T8517
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Secretary, Department of Justice and Industrial Relations and Ronald Gordon Bassett
Alleged breach of Carriers Award - Finding of award breaches - Order issued for payment of wage rate arrears REASONS FOR DECISION Introduction On 15 July 1999 the Secretary, Department of Justice and Industrial Relations applied to the President for a hearing pursuant to Section 29 (1C) of the Industrial Relations Act 1984. The Secretary described the circumstances of the alleged industrial dispute in the following terms:
In particular the applicant sought from the Commission an order pursuant to Section 31(1) of the Industrial Relations Act 1984 that "the amount of $5479.28 be paid to Phillip John Salter by Ronald Gordon Bassett". When the matter came on for hearing in Launceston at 11:00am on Tuesday 31 August 1999 Mr G Thomas appeared for the applicant. The respondent employer, however, did not appear and no person sought leave to appear on his behalf. After ascertaining that, pursuant to Section 88(1) of the Act, the Acting Registrar posted notice of the hearing to the respondent at 97 St Leonards Road, Launceston on 23 July 1999 I waited 15 minutes in case of late arrival. There still being no appearance of the respondent or any person purporting to be his agent, I commenced the hearing at 11:15am in Mr Bassett's absence. After some opening remarks Mr Thomas applied to have the matter heard ex parte pursuant to Section 21(2)(e) of the Act. I granted the application but, for reasons of procedural fairness, declined to continue with the hearing on that day. I said, before continuing, I would write to the respondent informing him that the matter could be heard and determined in his absence. I thereafter adjourned the hearing until 3:00pm, Monday 13 September at a venue to be notified. By letter dated 1 September 1999, directed to Mr Bassett at 97 St Leonards Road, Launceston, I informed him that Section 21(2)(e) of the Industrial Relations Act 1984 permitted the Commission to hear and determine a matter in the absence of "any party to it who has been duly summoned to appear or been duly served with notice of those proceedings". I also told Mr Bassett that, should he or his representative not attend the hearing when it resumed on 13 September, I intended to hear and determine the matter in his absence. By notice of hearing, also posted 1 September 1999, the Acting Registrar informed Mr Bassett that the hearing of this matter would resume in Launceston at the Magistrates Court, 73 Charles Street at 3:00pm on Monday, 13 September 1999. When the hearing resumed at the appointed time and place there was again no appearance by Mr Bassett or by any person who sought to appear on his behalf. Accordingly, I proceeded to hear the matter ex parte. Particulars of the Claim G Thomas for the applicant: The Secretary alleged that Ronald Gordon Bassett, trading as Bassetts Transport, employed Mr Phillip John Salter full time on general cartage work during the period 9 February 1998 to 9 February 1999. Throughout the course of his employment Mr Salter's duties allegedly comprised those of a Grade 4 general cartage employee, ie "Driver 3 axle Rigid Vehicle exceeding 15 tonnes GVM - up to 8 tonnes capacity", as prescribed by the Carriers Award. The Secretary further alleged that, during the time he employed Mr Salter, Mr Bassett did not pay him in accordance with the Carriers Award, particularly in relation to overtime and shift penalty rates. As a consequence, the Secretary alleged, arrears of wages owed to Mr Salter amounted to $5479.28. Witness Evidence Mr Salter gave evidence on his own behalf. The substantial elements of his evidence were that:
Mr Douglas William Blackaby is a Launceston-based Inspector with Workplace Standards Tasmania. He gave evidence about the outcome of his investigation into Mr Salter's dispute with Mr Bassett. The following points comprise the substantial elements of Mr Blackaby's evidence:
Contentions G Thomas for the applicant: The award of the Tasmanian Industrial Commission that applied at the relevant time was the Carriers Award, No 1 of 1997 (Consolidated) and the subsequent amendment to the Carriers Award, No 1 of 1998. The industry covered by that award is set out in Clause 2 - Scope, ie:
The scope of the award clearly covered the business activities of Ronald Gordon Bassett trading as Bassetts Transport. In terms of Mr Salter's employment, Division A - General Cartage of Clause 8 of the award provides, among others, the following work classification:
