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Tasmanian Industrial Commission

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T9393

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Anne Harvey
(T9393 of 2001)

and

Stennar Investments Pty Ltd, trading as Y & B Home Improvements

 

COMMISSIONER P A IMLACH

HOBART, 3 DECEMBER 2001

Industrial dispute - alleged breach of Clerical and Administrative Employees (Private Sector) Award - redundancy - severance pay - roster - part-time employee - order

REASONS FOR DECISION

[1] This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Anne Harvey of Ravenswood in Tasmania (the applicant).

[2] The applicant was in dispute with Stennar Investments Pty Ltd, trading as Y & B Home Improvements of Waverley in Tasmania (the employer), over the termination of her employment due to redundancy and alleged breaches of the Clerical and Administrative Employees (Private Sector) Award (the award).

[3] The applicant claimed she had been unfairly dismissed from her employment because she had been given no notice of the termination of her employment, nor had any severance payment been made to her arising out of her redundancy. She sought one week's pay in lieu of notice, plus two weeks' pay for each year of service as a severance payment.

[4] At the hearing, the applicant was represented by Ms Jennifer Dunn of the Launceston Community Legal Centre Inc, and the employer was represented by Mr Andrew Flood of the Tasmanian Chamber of Commerce and Industry Limited (the Chamber).

[5] By agreement this matter was heard concurrently with two other applications1 made against the employer under similar circumstances.

[6] In the main, the work performed by the applicant was known as telemarketing, whereby the employees endeavoured to sell the employer's home improvement services over the telephone. The employees were paid an hourly rate for time worked, plus a small amount when a "lead" was obtained, plus a commission when a sale was successfully converted to contract form.

[7] In evidence, the applicant said she commenced work with the employer in July 1999 as a casual employee. She said she had been employed as a casual for three months after which she was made a part-time employee. She worked a roster Monday to Thursday on two hour shifts each day.

[8] In November 1999 the applicant said she was put on a three months' training period doing door to door sales or canvassing, and, during this time, she was paid a salary on the basis of a working week of 40 hours. After the training period the applicant became a sales representative on a commission basis. This latter occupation lasted till December 2000. In addition, in August 2000, the applicant was asked by the employer to supervise the telemarketing operation. The applicant accepted this work since it did not interfere with her sales job.

[9] As the telemarketing supervisor, the applicant said she was required to work at least fifteen hours per week. She worked three hours each day from Monday to Thursday between 5pm and 8pm, as well as 9am to 11am on Mondays. The applicant completed the fifteen hours by working extra time on a Wednesday or Thursday to check appointments made and generally supervise the morning shift.

[10] The applicant also sought payment, under the provisions of the award, for overtime work she had performed. This was because, under the spread of hours provision in the award (Part V, Clause 1), all work between 6.30pm and 8pm each day was done outside the spread of hours and, therefore, for that time (1.5 hours), an overtime payment of time and a half was due.

[11] It was agreed that, because of the nature of her work in the telemarketing area, the applicant was covered by the provisions of the award for that work.

[12] A representative of the employer told the employees whilst they were off work for the Christmas period, commencing on 14 December 2000, not to return to work because their part of the operation was being closed down and their employment was being terminated.

[13] On the evidence, the employees generally did not work on public holidays and, when they were off work sick or absent for some other reason, they were not paid. When she did work, the applicant was paid $15 per hour.

[14] Mr Mark James Willmot appeared as a witness for the employer. He was a business manager for Wacobi Australia Pty Ltd, which was a management company of the employer.

[15] Mr Willmot said the applicant was employed as a casual employee. He was not aware that a roster of work existed. He said that the employees had the opportunity to accept or reject the hours of the roster (meaning there was no effective roster) whether for sick leave or whatever reason. He pointed out that the employer's pay sheets, which were produced as evidence (Exhibit F5A), demonstrated that the employees did not in practice follow any kind of roster as there were irregularities in the amounts of pay which indicated different hours worked as opposed to a roster of hours.

[16] Mr Willmot also said the employees had all signed (Australian Taxation Office) employment declarations (Exhibit F1) which documented them as casual employees.

[17] The Chamber produced pay sheets ostensibly as evidence of the irregular hours worked by the employees. The Chamber claimed:

"They certainly vary from week to week and my belief, given the intention of the parties when they entered into the contracts of employment, would be that that is sufficient to support casual employment."2

[18] The Chamber submitted that, were the Commission inclined to accede to the claim, the order for payment ought to be based on the average hours per week worked because the evidence before the Commission did not substantiate a regular eight hours per week.

Findings

[19] The applicant had four separate discernible periods of employment with the Company, two of which were concurrent. For the purposes of the claimed breaches of the award, only that period of employment relating to the employee's stint as telemarketing supervisor has been claimed and considered (September 2000 - 14 December 2000).

[20] I accept the applicant's employment was terminated effectively from 14 December 2000.

