T10158
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Steven Roy Bartlett and David Barnes Industries Pty Ltd
Industrial dispute - alleged breach of award or registered agreement - order issued REASONS FOR DECISION (1) On 23 April 2002, Steven Roy Bartlett (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with David Barnes Industries Pty Ltd arising out of the alleged breach of an award or registered agreement. [2] The matter was set down for hearing (conciliation conference) at the Supreme Court, Launceston at 9.30am 23 May 2002. [3] When this matter came on for hearing, Ms D Butler of the Launceston Community Legal Centre appeared for the applicant. Ms C Oliver and Ms T Smith appeared for the employer. The proper identification of the employer is an important issue in this case and is dealt with separately in this decision. [4] Following preliminary submissions the hearing was adjourned into a private conference. At the conclusion of the conference the Commission was advised that an agreed settlement had been reached. The hearing was adjourned on the basis that Ms Butler would advise the Commission upon the execution of a Deed of Release. [5] By correspondence dated 27 June 2002 Ms Butler advised as follows:
[6] As a consequence the matter was re-listed for hearing on 9 July 2002. Given the emerging uncertainty concerning the identity of the employer, the notice of hearing was also sent to Well Bread Pty Ltd, 81 York St, Launceston. [7] When the matter resumed the employer was not represented. No communication had been received in the Commission as to any difficulty the employer may have experienced in arranging representation. I can only conclude that the employer consciously chose not to be represented. This is particularly disappointing in light of the settlement freely entered into when the matter was before the Commission on 23 May 2002. [8] I would also observe that s.28[4] of the Act states:
[9] In the circumstances I decided to hear and determine the matter. [10] Mr Bartlett commenced working for the employer in February 1999 as a full-time qualified baker. On 9 April 2002 Mr Bartlett submitted his resignation. Ms Butler submitted that the reason for the resignation was a combination of the attitude of the employer and medical advice. [11] Ms Butler submitted that the employer had breached the relevant registered agreement in the following respects:
[12] The relevant agreement is titled The Andy's Bakery Enterprise Agreement 1999. This agreement is registered pursuant to Part 1VA of the Act. The commencement date was 21 June 1999 and the agreement is to remain in force for a period of five years. [13] Clause 2 states:
[14] Clause 7.1 sets out rates for full time, part-time and casual Bakery Assistants, Bakers and Pastry Cooks. Relevantly an amount of $13.00 per hour is prescribed for a full-time Baker/Pastry Cook. [15] The clause goes on to state:
[16] Clause 7.2 states:
[17] Whilst it is common for an Agreement to make reference to an Award in the context of a floor, below which wage rates cannot fall, it is unusual that a casual hourly rate be used as the floor for full-time employees. Ms Butler suggested that this was conceivably in recognition of the non application of penalty rates in what I was told is a 24-hour, seven days-a-week operation. Unfortunately the Commission did not have the benefit of any explanation from the employer. [18] When asked to make an order in relation to an alleged breach of an Award or Agreement, the Commission does not have any discretion. The Commission can only look at the plain meaning of the relevant clauses and make a determination accordingly. [19] In this particular case the clause in question is a product of the parties to the Agreement, as distinct from an Award of this Commission. [20) In my view Clause 7.2 of the Agreement can only be read as meaning that the rate for a full-time Baker/Pastry Cook must not fall below the "appropriate casual ordinary time hourly rate of the Baking Industry Award". Ms Butler submitted that as of 1 August 2001, the appropriate hourly rate was $16.03 per hour. I concur with this submission. [21] I now turn to each leg of the applicant's case. Alleged Underpayment of Wages [22] According to the official Payroll Advice,1 Mr Bartlett worked 1462.5 hours between 1 August 2001 and 9 April 2002. [23] Ms Butler submitted that at all material times Mr Bartlett was paid at the rate of $13.00 per hour whereas the correct rate should have been $16.03 per hour. This, Ms Butler said, led to a shortfall of $4322 over the period. [24] The Payroll Advice shows an additional payment referred to as "bonus". Over the period this amounted to a total of $2220. Ms Butler asserted that this payment was in some way linked to attendance, and further, there was no written agreement regarding the bonus. [25] Ms Butler referred to the Macquarie Dictionary, which states:
