Industrial Court of New South Wales CITATION: Maestrale & Anor v Australian National Security Pty Ltd trading as All Night Security & Ors (No 2) [2006] NSWIRComm 153 FIRST APPLICANT Rosetta Maestrale SECOND APPLICANT ICU Security Pty Ltd FIRST RESPONDENT Australian National Security Pty Ltd t/as All Night Security PARTIES: SECOND RESPONDENT Fiance Pty Ltd THIRD RESPONDENT AFJ Holdings Pty Ltd FOURTH RESPONDENT Alfio Peter Merlino FILE NUMBER(S): IRC 5833 of 2001 CORAM: Staff J CATCHWORDS: Unfair contract - Security guard - Contract designed to and did avoid the provisions of an industrial instrument - Compensatory order - Costs LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441 HEARING DATES: 09/03/2006 DATE OF JUDGMENT: 05/04/2006 FIRST APPLICANT Mr M Potts of counsel Solicitor: Mr A Mednis MacElbing, Mednis & Associates SECOND APPLICANT No appearance FIRST RESPONDENT No appearance LEGAL REPRESENTATIVES: SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT Mr R de Meyrick of counsel Solicitor: Mr P Carr Paris J Carr & Associates JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 4 May 2006 Matter No IRC 5833 of 2001 ROSETTA MAESTRALE & ANOR v AUSTRALIAN NATIONAL SECURITY PTY LTD T/AS ALL NIGHT SECURITY & ORS (NO 2) Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 153 1 In Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441, I determined a claim for relief which was advanced principally on the basis that the contract or arrangement under which Rosetta Maestrale ("the first applicant") performed work as a security guard was an unfair contract within the meaning of s 105(c) of the Industrial Relations Act 1996 ("the IR Act"), as a contract or arrangement "that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work" and secondly, under s 105(d) as a contract or arrangement "that is designed to, or does, avoid the provisions of an industrial instrument". 2 I found that the contract or arrangement between the first applicant and the first respondent was one which was designed to, and did, avoid the provisions of an industrial instrument within the meaning of s 105(d) of the IR Act. 3 At [90] - [91], I said: [90] In the exercise of discretion, I consider the first applicant is entitled to the benefit of an order which would compensate her for any shortfall as against the income at award level of an employee performing her work. That shortfall should be discounted to the extent that the structural arrangements of the parties' relationship gave the first applicant a financial benefit which is immutable, that is, which is not reviewable or will not be reviewed by the Commissioner for Taxation. [91] I direct the parties to confer on that issue and report the result thereof to me. 4 On 9 March 2006, the parties reached an agreement on the compensatory order to be made in this matter. The court made the following orders in chambers on that day which the parties have requested now be published. ORDERS The Court makes the following orders: 1. Alfio Peter Merlino, the fourth respondent, is to pay the first applicant the sum of $14,000. 2. Alfio Peter Merlino, the fourth respondent is to pay 85 percent of the first applicant's costs of the proceedings, as agreed or assessed, up to the date of judgment being 29 November 2005. Each party is to pay their own costs thereafter, excepting the first applicant's costs of the directions hearing on 12 January 2006 which shall be paid by the fourth respondent. 3. Leave is granted to Alfio Peter Merlino, the fourth respondent, to have this matter restored to the list if the fourth respondent wishes to pursue any application for costs against the second applicant. Such leave is to be exercised on or before 4.00 pm on Thursday 6 April 2006. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.