Murray John Hoy v Knight Frank Hooker (Vic) Pty Ltd [1995] IRCA 104

Murray John Hoy v Knight Frank Hooker (Vic) Pty Ltd [1995] IRCA 104

The applicant was not employed under award conditions, was employed for 120 days, and his contract provided a fixed annual salary of $70,000 without prescribing normal hours for the performance of work. Although the expression normal business hours could be given meaning in Clause 2.4, the contract could not be implied to prescribe normal hours for performance of work or to disaggregate the salary into normal wages and additional wages. The total wages therefore exceeded the amount calculated under S170CD(1)(b), so the S170EA application was outside jurisdiction and had to be struck out.

Jurisdiction
Australia
Judgment Date
16 March 1995
Procedural Posture
Unlawful Termination of Employment Application Under S170 EA of the Industrial Relations Act 1988 / Respondent's Notice of Motion to Strike Out the Application for Want of Jurisdiction and for Costs
Outcome
Application under S170EA struck out for want of jurisdiction; respondent's application for costs dismissed.
Legal Topics
['unlawful Termination' 'jurisdiction' 'relevant Wages' 'award Conditions' 'implied Terms in Employment Contracts' 'costs']
['industrial Law' 'employment Law'] ['unlawful Termination' 'jurisdiction' 'relevant Wages' 'award Conditions' 'implied Terms in Employment Contracts' 'costs']

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Procedural Posture

Unlawful Termination of Employment Application Under S170 EA of the Industrial Relations Act 1988 / Respondent's Notice of Motion to Strike Out the Application for Want of Jurisdiction and for Costs

Legal Issues

  1. 1 ["Whether S170CD(1)(b) excluded the applicant's unlawful termination application because he was not employed under award conditions and his relevant wages exceeded the statutory pro rata amount." 'Whether the employment contract prescribed normal hours for the performance of work, expressly or by implication, so that some wages could be excluded as additional to normal wages under S170CD(4).' 'Whether the respondent should recover costs of the application.']

Ratio Decidendi

The applicant was not employed under award conditions, was employed for 120 days, and his contract provided a fixed annual salary of $70,000 without prescribing normal hours for the performance of work. Although the expression normal business hours could be given meaning in Clause 2.4, the contract could not be implied to prescribe normal hours for performance of work or to disaggregate the salary into normal wages and additional wages. The total wages therefore exceeded the amount calculated under S170CD(1)(b), so the S170EA application was outside jurisdiction and had to be struck out.

Court Disposition

Application under S170EA struck out for want of jurisdiction; respondent's application for costs dismissed.

Orders

  • ['The initial application under S170EA be struck out for want of jurisdiction because of the provisions of S170CD(1)(b) and the total amount of wages the employee received.' "The application that the applicant pay the respondent's costs be dismissed."]