T5474
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia and Morgan Scott and Associates
Industrial dispute - alleged failure of employer to negotiate regarding closure of services of employer REASONS FOR DECISION This matter concerns an application by the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act 1984, as amended. The parties to the dispute were the HSUA and Morgan Scott and Associates, and the subject matter of the application was the alleged failure of the employer to consult employees or to negotiate over the closure of the service; and (by leave granted to amend) a claim for a redundancy payment to employees. The Commission posted to the last known address of Morgan Scott and Associates a notice of the time and place of hearing one week before the time specified and proof of delivery was received from the postal authorities. In addition the same notice was posted to the last known addresses of two separate persons reasonably believed to have been the holders of senior management positions within the organisation of Morgan Scott and Associates. At a delayed hearing on 9 May 1995 there was no appearance of any representative or agent of Morgan Scott and Associates and application was made for the Commission to exercise its discretion to hear the matter ex parte. After making due enquiry the Commission as constituted satisfied itself that proper notice of hearing had been served on the employer and it therefore decided that in the prevailing circumstances it was appropriate to hear the matter ex parte pursuant to Section 21(2)(e) of the Act. Mr Stringer for the HSUA detailed the history of events preceding the termination of employment of approximately 20 employees by Morgan Scott and Associates on 20 December 1994 when its service ceased. It was said that Morgan Scott and Associates had established a day care centre for clients in 1992 and that service operated for 2½ years. The HSUA produced evidence of the fact that it had written to the Co-ordinator of Morgan Scott and Associates on 5 October 1994 concerning its belief of the employer's imminent closure and sought as a matter of urgency a meeting to discuss the ramifications of the closure of the business, including the possible transfer of staff to another operator and redundancy payments for staff. The Commission was told that the HSUA subsequently had a meeting with this particular employer on 20 October 1994 but was told at the time that there had been no decision made to close the business. However, the operation of Morgan Scott and Associates did cease as from 20 December 1994 and generally the employees took accrued leave until 20 January 1995 and were then transferred to Devonfield Enterprises, a different employer. The HSUA claimed that as a result of the closure of several Day Support Services which were occurring at the relevant time within the disability services, the Department of Community and Health Services had given a commitment that continuity of award and legislative entitlements would be preserved whilst those staff were employed by the State Government. However the HSUA were concerned that ex Morgan Scott and Associates employees who were subsequently employed by Devonfield Enterprises for a short period were not being similarly treated. I must say I find some difficulty in recognising in the context of the present application the relevance of arrangements either made or not made in relation to the employment conditions of ex Morgan Scott and Associates employees after they ceased to be employed by that employer, save only perhaps for the fact that they appear to have lost out on the security of long term employment if that was their reasonable expectancy. The HSUA submitted that Morgan Scott and Associates had not acted fairly or responsibly towards their employees and in this regard drew attention to the requirements of Section 31(1A) of the Act and Convention 158 of the International Labour Conference. Section 31(1A) of the Act provides that:
In this regard Article 3 of Convention 158 refers to termination of employment at the initiative of the employer. And Article 12 of this Convention provides that, inter alia:
On the basis of all the facts placed before me I am satisfied that Morgan Scott and Associates terminated the services of its employees consequent upon the discontinuance of its business of providing Day Support Services. I am further satisfied that on the basis of the information supplied during the course of the hearing before me this employer failed to sufficiently meet its obligation to fully consult with and inform its employees of its intention to terminate their services as early as reasonably possible. It is equally evident that this employer, through ignorance or otherwise, failed to recognise the requirements placed upon it by the Industrial Relations Act 1984, as amended, and International Labour Organisation Convention 158. The fact that special arrangement was made through interested parties for another employer to provide temporary employment to the ex employees of Morgan Scott and Associates certainly would have cushioned the effects of termination of employment, but only for a short period of time because Devonfield Enterprises was unable to continue to employ these particular employees for more than a few months. I have taken these facts into consideration and made allowance for them. It is my decision, based upon the circumstance of this case, to issue an Order that the following action be taken for the purpose of settling this particular dispute:-
(a) Four (4) weeks ordinary wages, plus (b) Two (2) weeks ordinary wages for each year of continuous service or part thereof. 2. That payments prescribed in 1 above, shall be in additional to and not in substitution for any award or statutory entitlements which have been paid or are payable. 3. For the purpose of this Order the expression "ordinary pay" shall mean the award classification wage rate and shall include all work related allowances applicable on the days or shifts normally worked, other than overtime days. 4. All payments are to be made within twenty-one days from the date of this decision.
A ROBINSON Appearances: Date and Place of Hearing: |