T7985
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Barry Hansch and Transport Workers' Union of Australia
Industrial dispute - termination of employment - reinstatement sought - payment for accrued annual leave sought - valid reason for termination - severance pay ordered - annual leave determined by Union Rules - outside jurisdiction - recommendation made re annual leave REASONS FOR DECISION This application was lodged by Barry Hansch pursuant to section 29(1A) of the Industrial Relations Act 1984, seeking a hearing in relation to a dispute with the Transport Workers' Union of Australia (the TWU). The dispute related to the termination of his employment. When the matter first came before the Commission on 14 October 1998, Mr Green, a legal practitioner, appeared for Mr Hansch. Mr Green requested an indefinite adjournment of the hearing as his client wished to take action in the Federal Court of Australia which, if successful, would remove the question of Mr Hansch's dismissal from the jurisdiction of the Tasmanian Commission. By letter dated 13 October 1998, Mr Smith, legal officer for the TWU, advised that the union had agreed to an adjournment to the next available date. On 12 April 1999 the Commission was advised that the Federal Court had "decided that the action of the Federal Council of the TWU in disbanding the Tasmanian Branch was legally valid". The matter came before this Commission on 10 May 1999 when Mr Green reported that although Mr Hansch's application to the Federal Court for the reinstatement of the Tasmanian Branch of the TWU had not been successful, an appeal was to be lodged. However, he said, the parties felt that the matter of the termination of Mr Hansch's employment should proceed before this Commission, in view of the fact that his elected term expired on 20 April 1999. Mr Green submitted that the matter before the Commission was one involving whether there was a valid reason for the termination of the applicant's employment. In this context he referred to Article 4 of the ILO Convention concerning the termination of employment at the initiative of the employer. He also referred to the case of Selvachandran v Peteron Plastics1 and Kerr v Jaroma2. Mr Green said Mr Hansch's desire was to be reinstated and "to provide an effective industrial service to the union members in Tasmania". If I were to find that it was not practical to reinstate Mr Hansch, the question of severance pay arose, Mr Green said. He submitted that "severance pay" in respect of redundancy included the "pay-out of the employee's entitlement which could include any payment for annual leave and long service leave. By letter dated 30 June 1999 Mr Green advised that the Transport Workers Union of Australia had paid Mr Hansch his entitlements for long service leave; therefore, he said, there was no need for the Commission to consider that matter. Accordingly Mr Hansch's claim, in lieu of reinstatement, is for four weeks' pay for annual leave for each of the three years from 4 January 1995 to 3 January 1998, and three weeks' pay for proportionate annual leave for the period 4 January 1998 to 7 September 1998; a total of 15 weeks. In addition a redundancy payment of three weeks' pay for each completed year of service; sixteen completed years of service at three weeks' pay per year, being 48 weeks. The total claim therefore being for 63 weeks' pay. The facts It was not contested that Mr Hansch had been an employee of the Transport Workers' Union of Australia for a period of 16 years and 8 months. He was first employed as an organiser for the TWU, Tasmanian Branch, on 4 January 1982; in 1983 he was elected to the Branch Committee of Management; he was elected a Branch Trustee in 1984, and on 8 March 1995 he was elected as State Organiser (Hobart). After the election the other southern organiser resigned and Mr Hansch's secretary was made redundant. Mr Hansch became overworked and stressed and took sick leave. He said he would take long service leave to recover. He was then sacked by the Tasmanian Branch. That was on 10 August 1995. Mr Hansch applied to the Industrial Relations Court of Australia and was reinstated by order made by Mr Justice Ryan on 19 April 1996. Mr Hansch returned to work on 6 May 1996. He was advised by letter dated 13 May 1996 that he was expelled from the union. He appealed to TWU Federal Council and by letter dated 5 July 1996 he was advised that he was reinstated. On 23 July 1996 he received a letter from the Secretary of the Tasmanian Branch charging him formally with offences and he was dismissed by decision of a special meeting of the branch on 21 August 1996. He again applied to the Industrial Relations Court. On 25 May 1998 Mr Justice Ryan ordered that the resolutions of the branch meeting of 21 August 1996 be treated as null and void. Mr Hansch attempted to present himself for work on 29 May 1998, but was advised by the solicitors for the union not to do so. On 4 July 1998 the Tasmanian Branch resolved to have itself abolished and the Federal Council resolved to disband the Tasmanian Branch on the same date. About that time two officials and two support staff of the branch were retrenched, leaving three officials and one support staff member, viz. Mr Bacon, State Secretary; Mr C Wilkes, Northern Organiser; Mr Hansch, State Organiser (Hobart), and Ms K Eastoe, Administration Assistant. The