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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T12125Industrial Relations Act 1984 Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch and Tempo Services Limited, ABN 87 001 827 041 and AM Services Pty Ltd
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of award or registered agreement regarding sick leave - long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid - Order issued REASONS FOR DECISION [1] On 12 January 2005, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (LHMU), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Tempo Services Limited, ABN 87 001 827 041 (Tempo Services) and AM Services Pty Ltd (AM Services) relating to severance pay in respect of termination of employment as a result of redundancy; alleged breach of award or registered agreement - sick leave; and, a dispute over the entitlement to long service leave (LSL), or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid. [2] On 14 January 2005 the President convened a hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Wednesday, 2 February 2005 at 11.30 am. The matter was set down for further hearing on 5 and 6 April 2005. CHRONOLOGY OF THE APPLICATION [3] Tempo Services held the contract to provide cleaning services at the Sandy Bay campus of the University of Tasmania (University) where it employed around 40 people. The contract was due to expire at the end of December 2004. [4] Tempo Services was unsuccessful in retaining the contract, which was won by AM Services. Included in the terms of contract provided by the University, the successful tenderer was to employ as many of those employees whose employment ceased because of the loss of the contract from the previous contractor as they deemed they would require to perform the duties. Almost all of the Tempo Services employees were offered and accepted work with AM Services. [5] As a consequence of the change of contractor, the LHMU sought, on behalf of the past Tempo Services employees, an undertaking from AM Services in relation to a variety of issues which included the liability for LSL. [6] A stalemate developed between the LHMU, the outgoing contractor, Tempo Services, and the new contractor, AM Services, with respect to the LSL liability. [7] As a result of the stalemate, the matter was brought before this Commission by the LHMU with Tempo Services and AM Services as respondents. [8] The University sought leave to intervene in the application. The LHMU, Tempo Services and AM Services did not raise any objection to intervention. Leave to intervene was granted. [9] There is no dispute that: Table A Glenda Cowen Table B Davis Despard (the named employees) were employed by Tempo Services until the 31 December 2004. Nor is it disputed they commenced employment with AM Services within two calendar months from 31 December 2004. [10] Tempo Services did not offer the named employees ongoing employment, but did pay out accrued annual leave. [11] Tempo Services disputed the named employees were terminated and claim they took up alternative employment of their own volition with AM Services. [12] Tempo Services disputed any liability for LSL or for pro rata LSL accrued by the named employees. [13] AM Services disputed any liability for LSL for the named employees. [14] The University asserted a sympathetic position to the LHMU and AM Services on the matters of LSL liability and the interpretation of the relevant sections of the Long Service Leave Act 1976 (LSL Act). LIST OF WITNESSES WHO GAVE EVIDENCE [15] Oral evidence was not directly given to the Commission. The LHMU, Tempo Services and AM Services, as well as the University who intervened, relied on submissions from the bar table and cited both documentation and authorities. THRESHOLD MATTER [16] During the initial conference a threshold matter was raised by AM Services and the University with regard to the process to be adopted for this Commission to hear the instant application. [17] In a letter sent to all of the parties, dated 3 February 2005, I outlined my reasons for proceeding directly with the matter without initial reference to the Secretary of the Department of Infrastructure, Energy and Resources. There was no further challenge to the matter being proceeded with in the manner I proposed. BACKGROUND [18] At the outset of the hearing, Mr Tullgren, for the LHMU, requested this matter and matter T11988 of 2005 be heard together. His reasoning being, the bulk of the evidence would be the same in both cases. [19] Mr Readett, Clerk Walker, Lawyers, for Tempo Services objected. I upheld his objection in as much as the subject of T11988 of 2005 is also named in the instant application. I concluded the outcome of the instant application could, prima facie, be applied to matter T11988 of 2005. DETAILS OF THE CASE PUT BY THE LHMU [20] It was asserted by Mr Tullgren that Tempo Services terminated the employment of the named employees on the 31 December 2004. It was also asserted those employees were all entitled to the payment of LSL or pro rata LSL by dint of their length of unbroken service at the University site. [21] Mr Tullgren cited s.8(3)(d) of the LSL Act, as a general trigger for LSL entitlement, where eligible:
