David Andrew Kerr v Commander Australia Ltd [2003] NSWIRComm 232

Industrial Relations Commission of New South Wales in Court Session

CITATION : David Andrew Kerr v Commander Australia Ltd [2003] NSWIRComm 232 APPLICANT David Andrew Kerr PARTIES : RESPONDENT Commander Australia Ltd FILE NUMBER: IRC 2202 of 2003 CORAM: Glynn J CATCHWORDS : Unfair contract - s 108A - payments made to applicant in 12 months prior to termination above $200,000 remuneration cap - payment of incentive payment in that period which took payments above the salary cap related to remuneration package under contract of employment for earlier 12 months - no incentive payment as advised to applicant after termination payable for period of 12 months immediately prior to termination - base salary otherwise paid below salary cap for that period of 12 months - Held: payment of incentive payment within 12 months period immediately before termination, but which payment related back to period earlier than that 12 months, not part of remuneration package for purposes of calculation of remuneration cap in terms of s 108(1)(a) - applicant not barred from making application pursuant to s 106. LEGISLATION CITED : Industrial Relations Act 1996 s 83(1)(b) s 84 s 106 s 108A(1)(a) s 108A(3)(a) Euphoric Pty Limited v Ryledar Pty Limited (2002) 117 IR 1 CASES CITED : Flaherty and Intertan Australia Ltd [2000] NSWIRComm 225 Mitchforce v Industrial Relations Commission & ors [2003] NSWCA 151 Virtue v NSW Department of Education and Training (1999) 92 IR 428 HEARING DATES: 07/02/2003 DATE OF JUDGMENT: 08/01/2003