T9469, T9471, T9472 and T9473
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister for Infrastructure, Energy and Resources and Southern State Holdings Pty Ltd
Industrial dispute - alleged breaches of the Security Industry Award - orders issued REASONS FOR DECISION On 4 April 2001, the Minister for Infrastructure, Energy and Resources (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of industrial disputes with Southern State Holdings Pty Ltd arising out of alleged breaches of the Security Industry Award in respect to John Kiker, Adrian Lee, Allan May and Keith Mulligan, respectively. On 10 April 2001 the President convened a hearing before myself at the Supreme Court, Cameron Street, Launceston to commence at 9.30am on Wednesday 9 May 2001. When the matter came on for hearing Mr G Thomas appeared for the Minister for Infrastructure, Energy and Resources and Workplace Standards Tasmania. The employer was not represented and no explanation had been received by the Commission as to the absence of the employer. Mr Thomas explained that he was in a position to present his case and that a number of witnesses were present for the purpose of giving evidence. Having satisfied myself that the employer had been properly notified of the hearing I determined that Mr Thomas should proceed with his case including witness evidence on the basis that the hearing would then be adjourned to a later date. Mr Thomas sought leave to amend the applications by substituting the status of casual with that of part-time in each case. The impact of this change was to reduce the amount of the alleged underpayments. Leave was granted to amend the applications. The applications had been lodged in respect of four former employees of the employer, namely:
Mr Kiker, who now resides in New South Wales, submitted a statutory declaration to the hearing.1 Mr Lee, Mr May and Mr Mulligan gave sworn evidence relating to their employment with the employer. The evidence of the witnesses went to the questions of duties performed, period of employment and rate of pay. Mr Ivan Ebdon, a Senior Inspector with Workplace Standards Tasmania (WST), also gave sworn evidence relating to the conduct of the investigation and the calculation of the alleged underpayments. Mr Ebdon indicated that a check with the relevant authorities had confirmed that there was no Federal Award, Agreement or Australian Workplace Agreement in place which would impact on the application of the State Award.2 Evidence was submitted as to the registered office of the employer together with the names of the directors.3 Mr Ebdon explained that a notice to produce records had been served on the employer. These records were subsequently provided, albeit a week or so later than the requested date. The records provided by the employer provided the main basis for the calculation of wage arrears. This was supplemented by information provided by the former employees where there were gaps or deficiencies. The results of the investigation were sent to the employer by letter dated 27 October 2000.4 The letter concluded with a request for payment within 14 days in accordance with Section 49 of the Act. The letter foreshadowed further proceedings in this Commission or the Court of Petty Sessions in the event that the correspondence was disregarded. The letter was sent by certified mail and signed off as having been received. Mr Ebdon advised that no response was received from the employer. Mr Ebdon went on to inform the Commission as to the method of calculation of the wages arrears, the details of which were submitted into evidence. Mr Thomas submitted that the relevant award is the Security Industry Award and detailed the clauses which were relevant to the investigation. At the conclusion of Mr Thomas' submission the hearing was adjourned until 10.30am on 5 June 2001 at the Launceston Supreme Court. On 10 May the Commission wrote to the employer enclosing a notice of hearing and advising that there would be an opportunity for the employer to put any submissions or evidence in rebuttal. Under cover of letter dated 18 May the transcript of the earlier hearing together with all exhibits were forwarded to the employer. When the hearing resumed on 5 June the employer was not represented and no explanation had been provided to the Commission. In the circumstances I concluded that the employer did not wish to enter any form of defence. I am satisfied that at all material times the former employees party to these applications were employees of the employer and performed security functions. Further, I accept that the correct award is the Security Industry Award. The appropriate classification is either Security Officer Level 1 or Security Officer Level 2, depending on whether the duties involve static guard or mobile patrol work. I am also satisfied that the investigation and subsequent calculation of arrears by WST has been both rigorous and thorough and I accept the applications [as amended] as being an accurate reflection of the extent of the award breaches. Order Pursuant to Section 31[1] of the Act I hereby order that Southern State Holdings Pty Ltd ACN 053 920 933, 21 Youl Main Road, Perth, Tasmania 7300 pay to: John Stanley Kiker, the sum of seven thousand three hundred and sixty nine dollars and thirty cents [$7369.30}, Adrian Geoffrey Richard Lee, the sum of five thousand five hundred and sixty one dollars and forty cents [$5561.40], Keith Thomas Mulligan, the sum of five thousand eight hundred and eighty six dollars and thirty cents [$5886.30], Alan Campbell May, the sum of three thousand two hundred and forty five dollars and twenty cents [$3245.20]. The above payments are to be paid to Workplace Standards Tasmania, 1 Civic Square, Launceston, Tasmania 7250 within 21 days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A1 |