TASMANIAN INDUSTRIAL COMMISSION

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

Health Services Union of Australia,
Tasmania No. 1 Branch
(T.6076 of 1996)

and

Euphrasia Inc

Industrial dispute - alleged breach of the Disability Service Providers Award

REASONS FOR INTERIM DECISION

The Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) made application to the President for a hearing to settle an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act 1984.

The industrial dispute is with Euphrasia Inc of 1A Victoria Street, Hobart which provides a number of supportive services to persons with disabilities and employs staff for that purpose. The Disability Service Providers Award has application to this industry.

In its application the HSUA described the circumstances of the dispute in the following terms:

"HSUA seeks a hearing under section 29(1) of the Industrial Relations Act 1984 because a member, Kaye Woolnough, employed as a Disability Service Worker with Euphrasia Inc. is not receiving remuneration to which she is entitled under the relevant award, i.e. the Disability Service Providers Award.

HSUA seeks an order from the Commission instructing the employer to provide the rates of remuneration as set out in the Disability Service Providers Award and thus resolving the dispute.

The HSUA seeks to have the order made retrospective to 1 January 1995 which is when the employer first failed to meet its obligations."

Whilst the application stated that one employee is not receiving the remuneration to which she is entitled, it was made clear by the HSUA during the course of the hearing that other employees of Euphrasia Inc are allegedly similarly affected.

Whilst the employer concerned in this matter indicated that as a service provider, which is wholly funded from Government sources, it was not in a position to meet its award commitments because of a lack of funds, I am not persuaded that I should make the Order sought at this time.

It needs to be understood that to issue an Order pursuant to Section 31 of the Act at any time is a serious matter and where it is alleged that a breach of an award is concerned the facts going to the essential details would need to, firstly, be proven by the production of witness or other acceptable evidence to justify such an action on my part. Whilst arguably a "prima facie" case of award breach has been shown to exist the HSUA has not done anywhere near enough at this stage to satisfy the onus of proof which rests upon it.

Given the circumstances I am of the view that it is desirable for an independent and impartial body to be called upon to carry out a proper investigation and to examine all available records and other relevant material relating to the complaint of alleged breach of award by Euphrasia Inc.

Accordingly I have requested the Department of Industrial Relations, Vocational Education and Training to exercise its statutory powers under the Industrial Relations Act in relation to the present matter and, if agreeable, to present its report and findings to a resumed hearing of this matter.

In the meanwhile this matter is adjourned sine die.

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr C. Stringer with Ms G. Diaz and Mrs K. Woolnough for the Health Services Union of Australia, Tasmania No. 1 Branch.
Mr W.J. Fitzgerald with Ms D. Thomas for Euphrasia Inc.

Date and Place of Hearing:
1996.
Hobart:
March 7