Costopoulos v Hansen Yuncken Pty Limited [2003] NSWIRComm 335

Industrial Relations Commission of New South Wales in Court Session

CITATION : Costopoulos v Hansen Yuncken Pty Limited [2003] NSWIRComm 335 Applicant: Andreas Costopoulos PARTIES : Respondent: Hansen Yuncken Pty Limited

FILE NUMBER: IRC3868 of 2001 CORAM: Kavanagh J CATCHWORDS : Section 106 claim - Federal Award and Certified Enterprise Partnership Agreement exist covering labourers in construction industry - Employee terminated after 23 years' service with no notice payment - employee on holiday pay when terminated - Employer asserts employee served out Notice while receiving holiday pay - question as to breach of Annual Holidays Act - Statutory entitlements of Federal Award and Agreement allow statutory relief if breached - No inconsistency between State and Federal statutory rights - Federal status of Award and Agreement but variation of some of employee's terms and conditions under his contract of employment - Contract of employment stands alone - Facts reveal employment category and notice part of employee's contract of employment therefore attract relief under s106 of the State Act- Relief under s106 allowed - Orders as to just compensation - Section 109A not applicable - Matter raises issues as to the term of and conduct of the employment contract rather than claim essentially an unfair dismissal claim - Orders made. Industrial Relations Act 1996 LEGISLATION CITED : Workplace Relations Act 1996 Annual Holidays Act 1944 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 George Albert Byrne & George Mortimer Frew v Australian Airlines Ltd (1995) 185 CLR 410 BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 102 FCR 97 Burgess & Ors v Mount Thorley Operations Pty Limited (2002) 115 IR 13 Thornthwaite v Australian National Credit Union Ltd (2002) 116 IR 438 Clyde Engineering v Cowburn (1926) 37 CLR 466 Victoria v The Commonwealth (1937) 58 CLR 618 CASES CITED : Telstra Corp Ltd v Worthing (1999) 197 CLR 61 Metal Trades Industry Association of Australia v Amalgamated Metal Workers and Shipwrights' Union (1983) 152 CLR 632 Hudson v Qantas Airways Ltd (1985) 10 IR 331 Barry v Incitec Ltd (1991) 45 IR 143 Stonham v Speaker of Legislative Assembly (2000) 97 IR 325 State of New South Wales v Health and Research Employees Association of New South Wales (unreported, Fisher CJ, Bauer and Hill JJ, 31 March 1993 Westfield v Adams (2002) 114 IR 241 Davis v General Transport Development Pty Ltd [1967] NSW AR 371 Hogan v Employment National (Administration) Pty Ltd [2000] NSWIRC Comm47 Abboud v The State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 HEARING DATES: 05/12/2003; 05/13/2003; 05/20/2003; 05/27/2003 DATE OF JUDGMENT: 11/06/2003