T7167 - 11 September
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Workplace Standards Authority and Tasmanian Redline Coaches Pty Ltd
Records of Employment - employer failed to comply with section 75(5) notice to produce employment records - section 75(7A) Order sought on employer - Order issued REASONS FOR DECISION Section 75(7A) of the Industrial Relations Act 1984 provides that:
"Record", for purposes of section 75(7A), is a "true record of employment" that contains the information prescribed in regulation 25 of the Industrial Relations Regulations 1993. On 8 August 1997, pursuant to section 75(7A) of the Act, the Acting Chief Executive, Workplace Standards Authority applied to the President for:1
When the matter came on for hearing in Launceston on Monday, 8 September 1997 Mr G Thomas appeared for the Chief Executive, Workplace Standards Authority (hereafter called "the Authority"). The respondent employer, Tasmanian Redline Coaches Pty Ltd, did not appear either in its own right or by way of agent. Having satisfied myself that Tasmanian Redline Coaches Pty Ltd was properly notified in writing of the date, time and place of this hearing and being aware of advice given to my Associate by a company representative, Mr W Griffiths, that his client would not be present at the hearing, I granted Mr Thomas' application that, pursuant to section 21(2)(e) of the Act, I should proceed to hear and determine the matter in the employer's absence. The person on whose behalf the application is made, Mr Stephen John Oakley, gave oral evidence on oath of the facts and circumstances of his dispute with Tasmanian Redline Coaches Pty Ltd. He said that on 2 July 1997 he lodged a formal complaint with the Authority alleging that he "was working between 52 and 56 hours per week and ... was not receiving any leave loading [or] any penalty rates for my excess of hours."2 Mr Oakley, by way of reference to a copy of his pay slip for the period 9-15 February 19973 and copy income tax group certificates for the financial years 1995/19964 and 1996/19975 said that he was employed by Tasmanian Redline Coaches Pty Ltd at the company's 9 Edward Street, Devonport depot for the period covered by the proposed order, ie 6 April 1996 to 4 April 1997. The copy certificate for 1995/1996 omits the word "Tasmanian" from the employer's description. However, nothing of consequence appears to flow from that fact because the Australian Securities Commission "Company Extract" shows that the name "Tasmanian Redline Coaches Pty Ltd" did not come into being until 31 August 1995.6 In any event, each copy certificate correctly identifies Tasmanian Redline Coaches Pty Ltd by its Australian Company Number, ie 009 499 094.7 In the circumstances I find that Tasmanian Redline Coaches Pty Ltd employed Stephen John Oakley for the whole of the period set out in the proposed order, ie 6 April 1996 to 4 April 1997. Continuing with his oral evidence Mr Oakley said that, during his period of employment with Tasmanian Redline Coaches Pty Ltd, the duties required of him by the employer were to "answer telephone enquiries in the administrative area"; "change over the tills [and] make sure I had enough change"; write up freight consignment forms; check in freight; sell passenger tickets; handle money and do the banking; and, occasionally, do "the main books for the depot".8 In reply to further questions from Mr Thomas, Mr Oakley confirmed that the company employed him on a full-time basis in its passenger and freight business and that his main duties were clerical in nature.9 Concerning his hours of work, Mr Oakley referred to copy of a time sheet that he had filled in for the week ending 5 October 1996.10 He said the document, which was signed by both himself and the company's Devonport manager, Mr Malcolm Hardaker, recorded the hours that he actually worked for the period in question. The original copies of such documents, which he said he completed and handed in for every week of his employment with Tasmanian Redline Coaches Pty Ltd, were sent to the company's administrative centre in Charles Street, Launceston. Mr Douglas William Blackaby, who is employed by the Authority as a Senior Inspector for the transport sector, also gave oral evidence. He said that, on 3 July 1997, he went to the company's Launceston depot where he interviewed Mr Michael Larissey, managing director, and Mr Peter Sydes, industrial relations manager. The parties agreed at that meeting, he continued, that Mr Oakley worked 54 hours per week at the company's Devonport depot, that he was a full-time employee and that his duties were mainly clerical in nature. Mr Blackaby also testified that, at the meeting, the company's representatives directed his attention to the fact that Tasmanian Redline Coaches Pty Ltd is a respondent to the "Federal Transport Award" which, they suggested, covered the work performed by Mr Oakley. Mr Blackaby