Commander Australia Limited v Kerr [2004] NSWIRComm 74

Industrial Relations Commission of New South Wales in Court Session

CITATION : Commander Australia Limited v Kerr [2004] NSWIRComm 74 APPELLANT: Commander Australia Limited PARTIES : RESPONDENT: David Andrew Kerr FILE NUMBER: IRC 4577 of 2003 CORAM: Wright J President; Walton J Vice-President; Staff J Appeal - Application for leave to appeal - Finding at first instance that annual remuneration was less than remuneration cap - s 108A of Industrial Relations Act 1996 - Whether annual remuneration was to be determined according to the actual amount paid to the employee in the 12 months preceding termination of employment or whether an incentive payment earned in previous financial year by reference to respondent's performance but paid during 12 months' prior to termination of the contract forms part of remuneration package for the purposes of s 108A - Purposive approach to interpretation - Importance of interpreting particular words in context - Held that remuneration package for the purpose of 108A was to be determined according to what applicant "paid" or "received" in the 12 months preceding termination of employment - Leave to appeal granted - Appeal upheld - Decision set aside. CATCHWORDS : Unfair contract - Appeal - Application for leave to appeal - Finding at first instance that annual remuneration was less than remuneration cap - s 108A of Industrial Relations Act 1996 - Whether annual remuneration was to be determined according to the actual amount paid to the employee in the 12 months preceding termination of employment or whether an incentive payment earned in previous financial year by reference to respondent's performance but paid during 12 months' prior to termination of the contract forms part of remuneration package for the purposes of s 108A - Purposive approach to interpretation - Importance of interpreting particular words in context - Held that remuneration package for the purpose of 108A was to be determined according to what applicant "paid" or "received" in the 12 months preceding termination of employment - Leave to appeal granted - Appeal upheld - Decision set aside. Industrial Relations Act 1996 s 83 s 106 s 108A s 108B LEGISLATION CITED : Industrial Relations Amendment (Unfair Contracts) Act 2002 Interpretation Act 1987 s 33 s 34 Workplace Relations Act 1996 (Cth) Austeck Pty Limited v Charalambos Atsalos [2003] NSWIRComm 290 Brasier v Link Recruitment Pty Ltd Whelan C, 13 August 2001, Print PR 907688 Carlton Brewery Limited v Federal Commissioner of Taxation (1947) 73 CLR 446 CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384 Club Employees (State) Award and other Awards, Re (2002) 122 IR 272 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234 Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award [2003] NSWIRComm 405 CASES CITED : Fischer v SMS Employees Pty Ltd Watson SDP, 19 September 2000, Print T0978 Flaherty v Intertan Australia Ltd [2000] NSWIRComm 225 Fox v GIO Australia Limited [2002] 56 NSWLR 512, (2002) 120 IR 410 Jones v Wrotham Park Settled Estates [1980] AC 74 Kerr v Commander Australia Limited [2003] NSWIRComm 232 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Mills v Meeking (1990) 169 CLR 214 Mitchforce Pty Ltd v Starkey (No 2) [2003] NSWIRComm 458 Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 Whittaker v Comcare (1998) 86 FCR 532 HEARING DATES: 02/23/2004 DATE OF JUDGMENT: 04/08/2004