[22] It is asserted that Tempo Services sent a standard letter, signed by the company's Tasmanian Operations Manager, to all employees affected by the loss of the University contract. Two letters, identical in content, sent under the Tempo Services authority to two of the employees were cited as proof of Tempo Services' intent to terminate their employment at the cessation of the contract. It was confirmed that the LMHU also received a copy of a letter identical in content to those cited. [23] In part the letter reads:
[24] Mr Tullgren asserted the employment relationship had been severed at the behest of the then employer, Tempo Services. [25] The LHMU asserted 19 of the employees of Tempo Services at the University had less than seven years' service, 13 had between seven and 15 years' service, and two had in excess of 15 years' service. Both of the longer serving employees had accessed some LSL but, Mr Tullgren claimed, were still entitled to the outstanding balance. [26] The LHMU cited s.8(2)(a)(i), (ii) and (iii) of the LSL Act with reference to entitlements of 13 weeks LSL for those employees who had attained 15 years with a business. [27] The LHMU also cited s.8(2)(b) of the LSL Act, with reference to those employees who had reached seven, but not 15 years of continuous service. [28] The LHMU asserted according to s.2(2) of the LSL Act, with respect to deemed transmission of business, that the business of Tempo Services had been deemed to be transmitted to AM Services. [29] Mr Tullgren expressed his interpretation of the deeming provision:
[30] Mr Tullgren also cited a decision by Kirby J in the Commonwealth v CI Operations Pty Limited with regard to interpreting "deeming provisions".
[31] He also informed the Commission, in his view the LSL legislation was beneficial legislation and, as such, was to be interpreted sympathetically to the benefit of employees.
[32] Mr Tullgren, in correspondence dated 4 March 2005, informed the Commission, Tempo Services, AM Services and the University of Tasmania, that he was seeking the following remedy for this application;
[34] Those employees listed in Tables A and B have been named at paragraph 9 hereof. DETAILS OF THE CASE PUT BY THE FIRST RESPONDENT - TEMPO SERVICES [35] Mr Readett did not concede that Tempo Services terminated the employment of the named employees on the 31 December 2004. He asserted that proof of termination of employment lies with the employees. [36] Mr Readett reiterated, with reference to s.8(3)(d) of the LSL Act, termination must be at the instigation of the employer for claims on LSL entitlements to be valid. [37] He cited an authority supporting his submission the employees were not terminated, but left employment of their own accord. In the authority, Ronald Tortolani & Ors v Group 4 Securitas, there are some similarities with the instant application. A contract was lost and there was uncertainty regarding future employment with the transmittor. [38] Mr Readett argued, by nature of the contract issued by the University, specifically Clause B(31) - Continuity of Employment4, the then employees of Tempo Services sought employment with AM Services, making the choice to leave Tempo theirs and not Tempo Services.
[39] Mr Readett further asserts that Clause A(26) - Continuity of Employment7 vindicates his position:
[40] Mr Readett confirmed none of the named employees had been offered ongoing employment with Tempo Services. [41] Mr Readett objected to the letters presented by the LHMU as confirmation of Tempo Services intent to terminate the recipients' employment, being accepted as evidence by the Commission. He argued they had to be tested under cross-examination.
[42] In support of his position, that the transmittee and not the transmittor was liable for any accrued entitlements, Mr Readett cited a series of authorities. In my view the application of these authorities to the instant case is the cornerstone of Tempo Services' argument, and I will deal with them in detail in my findings. [43] In summary however, the authorities10 are listed below.
[44] Mr Readett submitted that this Commission should be bound by the Full Bench decision (T2109 of 1989 in The Kingborough Nursing Home appeal against decision in matter T1840 of 1989) with respect to finding the latest employer liable for LSL payments. [45] Mr Readett cited, T9238 of 2000, The Australian Workers' Union, Tasmania Branch v Macmahon Underground Pty Ltd11, as an example of where he says the mining industry as a whole reflects an understanding of the LSL "system" in that obligations can be erased should an employee not be re-engaged before two months by the transmittee.
[46] In essence, Mr Readett challenged the interpretation and application of the LSL Act in the findings of Abey C in T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd. He attacked a number of aspects of the findings by Abey C, in his view, pertinent to the instant application. It is appropriate I deal with his argument in my findings, along with the other authorities. DETAILS OF THE CASE PUT BY THE SECOND RESPONDENT - AM SERVICES [47] Mr M Daly, for AM Services, cited Ronald Tortolani & Ors v Group 4 Securitas with reference to Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, contained therein, with respect to actioning termination of employment.