[26] Ms Butler submitted that the bonus should not be considered as part of wages paid and should therefore not count as an offset against the underpayment referred to above. [27] An examination of the Payroll Advice reveals that the bonus was usually an amount of $60 and paid virtually every week. Prima facie I accept that it did form part of Mr Bartlett's contract of employment although it is unclear as to any conditions attaching. There is no dispute that it was paid and was paid as a component of normal weekly wages. I am unable to accept that it was a payment in the nature of "an unsolicited or unexpected gift". [28] I accept Ms Butler's submission that there has been an underpayment of wages. I will, however, allow the bonus to be offset against the shortfall so calculated. On this basis I find that there has been an underpayment of wages during the relevant period of $2201. Accumulated Annual Leave [29] According to the Payroll Advice Mr Bartlett had accumulated leave of 73.16 hours owing and which, Ms Butler submitted, had not been paid. [30] On the basis of $16.03 per hour, this amounts to a total of $1172.80. I find this is owed to Mr Bartlett. Sick leave [31] It was submitted that Mr Bartlett became unwell during the night shift that commenced on 30 March and concluded at 5.00am on 31 March 2002. Later that day he rang in to advise that, as a consequence of illness, he would not be in for the night shift on 31 March. In an unsworn statement, Mr Bartlett said that he told the bakery staff "I don't know when I'll be back"2. [32] Mr Bartlett attended his doctor on 3 April and was apparently provided with a medical certificate. Ms Butler said:3
[33] Ms Butler submitted that sick leave was owed for the balance of the week commencing 1 April [19 hours] and possibly for the week of the notice period. [34] The relevant sick leave provisions can be found in Clause 26 of the Baking Industry Award. There is in my view an onus that falls to the employee to prove, to the satisfaction of the employer, that he or she is unable to attend for work on account of such illness. [35] Mr Bartlett properly informed the employer that he was unable to attend for work on 31 March. Whilst I have no reason to question the genuineness of Mr Bartlett's illness, I am concerned that he did not attend his doctor until 3 April, and did not inform his employer until sometime after that as to the existence of a medical certificate. This occurred notwithstanding that Mr Bartlett was rostered for shifts in the intervening period. [36] I am satisfied that Mr Bartlett fulfilled his obligations in respect of the 31 March shift and is entitled to be paid sick leave accordingly. On the limited material available, I am not, however, satisfied that Mr Bartlett met the onus referred to above in respect of any subsequent rostered shifts. [37] On the assumption that Mr Bartlett worked an eight-hour shift, I find that the sick leave owed equates to a payment of $128.20. The Identity of the Employer [38] Clause 2 of the Enterprise Agreement states that the agreement is between "... the Bakery operated by G A Oliver, trading as Well Bread Pty Ltd at 43 Bass Highway, Westbury and 81 York St, Launceston ...". [39] A Company Extract from the Australian Securities and Investments Commission [ASIC], reveals that the sole director of Well Bread Pty Ltd is Mr Graeme Andrew Oliver and that the registered address is 81 York St, Launceston. [40] The employer named in the application is David Barnes Industries and it is that entity which was represented by Ms C Oliver and Ms T Smith when the matter came on for hearing on 23 May 2002. Documentation tabled at the hearing clearly identifies David Barnes Industries Pty Ltd as the employer. [41] On the limited evidence available it would appear that employment function at the bakery might have been outsourced in some way to David Barnes Industries Pty Ltd. If this is or was the case, then it raises the question as to whether the Enterprise Agreement has any application, given that David Barnes Industries Pty Ltd is not named as a party to the Agreement. However as nothing was put to the Commission challenging the validity of the Agreement, it is not a matter that I must necessarily decide. [42] The ASIC Company Extract indicates that the registered address of David Barnes Industries Pty Ltd is 81 York St, Launceston and the sole director is Graham Andrew Oliver. On 30 April 2002 an Application for Voluntary Deregistration of a Company was lodged. This application is pending at the time of this decision. [43] Subsequent to the 23 May hearing, correspondence from the Commission to David Barnes Industries Pty Ltd has been returned marked "unknown at this address" or the like. Surprisingly the return came via the Westbury Post Office. On checking with ASIC, the Commission was advised that there has been no notification of change of address. [44] Representatives of David Barnes Industries freely entered into an agreement in good faith when the matter was before the Commission on 23 May. That agreement has not been honoured and one can only conjecture as to the motivation behind the subsequent turn of events. [45] The common elements between Well Bread Pty Ltd and David Barnes Industries Pty Ltd are the registered company address and the sole director of both Companies, Mr G A Oliver. I also note that a business trading as Andy's Hot Bread is actively trading at the same address. [46] There can, however, only be one employer and on the available evidence I find that the employer is David Barnes Industries Pty Ltd. ORDER Pursuant to s.31 of the Industrial Relations Act 1984 I hereby order that David Barnes Industries Pty Ltd, 81 York Street, Launceston, Tasmania pay to Steven Roy Bartlett of 80 Ravenswood Road, Launceston, Tasmania 7250 an amount of three thousand five hundred and two dollars [$3502], such payment to be made not later than 5.00pm on Friday 16 August 2002.
Tim Abey Appearances: Date and Place of Hearing: |