Mejias v Federal Express (Australia) Pty Ltd [2012] NSWIRComm 116

Industrial Relations Commission New South Wales Medium Neutral Citation: Mejias v Federal Express (Australia) Pty Ltd [2012] NSWIRComm 116 Hearing dates: 30 April, 1-4 May, 30 August 2012 Decision date: 24 October 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Directions made: 1. The applicant is directed to prepare short minutes of order reflecting the findings in this matter. The applicant is to confer with the respondent for the purpose of obtaining its consent to the short minutes. The applicant shall provide the short minutes of order to the Court, whether the short minutes are by consent or not, at a hearing at 10.00 am on Thursday 15 November 2012. In the event there is disagreement about the terms of the short minutes the Court will hear the parties as to their respective positions and determine what final orders are appropriate. 2. The Court apprehends there may be differences between the parties regarding the question of costs that raise issues as to whether orders other than the usual orders should be made. The parties shall file a written outline of submissions regarding costs by 4.00 pm on Wednesday 7 November 2012. The Court will hear oral submissions on costs in the proceedings scheduled for Thursday 15 November. Catchwords: UNFAIR CONTRACT - Claim by employee employed as security specialist in air transport industry that contract of employment unfair - Excessive hours of work - Failure by employer to ensure time off in lieu taken by employee - No overtime paid to employee - Unpaid business expenses incurred by employee - Clean hands principle - Whether employee engaged in disentitling conduct - Held contract of employment an unfair contract within meaning of Industrial Relations Act 1996 - Contract of employment to be varied - Compensation to be ordered - Costs to be determined. Legislation Cited: Industrial Relations Act 1996 Workplace Relations Act 1996 (Cth) Workplace Relations Regulations 1996 (Cth) Cases Cited: A & M Thompson Pty Ltd v Total Australia Ltd [1980] 2 NSWLR 1 Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 Baker v National Distribution Services Ltd (1993) 50 IR 254 Cavacuitti v XTMCA Ltd (Toyota Motor Corporation Australia Pty Ltd) [2002] NSWIRComm 117 Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 Federal Express v Mejias [2005] NSWIRComm 474 Federal Express v Mejias (No 2) [2005] NSWIRComm 481 Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180; (2006) 151 IR 256 Gilmore v Allied Express Transport Pty Limited [2006] NSWIRComm 16 Hairman v FileNET Corporation Pty Ltd [2001] NSWIRComm 318 Industrial Registrar v Mejias [2007] NSWIRComm 145; (2007) 165 IR 425 Industrial Registrar v Mejias (No 2) [2007] NSWIRComm 253; (2007) 166 IR 230 Mejias and Federal Express Australia Pty Ltd [2006] NSWIRComm 1016 Saliba v John Hearder Pty Ltd (1986) 15 IR 36 Subway Development of NSW/ACT Pty Ltd v Costin [2007] NSWIRComm 95; (2007) 162 IR 197 Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 TD Preece & Co Pty Ltd v Murton [2007] NSWIRComm 130; (2007) 164 IR 396 Toll Transport Pty Ltd v Transport Workers' Union of New South Wales [2010] NSWIRComm 58; (2010) 194 IR 144 Walker v Industrial Court of NSW (1994) 53 IR 121 Westpath Services Pty Ltd v Joseph [2007] NSWIRComm 211; (2007) 166 IR 135 Category: Principal judgment Parties: Ric Mejias (Applicant) Federal Express (Australia) Pty Limited (Respondent) Representation: Mr P Menzies QC with Ms B Nolan of counsel (Applicant) Mr J Phillips SC (Respondent) Craddock Murray Neumann, Lawyers (Applicant) Baker & McKenzie, Solicitors (Respondent) File Number(s): IRC 1542 of 2006