T2978
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Transport Workers' Union of Australia and Damien Pillinger Pty. Limited CARRIERS AWARD
Award - breach of award - wage rates REASONS FOR DECISION This was a dispute hearing application made under Section 29 of the Act by the Transport Workers' Union of Australia, Tasmanian Branch (the Union) as a result of the alleged non payment of correct wages by Tasmanian Moving, Storage and Shipping which turned out to be a name only used by Damien Pillinger Pty Ltd (the Company) of New South Wales in its Tasmanian operations. Early in the hearing, Mr G Warn, who appeared for the Union, sought and was granted leave to amend the application so that the Union's claim was against the Company formally. An unfortunate feature of this matter was that at the two hearings which were held the Company was not represented. Immediately prior to each hearing, however, a courtesy letter was received advising that the Company would not be represented and the general attitude or position of the Company at the time. It was claimed by the Union that the Company had failed to pay the correct amount of wages due to its member, a Mr John Alan Davidson, for work done under the jurisdiction of the State Carriers Award. By means of exhibits Mr Warn specified the claim as an amount of $1 263.67 made up as follows:
Mr Davidson was called as a witness and attested to the work done and the amounts due and owing. Since 17 December 1990 he had ceased to work for the Company. The Union further sought payment to Mr Davidson of monies due under the provisions of Clause 32(d) and 32(f) of the Award which read as follows:
As to the Company, evidence in the form of a company extract from the Australian Securities Commission, dated 9 April 1991, revealed that it was incorporated in New South Wales, the Secretary was one David Glendamien Pillinger who was also one of the two Directors of the Company along with one Pauline Pillinger. There were two paid shares issued in the Company at $1 each held by the same David Glendamien Pillinger and one Bruce Arthur Pillinger. The thrust of the first letter to the Commission from the Company (which was read into transcript at the first hearing) under the name of David Pillinger was that the Union had claimed against the wrong Company. The second letter to the Commission (which was a facsimile only) was received on the day before the second hearing, but unfortunately did not come to my notice till after the second hearing. It was under the heading "Tasmanian Moving and Store" and advised that no representative would be attending and that the Company had ceased trading being unable to pay its debts including this alleged "new" debt. One of the Union's exhibits1 was a photocopy of a 1991 Taxation Office Group Certificate stating that, for the period 5 December 1990 to 19 December 1990 the Company had paid a total of $850 to Mr Davidson. The Group Certificate had the same signature/mark on it as the second letter to the Commission. I do not believe that the non-tabling of the second letter at the second hearing mitigated against the fair and proper hearing of the case nor that it has any significant bearing on the decision. It is unfortunate that the Company chose not to be represented at the hearings conducted by the Commission because in the light of the evidence before me and the lack of any evidence to the contrary I find that the Company has failed to pay wages due and owing to Mr Davidson and moreover that the Company is liable for the penalties prescribed in Clause 32(d) of the Award during the period of Mr Davidson's employment with the Company. I find further that the Company will continue to be liable, in accordance with clause 32(f), from the time Mr Davidson left its employment (19 December 1990) until such time as the outstanding wages are paid.
P A Imlach 1 Exhibit W2 |