Case notes - Courts & Tribunals

Cases

Case notes - Courts & Tribunals

Construction industry stop orders declined; Splitting income caused taxation issue; No bloodbath needed before Commission will terminate bargaining; No costs against Federal minister; Injunction against BLF official; Actuarial evidence outweighed age discrimination - insurance contract; Police handled private information insensitively; and Adding a party to unfair contract matter.

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10/03

 

Construction industry stop orders declined; Splitting income caused taxation issue; No bloodbath needed before Commission will terminate bargaining; No costs against Federal minister; Injunction against BLF official; Actuarial evidence outweighed age discrimination - insurance contract; Police handled private information insensitively; and Adding a party to unfair contract matter.

Construction industry stop orders declined 

The AIRC has declined to grant stop orders against construction unions over stop-work meetings, but directed the union to take steps to minimise disruption to work

The first of the stop-work meetings were called to inform union members about the draft Cole legislation.

Commissioner Harrison directed the CFMEU, AMWU, and CEPU to assist members to resume normal work at the end of the stop-work meetings.

See: MBA of NSW, Victoria & the ACT v CFMEU and Ors. PR939102 (8 October 2003).

Splitting income caused taxation issue 

A device used to split income was not appropriate so the AIRC refused to recognise its validity and refused an unfair dismissal application on the basis that the employee’s salary exceeded the statutory limit. 

The AIRC also referred the matter to the Australian Taxation Office.

'In conclusion I express my concern over the actions of Imex, having initiated a scheme to avoid taxation, purporting to reverse its earlier actions just prior to terminating Mr Oliveri, and then arguing that the amount transferred to his wife some two years' earlier should be restored directly to Mr Oliveri's income.

'Their actions were initially potentially outside of the taxation laws and subsequently appeared to have the intention of ensuring that Mr Oliveri was barred from pursuing a claim for unfair dismissal. Had it been open to me on equity grounds I would have excluded this amount from Mr Oliveri's remuneration.'

See: Oliveri v Imex Creative Products - AIRC - PR938664 (26 September 2003).

No bloodbath needed before Commission will terminate bargaining 

The AIRC has terminated the bargaining periods after accepting that the union and a labour supplier had reached an impasse.

There was no reasonable prospect of the parties reaching agreement and the Commission did not require an industrial bloodbath terminating the bargaining period.

See: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v IES Australia Pty Ltd and others - AIRC - PR939045 (8 October 2003).

No costs against Federal minister 

A Full Federal Court has stated that it did not need to rule on whether costs should be awarded when the Minister had intervened in the public interest.

The Full Court ordered that the application for costs against the intervener (i.e. Minister) be dismissed.

See: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2003] FCAFC 226 (14 October 2003).

Injunction against BLF official 

The Federal Court has issued an interlocutory injunction preventing a senior CFMEU construction division official from allegedly coercing a subcontractor to make an agreement with the union.

See: Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 (24 September 2003).

Actuarial evidence outweighed age discrimination - insurance contract 

A barrister failed to have a decision by a sickness and accident fund insurer declining insurance reversed. The barrister argued that the fund was guilty of age discrimination, but the NSW Administrative Decisions Tribunal found that the legislation permitted such discrimination if there was sound actuarial evidence for its decision.

The age discrimination provisions of the Anti-Discrimination Act 1977 were in issue.

The Tribunal stated:

'...In the Tribunal's view s49ZYT recognises the inherent discrimination in the provision of insurance and allows this discrimination as long as the Tribunal is satisfied that it is based on reliable actuarial or statistical or other reasonable data.

'It is the Tribunal's view that the words "terms on which...is offered or may be obtained" are intended to cover situations such as the one before the Tribunal, where a person is seeking insurance cover but the insurer determines that it is unable to provide insurance cover to persons over the age of 70 reasonably based on reliable actuarial or statistical data which indicates that the intended insured is a bad risk.

'...The Tribunal finds that the respondent fund's decision although based on the applicant's age was also based on actuarial or statistical data and was reasonable having regard to the data available and to the mutual nature, size and financial viability of the fund and therefore its actions were not unlawful.'

See: Leslie v Barrister's Sickness & Accident Fund Pty Limited [2003] NSWADT 216 - Administrative Decisions Tribunal (NSW) - 15 September 2003.

Police handled private information insensitively 

The NSW Administrative Decisions Tribunal has found that the NSW Police Department was not subject to review in relation to its handling of sensitive information about a doctor, but its conduct left a lot to be desired in terms of proper privacy practice.

The doctor had been tried once at the District Court before a jury on a charge of culpable driving, with the jury unable to reach a verdict. There was to be a retrial unless the applicant's pending application to the Supreme Court for a permanent stay of the proceedings is successful. The conduct in issue related to an aspect of the trial being the obtaining of personal information by way of an invalid subpoena.

The Tribunal noted that the events identified by this application for review did not reflect well on the agencies concerned. The Police Service had subsequently undertaken a substantial internal investigation. In addition, the agencies have conducted detailed internal review of the conduct that occurred.

See: HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 - Administrative Decisions Tribunal (NSW) - 10 September 2003.

Adding a party to unfair contract matter

The NSW Industrial Relations Commission has added the managing director of a company that was subject to an unfair contract matter to the list of respondents on the basis that the Commission’s discretion should be exercised to avoid potentially multiple proceedings being initiated.

See: Henry v Global Switch Australia Pty Ltd & Anor [2003] NSWIRComm 307 - Marks J - 26 September 2003.

 

 

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