Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4 INDUSTRIAL LAW – Claim for entitlements under award – Appellant local representative of elevator company in country area and obliged to ensure emergency assistance always available – Whether appellant was entitled to "standing by" payments at ordinary time during all non-working hours – Appellant held entitled to overtime and "call back" payments – Whether employer was entitled to deduct difference between actual wages paid and moneys payable under award for ordinary time – What constitutes reasonable notice of termination of employment. PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Appeal against orders in relation to preliminary questions – Application made out of time because of confusion as to the identity of the court having jurisdiction – Leave granted. Industrial Relations Act 1988 (now Workplace Relations Act 1996) s179 Rules of Industrial Relations Court of Australia, Order 52 rule 5

Poletti v Ecob (1989) 31 IR 321 followed

PETER ANTON CHARLES LOGAN v OTIS ELEVATOR COMPANY PTY LIMITED N218 of 1999 WILCOX CJ, MARSHALL and MADGWICK JJ 22 JUNE 1999 SYDNEY IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N218 of 1999

ON APPEAL FROM A JUDGE OF THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

BETWEEN: PETER ANTON CHARLES LOGAN

Appellant

AND: OTIS ELEVATOR COMPANY PTY LIMITED

Respondent

JUDGES: WILCOX CJ, MARSHALL and MADGWICK JJ

DATE OF ORDER: 22 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be upheld in part. 3. The orders made by Moore J on 11 March 1999 be varied by: (i) deleting order 4; and (ii) adding to the said orders the following additional order: 8. The claim of the applicant, Peter Anton Charles Logan, be assessed on the bases that: (a) the respondent, Otis Elevator Company Pty Limited, was bound to give to the said applicant three months' notice of termination of employment or to pay three months' salary in lieu of notice; and (b) the said respondent is not entitled to set-off against its liability to make payments in respect of overtime and call-backs, pursuant to clause 14(a) and (d) of the National Metal and Engineering On-Site Construction Award 1989, the difference between the salary paid by the said respondent to the said applicant and the amount payable to him under the said award for ordinary time. 4. The appeal be otherwise dismissed.