[48] Mr Daly took the opportunity to refute the assertions of the Tempo Services by highlighting the different circumstances prevalent in Ronald Tortolani & Ors v Group 4 Securitas to the instant application. He specifically drew the Commission's attention to the clear expressed intent of the employer to re-deploy staff where possible. [49] Mr Daly turned to the letters from Tempo Services to the employees informing them of their impending situation, referring to the letters as formal advice. He went on to ask the question:
[50] He further asserted the LSL Act operates to oblige Tempo Services to pay the entitlements. He supported this assertion with reference to the LSL Act.
[51] Mr Daly verified there was no contractual arrangements between AM Services and Tempo Services. He asserted, therefore, there was no commercial transmission of business.
[52] Mr Daly proceeded to elaborate on his reading of the various sections of the LSL Act triggered by the instant application. [53] Mr Daly then turned to the issue of this Commission being bound by the Full Bench decision in T2109 of 1989, The Kingborough Nursing Home - appeal against decision in matter T1840 of 1989.
[54] Mr Daly supported Mr Tullgren's interpretation of "deeming", consistent with Statutory Interpretation of Australia 5th Edition, the decision of Muller v Dalgety & Co Ltd (1909) 9 CLR 693. He also agrees the LSL Act was intended to be beneficial legislation. [55] Mr Daly then turned to Tempo Services rejection of the findings of Abey C in T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd.
[56] Mr Daly referred to the requirements in the University contract, Clause B(31)(ii) and (iii) and made it clear in his view that "... is not a continuing employment relationship set in cement ..." 20 DETAILS OF THE CASE PUT BY THE INTERVENOR - UNIVERSITY [57] Ms Trevaskis supported the intent of the arguments set out by Mr Tullgren and Mr Daly, on behalf of the University. [58] She also took the Commission through each of the sections in the LSL Act triggered by the instant application. Again, her interpretations were in concert with the views of Mr Tullgren and Mr Daly. [59] Ms Trevaskis summed up the University's view with respect to its insistence in the tender document, the successful tenderer engage employees of the previous incumbent:
FINDINGS TERMINATION [60] The first point to be determined is, whether or not the employment of the named employees was terminated by Tempo Services at the cessation of its contract with the University. [61] Evidence was tendered by Mr Tullgren citing letters allegedly sent to every employee and to the LHMU specifying a final workday and a commitment to pay out entitlements. The letter did not suggest or offer ongoing employment, nor suggest further communication could be expected. The letters were issued in sufficient time before the cessation of the contract to satisfy notice requirements. At no time from when the letters were issued until cessation of business on 31 December 2004, was the content of the letter modified, qualified or withdrawn. [62] Mr Readett challenged the acceptance of these letters as evidence. However, he did not take the opportunity to challenge, refute, explain or justify their content or intent during his deliberations. [63] Under s.20(1)(a) and (c) of the Industrial Relations Act 1984 which states - the Commission;
[64] I chose to accept the letters as evidence. [65] In a counter assertion, Mr Readett alleged the employees abandoned their employment for another employer, AM Services. He cited an authority, Ronald Tortolani & Ors v Group 4 Securitas to support his assertion. [66] In the cited authority, the employer, after the loss of a contract, made positive moves to show the employees they were, where possible, to be kept in employment with the employer. According to the decision, the employer communicated with its staff on a number of occasions with respect to employment options. It was found the employees were made aware of the employer's intent with regard to maintaining their employment with Group 4. Mr Tortolani, the subject of the decision, chose to leave his position with Group 4 on the offer of a position with another employer. It was deemed he was not terminated but made an independent choice to leave his employment. I concur with this finding. [67] In the instant case, the evidence indicates the only formal communication from the employer to its employees was a standardised letter notifying the impending loss of contract, the last working day and the indication that entitlements will be paid out. [68] From evidence, no employee was offered ongoing employment. There was no evidence of employees being given assurances of ongoing employment. Indeed, there was no evidence of any other communication, formal or otherwise, which may have lead to the employees believing they would have an employment future with Tempo Services. Tempo Services took the opportunity to pay out only the accrued annual leave entitlement. It did not pay out time in lieu of notice. It did not demand reparation for time in lieu of notice for those employees who were employed by AM Services after 31 December 2004, as would be expected had these employees ongoing employment with Tempo Services. [69] Mr Daly, for AM Services, argued that a termination did take place and referred to an authority within Ronald Tortolani & Ors v Group 4 Securitas:
