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T7115

 

TASMANIAN INDUSTRIAL COMMISSION

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

Australian Liquor, Hospitality and Miscellaneous Workers Union -
Tasmanian Branch

(T7115 of 1997)

and

ESTI Holdings Pty Ltd

 

DEPUTY PRESIDENT B R JOHNSON

HOBART, 12 August 1997

Industrial dispute - alleged breaches of the Security Industry Award - breaches proved - order issued

REASONS FOR DECISION

On 21 July 1997 the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) applied to the President for a hearing pursuant to Section 29(1) of the Industrial Relations Act 1984 concerning the following matter:

"There is a dispute between the Union and Esti Holdings Pty Ltd c/o Mr Neil Ruut 51 Sunderland Street Moonah 7010 regarding breaches of the Security Industry Award for the following employees:

Mr Carl Fitzgerald, breach of clauses 8, 17, 21, 30, 31 and 36.

Mr Brian Leggitt, breach of clauses 8, 17, 21, 30 and 31.

The applicant seeks the payment of monies owed to Mr Fitzgerald and Mr Leggitt."

On Friday 1 August 1997, when the matter came on for hearing, Mr D O'Byrne appeared for the Union. No person or persons appeared or sought leave to appear for or on behalf of the nominated employer, ESTI Holdings Pty Ltd. In the circumstances, having ascertained that service of the notice of hearing was effected in terms of Section 88(1)(b)(iii) of the Act, I decided to proceed to hear and determine the matter in the employer's absence in accordance with the provisions of Section 21(2)(e) of the Act.

At the outset I granted Mr O'Byrne's request to amend the application for the purpose of removing the reference to Mr Brian Leggitt in respect of whom, he said, the Union would not be proceeding with its claim. Regarding the remaining claim, the Union's sole witness was Mr C A Fitzgerald, who gave evidence relevant to his period of employment with ESTI Holdings Pty Ltd.

By way of establishing the employer/employee relationship, Mr O'Byrne submitted a photocopy of Mr Fitzgerald's personal copy of his Australian Tax Office 1996 Group Certificate,1 which identifies the employer as "ESTI Holdings". The document also discloses that "ESTI Holdings" employed Mr Fitzgerald for the period 18 April to 30 June 1996. In addition, Mr O'Byrne tendered a copy of a letter dated 3 May 1996 which was forwarded to Mr and Mrs C A Fitzgerald by the ANZ Banking Group Limited 274 Murray Street, Hobart informing them that a cheque dated 30 April 1996 for $444.95, being for wages due to Mr Fitzgerald, and drawn against the account of ESTI Holdings Pty Ltd, "has been returned unpaid with the answer REFER TO DRAWER."2

There is some suggestion in Mr Fitzgerald's evidence that he believed he might have been employed by a corporate entity called "Direct Security". Certainly, the evidence discloses that he was given a notebook bearing a cover on which appeared the words "Direct Security Burglar Alarms"3 and a uniform that bore the words "Direct Security".4 It is clear from other proceedings before me that there is a separate corporate entity called Direct Security, which is now in voluntary liquidation,5 and which appears to have operated from the same address as ESTI Holdings Pty Ltd. However, the notebook and uniform notwithstanding, there is no evidence in these proceedings to suggest that, during the relevant period of time, Mr Fitzgerald's employer was other than that disclosed on his Group Certificate, i.e. ESTI Holdings Pty Ltd.

In his oral evidence Mr Fitzgerald described the nature of his work for ESTI Holdings Pty Ltd, which he said was mostly night and weekend work, as including:6 patrolling client sites on foot;7 maintaining patrol logs and gate security; checking buildings and attending to general building security, including lights; and ensuring that employees did not take client property off site without appropriate authorisation. On the basis of this evidence, Mr O'Byrne submitted that in terms of Clause 7 - Definitions of the Security Industry Award Mr Fitzgerald was a Security Officer Level 1.

A company extract obtained from the Australian Securities Commission shows that the principal activity of ESTI Holdings Pty Ltd is "Security Guard and Security Alarm, Sales and Services". On the evidence before me, including Mr Fitzgerald's description of the work required of him by ESTI Holdings Pty Ltd, I find that ESTI Holdings Pty Ltd was, at the relevant time and in terms of Clause 2 - Scope of the Security Industry Award, an employer in the industry of security and watching services. I also find that ESTI Holdings Pty Ltd employed Mr Fitzgerald for the period 18 April to 30 June 1996.

