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T8916

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing in respect of an industrial dispute

Australian Liquor, Hospitality and Miscellaneous Workers Union -
Tasmanian Branch

(T8916 of 2000)

and

Classic Video Pty Ltd
trading as Video City

 

PRESIDENT F D WESTWOOD

Hobart, 5 July 2000

Industrial dispute - re alleged breach of the Miscellaneous Workers Award - finding that when proceeding on annual leave employee should have been paid the amount of wages she would have received if she had been at work plus leave loading of 17.5 per cent - payment to be made to employee in settlement of dispute - order issued

REASONS FOR DECISION

This application was lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch pursuant to section 29(1) of the Industrial Relations Act 1984, in respect of an industrial dispute with Classic Video Pty Ltd, trading as Video City. The dispute concerned an alleged breach of the Miscellaneous Workers Award in respect of the employment of Alison Brown.

When the matter came before me for hearing on 19 April 2000, Mr Brown of the Tasmanian Chamber of Commerce and Industry Limited, representing the employer, submitted for preliminary consideration that the hearing be adjourned pending the lodgment of an application pursuant to section 43 of the Act for an interpretation of the award in respect of the issue in dispute.

Mr Tullgren, representing the applicant union, opposed the proposed adjournment. He asserted that the union's application had been lodged as a dispute pursuant to section 29 of the Act. Mr Tullgren submitted that it was not open to the employer to make an application for an adjournment on the basis that an application might be made at some time in the future under another section of the Act for the award to be interpreted.

Mr Tullgren referred to the requirements of sections 20, 21 and 29 of the Act, and said that those sections, read together, clearly established the procedure of the Commission. He said it would be contrary to public policy and confidence in the Commission to entertain a proposal to adjourn the matter.

Mr Brown responded by claiming that a declaration should be made under section 43 in respect of the relevant clauses and provisions in the award in order to determine what they actually meant, before the dispute could be determined.

I decided that it would not be appropriate to adjourn the hearing of the dispute application as there was no section 43 application before the Commission and because there was no certainty that an application might be made pursuant to section 43. Accordingly the application for adjournment was rejected.

Mr Tullgren then outlined the issues in dispute.

He submitted that Classic Video Pty Ltd, trading as Video City, had failed to pay the correct annual leave entitlements to a library attendant, Alison Brown. Ms Brown had been employed for 13½ months and had worked the same hours continuously.

He said Ms Brown worked 38 hours per week over five days, including Saturday and Sunday. She worked from 12 noon to 8.30 pm on Sunday through to Wednesday and from 12 noon to 9.00 pm on Saturday.

The relevant award for Ms Brown's employment was the Miscellaneous Workers Award, he said. He referred to Clause 10 - Annual Leave, in particular subclause (e)(i):

"Subject to the provisions of paragraph (ii) of this subclause, an employee before going on leave shall be paid the amount of wages he would have received in respect of the ordinary time which he would have worked had he not been on leave during the relevant period."

and subclause (f)(i):

"In addition to the amount payable in accordance with subclause (e) hereof, an employee shall be entitled to be paid a leave loading equivalent to 17.5 per cent of his ordinary annual leave payment".

Mr Tullgren said that the phrase "amount of wages he would have received" was the starting point for consideration. He said Clause 8 - Wage Rates, of the award used the term "minimum weekly wage rate" in both Divisions A and B. Division B was the relevant division covering Ms Brown's employment. Mr Tullgren said that whilst "wages" was not defined in the award, neither was the phrase "minimum weekly wage". In this regard he tendered three exhibits.1 He concluded that, as the High Court determined, "wages" means payment for services rendered and required as part of the contractual arrangement.2

Mr Tullgren took the Commission to Clause 19 of the award, Hours of Work, which, Mr Brown reminded the Commission, is duplicated by Clause 38, Hours of Work in Division B of the award which provides the conditions of employment for Library Attendants.

The provisions of the Hours of Work clause which have relevance to this dispute, Mr Tullgren said, are subclauses (a), (b), (e), (f) and (g). Clauses (e), (f) and (g) are set out below.