Federal Secretary, Mr Allan, provided Mr Hansch and the others named above with a duty statement. Accompanying correspondence to Mr Hansch indicated he was employed by the Federal Union with effect from 1 July 1998. Subsequently Federal Council accepted a Tasmanian Business Plan3 prepared by the Federal Secretary and dated 21 July 1998, which provided, with effect from 1 August 1998, for an organisational structure of two officials, Messrs Bacon and Wilkes, and an administration assistant, Ms Eastoe. On 6 August 1998 Mr Justice Marshall of the Federal Court ordered the payment of certain monies to Mr Hansch in respect of his employment with the union between 29 September 1995 and 19 April 1996, 23 August 1996 and 29 May 1998, and between 29 May 1998 and 4 September 1998. Mr Hansch was personally dismissed by the Federal Secretary on 7 September 1998. On that day a letter from Mr Allan to Mr Hansch dated 4 September 1998 was handed to him. It advised that the union "continued to experience considerable financial difficulties in relation to its Tasmanian operations" and, as "a result, due to the union's operational requirements, a decision has been made to terminate your employment, effective immediately." He was given four weeks pay in lieu of notice, an amount of $3231.84. Evidence of Barry Hansch Mr Hansch confirmed that he had prepared and signed the statement and declaration attached to his application. In cross examination Mr Hansch agreed that in June 1998, in addition to himself, there were four other officials of the TWU in Tasmania, i.e. Messrs Wilkes, Bacon, Gill and Austin and three support staff. He agreed that "early" in July 1998 the Branch Committee of Management passed a resolution retrenching Messrs Austin and Gill, and Ms Bacon and Ms Bushing, and passed another resolution, acknowledging that "the current cash flow situation does not allow the branch to meet ongoing liabilities and continue to provide services to the membership; accordingly the branch has ceased to function." He also agreed that on 4 July 1998 the Federal Council passed a resolution which disbanded the branch pursuant to Rule 23. Mr Hansch attributed the financial problems of the Tasmanian Branch to mismanagement by the Branch Committee of Management headed by Mr Bacon. He said he did not believe the Federal Council acted in the best interests of the union when it disbanded the branch and took over management. Nor would he concede that there was "no history of ill will between (him) and the Federal Council, or between (him) and Mr Allan. He said he had discussed his concerns about the management of the branch with Mr Allan, and had sought his assistance in addressing those problems. Mr Allan had been aware that he had a difference of opinion with Mr Bacon. He agreed that after the branch was disbanded the Federal Secretary was put in charge of the Tasmanian operations and directed to come up with a business plan, and that Mr Allan had the discretion to make the decision that only one organiser was needed to serve 1200 members, that being the number of members of the union in Tasmania. Mr Hansch, however, believed two organisers were required for the State of Tasmania, in view of its "geographical set up". Mr Hansch said his return to work in July 1998 had been frustrated as no vehicle was provided and the phones had been cut off. He was not given sufficient materials, he said. He believed he could have recruited more members and that members left the union because they could not receive service. In respect of his annual leave entitlements, Mr Hansch agreed he had used up all his leave for 1994 in 1995. Although the Federal Court made an order for 122 weeks pay, he did not agree the pay-out was for all of his entitlements, but only for back pay for wages prior to the branch being disbanded. Mr Hansch agreed that he had been paid his wages from 29 May 1998 when reinstated by the court, through to 4 September when he was terminated and given 4 weeks' pay in lieu of notice. Evidence of Robert John Allan Mr Allan, Federal Secretary of the Transport Workers' Union of Australia, confirmed that he had made the statutory declaration tendered to the Commission. He agreed that he had had discussions with Mr Hansch prior to the election (1994-1995), when he (Mr Hansch) had expressed a number of concerns as to the operation of the branch and the branch secretary. He said Mr Hansch had been asked to produce evidence in support of his claims but nothing had been supplied. He said he had advised Mr Hansch to exercise his membership rights and nominate against Mr Bacon so that he would then have the opportunity to fix his concerns. He agreed with Mr Green that the ill feeling between Mr Hansch and Mr Bacon interfered in the efficient administration of the Tasmanian Branch. He denied that he had terminated Mr Hansch's employment because of the conflict with Mr Bacon. Mr Allan said he became aware that the Tasmanian Branch was having financial difficulties, when he attempted a benchmarking exercise based on income received from contributions to the expenditure on wages paid to officials and auxiliary staff. He said he set a benchmark figure of one organiser to a minimum of one thousand members. He said that there had been a decline in branch membership in Tasmania which commenced in 1989 and that a serious decline occurred in the last 2 to 