said that the outcome of his investigation into that matter showed, to his satisfaction, that the work performed by Mr Oakley for Tasmanian Redline Coaches Pty Ltd was not covered by the award in question, which he said is limited in scope to drivers only, or any other federal award or registered agreement that might arguably oust coverage of the relevant State award. The appropriate State award in the circumstances, Mr Thomas submitted, is the Public Vehicles Award. That award as to its scope, he continued, "is established in respect of the industries of : (a) operating any public vehicle other than carrier, cart or van; and (b) operating a motor vehicle hire or rental service"11 which, he contended, covers a passenger and freight company such as Tasmanian Redline Coaches Pty Ltd. So far as concerns the State industrial jurisdiction, Mr Thomas said, Division C of the Public Vehicles Award prescribes wage rates and conditions of employment for clerks which, he submitted, Tasmanian Redline Coaches Pty Ltd is bound to observe in respect of its employment of Mr Oakley by reason of the company being engaged in an industry covered by the scope clause.12 The statutory basis for Mr Oakley's award entitlements, Mr Thomas said, is section 49(1) of the Act which provides that, subject to certain provisions not here relevant:
Having regard to the evidence and the submissions put to me I find that, for the relevant period of his employment with Tasmanian Redline Coaches Pty Ltd, Mr Oakley was a full-time employee who was required by the company to perform duties of a clerical nature. I am satisfied that, as to those duties, Mr Oakley completed and submitted weekly time sheets. Concerning award coverage I find that, as to Mr Oakley's employment and award entitlements, Tasmanian Redline Coaches Pty Ltd is bound by the Public Vehicles Award. Following the meeting of 3 July 1997, Mr Blackaby said, Mr Sydes sent some information by fax concerning the total weekly hours worked by Mr Oakley. Upon receipt of that material, Mr Blackaby said he again spoke to Mr Sydes for the purpose of explaining in detail the type of employment records required. In reply, Mr Blackaby continued, Mr Sydes opined that Mr Oakley was not covered by an award because "he was on a staff salary and as such no records were kept of his daily work hours."13 Mr Sydes' response, Mr Blackaby said, left him with no choice but to serve a Notice to Produce Records of Employment pursuant to section 75(5) of the Act - an action that he executed on 11 July 1997.14 As to both form and substance, that Notice was substantially the same as the order sought in the current proceedings. The records tendered in these proceedings by Mr Thomas show that a company officer acknowledged receipt of the notice on 14 July 1997.15 Mr Thomas, continuing his submissions, told me that on Friday 5 September 1997 there had been part compliance with the Notice by the company. That part compliance, Mr Thomas said, comprised the following materials:16
The employment records required but not produced, Mr Thomas said, are:17
On the evidence of Mr Oakley I am satisfied that the documents which the Authority requires the company to produce were in existence at the time of his employment. In the circumstances, having regard to the employer's statutory responsibilities under the Act to "make and maintain a true record of employment" - section 75(1) - and to cause those records "to be kept for a period of 12 months after the termination of" Mr Oakley's employment - section 75(2), I must assume that those records are still available and capable of being produced by Tasmanian Redline Coaches Pty Ltd in satisfaction of any order that might appropriately issue from these proceedings. On the evidence and submissions put to me in this matter I believe the Authority has made out a case for the issue of the proposed order, but only to the extent that it requires production of relevant materials not included among the documents produced on 5 September 1997 and specified by Mr Thomas as being necessary to deal with Mr Oakley's complaint. My order follows: Order PURSUANT TO section 75(7A) of the Industrial Relations Act 1984 I HEREBY ORDER AND REQUIRE Tasmanian Redline Coaches Pty Ltd (ACN 009 499 094), 18 Charles Street, Launceston, Tasmania to forward to the Chief Executive, Workplace Standards Authority, Henty House, 1 Civic Square, Launceston, Tasmania, by not later than 5:00pm on Friday, 19 September 1997, a true copy of the records specified below relating to the employment of Stephen John Oakley at Tasmanian Redline Coaches Pty Ltd, 9 Edward Street, Devonport, Tasmania:
B R Johnson Appearances: Date and place of hearing: 1 Section 3(1) of the Act provides that " 'Secretary', in relation to a provision, means the Head of the Agency within the meaning of the Tasmanian State Service Act 1984 within which the provision is administered." |