T9464
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Security Response Service
Industrial dispute - alleged breaches of the Security Industry Award - order issued REASONS FOR DECISION On 2 April 2001, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Security Response Service arising out of the alleged breach of the Security Industry Award in respect to Robert Herne. On 10 April 2001 the President convened a hearing before myself at the Supreme Court, Cameron Street, Launceston to commence at 2.00pm on Wednesday 9 May 2001. When this matter came on for hearing Mr W White appeared for the CFMEU together with Mr R Herne. The employer was not represented. Mr White indicated that he was in a position to proceed with the application and that this would include witness evidence. Both he and the witness had travelled from Hobart for the hearing. Having satisfied myself that the notice of hearing had been properly served on the employer I determined that Mr White should proceed with his application on the basis that the hearing would then be adjourned to another date. Mr White explained that this application concerned a series of alleged award breaches arising from the employment of Mr Robert Shane Herne by the employer between 5 June 2000 and 25 November 2000. Evidence was called from Mr Herne. This evidence can be summarised as follows:
At the conclusion of Mr White's submissions the hearing was adjourned until 10.30am on 29 May 2001 at "Lyndhurst", North Hobart. On 10 May the Commission wrote to the employer enclosing the notice of hearing and advising that the purpose of the hearing was to provide a further opportunity for the employer to make any submissions or call evidence relevant to the application. Under cover of letter dated 11 May a copy of the transcript together with documents tabled at the earlier hearing were forwarded to the employer. When the matter resumed on 29 May the employer was not represented and no explanation had been provided to the Commission. As a consequence I determined that the matter should proceed. Notwithstanding the absence of any defence on the part of the employer, the Commission must be satisfied that the application is soundly based. Having regard to the totality of the evidence and submissions I am satisfied as to the following points:
Mr White prosecuted the application in respect of the following award clauses: Clause 8 - Wage Rates Having analysed the roster of the hours worked and the amount of wages paid, compared with the entitlements under the relevant award clauses, I am satisfied that there has been an underpayment of $2754.30 for the period in question. Clause 13 - Contract of Employment The evidence of Mr Herne was that the equivalent of 72 hours' pay was withheld from the final termination payment. It would appear that this item has some connection to the unsigned and unregistered AWA which of course has no legal standing. Leaving aside the question of whether notice was given, Clause 13 in the award does not, in the case of casual employees, provide for the withholding of any wages on termination. I therefore find that there was no legal basis for the withholding of 72 hours' pay and an amount of $999.40 remains owing. Clause 21 - Meals and Meal Allowance Mr White withdrew this aspect of the claim Clause 20 - Locomotion Mr White submitted that it was necessary for Mr Herne to use his vehicle to travel from Hobart to Beaconsfield Mine and return. Over the period of the roster this amounted to 8834 kilometres, for which Mr White claimed an amount of $2120 was owed. Clause 20 reads as follows:
Mr White conceded that the vehicle was not required for the performance of security work. Rather, it was a necessary means of transport to and from the work location. For this clause to have application it would, in my view, be necessary for the employer to require the employee to use a privately owned vehicle in the performance of security duties, as distinct from a situation whereby an employee chooses, for reasons of convenience, to use a vehicle in travelling to and from the workplace. In this particular set of circumstances I am unable to conclude that Clause 20 has application. Accordingly this aspect of the claim is rejected. Order Pursuant to Section 31[1] of the Act, I hereby order that Security Response Service, A Division of Southern State Holdings Pty Ltd, ACN 053 920 933, 21 Youl Main Road, Perth, Tasmania 7300, pay to Robert Shane Herne, 4 Meagher Court, South Hobart, Tasmania 7004, an amount of $3753.70, such payment to be made within 21 days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: |