T8375
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Secretary, Department of Justice and Industrial Relations and Mark Andrew Prouse and Tracie Dawn Prouse trading as Waratah Roadhouse
Industrial dispute - wage arrears - casual contract of employment - no records of employment - order for payment of arrears REASONS FOR DECISION This was an application for a dispute hearing 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 Secretary was in dispute with Mark Andrew Prouse and Tracie Dawn Prouse, trading as Waratah Roadhouse, of Smith Street, Waratah (the employers). The dispute concerned an alleged breach of the Restaurant Keepers Award (the award) through the non payment of wages due to Sharni Lee James of Waratah for work done on the six days commencing Thursday, 3 September 1998. At the second and principal hearing Mr Ian Guest, a legal practitioner, sought and was granted leave to appear on behalf of the employers. Preliminary discussions between the parties failed to reach any resolution and the hearing proceeded. The Secretary's application was for an order for wages arrears to be paid amounting to $945.49 based upon an alleged casual contract of employment under the award whereby Miss James was employed as a Grade 2 Adult Food and Beverage Employee by the employers. The period of employment was for six days, from Thursday, 3 September 1998 till Tuesday, 8 September 1998 inclusive:
The Secretary's figure of 87.38 (Exhibit T3) represents the claimed hours of work inclusive of relevant adjustments under the award. I accept that figure and apply the following calculations to determine the amount claimed:
During the period in question it was established from the evidence that the employers had gone away to have a break from operating the Waratah Roadhouse and, by arrangement, Miss James ran the business in their absence. The dispute was about what compensation had been agreed between the parties to be made to Miss James for the work she did. The evidence as to what the compensation agreement had been was conflicting, but, there was no dispute that Miss James had performed the relevant work during the official opening hours of the business, that is, those notified on the door of the establishment. The Commission is not concerned with private arrangements made between the parties, if any: I am satisfied on the evidence that Miss James did the work in the times specified and the work she did was consistent with the scope and the relevant classification in the award. The evidence was that Miss James was not paid in accordance with the award for the work she did and, in that context, it is appropriate to quote excerpts from the Act as submitted by the Secretary from Section 51(3):
and from Section 49(1):
It was also alleged that Miss James owed the employers money for other matters; this may or may not have been so, however, that question falls outside the jurisdiction of the Act. The employers did not have any employment records. Mr Guest also submitted that because Miss James was responsible (allegedly) for monies lost during the six days in question she was not entitled to any further benefit. He quoted the case of Reading v Attorney General [1951] AC 507 in support of this contention. In a later written submission, the Secretary rejected this argument, pointing out that the alleged loss of monies had not been proven and, in any case, as in Section 51(3) of the Act, already quoted, even if monies were owed by Miss James, the employers were not empowered to make deductions from wages due. Decision I accept the submissions of the Secretary and, on the evidence before me, I am satisfied Miss James did the work claimed and it was covered properly by the award in the classification nominated. Order In accordance with the power vested in me under Section 31(1) of the Act, in settlement of this dispute, I hereby order that, within fourteen (14) days from the date of this decision, Mark Andrew Prouse and Tracie Dawn Prouse, trading as Waratah Roadhouse, c/o 14 Read Street, Tullah, Tasmania, 7321, pay to Sharni Lee James of Waratah, the sum of nine hundred and forty-five dollars and forty-five cents ($945.45) being arrears of wages due for work done in September 1998.
P A Imlach Appearances: Date and place of hearing: |