[21] In the absence of proper records from the employer, the Commission found it very difficult to accurately assess the hours and days worked by each of the employees in question for the periods of employment in each case. After the close of the hearing however, copies of nearly all of the time sheets relating to the period of work by one applicant were obtained which helped clarify the situation. I accept those records as authentic. In particular, they confirm that the employees worked to a regular roster, albeit punctuated by changes and absences. Such variations to the roster, taking into consideration public holidays, sick leave, swapping of shifts, overtime, agreed absences, were not such as to thwart the regularity or consistency of the roster. On the evidence of three of the employees, I accept there was a roster and the employees worked to that roster.

[22] All of the foregoing leads me to conclude, in relation to telemarketing, that these employees were not casuals, as designated by the employer and accepted in part by the employees, but, part-time employees.

[23] In the light of what I have concluded in relation to the employees working according to a roster, I reject the Chamber's submission that the 15 hours per week at $15 per hour be reduced to an average.

[24] The employee was paid an hourly rate of $15.00, but, I accept the submission that for all time worked the employee's hourly rate of pay should have been calculated at the part-time employee's rate prescribed by the award ($533.90 per week ÷ 38 x 1.2), $16.86.

[25] I am satisfied that, being a part-time employee, the applicant's employment was terminated unfairly in that she was not given notice of the termination of her employment. Accordingly, in relation to this part of the claim, I will issue an order for the payment of one week's notice on the basis of 15 hours work per week with each shift of three hours being made up of 1.5 hours at the ordinary time rate and 1.5 hours at the overtime rate of time and a half, plus one shift (Monday morning) of two hours, calculated as follows:

    Ordinary Time

    4 shifts x 1.5 hours @ $16.86 =

    $101.16

    1 shift x 2 hours @ $16.86 =

    $33.72

    Overtime

    4 shifts x 1.5 hours @ $25.29 =

    $151.74

    Total wages for one week:

    $286.62

[26] I am also satisfied that the applicant remained in continuous employment with the Company from July 1999 to 14 December 2000, that is, 17 months or 1.42 years. Accordingly, the total order in this matter will include an amount of severance payment equivalent to two weeks' pay for each year of employment or part thereof, that is:

    1.42 x 2 x $286.62 = $814.00.

[27] I also accept the applicant's claim for overtime payments based upon the evidence and the acceptance by the Company that, in her case, the award applied. It was submitted that the employee was entitled to a balance owing for overtime work of $1,277.10. The Commission's calculations, as set out below, do not coincide with those submitted on behalf of the employee: the Commission's overtime calculations and adjustments, because of the increased hourly rate, will apply and will form part of the total order in this matter.

[28] Adjusted hourly rate and overtime calculations

    Period of employment for overtime calculation purposes only:

    Monday, 25/9/00 - Thursday, 14/12/00

Applicable award: Clerical and Administrative Employees (Private Sector) Award
Classification: Grade 5
Ordinary Rate: $533.90 per week
Part-Time Rate: $16.86 per hour
Spread of Hours: 7am - 6.30pm
Number of Shifts Sept Oct Nov Dec Total
2hr morning shifts 1 5 4 2 12 shifts
3hr evening shifts 4 16 20 8 48 shifts

    NB: Because the Launceston Show Day, 12/10/00, and Recreation Day, 6/11/00, public holidays occurred during the period and were not worked, the total of three hour evening shifts is reduced by two shifts and the total of two hour morning shifts is reduced by one shift, that is, 11 and 46 shifts respectively.

    Ordinary Time: (within spread of hours)

9am - 11am:
11 Monday morning shifts of 2hrs, ie 22hrs @ $16.86 =

$370.92

5pm - 6.30pm:
46 Monday to Thursday part shifts of 1.5hrs, ie 69hrs @ $16.86 =

$1,163.34

Overtime: (outside the spread of hours)  
6.30pm - 8pm:
46 Monday to Thursday part shifts of 1.5hrs, ie 69hrs @ $25.29*

$1,745.01

TOTAL:

$3,279.27

LESS paid:

46 x 3hr shifts @ $15 per hr = $2,070.00 }
11 x 2hr shifts @ $15 per hr = $330.00 }

$2,400.00

BALANCE DUE:

$879.27

    *The overtime rate: part-time employee's hourly rate multiplied by 1.5.

[29] The order in this matter will be made up of the following amounts for:

          Notice

          $286.62

          Severance Pay

          $814.00

          Overtime and Hourly Rate Corrections

          $879.27

          TOTAL:

          $1,979.89

Order

In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within twenty-one (21) days from the date of this decision, Stennar Investments Pty Ltd, trading as Y & B Home Improvements, of 25 Tasman Highway, Waverley in Tasmania 7250, pay to Anne Harvey of 6 Leander Crescent, Ravenswood, Tasmania 7250, the sum of one thousand, nine hundred and seventy-nine dollars and eighty-nine cents ($1,979.89).

 

P A Imlach
COMMISSIONER

Appearances:
Ms J Dunn, Launceston Community Legal Centre Inc, for Anne Harvey
Mr A Flood, Tasmanian Chamber of Commerce and Industry Limited, for Stennar investments Pty Ltd, trading as Y & B Home Improvements

Date and place of hearing:
2001
March 7 and
June 25
Launceston

1 T9398 and T9395 of 2001
2 Transcript, 25/6/01, p47