Jackson v Monadelphous Engineering Associates Pty Ltd [1997] IRCA 281

DECISION NO:281/97 INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - EMPLOYEES OR INDEPENDENT CONTRACTORS - Discussion of indicia of nature of relationship - Whether express contractual terms necessarily indicate whether worker is employee or independent contractor - INDUSTRIAL LAW - DETERMINATION OF APPLICABLE AWARD - Construction of award provisions - Meaning of the term "on-site construction work" - Whether workers were overpaid under an award - Whether employer bound to compensate workers for under-award payments - Whether employees estopped from claiming payment owed under an award - INDUSTRIAL LAW - WAS EMPLOYMENT TERMINATED AT THE INITIATIVE OF THE EMPLOYER? -Doctrine of "constructive discharge" of employment - meaning of phrase "termination of employment" - REMEDY - Whether reinstatement would be impracticable - Whether continued union activity on part of employee would create impracticability - Delay caused by actions of applicant - Whether applicant failed to mitigate loss Industrial Relations Act 1988 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Massey v Crown Life Insurance Co (1978) 1 WLR 676 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Re Porter; Re Transport Workers' Union of Australia (1989) 34 IR 179 Transport Workers' Union of Australia v Glynburn Contractors (Salisbury) Pty Ltd (1990) 34 IR 138 Universal Tankships (Inc) Monrovia v International Transport Workers Federation [1983] AC 366 Gurran v Tarbook Pty Ltd (unreported, Industrial Relations Court of Australia, 13 September 1996) Vabu Pty Ltd v Commissioner of Taxation (1996) 33 ATR 537 Ray v Radano (1967) 67 AR(NSW) 471 Poletti v Ecob (No. 2) (1989) 31 IR 321 Josephison v Walker (1914) 18 CLR 691 Beckford Nominees Pty Ltd v Shell Company of Australia (1986) 73 ALR 373 Kid v Savage River Mines (1984) 6 FCR 398 The Commonwealth v Verwayen (1990) 170 CLR 394 Mohazab v Dick Smith Electronics (No. 2) (1995) 62 IR 200 Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, 7 February 1997) Patterson v Newcrest Mining Limited (unreported, Industrial Relations Court of Australia, 6 June 1996) Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 Australian Workers' Union v Federated Engine Drivers and Firemens Associations of Australasia (1992) 44 IR 453 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 MARTIN JACKSON and RANDAL WILSON v MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD No. SI 1507 of 1995, 1517 of 1995, 1516 of 1995, 1518 of 1995, 1030 of 1995 MOORE J MELBOURNE (HEARD IN ADELAIDE) 17 OCTOBER 1997 IN THE INDUSTRIAL RELATIONS ) General Distribution ) COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) NO SI 1507, 1516, 1030 of 1995 BETWEEN: MARTIN JACKSON Applicant NO SI 1517, 1518 of 1995 AND: RANDAL WILSON Applicant AND: MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD Respondent JUDGE: Moore J PLACE: Melbourne (Heard in Adelaide) DATE: 17 October 1997 ORDER OF THE COURT THE COURT ORDERS THAT: Matter No. SI 1507 of 1995, SI 1517 of 1995 1. The applications are dismissed. Matter No. SI 1516 of 1995 and 1518 of 1995 1. The applications are adjourned to enable the applicant to file short minutes of order within 14 days of the date of the publication of these reasons for judgment. Matter No. SI 1030 of 1995 1. The respondent reinstate the applicant by reappointing him to the position he held immediately before his termination. 2. Within 21 days of the date of making these orders, the respondent pay to the applicant compensation in the sum of $35,200 less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.