TASMANIAN INDUSTRIAL COMMISSION

Order Appealed - See T5419

Industrial Relations Act 1984
s.29 application for the hearing of an industrial dispute

The AWU-FIME Amalgamated Union,
Tasmania Branch
(T.4613 of 1993)

Australian Municipal, Administrative, Clerical and Services Union
(T.4654 of 1993)

and

Pasminco Metals-EZ

ORDER PURSUANT TO SECTION 31(1) OF THE ACT

On 8 February 1995 the Commission handed down its Reasons for Decision in this matter. The Finding was that the period of notice provided by the Company was inadequate. The following is found at page 55 of the Reasons for Decision:

"In my opinion a reasonable period of notice to employees that retrenchments were going to take place would have been at least six weeks given the extensive period over which the operational review was carried out. As it was the announcement ending the speculation of retrenchments was made on 4 October 1993. Those that were to be retrenched were finally informed on 18 October 1993 and were paid out at that time and in addition received one weeks additional pay in lieu of notice. In my opinion it is reasonable to deduct from the six weeks notice period the three week period between 4 to 25 October 1993. This leaves a period of 3 weeks notice to be paid at the rate applied by EZ for the period 18 to 25 October 1993."

From submissions made to the Commission the point of contention between the parties related to the following extract from the Reasons for Decision:

"This leaves a period of 3 weeks notice to be paid ..."

Mr Adams as principal advocate for the unions in this matter contended that this meant an additional 3 weeks pay was due to retrenched employees notwithstanding that the Company, when finishing employees on 18 October 1993 paid an additional two weeks in lieu of notice and not one additional week in lieu of notice as contemplated in the Commission's Reasons for Decision. Clearly the Commission considered that the six week period of notice commenced on 4 October 1993. Quite simply that meant that at least six weeks notice had to be provided or payment in lieu had to be made. In my opinion any notice in lieu payment only arises to the extent that the six week period which commenced on 4 October 1993 was either not worked or paid for as notice in lieu. The six week period of notice in this case was made up of a period of work and a period for which payment in lieu of work was made. The total payment however was not contemplated to exceed six weeks made up of any combination of work and or payment in lieu of working the six week period. In no way could the Commission support that the payment in lieu of notice made to employees by the Company beyond 25 October 1993 to be paid for again which would be the case if the union arguments were to be adopted by the Commission. The essential point in the Reasons for Decision was that six weeks notice should have been given and that as long as that was complied with by either payment for time worked and or a combination of time worked and payment in lieu of notice then the Finding of the Commission has been complied with. From the submissions made and the material presented the Commission is satisfied that the Company has met its obligations in this matter.

However there is a further issue and that is the inability of any of the parties to exercise their appeal rights, if they so chose, pursuant to Section 70(1)(b) of the Act in the absence of the issue of an order. Clearly all of the parties to this matter should not be denied the opportunity to exercise their right of appeal against any aspect of the Finding made by the Commission. As I have stated that is not possible unless an order is issued.

So that there can be no misunderstanding on the part of any party to the proceedings in this matter the subject matter of this order relates to the clarification on the question of payment in lieu of notice made by the Company as discussed above and to the entirety of my Reasons for Decision dated 8 February 1995. And I so order.

R.K. Gozzi
COMMISSIONER