T3170
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Federated Miscellaneous Workers Union of Australia East Coast Birdlife and Animal Park
Award - award compliance - underpayment of wages REASONS FOR DECISION This was a dispute hearing application made under Section 29 of the Act by The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the Union). The dispute concerned the alleged application of an incorrect award and underpayment of wages by the East Coast Birdlife and Animal Park (the employer). At the hearing the Union brought as a witness the employee concerned, Mrs Vanessa Hardwick, and claimed that Mrs Hardwick should have been paid as a groundsman or at least a cleaner under the Miscellaneous Workers Award. The employer claimed that (allegedly on advice from the Department of Labour and Industry) the classification of farmhand under the Agriculturists Award was correct and that was what Mrs Hardwick was paid as. The employer was represented at the hearing by a part owner, Mr R Reeve The Union also claimed a penalty payment arising out of an agreement made between the employer and Mrs Hardwick whereby she worked Anzac Day, but agreed to take an ordinary working day off with pay on another occasion in lieu. The Union submitted that for however long Mrs Hardwick worked as a groundsman or a cleaner she would have been entitled, under Section 49(3) of the Act, to have been paid for the whole of each day in question at the groundsman or cleaner rate under the Miscellaneous Workers Award. Section 49(3) reads:
It is obvious then that, if the Agriculturists Award (or any other award) did not apply to Mrs Hardwick's work at the Wildlife Park, she would have been entitled to have been paid for the whole of the time in question as a groundsman or cleaner under the Miscellaneous Workers Award (subject only to substantiation of the duties she performed). The scope of the Agriculturists Award is stated as follows:
I do not consider that the Agriculturists Award would have had any coverage over the activities of a (tourist) wildlife park. Mrs Hardwick was not a good witness in that she found it difficult to answer questions simply. On the other hand Mr Reeve was not a good advocate on his own behalf either since he descended to disputation with Mrs Hardwick at times and he was unsure of his legal position vis a vis the awards and the Act. Unfortunately, in the interests of settling the facts as to just what relevant work Mrs Hardwick did do, I was compelled to intervene and question closely both Mrs Hardwick and Mr Reeve. As a result I was satisfied that Mrs Hardwick had carried out groundsman work for the employer every day in that she had been required to regularly sweep the paths. It was difficult to assess how much time she spent doing the work each day because her assessment differed substantially from that of Mr Reeve. However, Mr Reeve did concede that such work had been done, however little and, that being the case, I advised the parties that I found:
I also found that the agreement for Mrs Hardwick to work on Anzac Day and then have another day off work with ordinary pay at another time was an illegal agreement, being against the Miscellaneous Workers Award (which prescribed a penalty payment for work done on the holiday at the rate of double time and one half.) As a result Mrs Hardwick was still owed additional wages of time and one half for that day. Unfortunately Mr Reeve refused to accept my advice and, as a result, I was unable to assist the parties in the settlement of the dispute. It will be up to the Union, therefore, to pursue this claim in another jurisdiction if it so decides.
P A Imlach Appearances: Date and place of hearing: |