3 years. He confirmed that in 1998 there was a deficit of $374,641 in respect of the operations of the Tasmanian Branch. He said he had been "shocked" at the time, but that after further investigation he had found that the figure was higher. He said the "recovery" operation required a transfer of funds from the Federal Council accounts of approximately $300,000 in addition to the income that had been received from the branch during 1998, which he estimated would have taken "it into the vicinity of about $400,000." He said that the Tasmanian Branch was paying out some 64% of membership contributions and entrance fees on wages and superannuation. Viable branches elsewhere were paying out approximately 45%. Put another way, he said the Tasmanian Branch was "over serviced with organisers", the ratio being 1:400 compared with 1:1000 in other branches. He said the Tasmanian Branch had been structured on approximately 3300 or 3500 members; but that figure had not applied "since the late 1980's". He said his Tasmanian Business Plan could only justify one full-time organiser. He said the real situation was that membership was 1200 rather than 1600 referred to in the Plan. In addition a number of accounts had not been paid and had not been provided to the auditor. For that reason discussions were held with the Federal Committee of Management and a decision made to reaffiliate with the Trades and Labor Council, close the Hobart office of the union and have the union's services provided through the "collective trade union movement." Mr Allan was referred by Mr Green to the operating costs of the Tasmanian Branch. He agreed that he had given evidence in the Federal Court that on an ongoing basis, with one organiser and one support staff, the half yearly costs of running the union in Tasmania were about $115,000 - that is approximately $230,000 for a whole year. He did not dispute that the income of the branch from 1,200 members was $289,200. Mr Allan also admitted that at 7 September 1998 he believed the Tasmanian Branch had 2044 members, taking into account non-financial members. He also agreed that all creditors of the Tasmanian Branch from 1998 and 1999 had been paid. Based on a membership of 2,000, with membership contributions at $241 per annum, in 1998 he agreed an income of $482,000 per annum would be produced. When the Tasmanian Branch was disbanded, he said, Mr Bacon resigned as secretary and effectively there was neither a branch secretary nor branch officials. Mr Bacon continued to be employed as "an appointed federal officer", Mr Allan said, and he had resigned when he was elected to the Tasmanian Parliament. Mr Allan said the organiser was responsible for appearing in "day to day" matters before industrial tribunals. The union's legal representative would appear in major cases. The federal office was "limited in staff because of the need to loan monies to Tasmania". He said the union was "asset rich, cash poor". He rejected Mr Green's suggestion that the federal office could add the Tasmanian debt to its existing debt. He said Mr Wilkes was employed in the Launceston office, where the base of the membership was located and there was a possibility of expanding membership in Launceston. He reiterated the union could not sustain a full-time person based in Hobart. Ms Vanessa Kalamistrakis, employed by the ACTU, provided a service for the TWU in southern Tasmania operating from the TTLC offices in the "later part of 1998". The TWU, together with the Public Transport Union, paid the direct cost of Ms Kalamistrakis' wages, superannuation and expenses, but overhead costs were the responsibility of the ACTU. A fully maintained motor vehicle which had been leased by the union was available to Ms Kalamistrakis. The sharing of organising facilities with the Public Transport Union had been "on board" since May 1998, Mr Allan said. He thought the bill for Ms Kalamistrakis' services would be in the vicinity of $35,000 per annum. He said that the desired result in Tasmania was for a membership of 2000 so that the union could afford an official in Hobart and an official and office services in Launceston. Mr Allan said the union's policy was to pursue redundancy payments of three weeks per year of service for the general membership of the union. He agreed also that it was union policy for employees of the union to be paid three weeks pay per year of service as redundancy payment. He said union officials were elected for a four-year term, and at the end of the term, if they were not successful in the next election, their job was finished. He explained that should he not be re-elected he would not be entitled to a redundancy payment. Redundancy payments policy for employees of branches varied on state-by-state basis, he said. Mr Allan said he was aware that the Federal Court had ordered the Tasmanian Branch to keep proper accounts for long service and annual leave and he assumed that the records were not kept before the Federal Court order. The union could not afford the reinstatement of Mr Hansch, Mr Allan said, and in its current financial position, the union could not justify two full-time organisers in Tasmania. Mr Allan denied that because there was no secretary and no industrial officers in Tasmania the organiser acted as secretary as well as servicing the membership. He said the union was administered by him, through