TASMANIAN INDUSTRIAL COMMISSION

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

Minister for Industrial Relations and Training
(T5804 to T5838 of 1995, T5906 of 1995, T6045 of 1996)

and

Zoron Pty Ltd AFT The Samuel Stephen's Family Trust
(t/a Silvio's Pizza)

Industrial dispute - alleged breach of Restaurant Keepers Award - Clause 8 Wages - Clause 13 Casual Employees - arbitrated - payment ordered

REASONS FOR DECISION

These dispute hearing applications were brought on first in November and December 1995. At that time Zoron Pty Ltd AFT The Samuel Stephens Family Trust, trading as Silvio's Pizza of Launceston (the Company) sought to have the applications dismissed on a number of jurisdictional grounds, but, in an interim decision, dated 10 January 1996, the Commission rejected those arguments and the hearing resumed on 21 February 1996.

The applications were made by the Minister for Industrial Relations and Training (the Minister) and related to disputes with the Company over alleged breaches of the Restaurant Keepers Award (the Award) by the Company in that it had underpaid the wages due to a number of its employees.

Most of the applications were joined at the outset, but, one needed to be confirmed as joined at the last hearing and it was.

At the commencement of the last hearing the Company referred to the interim decision mentioned above and made submissions that the hearing ought to be abandoned on the basis that the continuing hearing in the Australian Industrial Relations Commission (the AIRC) of a proposed Federal agreement covering the employees of the Silvio's Pizza chain throughout Australia was due to be further heard and possibly endorsed the next day in Brisbane, Queensland before Commissioner Palmer of the AIRC. The Company's position was that any further hearing of the applications would be a waste of time in the light of the likely results in the AIRC.

The Minister acknowledged the imminent AIRC proceedings, but, opposed any adjournment or abandonment of the hearing in this Commission saying, amongst other things, that he would be seeking to intervene in the Federal matter to persuade the AIRC that the proposed Federal Award or Agreement ought not be made even if only until after 1 January 1996 so that these applications may be fairly dealt with and the Company would not escape its liabilities under the laws of Tasmania.

The Commission decided to proceed with the applications forthwith and, as a result, the Company advised the Commission that it would take no further active part in the hearing.

The Minister proceeded and, with the approval of the Commission, took matter T5833 of 1995 as the vehicle and a witness, Rebekah Tunevitsch of St Leonards was called by the Minister and gave evidence that:-

• She had been employed by the Company at its shop in Hobart Road, Launceston, preparing pizzas for delivery and take-away; the work included cutting, serving and cash register operation.

• She was employed as a casual worker.

• She carried out all duties in the shop and was paid at $5.11 per hour.

• She was 15 years of age, her date of birth being 15 May 1979.

• She was classified as a counter sales and service representative and had signed all relevant time-sheets each week.

• When she approached management over her concerns about underpayment she had been reprimanded by her supervisor. She said that her supervisor had told her she was being paid enough and it was above the award rate.

The Minister referred to the Scope clause of the Award and produced an exhibit (T9) which was a copy of the Award, No.1 of 1993 Consolidated.

The relevant words in the Scope clause relied on by the Minister were:-

"This award is established in respect of the industries of: ...

(f) supplier of cooked or prepared food which is not to be consumed on the supplier's premises so long as the supplier is not within the jurisdiction of the Retail Trades Award."

The Minister submitted that the abovementioned segment of the Scope of the Award clearly applied to the Company's business and in the absence of any other prescriptions, State or Federal, ought to have been accepted by the Company.

In the same way the Minister referred, in particular, to the Definitions and Wages clauses of the Award to show that the employees named in the applications were entitled to the monies claimed for the classifications in which they worked.

The Minister submitted an exhibit showing the full details of the wage assessments for each employee involved in these applications including the arrears due in each case.

The Minister relied upon an appeal decision in the Supreme Court of Tasmania1 as a precedent supporting his case. He submitted that the decision in cases such as these put the onus on the employer to prove the existence of a Federal award or an alternative State award and the Company had not proven that any Federal award or agreement applied in these cases.

The Minister sought an order under Section 31 of the Industrial Relations Act 1984 that, within 14 days of the making of the order, the Company pay to the employees named in the applications the amount of arrears of wages specified in each case.

Decision

I am satisfied that, in each of these applications the Company was operating under the jurisdiction of the Award and was liable to pay the appropriate wages specified in the Award, but, declined to do so.

I am also satisfied that, prior to the lodgement of these applications, all the necessary details were put before the Company and explained by the Minister or his agents, but, the Company did not accede to the Minister's requests that the Award be adhered to.

Order

In accordance with the powers vested in me under Section 31(1) of the Industrial Relations Act 1984, so as to settle this dispute, I order that, within 14 days from the date hereof, Zoron Pty Ltd, AFT The Samuel Stephens Family Trust, trading as Silvio's Pizza of Launceston, pay to each of its employees listed hereunder, the amout of money specified in each case.

*Please note: Hiram Tams has two payments $310.92 (T5830) and $132.76 (T6045); a total of $443.68.

 

P A Imlach
COMMISSIONER

Appearances:
Mr C Willingham with Mr G Thomas and Mr G Williams for the Minister for Industrial Relations and Training
Miss J Bourke for Zoron Pty Ltd, AFT The Samuel Stephens Family Trust, trading as Silvio's Pizza.

Date and place of hearing:
1995
November 13
George Town
December 6
Launceston
1996
February 21
Launceston

1 Number A42 of 1994, Richards & Richards v McGaurr