James Andrew John Nixon v Ord Minnett Limited [1996] IRCA 83

DECISION NO: 83/96 CATCHWORDS INDUSTRIAL LAW - review of exercise of power by a judicial registrar - scope of review - nature of powers that may be reviewed - approach to be taken to a challenge to an interlocutory order

Industrial Relations Act 1988 ss 170CD, 170EA, 376, 377 Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437, 442 Foxcroft v The Ink Group Pty Ltd (1994) 1 IRCR 215, 217 Harris v Caladine (1991) 172 CLR 84, 95, 124-125, 153-154, 164 Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, 342, 343-344 Keating v Teico Investments Pty Ltd (1994) 57 IR 339, 340, 343 Re Kwiatek and Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374, 380-381 No. VI 1625R of 1995 JAMES ANDREW JOHN NIXON v ORD MINNETT LIMITED Marshall J Sydney (heard in Melbourne) 14 March 1996

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 1625R of 1995 BETWEEN: JAMES ANDREW JOHN NIXON Applicant AND: ORD MINNETT LIMITED Respondent JUDGE: Marshall J PLACE: Sydney (heard in Melbourne) DATE: 14 March 1996 ORDER THE COURT ORDERS THAT: 1. The respondent's motion, notice of which was given on 26 February 1996, be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 1625R of 1995 BETWEEN: JAMES ANDREW JOHN NIXON Applicant AND: ORD MINNETT LIMITED Respondent JUDGE: Marshall J PLACE: Sydney (heard in Melbourne) DATE: 14 March 1996 REASONS FOR JUDGMENT BACKGROUND

On 17 February 1995 the applicant filed in the Victoria District Registry of the Court an application pursuant to s170EA Industrial Relations Act 1988 ("the Act") in which relief, including reinstatement and compensation, was claimed arising out of the termination of his employment by the respondent on 6 February 1995. On 23 February 1995 the District Registrar referred the matter to the Australian Industrial Relations Commission ("the Commission") for conciliation. On 12 May 1995, Commissioner Frawley certified that the Commission was unable to settle the matter by conciliation. On 11 October 1995 the respondent moved the Court for an order that the proceeding be dismissed pursuant to O.20 r 2(1)(a) of the Rules of Court, having regard to the amount of the applicant's wages and the effect of s170CD of the Act. In the alternative the respondent sought an order that:- "the question of whether by operation of s170CD of the Industrial Relations Act 1988 (Cth), the Applicant was entitled to apply to the Court for a remedy pursuant to s170EA(1), because of the amount of his wages, be decided separately from any other question and before trial of the proceeding on a date or dates to be fixed." Section 170CD provides that:- "170CD(1) 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; or (b) in respect of an employee who was continuously employed by the employer for a period less than 12 months immediately before the termination day - on the termination day the employee's relevant wages exceeded the amount worked out using the formula: days employed 365 x applicable amount 170CD(2) The applicable amount for the purposes of subsection (1) is: (a) subject to paragraph (b), $60,000; or (b) if regulations made in accordance with Subdivision CA prescribe a formula for the annual indexation of the amount referred to in paragraph (a) - the amount worked out using that formula as it applies from time to time. 170CD(3) For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee. 170CD(4) In this section: 'days employed' means the number of days in the period for which the employee was continuously employed by the employer immediately before the termination day; 'relevant award' means an award or a State award; 'relevant wages', in relation to an employee, means 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) if paragraph (1)(b) applies to the employee - the lesser period referred to in that paragraph; 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; 'termination day' means the day on which the employer terminated the employee's employment 'termination of employment' means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application was made to the Court before that commencement." (Note: re 2(a) - $60,000 - indexed to $62,200 from 1 July 1995 - see Reg 30 DA)