[70] Mr Daly supported a single interpretation of the "letters", in that they signal the employment with Tempo Services is coming to an end. He also referred to Ronald Tortolani & Ors v Group 4 Securitas, where it is evident the employer tried to retain staff by continually advising them of alternatives. [71] I see no other interpretation to that of the employment of the named employees being terminated by Tempo Services on or about 31 December 2004 as a consequence of the loss of the University contract. I so find. [72] As a result of my finding the employment of the named employees was terminated by Tempo Services, and referring to the LSL Act, at s.8A(3)(d), it states:
[73] Prima facie there would be entitlements to LSL should the relevant parameters of the LSL Act be satisfied. DEEMED TRANSMISSION OF BUSINESS [74] Before I test the various parameters of the LSL Act with respect to employee entitlements, it is important to address the issue of "deemed" transmission of business. [75] The term "deeming", its meaning and application in the instant case were well argued by Mr Tullgren and Mr Daly, both citing the publication Statutory Interpretation In Australia, Butterworths, 4th and 5th Editions. [76] It clearly states:
[78] Transmission of business in the everyday sense, in my view, is where a commercial decision is made between at least two parties to sell and buy a venture, the nature of the venture, location and staff in the main remain unchanged. This implies the transmittor has knowingly put a value on the venture and the transmittee has the opportunity to gain an acceptable understanding of the risks, assets and liabilities of the venture, to which he puts a worth, inclusive of accrued employee entitlement liability. [79] In the instant application, as with the cited authorities of Scott Andrew Elkin v Barminco Pty Ltd and The Australian Workers' Union, Tasmania Branch v Macmahon Underground Pty Ltd, a commercial business transmission was not the case. In these instances an element of the transmittor's business was lost to the transmittee as a result of a competitive tender process by a third party. In such a situation, the transmittee does not have the opportunity to evaluate the risk, assets or liabilities of that segment of the transmittor's business for which he tenders. The transmittee only has a tender document common for all tenderers, from which to develop a "price". [80] It follows, in these instances, a "statutory fiction" with respect to the transmission of business was created. It is evident the "statutory fiction" of a transmission was created to facilitate the equitable treatment of employee entitlements with respect to the operation of the LSL Act. [81] Tempo Services argued transmission and deemed transmission should not be distinguished, I reject this position for the reasons given in the preceding paragraphs. INTERPRETATION OF THE ACT [82] Much of the Tempo Services case hinged on their interpretation of the LSL Act. Mr Tullgren for the LHMU, Mr Daly for AM Services and Ms Trevaskis for the University gave their concordant interpretation of the various sections of the LSL Act in play in the instant application. Their interpretation was in harmony with that of Abey C in T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd. [83] As Ms Trevaskis opined, with which I agree:
[84] Section 2 of the LSL Act deals with the interpretation of the LSL Act. [85] Section 2(2) of the LSL Act defines when an employee's employment will be deemed to have transmitted to an employer:
[86] In the instant case, this section would apply to those past employees of Tempo Services who have been engaged by AM Services. Their employment was terminated, they were engaged by AM Services within 2 months, the business activity is ostensibly the same and the employees are doing the same type of work as before in the same location. [87] Section 5 of the LSL Act deals with the nature of continuous employment. [88] Section 5(4) of the LSL Act confirms that an employee's continuity of employment will be deemed not to have been broken by reason of transmission of business:
[89] Sections 5(4)(a) and (b) read:
[90] Mr Readett, in his challenge to the decision of Abey C in T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd, asserts s.5(4) is disjunctive. and that the learned Commissioner only considered section 5(4)(b), "completely ignoring" 5(4)(a). [91] From the Concise Oxford Dictionary, Seventh Edition:
[92] I do not accept Tempo Services interpretation of s.5(4). Section 5(4) is not expressing alternatives, or choice, with respect to service of employment. [93] It is clear ss.5(4)(a) and (b) are the cumulative effects on employment service as a result of transmission and deemed transmission of business. [94] It is also clear the intent of ss.5(4)(a) is to ensure the continuity of employment service is recognised for the purposes of the LSL Act. [95] Subsection 5(4)(b) indicates that which should be taken into account when quantifying the service of employment in the situation where a business has been transmitted or deemed to have been transmitted.
[97] Section 8 outlines the service qualifications required to be eligible for LSL and the quantum of such leave. [98] Subsection 8(2)(b) specifies the criteria required for those who have attained seven, but not 15 years' service to access pro rata LSL and applies in the instant case. [99] Subsection 8(2)(a) specifies the criteria required for those who have attained 15 years' service to access LSL and applies in the instant case. [100] Subsection 8(3)(d) has been relied on in the instant application as the trigger for payment of LSL:
[101] Section 12 expresses the mechanism of when and how to take LSL. [102] Subsection 12(4) has been relied on in the instant application, it outlines at what point LSL is due when employment is terminated.
[103] The application of s.12(4) is the hub around which the instant case revolves. AUTHORITIES [104] Mr Readett, for Tempo Services, drew from a number of authorities to support his assertion that AM Services should be liable for any LSL entitlements. [105] T1087 of 1989, Lynette Anne Marney v Croucher Pty Ltd. 24 This is a similar situation to the instant application in that a cleaning contract was lost and the transmittee was faced with paying accrued LSL. The final employer, Croucher Pty Ltd was found liable to pay pro rata LSL. [106] The difference between this situation and the instant application is, Mrs Marney did not qualify for LSL in February 1985 when Croucher became the transmittee. She had only six years and six months of service, not seven years as is required by the LSL Act, s.8(1)(b). Consistent with the LSL Act, s.5(4)(a) and (b) and Abey C in T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd, that service Mrs Marney accrued prior to taking up a position with Croucher was recognised for LSL accrual purposes.
[108] In Scott Andrew Elkin v Barminco Pty Ltd at paragraph 41, it states:
[109] Tempo Services argued that:
[110] And:
[111] I do not accept Tempo Services argument, t. The attainment of the basic seven years' service is a hurdle which must be cleared before LSL is recognised. In my view, Abey C was faithfully following the letter and intent of ss.8(2) and (3) of the LSL Act by illustrating the different circumstances in Scott Andrew Elkin v Barminco Pty Ltd to those of Croucher. [112] T1840 of 1989, Lynette May Brennan v The Kingborough Nursing Home Pty Limited. In this application the business, as a whole, had been purchased over the years by a number of owners. In this instance the transmittee claimed impropriety on the part of a previous owner in that it had not granted LSL when it was due. The Commissioner deemed the transmittee liable for the totality of the LSL. It is important to note, other than for Mrs Brennan, LSL liability had been accrued for the other employees into a trust. [113] In this case, there was an actual transmission of business. There had been a commercial contract between the transmittee and the transmittor, as is evidenced in the knowledge of the partial accrual of funds for LSL liabilities. [114] The instant case, where the application of ss.12(4) is in contention, was not a matter raised in T2109. [115] T2109 of 1989, The Kingborough Nursing Home - appeal against decision in matter T1840 of 1989. Mr Daly states:
[116] And further:
[117] I accept Mr Daly's reading of the Full Bench decision. I accept Mr Daly's reading of the full bench decision. [118] In T2109 of 1989, The Kingborough Nursing Home - appeal against decision in matter T1840 of 1989, all grounds of appeal were dismissed by the Full Bench. [119] They were as follows - Ground 1:
[120] This was not an issue in the instant application. [121] Ground 2:
[122] This was not an issue in the instant application. [123] Ground 3:
[124] This was not an issue in the instant application. [125] Ground 4:
[126] Again, this was not an issue in the instant application. [127] I do not believe in this case I am bound by the Full Bench decision.
[128] The following six authorities have a similar structure, the issues are common and the outcomes are consistent:
[129] The important element to note is, each succession of business transmittal was of a commercial nature, they were actual transmissions, not deemed. As such, as illustrated in The Kingborough Nursing Home case, the liabilities taken on by the transmittee should have been dealt with in the commercial negotiations.
[130] Unlike Tempo Services who, in the reference to T10085 of 2002, Rina Howard v Silver Sands Services Pty Ltd, trading as Silver Sands Resort Hotel Motel, suggested:
[131] I do not see the circumstances in this authority at all reflect "absolute consistent background" to either the instant application, or T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd, for the reasons I have outlined earlier. [132] T9238 of 2000, The Australian Workers' Union, Tasmania Branch v Macmahon Underground Pty Ltd. This case had a similar situation to the instant application in that, a contract was lost exposing the transmittor's employees to loss of employment. Although this case revolves around the payment of redundancy for employees where their employment ceased with the transmittor and re-commenced with the transmittee, the principal is the same as the instant application. [133] The findings of Imlach C adjudge the transmittor to be liable for redundancy. However, and more to the point of the instant application, the Commissioner found the employment of the employees to have been terminated by the transmittor. Although not part of Imlach C's findings, Macmahon's, the transmittor, saw fit, albeit "under duress" to honour the outgoing employee's LSL.
CHALLENGE TO ABEY C'S FINDINGS IN MATTER T9906 OF 2002, SCOTT ANDREW ELKIN v BARMINCO PTY LTD [134] I draw now to the decision of Abey C in matter T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd. I signalled to the parties I would make reference to this authority in my consideration of the instant application. Not surprisingly, Mr Readett focused much of his argument on, in his view, the errors made by Abey C in coming to the conclusions he did. [135] I have already rejected Mr Readett's view that s.5(4) of the LSL Act is disjunctive. and as such supports the claim of no termination therefore no entitlement to LSL. [136] He further argued:
[137] Abey C, in my view, did consider both s.5(4)(a) and (b) in his decision as outlined earlier. [138] Mr Readett next expressed his interpretation and interaction between s.12(4) and s.5(4)(a) in a bid to show the employment of the named employees could not have been terminated:
[139] I reject this argument. The subsection does not say "employment is deemed not to have been terminated" It says " continuity of employment ... shall be deemed not to have been broken ..." The distinction is evident. For the purposes of the LSL Act with regards to continuity of service, a fiction has been created to prevent the employee from being disadvantaged. [140] Mr Readett argues, Abey C was not warranted in drawing a distinction between "Transmission" and "Deemed Transmission". As I indicated earlier, I reject this notion. In the earlier discussion on the deeming provision, the distinction is quite clear. It is appropriate in the instant application, as with T9906 of 2002, Scott Andrew Elkin v Barminco Pty Ltd, we do draw that distinction. [141] Mr Readett suggests Abey C's decision would give unfair benefit to those whose employment had been terminated over those whose employment "simply continued" with the transmittor. His argument being, those whose employment had been transmitted would gain a windfall lump-sum payment and still draw wages from the transmittee. [142] In my view, this is an irrelevant argument. Whether the employees take time off work to expend their entitlement or chose to become re-employed is not a matter for our consideration. . The issue does not impact on the instant application since none of the past Tempo Services employees employed at the University up until 31 December 2004 had their employment "simply continued". [143] Mr Readett outlined a situation:
[144] This scenario was not raised in Scott Andrew Elkin v Barminco Pty Ltd and is not raised in the instant application. I chose not to commment. [145] In summary, I conclude the employment of the named employees was terminated by Tempo Services on or about 31 December 2004. As a consequence, I find that Tempo Services are liable for the payment of LSL and pro rata LSL accrued by the named employees up to and including 31 December 2004.
ORDER Pursuant to section 31(1) of the Industrial Relations Act 1984, I hereby order that Tempo Services Limited, ABN 87 001 827 041 pay to: (1) Glenda Cowen Beverly Clark who are both past employees with more than 15 years service continuous service at the University of Tasmania, Sandy Bay campus, a payment calculated pursuant to section 8(2)(a) of the Long Service Leave Act 1976, all outstanding long service leave within 21 days of this order. (2) Davis Despard who are all former employees who have completed seven years, but not completed 15 years continuous service at the University of Tasmania, Sandy Bay campus, a payment calculated pursuant to section 8(2)(b) of the Long Service Leave Act 1976, within 21 days of this order. James P McAlpine Appearances: Date and place of hearing: 1 Exhibit A.2
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