The work performed by Mr Salter fell within the scope of that classification, for which the award prescribed (at the relevant times) a weekly wage rate of $427.60,6 $437.607 and $441.60.8 Clause 24 of the award prescribes the weekly ordinary hours of work (38 per week); Clause 31 deals with overtime (for work done outside ordinary hours, time and a half for the first two hours and double time thereafter); and Clause 36, which makes provision for shift work ("night shift" is a shift that finishes after 12:30am and at or before 8:30am) and overtime worked outside or in excess of ordinary shift hours. The evidence shows that Mr Salter entered into a contract of service with Mr Ronald Gordon Bassett trading as Bassetts Transport. The nature of the entity "Bassetts Transport" is not clear; however, there is no registered business of that name. In any event, "where a person makes a contract in his or her name without disclosing either the name or the existence of a principal, he or she is personally liable on the contract to the other contracting party, even though he or she may be acting on a principal's behalf"-see Halsbury's Laws of Australia.9 In the circumstances, Mr Bassett was clearly the employer because he told Mr Salter what work to do, when he had to do it, and the hours he required him to work. Mr Bassett also paid Mr Salter from his own personal account. On the facts as disclosed in this case the applicant seeks an order from the Commission, pursuant to Section 31 of the Industrial Relations Act 1984 that, based on a full-time contract of employment as a Grade 4 employee under the Carriers Award, Mr Ronald Gordon Bassett trading as Bassetts Transport pay to Mr Phillip John Salter wage arrears of $5479.28. Findings After considering the applicant's submissions and the evidence of the two witnesses, I make the following findings:
Having regard to the above findings I conclude that, in his employment of Mr Phillip John Salter, Mr Ronald Gordon Bassett, either on his own behalf or trading as Bassetts Transport, breached the provisions of the Carriers Award in relation to overtime and shift work penalty rates to the extent that he did not pay to Mr Salter the benefits prescribed by the award. In light of Mr Basset's admission that he had kept no wages records of the kind required of him as an employer by the Industrial Relations Act 1984, I accept and rely on the contemporary daily records of hours worked kept by Mr Salter during the period of his employment. Taking those records into account I checked a broad range of Mr Blackaby's calculations regarding Mr Salter's wage arrears claim. That exercise revealed two issues. In the first place I noted that Mr Blackaby's calculations reflected a "net" approach, i.e. after tax rather than, as is more usual, a "gross" approach, in determining the sum allegedly due to Mr Salter. However, in a statutory declaration received following the hearing in response to my query, Mr Salter declared that he had "never received a group certificate" from Mr Bassett. As a consequence of that alleged omission, Mr Salter said that, acting upon the advice of his accountant, he "completed my tax return each year as if I had received $584 gross per week." For that reason, he declared, he accepted the "net" approach adopted by Workplace Standards Tasmania. Second, I discovered two classes of error in the wage arrears assessment sheets. The first of those concerned the use of incorrect operative dates for relevant award increases. The second class concerned what appeared to me to be spreadsheet calculation errors. I referred the matters to Mr Blackaby. Subsequently, by letter dated 15 October 1999, Mr Thomas confirmed the presence of the errors and forwarded to me a set of revised calculations. The outcome of that whole exercise was favourable to Mr Bassett in that the sum of wage rate arrears allegedly due to Mr Salter was reduced from $5479.28 to $5407.46. In all the circumstances, I am satisfied that I should make the order in the amended form sought by the applicant. My order follows on page 7 of this decision. ORDER PURSUANT TO the powers conferred on the Commission by Section 31 of the Industrial Relations Act 1984 I HEREBY ORDER that Ronald Gordon Bassett either on his own behalf or trading as Bassetts Transport, formerly of 61 Cypress Street Launceston 7250 but now of 97 St Leonards Road Launceston 7250, in full and final settlement of the industrial dispute referred to in application T No 8517 of 1999 pay to Mr Phillip John Salter 21 Roseburn Road Rosevale 7292 the sum of Five Thousand Four Hundred and Seven Dollars and Forty Six Cents ($5407.46) on or before the close of business on Friday, 5 November 1999.
B R Johnson Appearances: Date and Place of Hearing: 1 Exhibit T1. |