Kassafern Pty Ltd & Anor v Battery Assist Pty Limited (now known as ClubAssist Pty Limited) [2003] NSWIRComm 327

Industrial Relations Commission of New South Wales in Court Session

CITATION : Kassafern Pty Ltd & Anor v Battery Assist Pty Limited (now known as ClubAssist Pty Limited) [2003] NSWIRComm 327 First Applicant: Kassafern Pty Ltd PARTIES : Second Applicant: John Barry Geraghty Respondent: Battery Assist Pty Limited (now known as ClubAssist Pty Limited) FILE NUMBER: IRC2076 of 2001 CORAM: Kavanagh J CATCHWORDS : Section 106 application - Alleged unfairness of contract term requires 24 hour service, 365 days a year by service delivery provider - labour returns meagre reward - Evidence as to hours worked by second applicant requires identification of "on-road" service or "on-call" time - question of public interest - whether the applicant an employee - issue as to whether contract returns, as remuneration, less than that which would be earned by an employee - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Burgess & Ors v Mount Thorley Operations Pty Limited (2002) 115 IR 13 Stevenson v Barham (1976-77) 136 CLR 190 McNaught v Micador Australia Pty Ltd (1998) 83 IR 111 Brown v Rezitis (1970-71) 127 CLR 157 CASES CITED : Lipman & Anor v A G Lifestyle Management Pty Limited & Anor [2003] NSWIRComm 160 Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 101 IR 66 Mitchforce v Industrial Relations Commission & Ors [2003] NSWCA 151 McNaught v Micador Australia Pty Ltd (1998) 83 IR 111 Stevens v Brodribb Sawmilling Company Proprietary Limited, Gray v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 Stevenson v Barham (1976-77) 136 CLR 190 HEARING DATES: 05/13/2003; 05/14/2003; 05/15/2003; 05/16/2003; 05/20/2003; 05/30/2003; 06/24/2003; 07/07/2003 DATE OF JUDGMENT: 11/06/2003