All-Fect Distributors Limited & Ors v Stewart [2007] NSWIRComm 24

Industrial Court of New South Wales

CITATION: All-Fect Distributors Limited & Ors v Stewart [2007] NSWIRComm 24

FIRST APPELLANT All-Fect Distributors Limited

SECOND APPELLANT Fred Joseph Essey

PARTIES: THIRD APPELLANT Joseph Fred Essey

FOURTH APPELLANT Paul Fred Essey

RESPONDENT George Stewart

FILE NUMBER(S): IRC 2658 of 2006

CORAM: Walton J Vice-President at 1; Staff J at 1; Kavanagh J at 66

CATCHWORDS: Unfair contract - Application under s 106 of the Industrial Relations Act 1996 - Applicant engaged to sell confectionary to retail outlets - Applicant found to be independent contractor at first instance - Contract varied at first instance to provide an entitlement to payments under the provisions of the Commercial Travellers, &c (State) Award - Whether the court can interfere in free bargains entered into between parties to find unfairness - Test to be applied under s 106 of the Act - Whether respondent under "no restraint or inequality" - Whether "labour was not being oppressively exploited" - Held despite finding of freely made bargain open to court to exercise its discretion to interfere with bargain upon determining that it was unfair - No error of law or principle at first instance - Judge entitled to apply award in respect of compensation upon a finding of unfairness - Court has discretion to make wide-ranging orders which it considers to be "just in the circumstances of the case" - Liability assigned in accordance with the culpability of various appellants - Discretionary determination open on the evidence - Leave to appeal granted - Appeal dismissed - Costs reserved.