Camilleri v Auto Recyclers Pty Limited t-as Pick & Pay Less Self Serve Auto Parts [2010] NSWIRComm 179

Industrial Court of New South Wales

CITATION: Camilleri v Auto Recyclers Pty Limited t-as Pick & Pay Less Self Serve Auto Parts [2010] NSWIRComm 179 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Michael Camilleri (Applicant) Auto Recyclers Pty Limited t/as Pick & Pay Less Self Serve Auto Parts (Respondent)

FILE NUMBER(S): IRC984 of 2006

CORAM: Kavanagh J

UNFAIR CONTRACT - s 106 claim for unfairness in contract of employment re underpayment for long hours worked - failure of employer to implement incentive scheme - failure to provide procedural fairness in circumstances of termination.

CATCHWORDS: JURISDICTIONAL CHALLENGE - claim by respondents employee an award based employee rejected - consideration as to effect after employer joins industry association and becomes party to award on contract of employment - assertion once a party becomes a party to award a breach of terms and conditions of employment must be heard under Federal scheme rejected - assertion claim is pleaded as breach of contract case rejected - held Court has jurisdiction to hear claim under s106

UNFAIRNESS - variations made to contract - parties unequal in bargaining power - unfairness in conduct makes contract unfair - just compensation ordered

Annual Holidays Act 1944 LEGISLATION CITED: Industrial Relations Act 1996 s 105, s 106 Long Service Leave Act 1955

Ace Business Brokers v Phillips-Treby [2000] NSWIRComm 163; (2000) 100 IR 420 Brown v Rezitis (1970) 127 CLR 157 Burgess v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432; (2003) 132 IR 400 Byrne v Australian Airlines (1995) 185 CLR 410 Camilleri v Auto Recyclers Pty Limited [2008] NSWIRComm 84 CASES CITED: Federated Miscellaneous Workers' Union of Australia New South Wales Branch v Wilson Parking (NSW) Pty Ltd 1980 AR 352 Lipman v A G Lifestyle Management Pty Limited [2003] NSWIRComm 160 Myer Stores Limited t/as Grace Bros v Stowart (1994) 55 IR 21 Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 Walker v Industrial Court of NSW (1993) 53 IR 121