Joseph Kazimierz Winsen v The University of Newcastle [2004] NSWIRComm 401

Industrial Relations Commission of New South Wales in Court Session

CITATION : Joseph Kazimierz Winsen v The University of Newcastle [2004] NSWIRComm 401 APPLICANT: Joseph Kazimierz Winsen PARTIES : RESPONDENT: The University of Newcastle FILE NUMBER: IRC 8589 of 2001 CORAM: Staunton J CATCHWORDS : Unfair contract alleged - application for relief relating to payment of superannuation contributions made by respondent - ambiguity arising from amendment to Principal Trust Deed regarding requirement for the employer to increase its superannuation contributions - provisions of the Superannuation Trust Deed part of the contract of employment and within jurisdiction - connection established between relevant superannuation provisions and return to respondent's employment - no unfairness as to initial steps taken by respondent - unfairness arises in respondent's actions regarding applicant when compared to another employee in exactly the same circumstances as the applicant - relief granted - order made that the contract between the applicant and respondent be varied in relation to superannuation contributions of respondent to relevant scheme - order as to interest and costs. Industrial Arbitration Act 1940 Industrial Relations Act 1991 LEGISLATION CITED : Industrial Relations Act 1996 Supreme Court Act 1970 University of Newcastle Act 1964 (NSW) University of Newcastle Act 1989 (NSW) Agius v Arrow Freightways Pty Limited (1965) AR (NSW) 77 Baker v National Distribution Services Limited (1993) 50 IR 254 Davies v General Transport Development Pty Limited (1967) AR (NSW) 37 CASES CITED : Gosper and ors v Sawyer and anor: Re Industrial Relations Commission of NSW and ors, ex parte Gosper [1984-1985] 160 CLR 548 Reich v Client Service Professionals (2000) 49 NSWLR 551 Rothmans Distribution Services Limited v Full Court of the Industrial Court of New South Wales (1994) 53 IR 157 Solution 6 Holdings Limited and ors v Industrial Relations Commission and ors [2004] NSWCA 200 Sydney Water Corporation v Industrial Relations Commission of New South Wales [2004] NSWCA 436 HEARING DATES: 11/04/2004; 11/05/2004 DATE OF JUDGMENT: 02/24/2005