    "(e)   In the case of day workers the ordinary hours of work prescribed by this clause shall extend from 6.30 am to 6.00 pm.

    (f)   In the case of shift workers, the ordinary hours of work, prescribed by this clause, worked on any day Monday to Friday, shall be paid at the classification rate prescribed in Clause 8 - Wage Rates and in addition the following premium:

      (i)   Payment of a premium of 15 per cent shall be made for a shift that commences before 6.30 am.

      (ii)   Payment of a premium of 15 per cent shall be made for a shift that commences of finishes after 6.00 pm.

      (iii)   Payment of a premium of 20 per cent shall be made for a shift that commences or finishes after 10.00 pm.

    (g)   The premiums prescribed by subclause (f) hereof shall not apply where ordinary hours of work are performed on a Saturday, Sunday or holiday with pay. All ordinary time worked on these days shall be paid as follows:

      (i)     Saturday Work

        For ordinary hours performed between midnight on Friday and midnight on Saturday payment shall be at time and one half rates for such work.

      (ii)    Sunday and Holidays with Pay

        A shift, the greater portion of which is worked on a Sunday or holiday with pay mentioned in subclause (a) hereof, shall be paid double time for work performed on a Sunday and double time and one half for work performed on a holiday with pay."

Subclause (a) of Clause 38, Mr Tullgren said, prescribes that the ordinary hours of work shall be 38 hours per week. Subclause (b) prescribes the manner in which the 38-hour week is to be implemented. Mr Tullgren asserted that Ms Brown worked in a manner contained in subclause (b). Subclause (e) establishes a spread of ordinary hours from 6.30 am to 6.00 pm which applies to day workers and Mr Tullgren submitted that Ms Brown could not be a day worker because her hours of work fell outside those prescribed in the subclause. Subclause (f), Mr Tullgren submitted, fixes premiums payable to an employee engaged as a shift worker, and subclause (g) prescribes penalty payments for ordinary hours of work performed on a Saturday, Sunday or a holiday with pay.

Mr Tullgren said that Clause 10, Annual Leave, subclause (e) provided that the employee, before going on annual leave, should have been paid the wages she would have received in respect of the ordinary time she would have worked. He said when the two clauses were read together and applied to her situation Ms Brown's annual leave rate of pay should have included payments provided for under subclause (g) of the Hours of Work clause in respect of Saturday and Sunday and Holidays with Pay.

Under subclause (f) of Clause 10, an annual leave loading is paid in addition to the amount payable in accordance with subclause (e), he said. The leave loading is 17½ per cent of the employee's ordinary annal leave payment. Therefore, Mr Tullgren said, the calculation for the purposes of subclause (e) of Clause 10 must include the payment prescribed under subclause (g) of the Hours of Work clause, plus the annual leave loading prescribed under subclause (f) of the Annual Leave clause.

Mr Tullgren asserted that in the case of Ms Brown that calculation should have meant a payment of $2,604.78 gross, being $2,216.84 for wages for four weeks, the period of her annual leave, plus $387.94 being annual leave loading of 17½ per cent. But, Mr Tullgren said, Ms Brown received only $2,239.89 gross, a shortfall of $364.89. The payment of $2,239.89 was later described by Mr Brown as being the weekly wage rate for a level 2 library attendant multiplied by 4 for four weeks annual leave with a 17.5 per cent loading.

Mr Tullgren submitted that the Commission should require the employer to pay Ms Brown the sum of $364.89.

Mr Brown agreed that Ms Brown was employed on what was termed "the middle shift". He submitted there were two issues to be looked at in respect to the claim for award breach. One was the ordinary meaning of the word "wages" used in the annual leave clause. He submitted that wages clearly referred to the amount of wages set out in Clause 8 - Wage Rates, and that clause, he said, did not impose any penalties and/or higher rates than the rates spelt out.

The second issue was that the Hours of Work clause deals with penalties where work is "performed" on Saturday, Sunday or on paid holidays. Mr Brown submitted that whilst employees were on annual leave they were not "performing work", and if the work was not performed then the penalty was not payable.