an office manageress in Launceston. Union dues were collected by the organiser "preferably" or by the direct debit system or by payroll deduction. Mr Allan confirmed that the TWU was the only legal entity responsible for employees working in a State branch. He also confirmed that the TWU had a legal responsibility for the debts of State branches. Submissions Mr Green submitted that I must assess the validity of Mr Hansch's dismissal on the facts which the employer believed existed at the time of the dismissal. He argued that since the employer (through Mr Allan) believed there were 2044 members in Tasmania, each required to pay $241 per annum membership fee, that an income of at least $428,000 per annum, based on 2000 members, would provide sufficient funds for Mr Hansch, and Mr Wilkes and an office assistant in Launceston. There would have been sufficient to repay the debt to the Federal Council of $300,000 in "two or three years", he said. Mr Green submitted it was "always in Mr Allan's mind" that there would be two organisers in Tasmania in accordance with the plan he put to the Federal Council. That two organisers were necessary was shown to be so shortly after Mr Hansch's dismissal when Ms Kalamistrakis was appointed in the south. He submitted therefore that the reason for dismissing Mr Hansch was not because of the "financial requirements of the branch". He submitted the decision to dismiss Mr Hansch was "spiteful or prejudiced and motivated by the history of conflict between Mr Bacon and Mr Hansch". That prejudice, he said, was evident in the way Mr Hansch was treated, and the depth of "ill feeling" was shown in the pamphlet circulated in the elections in 1994-1995 which was set out in Annexure "D" to Mr Hansch's statement. He submitted therefore that Mr Hansch should be reinstated. Mr Hansch, he said, was prepared to work for $40,000 per annum and when the cost of Ms Kalamistrakis' services were considered (he estimated that cost to be $49,080 per annum) it was clear, Mr Green said, that there was a capacity to employ Mr Hansch on the reduced salary. Mr Green claimed there was no conflict in the union, "now that Mr Bacon is no longer there". He said there was no evidence of conflict between Mr Hansch and Mr Wilkes, and Mr Allan had said he had no "animus against Mr Hansch as a person". If the Commission were to find that Mr Hansch should not be reinstated, Mr Green submitted that severance pay should be determined. He argued that the other employees who had been made redundant by the TWU in Tasmania had been paid "at least three weeks or something like that" for each year of service. Mr Green submitted that the words "severance pay" referred "not only to a redundancy payment but to a pay out of the employee's entitlements" which included, amongst other things, payments for annual leave. Mr Green tendered an extract from the Rules of the Union which at Rule 59 sub-rule (d) provides:
On that basis Mr Green submitted that Mr Hansch was entitled to receive 15 weeks' pay in lieu of annual leave. Mr Smith submitted that for the purposes of Article 4 of the ILO Convention there was a valid reason for the termination which was based on the operational requirements of the Transport Workers' Union. Mr Smith submitted that the decision to terminate the employment of Mr Hansch had been based on the business plan formulated by Mr Allan that identified the need for only one official in Tasmania. The bench marking process showed that the ratio of members to full time organisers would need to be halved in order to engage a second organiser for Tasmania. The ratio of expenditure on organisers to income from membership fees was an objective test, he said. Mr Smith rejected the assertion that the decision was made "to get Barry Hansch". He claimed that line of thought was "fairly thoroughly repudiated by Mr Justice Marshall" in his decision annexed to Mr Allan's affidavit at JA5. He submitted that the Commission was being asked to put itself "in the shoes of the Federal Council and make very important decisions about the staffing levels of the branch in circumstances where the union has only just managed to put things back in Tasmania". While the union was now operating at a surplus in Tasmania, the $300,000 had to be repaid and it was not appropriate, as claimed by the applicant, to take out a loan and meet only the interest payments as there was no guarantee that the membership "won't continue to decline", he said Mr Smith submitted that the press release which referred to 2044 members was not indicative of the fact that 2044 people were going to pay $241 each. He referred the Commission to paragraph 5 of Mr Allan's statutory declaration which stated that at July 1998 there were 1200 financial members. He said reinstatement would mean that "all of the hard work which has been done in putting into practice a renewal plan for the union goes out the window." He argued that Ms Kalamistrakis was not a replacement for Mr Hansch. Mr Smith said the fact that Mr Hansch considered there should have been two organisers was simply a difference of opinion about the best way in which the interests of the union could be served. In relation to how the Commission should approach the question whether or not there was a valid reason for the termination of Mr Hansch's employment, Mr Smith referred the Commission to Shorten v Australian