Vourloumis v Allied Express Transport Pty Ltd [2006] NSWIRComm 399

Industrial Relations Commission of New South Wales in Court Session

CITATION: Vourloumis v Allied Express Transport Pty Ltd [2006] NSWIRComm 399

APPLICANT Suearne Vourloumis PARTIES: RESPONDENT Allied Express Transport Pty Ltd

FILE NUMBER(S): IRC 2950 of 2000

CORAM: Marks J

CATCHWORDS: Unfair contract - rate & circumstances of commission to be paid to applicant - respondent conducted itself initially in manner inconsistent with terms and conditions - whether commission subject to budget - calculation of commission - whether particular accounts to be included in assessing commission - whether claim is merely for enforcement of contract. HELD: Contract of employment commission of 5% on sales based on annual turnover without reference to budget hurdle - lack of sufficient precision of entitlement to earn commission - lack of certainty of contractual provisions going to precise circumstances in which commission to be paid and other matters as to calculation of commission - respondent's persistence in seeking to force applicant to agree to provisions which she understood significantly altered her entitlements caused relationship breakdown - not claim to merely enforce - understanding of particular party not bar to application of s 106 - questions of enforcement of provisions of contract can only go to contract provisions themselves - contract of employment found to be unfair and varied accordingly.

LEGISLATION CITED: Industrial Relations Act 1996

Allison v Bega Valley Council (1995) 63 IR 68 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-1982) 149 CLR 337 CASES CITED: Sydney Water Corporation v NSW Industrial Relations Commission and anor (2004) 61 NSWLR 661 Thomson v Societe Generale Australia Limited [2006] NSWIRComm 24 Truelove v Sydney Water Corporation Ltd (2005) 146 IR 253