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Tasmanian Industrial Commission

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T8922

 

TASMANIAN INDUSTRIAL COMMISSION

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

Health Services Union of Australia, Tasmania No.1 Branch
(T8922 of 2000)

and

Our Place Inc.

 

COMMISSIONER P C SHELLEY

HOBART, 28 April 2000

Industrial dispute - alleged failure to pay award entitlements - superannuation - long service leave - closure of business - consent order - payment ordered in respect of award entitlements

REASONS FOR DECISION

On 3 April 2000, the Health Services Union of Australia, Tasmania No.1 Branch (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Our Place Inc. re the alleged failure to pay award and other entitlements to forty-one nominated employees.

On 4 April 2000, the President convened a hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before myself, to commence on Friday, 14 April 2000 at 10.30 am.

At that hearing the parties agreed that this matter could be heard together with T8934 of 2000 which was an application in respect of a dispute relating to redundancy entitlements and payment in lieu of notice, involving the same employer and the same employees.

Mr Chris Brown, for the applicant union, outlined the background to the dispute, which was that on Tuesday 28 March 2000, employees of Our Place Inc. were verbally advised by Mr Gary Coates, president of the board of Our Place, that the board intended to close down their group home service as from midnight on Friday 31 March 2000. This, Mr Brown said, effectively meant that the employees had only three days notice of the closure.

Mr Brown said that the nominated employees were permanent full-time or part-time employees and that even though their employment contracts were terminated none of the employees had been paid any of their legal entitlements, specifically; wages up until midnight on Friday 31 March in accordance with clause 8 of the relevant award, the Disability Service Providers Award; allowances in accordance with clause 30 - Sleepover Allowance; annual leave in accordance with the award; superannuation entitlements in accordance with clause 25 of the award; accrued rostered days off in accordance with Clause 18[c] of the award; and long service leave entitlements.

The union had some difficulties, as outlined by Mr Brown, in accessing the employee's employment records in accordance with section 77[5] of the Industrial Relations Act 1984. The request was finally complied with on 12 April, but unfortunately was of such a nature as to cause difficulties in identifying the amounts owed to each employee.

The union tendered a document (Exhibit B2) which outlined entitlements allegedly owed, but, for the reasons referred to above, not in precise terms.

Mr Brown also tendered a document headed Transfer Agreement (Exhibit B3) which, he said, was an unregistered agreement which covered long service leave arrangements when a number of employees transferred between the North West Residential Support Service and Our Place in December 1995. Mr Brown said the union was seeking a commitment that the employer honour that agreement.

Mr Brown asked that a new hearing date be set down for the continuation of the matter in order to allow further discussions to take place with the aim of the parties being able to reach agreement in relation to the amounts owed to each employee. He also asked that the hearing in relation to application T8934 be adjourned in order to allow the parties to be in a position to present their cases in relation to the redundancy and notice period dispute.

Mr James O'Neill for the respondent employer said that the employer had no `in principle' objection to the payment of entitlements as outlined by Mr Brown, but said that further discussion was needed in respect of the quantum of those payments.

I granted the request for the adjournment on the basis that if the parties were unable to reach a consent position then they should be ready to present evidence and argument in support of their positions when the hearing re-convened.

The matter was then adjourned to 10 am on Friday 28 April 2000.

On 28 April, when the matter recommenced, Mr Brown reported that substantial agreement had been reached, excepting for the entitlements in respect of four employees. He tendered an exhibit (Exhibit B4) which detailed all of the agreed figures and which highlighted the four amounts still not agreed.

Mr O'Neill for the respondent agreed with the progress report as outlined by Mr Brown.

It should be noted that both parties had, at all times, made it clear that there was no agreement in relation to T8934, which was the dispute in respect of payment in lieu of notice and redundancy payments.

At this stage the hearing was adjourned into conference to allow the parties, with the aid of the commission, the opportunity to further discuss the outstanding issues in relation to award and other entitlements (excepting for payment in lieu of notice and redundancy payments), and hopefully, to resolve them.

When the hearing resumed some time later, I outlined the results of the discussions on the record in the following terms:

"....there have been discussions between the parties and the commission during which a new document was produced, which will become Exhibit B5, which essentially is exhibit B4 with some corrections.

I am pleased to be able to say that as a result of the conference between the parties, that matter T8922 is able to be settled on the basis of the figures outlined in exhibit B5. I will be issuing a consent order this afternoon to the effect that the employees named in the application be paid by the employer the amount for wages owing, annual leave and rostered days off within seven days......."

I also indicated, on the record, that the parties had agreed that the amounts owed in respect of long service leave and superannuation contributions were those amounts outlined in exhibit B5 and that the employer had agreed that those amounts would be paid within seven days from today's date

Mr Brown for the applicant and Mr O'Neill for the respondent both indicated their agreement with the arrangements as outlined above.

CONSENT ORDER

Given the Consent indicated above, I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in settlement of the industrial dispute referred to in matter T 8922 of 2000, that Our Place Inc. of Devonport, Tasmania, c/o the Manager, Mr Andrew Potter, PO Box 236, Devonport, Tasmania 7310, pay to the nominated employees the amounts listed below, such amounts to be paid no later than 5.00 pm on Friday 5 May 2000:

NAME

AMOUNT

Lynne Aitken

720.90

Caralene Alderson

1489.15

Èleanor Bailey

916.17

Larraine Bendall

7463.34

Sandra Beard

483.50

Debbie Bloom

2733.54

Karen Crole

1885.30

Karen Clarke

869.00

Patricia Cornick

3547.31

Helen Cornick

10881.32

Peter Crisp

967.01

Melinda Davey

1789.92

Sharon Dingjan

2012.07

Leanne Hodgkinson

2508.43

Betty Keep

4702.04

Sarah Koehne

392.41

Jill Leary

1649.14

Louise Lesley

4886.39

Lola Linger

690.42

NAME

AMOUNT

Ron Lowry

2178.75

Anne Metwally

547.53

Dianne Mason

2197.09

Joanne Marshall

1819.07

Sally Moss

580.01

Chris Reynolds

4597.43

Julie Richards

2711.51

Ian Robson

2350.93

Brigette Russell

633.34

Helen Russell

1532.81

Dianne Ryan

301.30

Phillip Stones

722.65

Linda Sheehan

2108.60

Leslie Sushames

1681.15

Bernard Smith

1968.31

Gail Smith

2175.89

Lynne Stubbs

1134.56

Paul Surtees

1061.63

Jillian Thomas

2100.37

Shelly Thompson

444.22

Peter Wisniewski

8925.45

Kath Von Bibra

847.64

P C Shelley
COMMISSIONER

Appearances:
Mr Chris Brown (14.4.00, 28.4.00) with Mr Shane Littler (28.4.00), for the Health Services Union of Australia, Tasmania No.1 Branch
Mr James O'Neill, with Mr Andrew Potter, for Our Place Inc.

Date and place of hearing:
2000
April 14
April 28
Hobart