T8108
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Secretary, Department of Justice and Industrial Relations and C J Investments Pty Ltd trading as A1 Transport Maintenance
Industrial dispute - alleged breach of Automotive Industries Award - arbitrated - order for payment made REASONS FOR DECISION This was an application for a hearing in respect of an industrial dispute made under section 29(1c) of the Industrial Relations Act 1984 (the Act) by the Secretary of the Department of Justice and Industrial Relations (the Secretary). The dispute concerned the alleged incorrect rate of remuneration paid to Peter Gerrard Peacock of Launceston by C J Investments Pty Ltd (ACN 009 522 865) trading as A1 Transport Maintenance of Kings Wharf, Forster Street, Invermay in Launceston (the Company). The Secretary sought an order under section 31(1) of the Act for the Company to pay Mr Peacock an amount of $1097.76 being arrears of wages due to him under the Automotive Industries Award (the Award). At the hearing held in Launceston on Thursday, 18 February 1999, The Secretary was represented by Mr G Thomas of the Workplace Standards Authority and the Company was represented by Mr A Flood of the Tasmanian Chamber of Commerce and Industry Limited. It was agreed between the parties that the Company engaged in the business of the mechanical repair of trucks, buses, cars and other vehicles and those activities were within the scope of the Award. It was further agreed that Mr Peacock was employed by the Company between 15 September 1997 and 7 January 1998 as a tradesman motor mechanic within the terms of the Award. Eventually, it was also agreed that the key element in the dispute was whether Mr Peacock was a casual employee or a part-time employee during the period of his employment by the Company. The Secretary submitted that Mr Peacock had been a casual employee whereas the Company maintained Mr Peacock had been a part-time employee. Subject to the Commission's arbitration as to whether Mr Peacock was a casual or a part-time employee, the Chamber accepted as correct in each case, the Secretary's calculations of the arrears of wages due. The definition of casual employee in the Award provided: "`Casual employee' means an employee engaged to meet short term labour needs on an irregular basis, as and when required by the employer and by mutual consent between the employer and employee." At the time Mr Peacock commenced employment with the Company he requested and he was told by the Managing Director, Mr Christopher Gordon Pratt, that he was to be a casual employee: he said he had always considered himself to be a casual employee. Mr Peacock said in evidence that he had been told each day by the Workshop Manager, Mr Andy Johnson, whether he would be required to work the next day, what jobs were expected for him and what time he was to start work. Mr Peacock also said his work finishing times varied because he stopped work each day when the jobs for the day had been completed; sometimes he finished early, sometimes quite late. Mr Pratt, in evidence, said that the normal starting and finishing times for Mr Peacock were 8.00 am - 4.30 pm, but, sometimes these varied because of the need for early starts or late finishes brought about by the demands of the business. He said everyone at the business normally started at 8.00 am each day. The Secretary produced exhibits which were copies of the time sheets produced each day by Mr Peacock when he worked for the Company. They detailed the work done and the time taken for each job. There were no time sheets for two days only during the period of Mr Peacock's employment with the Company. Mr Peacock explained in evidence that on one day he had applied and been granted the day off work and on the other day the Workshop Manager had told him to take the day off because there was not enough work to occupy him on that day. Contrary to Mr Peacock, Mr Pratt said in evidence that Mr Peacock's employment was on-going and, except for Mr Peacock's resignation, would have continued. DECISION It is unfortunate that the Workshop Manager was not brought as a witness in this case as his evidence could have been a critical factor in deciding it. I am satisfied, however, on the basis of the evidence and the definition of "casual employee" in the Award that Mr Peacock was a casual employee. The crucial evidence came from the time sheets which confirmed the following facts:
With all these considerations in mind I have concluded that Mr Peacock could not be construed as a part-time employee: the amount of work he did each day was dictated by the work available on the day, his starting and finishing times were irregular and in line with the Award definition the nature of his casual employment had been agreed between himself and the Managing Director at the start of his employment. ORDER In accordance with the powers vested in me under section 31(1) of the Act and so as to settle this dispute, I hereby order that C J Investments Pty Ltd trading as A1 Transport Maintenance, ACN 009 522 865 of Kings Wharf, Forster Street, Invermay in Launceston, pay to Peter Gerrard Peacock of 7 Ross Avenue Invermay in Launceston, the sum of one thousand and ninety seven dollars and seventy six cents ($1097.76) within a period of fourteen days from the date of this decision.
P A Imlach Appearances: Date and place of hearing: |