Burgess and Ors v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432

Burgess and Ors v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432

Neither award nor enterprise agreement terms were incorporated into employment contracts; respondent's conduct did not render contracts unfair under s 106; orders sought by appellants for contractual variation or monetary compensation would be inconsistent with comprehensive federal regulation of termination and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 December 2003
Procedural Posture
Application for Leave to Appeal and Appeal / Appeal Decision With Further Orders and Directions
Outcome
Appeal dismissed, leave granted to appeal on costs, substantive claims denied, orders and directions for further submissions on outstanding issues and costs; costs reserved.
Legal Topics
['unfair Contracts' 'employment Contract Incorporation' 'redundancy' 'federal Award and Certified Agreement Inconsistency' 'jurisdiction of State Industrial Tribunal' 'section 109 Constitutional Inconsistency' 'remedies for Unfair Contractual Conduct']
['industrial Law' 'employment Law' 'constitutional Law'] ['unfair Contracts' 'employment Contract Incorporation' 'redundancy' 'federal Award and Certified Agreement Inconsistency' 'jurisdiction of State Industrial Tribunal' 'section 109 Constitutional Inconsistency' 'remedies for Unfair Contractual Conduct']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Appeal / Appeal Decision With Further Orders and Directions

Legal Issues

  1. 1 ['Whether federal award and enterprise agreement terms were expressly or impliedly incorporated into individual employment contracts' 'Whether the Commission had jurisdiction under s 106 Industrial Relations Act 1996 (NSW) to vary contracts or grant orders inconsistent with federal instruments' "Whether respondent's conduct rendered contracts unfair or unconscionable" 'Whether orders sought by applicants gave rise to constitutional inconsistency under s 109 of the Australian Constitution']

Ratio Decidendi

Neither award nor enterprise agreement terms were incorporated into employment contracts; respondent's conduct did not render contracts unfair under s 106; orders sought by appellants for contractual variation or monetary compensation would be inconsistent with comprehensive federal regulation of termination and redundancy; Commission lacks jurisdiction to grant inconsistent relief due to s 109 of the Constitution and relevant federal statutes.

Court Disposition

Appeal dismissed, leave granted to appeal on costs, substantive claims denied, orders and directions for further submissions on outstanding issues and costs; costs reserved.

Orders

  • ['Leave granted to extend time for appeal in relation to costs at first instance.' 'Appellants to file short minutes and submissions on outstanding issues and costs within 21 days.' 'Respondent to file reply submissions within 14 days.' 'Full Bench to sit for oral submissions on outstanding issues.' 'Costs reserved,...