether the applicant's contract of employment and related arrangements were unfair, harsh or unconscionable within s 106 of the Industrial Relations Act 1996." 'Whether the contract or arrangement had a real and substantial connection with New South Wales despite the proper law of the contract being the law of Victoria.' 'Whether the second and third respondents were culpably associated with the making or operation of the contract or arrangement so as to be liable for money orders.' 'What monetary and other relief should be ordered for unpaid back pay and superannuation.']

Ratio Decidendi

The contract of employment, the representations about back pay, and the 12 July 1997 letter concerning directorship and shareholding were contracts or related conditions or collateral arrangements within s 106 and had a real and substantial connection with New South Wales because the applicant performed the bulk of his employment in Sydney, the Sydney site was central to the business, and the respondents acquiesced in and benefited from that work. The arrangements were unfair because the applicant was induced to remain employed on reduced salary by a promise of back pay that was not honoured, did not receive superannuation in accordance with the contract, received no bonus and the bonus...

Court Disposition

The contract of employment was found unfair and was to be varied from commencement; the first and third respondents were to pay back pay, superannuation shortfall, interest and costs, while no money order was made for bonus, notice, redundancy, or against the second respondent.

Orders

  • ["The contract of employment made on 31 January 1996 between the applicant and the first respondent is to be varied from its commencement by inserting a provision that, if Mr Cotton agreed to accept an annual salary of less than $60,000 per annum for reasons relating to the company's financial position, he shall be...