Hollis Duncan Rouse v Valtek Australia Pty Ltd [1995] IRCA 149

IN THE INDUSTRIAL RELATIONS ) No. WI 525 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY )

BETWEEN: Hollis Duncan Rouse Applicant AND: Valtek Australia Pty Ltd Respondent

BEFORE: Boon JR PLACE: Perth DATE: 12 April 1995

REASONS FOR JUDGMENT This is the hearing of a notice of motion filed by the respondent which has moved for orders that: 1. the applicant's claims be dismissed for want of jurisdiction; 2. there be no order as to costs. By application filed 15 November 1994 the applicant seeks reinstatement to his former employment with the respondent pursuant to S170EA of the Industrial Relations Act 1988. The respondent alleges that during the period of 12 months immediately preceding termination on 2 November 1994 the applicant received wages over the amount of $60,000. The respondent says that this court accordingly has no jurisdiction to hear the applicant's claim because of the effect of S170CD of the Industrial Relations Act, 1998, which states:

"170CD(1) [Employee not employed under award conditions] The following Subdivisions do not apply to a termination of employment of an employee who is not employed under award conditions if: (a) in respect of an employee who was continuously employed by the employer during the period of 12 months immediately before the termination day - on the termination day the employee's relevant wages exceeded the applicable amount; (b) ............ 170CD(2) [Amount] The applicable amount for the purposes of subsection (1) is: (a) subject to paragraph (b), $60,000; or (b) ............" Subsection (4) of S170CD defines "relevant wages" in relation to an employee as: "the total amount of the wages that the employee received or was entitled to receive, from the employer in respect of: (a) if paragraph (1) (a) applies to the employee - the period of 12 months referred to in that paragraph; or (b) ........ but, in relation to an employee whose contract of employment prescribes normal hours for the performance of work (whether by prescribing the number of hours in which, or the times at which, work is normally to be performed in a particular period), does not include any wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at other times."