Meat Holdings Pty Ltd. He submitted that the decision to terminate Mr Hansch's employment was necessary to advance the "good management of the undertaking" and that the decision was based on the valid operational requirements of the Transport Workers' Union of Australia. If the Commission were to find that Mr Hansch was unfairly dismissed, Mr Smith submitted that there was a "high likelihood" of him being made redundant, based on the operational requirements of the organisation at "some point in the future", given the trend in membership figures. If the termination was found to be unfair and reinstatement impractical, Mr Smith submitted the Commission should take into account payments already made to Mr Hansch as set out in Annexure JA7. He said the Commission should also take into account the offers for the payment of long service leave and holiday pay. In relation to the determination of severance pay, Mr Smith acknowledged there is a union policy of "pursuing three weeks per year of service" for its members, but there is no policy in respect of redundancy payments for officials. Nor is there a "practice pertaining to union officials of paying three weeks per year of service", he said. He submitted that Article 12 of the ILO Convention required severance payments to be "in accordance with national law and practice" which, he said, is the federal Termination, Change and Redundancy test case. That, "at the outside", represented the entitlements of Mr Hansch, Mr Smith said. Findings In his Reasons for Judgment of 6 August 1998, Mr Justice Marshall did not accept the submission put on behalf of Mr Hansch, that it could be inferred that the decision of the Federal Council of the TWU to disband the Tasmanian Branch and to have the Tasmanian Branch members represented directly by Federal Council had in some way been affected by the way in which Mr Hansch had been treated by the Tasmanian Branch. In particular His Honour said:
His Honour considered there was evidence before the Court of a "logical and cogent reason which accords with the efficient administration of the organisation for the branch to be disbanded", and that reason was that the branch "had insufficient funds to continue to function". He considered the resolution to be a valid resolution of Federal Council. He went further to say:
On the material that has been put to me it is clear that there was conflict between Mr Hansch and Mr Bacon, and I accept there may have been some animosity between Mr Hansch and Mr Allan, at least on Mr Hansch's part. The applicant submitted that the union had acted in a "spiteful or prejudiced" way towards him and relied on Selvachandra. However I am unable to conclude that the conflict was instrumental in persuading the Federal Council to dismiss Mr Hansch or that the Federal Council was being "spiteful or prejudiced" towards Mr Hansch. Mr Allan said he relied on certain benchmarks, namely the ratio of members to organisers and the ratio of income to expenditure on wages and superannuation, when deciding that only one organiser was necessary for Tasmania. The applicant considered that the geography of Tasmania demanded two organisers and considered that there was sufficient funds to provide for two organisers. Generally it is the employer's prerogative to determine how many employees it needs to carry out its business and where those employees are to be located. These circumstances fall into that category. In Kerr v Jaroma Marshall J observed that when considering whether a reason for termination was valid the employer must satisfy its onus of proof (that is under section 170DE (1) of the federal Industrial Relations Act 1988, which reflects Article 4 of the Convention) in showing that a reason it alleges to be based on its operational requirements is "justified or objectively defensible". I think the union has met that onus. Having said that, Mr Allan's responses to questions dealing with the likely number of members of the union in Tasmania were confusing and contradictory in places. In the joint press release of the TWU and the TTLC (Exhibit G4) of 7 September 1998, the day of Mr Hansch's dismissal, the Federal Secretary referred to the membership of 2044 members employed in the transport industry in Tasmania being "affiliated to the TTLC". That press release also proposed the new TWU office in the TTLC headquarters in Hobart would "be serviced throughout business hours" and would "support a TWU organiser in Hobart". However, Mr Allan, during cross examination, claimed that at that time, 7 September 1998, he knew that only 1200 members of the 2044 were financial. At 21 July 1998, when Mr Allan prepared the Tasmanian Business Plan, the Profit and Loss Statement for the six months ended 30 June 1998, which was appended to it, showed "contribution income" to be $313,942. I cannot be certain that the term "contribution income" refers to annual membership, but if it does it represents just over 1300 annual subscriptions. At different stages in the decision-making process it appears that Mr Allan thought the Tasmanian financial membership in 1998 could be of the order of 1200, 1300, 1600, or even 2000. Whilst there is some uncertainty about the number of union members in Tasmania, the employer was entitled to reorganise its operations to suit its objectives. It was also faced with the task of recovering the $300,000 loan