Clarke v Divisional Security (Aust) Pty Limited and Others [2007] NSWIRComm 237

Industrial Court of New South Wales

CITATION: Clarke v Divisional Security (Aust) Pty Limited and Others [2007] NSWIRComm 237

Applicant: Robert Clarke

First Respondent: Divisional Security (Aust) Pty Limited (in liquidation) PARTIES: Second Respondent: Starfinn Pty Limited (in liquidation)

Third Respondent: Lubo Raskovic

FILE NUMBER(S): IRC 6254 of 2002

CORAM: Backman J

CATCHWORDS: Unfair contract - application under s 106 of the Industrial Relations Act 1996 - applicant worked as a security officer - contract under which the applicant worked an oral contract whereby applicant paid at an hourly rate of $12, later increased to $14 per hour - whether the work was performed by the applicant or through his service company Apteka Pty Ltd - consideration as to which corporate entity employed the applicant - whether contract between the applicant and the first respondent was unfair - whether contract between the applicant and the first respondent was against the public interest - whether the contract avoided the provisions of the Security Industry (State) Award - whether the contract permitted the first respondent to use a dominant bargaining position - whether the contract was unfair because of the first respondent's conduct in transferring the applicant's employment to the second respondent - whether the first respondent failed to pay the applicant a superannuation guarantee - contract found to be unfair, against the public interest and to avoid the provisions of the Award - whether s 108B of the Act applicable - consideration of third respondent's culpability and liability to pay the whole of underpayment claimed - third respondent culpably associated with the making and operation of the contract - orders - costs.