Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441

Industrial Relations Commission of New South Wales in Court Session

CITATION: Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441

FIRST APPLICANT Rosetta Maestrale

SECOND APPLICANT ICU Security Pty Ltd

FIRST RESPONDENT Australian National Security Pty Ltd t/as All Night Security PARTIES: SECOND RESPONDENT Fiance Pty Ltd

THIRD RESPONDENT AFJ Holdings Pty Ltd

FOURTH RESPONDENT Alfio Peter Merlino

FILE NUMBER(S): IRC 5833 of 2001

CORAM: Staff J

CATCHWORDS: Unfair contract - Security guard - Services provided through business as sub-contractor - Remuneration less than employee would receive performing the work - Whether contract designed to or did avoid award - Whether employee or independent contractor - Whether award applied to applicant - Whether if award did apply Commission had jurisidction to hear application pursuant to s 106 of the Industrial Relations Act 1996 - Whether remedy provided by s 365 of the Industrial Relations Act 1996 - Delay in bringing application - Discretion - Held contract unfair - Contract designed to, and did avoid the provisions of an industrial instrument - Costs

Industrial Arbitration Act 1940 LEGISLATION CITED: Industrial Relations Act 1996

A & M Thompson Pty Ltd and others v Total Australia Ltd [1980] 2 NSWLR 1 ACE Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 CASES CITED: Brown v Rezitis (1970) 127 CLR 157 Davies & Anor v General Transport Development Pty Ltd & ors [1967] AR (NSW) 371 Huskisson RSL Sub-branch Club Ltd v Sullivan (1990) 20 NSWLR 332