Furthermore, having perused the award in question and after taking into account Mr Fitzgerald's evidence about the nature of his work and responsibilities whilst employed by ESTI Holdings Pty Ltd, I am satisfied that his proper award classification is that of Security Officer Level 1.

In performing the tasks required of him Mr Fitzgerald said he worked to a fairly regular roster that was put out every month - generally 32 hours or four 8 hour shifts - but that could be changed and sometimes 12 hour shifts were included. Mr Fitzgerald described the nature of his employment with ESTI Holdings as "casual in the sense that I was paid a flat rate and that there was no holiday pay, no sick pay."8

On the basis of Mr Fitzgerald's diary records Mr O'Byrne submitted that, in terms of Clauses 7 - Definitions and 31(a)(iv) - Shift Allowances, Mr Fitzgerald worked a permanent night shift because, as Exhibit O'Byrne 4 shows, he worked night shifts that finished after midnight and at or before 8:00am, which did not alternate with other shifts so that he might have at least one-third of his working time off night shift.

My examination of Exhibit O'Byrne 4 shows that, of a total of 52 shifts worked by Mr Fitzgerald during the relevant period, 41 of them were night shifts within the meaning of the award. In the circumstances I am satisfied that Mr Fitzgerald, during his period of employment with ESTI Holdings Pty Ltd, was working a permanent night shift within the meaning of the Security Industry Award.

Concerning his actual hours of work Mr Fitzgerald said he kept in his handwritten diary a record of the times he commenced and finished duty, together with total hours worked, for each of the days he was employed by ESTI Holdings.9 Comparing that diary record with Mr Fitzgerald's pay slips,10 Mr O'Byrne said, demonstrates an accurate correspondence between the two as to hours worked. The pay slips also show, Mr O'Byrne added, the actual money amounts paid as wages.

Exhibit O'Byrne 4, Mr O'Byrne continued, sets out by reference to his diary the daily hours worked by Mr Fitzgerald on each day of the week during his period of employment with ESTI Holdings Pty Ltd. In addition, he went on, the exhibit shows the breakdown and money value of those hours in terms of ordinary hours, overtime hours, and Saturday, Sunday and public holiday work. All the amounts shown, he said, were calculated by reference to relevant award provisions which, he contended, were the subject of breach by ESTI Holdings Pty Ltd.

The hours worked by Mr Fitzgerald, as shown in Exhibit O'Byrne 4, when compared with the amount of wages actually paid to him, at a flat hourly rate of $12, by ESTI Holdings Pty Ltd for each pay period, Mr O'Byrne argued, show that Mr Fitzgerald was not paid his full award entitlements concerning:

  • all time worked on a Saturday or in excess of 8 hours on any day Monday to Friday or before the time fixed for commencing work or after the time fixed for ceasing work (Clauses 8(2) and 21(a));

  • all overtime worked as a shift worker on a Saturday (Clauses 8(2) and 21(b));

  • all ordinary time of duty on a Saturday, Sunday or public holiday (Clauses 8(2) and 30); and

  • all time worked on permanent night shift (Clauses 8(2) and 31(a)(iv)).

Mr O'Byrne submitted that, after applying the above award provisions to the hours actually worked by Mr Fitzgerald, Exhibit O'Byrne 4 demonstrates that, after taking into account the sums already paid,11 the amount of underpaid wages properly due and payable to Mr Fitzgerald is $2322.29.12

After hearing Mr Fitzgerald's evidence and perusing the exhibits tendered by Mr O'Byrne, I find the evidence discloses that in paying Mr Fitzgerald by reference to a flat hourly wage rate of $12 per hour and no more, ESTI Holdings Pty Ltd breached the provisions of Clauses 8(2), 21(a) and (b), 30 and 31(a)(iv) of the Security Industry Award.

In his oral evidence Mr Fitzgerald also went to the question of alleged underpayment of certain award prescribed allowances; in particular, he referred to Clause 15 - First Aid Attendant, Clause 20 - Meals and Meal Allowances and Clause 36 - Uniforms.

In that regard Mr O'Byrne tendered Exhibit O'Byrne 5. This document, as explained by Mr Fitzgerald, sets out (by reference once again to his personal diary notes) those shifts for which he claims award entitlements to first aid, meals and uniform allowances that, he alleges, were not paid to him by ESTI Holdings Pty Ltd during his period of employment.