which it had advanced to the State Branch so that it could pay off its debts. On the latter point I reject the proposals for repayment of the loan as suggested by Mr Green. The method of repayment is a matter for the Federal Council. In all the circumstances I am not prepared to find that the termination of Mr Hansch's employment was anything other than a valid exercise of managerial discretion occasioned by the operational requirements of the union which resulted in his position being made redundant. That being the case, the question of reinstatement or compensation in lieu of reinstatement is irrelevant. Having found the termination of Mr Hansch's employment resulted from his position being made redundant, I turn now to consider the issue of severance pay. Before I do so, however, I must reject Mr Green's submission that the term severance payment may include all other entitlements which might be due to the dismissed employee such as payments for long service and annual leave. Such payments, unless specified by law or common law contract, are not connected with severance payments ordered under section 31(1C) as a consequence of a termination of employment resulting from redundancy. A further complication in this case relates to the fact that the Commission, in my opinion, has no power to make an order which seeks to apply or interpret the Rules of a federally-registered organisation. It is those Rules that create Mr Hansch's annual leave entitlement. Notwithstanding that situation, Mr Hansch claimed payment for fifteen weeks annual leave which it was alleged had accrued for the years 1995, 1996, 1997 and 1998. The union countered with the argument that such a claim "represents substantial double dipping in that if Mr Hansch had been working he would have been required to use up his leave during that period". None the less, the union accepts that Mr Hansch has an accrued annual leave entitlement of 24.8 days which it is prepared to "round off" to 25 days or 5 weeks. Having studied the details of the union's position on annual leave put forward in its offer (Exhibit S1) and the annual leave card tendered as Exhibit G2, it seems to me that the figure of 24.8, or 25, accrued annual leave days represents an accurate calculation of the annual leave due to Mr Hansch. At a weekly salary of $1162.88, payment for 5 weeks annual leave is $5,814.40. In the circumstances, in order to settle this particular aspect of their dispute without recourse to further proceedings in another jurisdiction, I recommend to the parties that the amount of $5,814.40 be paid to, and accepted by, Mr Hansch in lieu of his accrued annual leave entitlements. As to the remaining part of this dispute in respect of which the Commission has jurisdiction, Mr Green argued that a redundancy payment should be based on three weeks' pay per year of service because that is the rate sought by the union in respect of its members in the transport industry. Mr Smith argued that if Mr Hansch was entitled to a redundancy payment, such payment should be limited to that which flows from the federal Termination, Change and Redundancy determination because that is "national law and practice" as referred to in Article 12 of the ILO Convention on Termination of Employment at the Initiative of the Employer. Full Benches of this Commission have dealt with the issue of what is "national law and practice" in respect of redundancy or severance payments. In the Fosseys appeal4 the Full Bench said, amongst other things, that the ordinary and natural meaning of the phrase "national law and practice" as used in Article 12 of the ILO Convention, necessarily encompasses, in a federal system of government such as that in Australia, the law and practice of both the Commonwealth and the States. National law and practice in respect of termination of employment resulting from the operational requirements of a business or undertaking therefore includes the legislative arrangements operating in this State and the decided cases in this jurisdiction and federally. In this jurisdiction another Full Bench has decided that redundancy or severance pay claims shall be dealt with on a case by case basis.5 Having considered all of the material put to me, I am in no doubt that Mr Hansch is entitled to a severance payment. Mr Hansch's employment was terminated by the Transport Workers' Union so that it could rearrange its operations in Tasmania and his position was abolished. Mr Hansch had 16 years completed service with the Transport Workers' Union of Australia and was paid at the rate of $1162.88 per week (gross) at the time of his dismissal. Having regard to his length of service and his level of wages, both being factors which the Commission is required to take into account when calculating severance pay, I consider that Mr Hansch should be paid by the Transport Workers' Union of Australia a severance payment of two weeks' pay per completed year of service at the rate of $1162.88 per week; a sum of $37,212.16. In settlement of this industrial dispute, pursuant to section 31(1C)) of the Act, I order that the Transport Workers' Union of Australia pay to Mr Hansch a severance payment of $37,212.16. Such payment to be made by 12 November 1999.
F D Westwood Appearances: Date and place of hearing: 1 Selvachandran v Peteron Plastics (Northrop J) reported in 1996 62 Industrial Reports at p.371 |