T7643
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Maree Margaret Maina and Jane and Robert de Little, Mount Lord Apricots
Industrial dispute - alleged breach of the Farming and Fruitgrowing Award re payment of wages and piece work rates - finding, pursuant to section 50(3) of the Act, that employee entitled to be paid as a casual hourly employee - application to be relisted REASONS FOR DECISION This application was lodged by Maree Margaret Maina pursuant to section 29(1A) of the Industrial Relations Act 1984, seeking a hearing in relation to a dispute with Jane and Robert de Little, Mount Lord Apricots, re alleged breach of the Farming and Fruitgrowing Award in relation to the payment of wages. Ms Maina submitted that she had been employed by Mr de Little from 1 January 1997 to 5 February 1997 at Mt Lord Apricots. She was employed to pick apricots as a piece worker for 36 hours per week and for that was told when she applied for the job that the payment would be $1.60 a 10 kg box. The award provision is:
Ms Maina said she later discovered that the award wage for a Level 2 Orchard Hand at that time would have resulted in an hourly rate of $10.80. She said that it would not have been possible for her to have been able to pick enough boxes of fruit in one hour at the rate of $1.60 per box to earn $10.80. She said that 4 boxes picked in an hour was average and that was "going hard". Ms Maina alleged the award provided that a piece worker should receive no less per hour than a Level 2 Farm and/or Orchard Hand plus 12 ½%. Mr Rice, appearing for Mr H and Mrs J de Little, tendered correspondence that had taken place between the parties1. He said it was not denied that Ms Maina had been employed on piece work rates, which, he submitted, was done in accordance with Clause 8(5)(b) of the award. He said Ms Maina's claim had been discussed at a number of levels. He said that when her first letter dated 31 December 1997 was received, Mr de Little sought the advice of the Workplace Standards Authority, and acting on that advice and on advice from the Tasmanian Farmers and Graziers Association, Ms Maina's claim had been denied. Subsequently an officer from the Workplace Standards Authority had visited Mr de Little in an official capacity and investigated the matter. Following that he said there had been discussions between the TFGA and the Australian Workers' Union. Mr Rice said it was the employers' firm belief that they had complied with the award in both its legal sense and the spirit of the award. Mr Rice submitted that Clause 8(5)(b) provided that where the employer and employee agreed to work on piecework rates different from the rate to be derived from paragraph (a), such a rate could be fixed by agreement. He submitted that there had been an offer made to Ms Maina and an acceptance of that particular rate at the time she was employed. On that point I suggested that employers engaging piece workers might find it useful for their purposes, and that employees entering piece work agreements would have a better understanding of their employment contract, if a document setting out the arrangements was given to each employee and a signed copy returned to the employer indicating that those arrangements were acceptable. Having heard the submissions and discussed the matter in conference with the parties, I confirm my view that paragraph (b) of subclause 5 - Piece Work - of Clause 8 of the Farming and Fruitgrowing Award had application to the employment of Ms Maina. Paragraph (b) is an alternative to paragraph (a) and provides a second method of remunerating piece workers. Apart from the constraints of section 50(3) of the Industrial Relations Act 1984, which I will discuss later, there is, I consider, no limit, upper or lower, on what piece work rate might be agreed under paragraph (b). In my view it does not mean, as Ms Maina submitted, that an agreed piece work rate must produce an hourly rate of at least 12 ½% more than a Level 2 Farm and/or Orchard Hand, although I observe that the wording of the subclause is clumsy. But, section 50(3) of the Act provides:
That provision means, I believe, that Mrs Maina was entitled to be paid an amount equivalent to that which would have been received by a casual, hourly employee. In the circumstances the hearing of this application will resume on a date to be fixed for the purpose of hearing the parties as to the days and hours of work performed by Ms Maina at Mount Lord Apricots between 1 January 1997 and 5 February 1997 inclusive, and the rate of pay to be applied to that work. In the meantime the parties are encouraged to discuss the possibility of a mutually suitable settlement of this dispute. When those discussions have concluded the application will be relisted.
F D Westwood Appearances: Date and place of hearing: 1 Exhibit 1 |