The Newsagents' Association of NSW and ACT Ltd v State Transit Authority of New South Wales [2007] NSWIRComm 32

Industrial Court of New South Wales

CITATION: The Newsagents' Association of NSW and ACT Ltd v State Transit Authority of New South Wales [2007] NSWIRComm 32

APPLICANT: The Newsagents' Association of NSW and ACT Ltd PARTIES: RESPONDENT: State Transit Authority of New South Wales

FILE NUMBER(S): IRC 1171 of 2005

CORAM: Haylen J

CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106, s 108(c) - Notice of Motion challenging jurisdiction of Court to make orders - applicant a registered organisation of employers representing newsagents - respondent provides bus tickets under licence to newsagents - dispute as to appropriateness of commission for reselling tickets - applicant alleges commission reduced unreasonably and seeks variation of newsagents' contracts to insert higher commission automatically increased by CPI and insertion of dispute settlement and arbitration clause - numerous challenges to jurisdiction - allegation that proceedings not properly authorised - motion of authorisation considered in context of discussion at meeting of governing body - application authorised - no invalidity of authorising resolution because of address by person not a member of governing body - challenge to capacity of applicant to bring application in the transport industry - nomination of transport industry mere misdescription at worst - no jurisdictional issue arises from misdescription of industry - evidence presently available capable of supporting a finding that employees of applicant association were employed in the industry to which the impugned contract relates - allegation that contract not one whereby work is performed in an industry - claim of mere "commercial" contract - test for jurisdiction laid down by High Court - evidence at present stage shows ongoing participation of respondent after tickets paid for by resellers - control of sale of ticket by reference to location, price and number sequence - contractual terms envisage the performance of work by newsagents and their staff - jurisdictional challenge weak but also premature - challenge to a ground of unfairness on "Truelove" basis - applicant's case that respondent reserves to itself ability to unilaterally alter level of commission - such power alleged to be part of arrangement - relief directed at both written contractual terms and surrounding arrangements - "Truelove" principle inapplicable - Notice of Motion dismissed - parties directed into conciliation