A recent decision by the Industrial Relations Commission has found that the lack of notice provisions in the employment contract of a 63 year old construction worker/builder's labourer and the failure to pay notice payment amounted to unfairness in the conduct of the employee's employment contract. The Respondent employer argued that the worker was covered by the scope of an Enterprise Agreement and the National Building & Construction Industry Award 2000 and that any orders made by the Commission under s106 of the Industrial Relations Act, which is a State Act, to vary the employment contract would create an inconsistency of laws.
The Commission, in this instance, determined that the federal award and the enterprise agreement did not "cover the field" of the worker's employment contract, and that his employment contract incorporated supplementary terms. In those circumstances, any orders made pursuant to Section 106 of the Industrial Relations Act, would not create any inconsistencies.
The employer terminated the worker whilst he was on annual leave and deemed the remainder of his annual leave period the notice period of one week. It was noted that this conduct amounted to a breach of the Annual Holidays Act 1944, which prohibits any other character being assigned to holiday payment. The Commission found this failure to give notice payment amounted to unfairness in the conduct of the worker's employment contract and in light of 23 years of service by the worker to the same employer, varied the employment contract to reflect 12 months payment as notice.
The reported judgment can be seen at: -
Costopoulos v Hansen Yuncken Pty Limited [2003] NSWIRComm 335 (6 November 2003) - IRC in Ct Session - Kavanagh J.
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