It was his submission that the payment made to Ms Brown, that is the base wage rate for the 38 hour week as set out in Clause 8 for a Library Attendant Level 2 employee was the appropriate rate to be paid for annual leave and that the 17½ per cent loading on that base rate payment was the correct amount to be paid.

Mr Brown submitted that Ms Brown was not underpaid in accordance with the award and that Classic Video Pty Ltd had not breached the award in respect to the payment of monies owed or monies payable on the annual leave period taken.

By letter faxed to my office on 5 May 2000, Mr Brown, whilst not agreeing with Mr Tullgren's submissions, confirmed that the calculation by Mr Tullgren of the monies due to Ms Brown was accurate if the Commission were to accept Mr Tullgren's argument.

Findings

Section 43 of the Act enables the Secretary of the Department administering the Act, an employer, or an organisation with members subject to an award, to apply to the President for a declaration on how any provision of the award is to be interpreted. Such an application is not before the Commission.

Section 31 of the Act allows the Commissioner presiding at a hearing of an application under section 29, which is the section under which this hearing is being conducted, after satisfying certain requirements, to order that something be done or certain action be taken for the purpose of preventing or settling an industrial dispute. An "industrial dispute" includes a dispute about an industrial matter. "Industrial matter" includes a breach of an award or a registered agreement. This application alleges there has been a breach of the Miscellaneous Workers Award in respect to the employment of Ms Brown, an employee of Classic Video Pty Ltd. Accordingly I am satisfied that the dispute is a matter which can be dealt with in accordance with sections 29 and 31 of the Act.

Having examined the circumstances of Ms Brown's employment which were not in dispute, I am satisfied that Ms Brown was regularly employed to work Sunday, Monday, Tuesday and Wednesday from 12 noon to 8.30 pm each day and on Saturday from 12 noon to 9.00 pm. There was no dispute that Ms Brown was paid correctly for those ordinary hours when she was at work.

In my opinion, having regard to the requirements of Clause 10, Annual Leave, which apply to library attendants, Ms Brown, when proceeding on annual leave, should have been paid the amount of wages she would have received if she had been at work as provided by subclause (e). Subclause (f)(i) of Clause 10 provides that in addition to the ordinary time amount of wages Ms Brown was entitled to, she should have received a leave loading of 17.5 per cent of that amount.

In the context of this clause I reject Mr Brown's assertion that "wages" means the weekly wage rate set out in Clause 8, Wages. In my opinion Clause 8 sets out the rate at which employees should be paid. That rate is then used in conjunction with other factors such as shift premiums and other penalty payments to calculate the amount of wages to be paid. Clause 38 subclauses (f) and (g) clearly establish the factors to be taken into account in respect of ordinary hours of work which are performed outside the spread of hours (in Ms Brown's case after 6.00 pm on Monday, Tuesday and Wednesday) and again in Ms Brown's case on Saturday and Sunday, and holidays with pay. Those calculations produce the amount of wages to be paid to Ms Brown.

I also reject Mr Brown's assertion that because an employee whilst on leave is not performing or executing work, payments in respect of annual leave are not applicable.

Accordingly, I hereby order, pursuant to section 31(1) of the Industrial Relations Act 1984, in settlement of this industrial dispute that Classic Video Pty Ltd, trading as Video City, pay to Ms Alison Brown, C/- the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch, 165-167 Davey Street, Hobart, the sum of $364.89, such payment to be made by 28 July 2000.

 

F D Westwood
PRESIDENT

Appearances:
Mr P Tullgren for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch
Mr R Brown of the Tasmanian Chamber of Commerce and Industry Limited for Classic Video Pty Ltd trading as Video City

Date and place of hearing:
2000
April 19
Hobart

1 Exhibit 1 - Murdoch v Commissioner of Pay-Roll Tax (Vict.) (1980) 143 CLR 629 - High Court of Aus.
Exhibit 2 - John Anthony Ardino v. Count Financial Group P/L ACN 001 974 625 (940109) - IRCA
Exhibit 3 - Pay-Roll Tax Act 1971
2 Transcript p.11