Mr Fitzgerald's oral evidence is that, when working at Inches, there were, on nearly all his shifts, workers on site for whom he was expected to administer first aid in the event that such a need arose - as it apparently did on two occasions.13 Of the 52 shifts that he worked for ESTI Holdings Pty Ltd Mr Fitzgerald claims, pursuant to Clause 15 of the Security Industry Award, a first aid allowance of 88c per shift for 37 shifts,14 ie a total of $32.56.

Concerning unpaid meal allowances, Mr Fitzgerald's evidence is that there were six occasions15 on which the employer, ESTI Holdings Pty Ltd, did not give him notice the day before that he would be required to work in excess of two hours overtime, i.e a 12 hour shift. Mr Fitzgerald's claim in this regard, pursuant to Clause 20 of the Security Industry Award, is for a meal allowance of $4.90 per shift for six shifts, i.e a total of $29.40.

Mr Fitzgerald also gave evidence that the employer provided him with a uniform, labelled on the shoulders with the name "Direct Security", and a tie, black work boots and blue wet weather jacket, the latter item also bearing the name "Direct Security".16 Mr Fitzgerald said he was required by ESTI Holdings Pty Ltd to clean and maintain the uniform. Of the 52 shifts that he worked for ESTI Holdings Pty Ltd Mr Fitzgerald claims, pursuant to Clause 36(b) of the Security Industry Award, an allowance for the purpose of cleaning and maintaining his uniform of 15c per shift for 51 shifts,17 i.e a total of $7.65.

After hearing Mr Fitzgerald's evidence and perusing the exhibits tendered by Mr O'Byrne, I find the evidence discloses that by not paying Mr Fitzgerald his award entitlements regarding first aid, meal and uniform allowances, ESTI Holdings Pty Ltd breached the provisions of Clauses 15, 20 and 36(b) respectively of the Security Industry Award.

Having regard to all the above findings I am satisfied that the amounts claimed by Mr Fitzgerald are properly due and payable to him by ESTI Holdings Pty Ltd in accordance with the provisions of the Security Industry Award as identified. Accordingly, I have formed the opinion that I should now make the following Order:

ORDER:

PURSUANT TO the powers conferred on me by Section 31 of the Industrial Relations Act 1984 I HEREBY ORDER that ESTI Holdings Pty Ltd, the registered office of which is c/- Benedict Leung, 44 Sandy Bay Road, Sandy Bay, Tasmania 7005 and whose principal place of business is 51 Sunderland Street, Moonah, Tasmania 7009 pay to Mr Carl A. Fitzgerald, Unit 1, 6 Dalkeith Court, Sandy Bay, Tasmania 7005, within a period of 21 days of the date of this Order, the sum of Two Thousand Three Hundred and Ninety-One Dollars and Ninety Cents ($2391.90) being wages underpaid and allowances not paid, as set out in the following Table, for the period 18 April to 30 June 1996:

Table

    Wages Underpaid $2322.29
    First Aid Allowances Not Paid $32.56
    Meal Allowances Not Paid $29.40
    Uniform Allowances Not Paid $7.65
       
    Total $2391.90

 

B R Johnson
DEPUTY PRESIDENT

Appearances:
Mr D O'Byrne for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch.

Date and Place of Hearing:
1997
August 1
Hobart

1 Exhibit O'Byrne 1.
2 Exhibit O'Byrne 2.
3 Transcript 1/8/97, p. 2 and Attachment to Exhibit O'Byrne 3.
4 Supra, p. 5.
5 T6907 of 1997.
6 Supra.
7 Transcript 1/8/97, p. 2 where Mr Fitzgerald identified the following sites: Incat, Life Raft Systems, Inches, Coverdales, Royal Hobart Hospital, Montgomerys and Princes Wharf.
8 Supra.
9 Attachment to Exhibit O'Byrne 3.
10 Exhibit O'Byrne 4.
11 Supra.
12 Exhibit O'Byrne 6.
13 Transcript 1/8/97, p. 4.
14 Exhibit O'Byrne 5: 18-26, 29-30 April 1996; 1-2, 7-9, 12, 16-17, 23, 28-31 May 1996; 3, 7, 10-12, 15, 17-20, 24-27 June 1996.
15 Exhibit O'Byrne 5: 5, 24-26 May 1996; 4, 8 June 1996.
16 Transcript 1/8/97, p. 5.
17 Exhibit O'Byrne 5: 18-26, 28-30 April 1996; 1-2, 5-9, 12, 16-19, 17-19, 21, 23, 24-26, 28, 30-31 May 1996; 1-4, 7-12, 15, 17-20, 24-27 June 1996.