Harding v EIG Ansvar Ltd

FEDERAL COURT OF AUSTRALIA

Harding v EIG Ansvar Ltd [2000] FCA 46

WORKPLACE RELATIONS – review of contract of employment – whether contract harsh or unfair – whether sufficient period of notice of termination of contract – where contract for services, made between insurance company and insurance agent.

Workplace Relations Act 1996 s 127A, s 127B

Finch v Herald & Weekly Times Limited (1996) 65 IR 239 referred to

Minister for Youth & Community Services v Health & Research Employees Association of Australia, NSW Branch (1987) 22 IR 59 distinguished

PETER ALLAN HARDING v EIG ANSVAR LIMITED
QG 135 of 1998

SPENDER J
20 JANUARY 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 135 OF 1998

BETWEEN:	PETER ALLAN HARDING Applicant
AND:	EIG ANSVAR LIMITED Respondent
JUDGE:	SPENDER J
DATE OF ORDER:	20 JANUARY 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The contract for services, made between the applicant and respondent, and dated 26 October 1998, be varied so that, upon termination of the contract, the insurer pay to the agent the sum of $5,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 135 OF 1998

BETWEEN:	PETER ALLAN HARDING Applicant
AND:	EIG ANSVAR LIMITED Respondent

JUDGE:	SPENDER J
DATE:	20 JANUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In this application, Peter Allan Harding seeks review of a contract under s 127A of the Workplace Relations Act 1996 (“the Act”), and consequential orders under s 127B of the Act. The initial application was made on 26 October 1998 in relation to a contract for services as an insurance agent which Mr Harding entered into with Ansvar Australia Insurance Limited , subsequently renamed EIG Ansvar Limited ("Ansvar"). That contract is dated 11 February 1998.

2. Section 127A of the Act has as its heading "UNFAIR CONTRACTS WITH INDEPENDENT CONTRACTORS: COURT'S POWERS". Section 127A(2) provides:

   "127A(2)  Application may be made to the Court to review a contract on either or both of the following grounds:

   (a)   the contract is unfair;

   (b)   the contract is harsh."

3. For the purposes of this section, “contract” is defined by s 127A(1) as meaning:

   "(a)     a contract for services that:

   (i)is binding on an independent contractor; and

   (ii)relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract…"

4. Subsection 4 of s 127A provides:

   "127A(4)  In reviewing the contract, the Court may have regard to:

   (a)   the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and

   (b)   whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and

   (d)   whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar…