T2852
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Federated Miscellaneous Workers Union of Australia, and St John Fisher College
Rates of Pay and Redundancy REASONS FOR DECISION The Federated Miscellaneous Workers' Union of Australia, Tasmanian Branch (FMWU) notified the Commission that it was in dispute with the St John Fisher College (the College) concerning rates of pay and redundancy. In the conference proceedings I was informed by Mr Adams appearing for the FMWU that the College had let to contract catering and cleaning work previously undertaken by full time and casual employees. Mr Adams expressed concern that the changed arrangements were made without discussing the implications for employees with the FMWU. I concur with his sentiments in that regard. Mr Clues of the Tasmanian Confederation of Industries representing the College, said that Nationwide Catering and Nipper Cleaning Services, the contractors involved would provide ongoing employment for the employees concerned. In the event that the new employment arrangements with the contractors did not satisfactorily "bed down" for legitimate reasons then for a period of up to 3 months from commencement of employment with their new employers, the employees concerned would retain rights to claim prior employment with the College for redundancy payment calculations. As it transpired the FMWU again requested the assistance of the Commission as the full time employment opportunities promised to the employees concerned did not eventuate immediately upon transfer of those activities to the contracting firms involved. Instead those firms offered part-time employment which in the longer term would lead to full time employment. I now confirm, as indicated in the proceedings, that the clear intention of the Commission was that the employees be not disadvantaged. This was accepted by the College and accordingly my recommendation now is that the appropriate make up pay be made. Where work was offered, albeit that it was part-time, and not accepted, the time not worked is not to be part of the make up payment. It should be recognised by the parties that the employees concerned were to be regarded as having ongoing and continuous employment. Mr Clues was not able to indicate why this was not the case. A further issue related to the claim for redundancy payments for two casual employees who had worked at the College in that capacity for over 10 years and 4 years respectively. Mr Adams requested that I take into account the Metal Industry Standard and the terms of the redundancy package recently offered by the State Government. Mr Clues submitted that the claim is against the principle of redundancy payment and that the contract of employment provides a clear delineation between casual and other forms of employment. He said that casual employees can have no legitimate expectation of receiving redundancy payments and that this was in keeping with the findings in the Termination Change and Redundancy Case1 at page 48. Mr Clues also referred me to the Supplementary Decision2 in that matter where the Full Bench stated at page 41 in respect of the Metal Industry Award that the "redundancy clause shall not apply ...in the case of casual employees". Whilst this Commission did not follow the prescriptions set out in the matters referred to by Mr Clues, preferring instead a case by case approach in order to consider every issue on its individual merits, I consider it would be inappropriate to ignore the very fundamentals going to casual employment which set it apart from other contracts of employment. Accordingly I decline to recommend or order any redundancy payment for the casuals involved. This file will be held open for a further two weeks from the date of this decision in the event any unresolved issues require the assistance of the Commission.
R K Gozzi Appearances: Date and Place of Hearing: |