T10505
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Municipal Administrative, Clerical and Services Union and Watts Communications Australia Pty Ltd (In Liquidation)
Industrial dispute - termination of employment - severance pay - granted REASONS FOR DECISION [1] On 25 October 2002, the Australian Municipal Administrative, Clerical and Services Union (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a dispute with Watts Communications Australia Pty Ltd (In Liquidation) (the respondent) arising out of the termination of certain employees employed at the respondent's Devonport Call Centre. [2] The matter was listed for hearing at 9.15 am on Friday 8 November 2002 in the Supreme Court, Launceston, Tasmania. At that time Mr I Paterson entered an appearance for the applicant, however, there was no appearance entered for or on behalf of the respondent. [3] After examining correspondence tendered by Mr Paterson that indicated the respondent had knowledge of the application and having satisfied myself that the respondent had been properly served with the notice of hearing, I determined the applicant should proceed with the case, in the absence of the respondent. [4] Simply stated, Mr Paterson claimed, for certain employees who had been notified by the respondent on 19 October 2002 that their employment would cease as from 5 pm. on 31 October 2002, a severance payment of one weeks pay for each six months of service and paid on the same basis as annual leave i.e. average weekly ordinary time earnings including shift penalties and allowances. [5] Mr Paterson accepted that the positions occupied by the employees had been made redundant and he provided the following details including the amounts claimed as severance payments:
[6] The above named former employees had their wage rates and conditions of employment regulated by The Watts Communications [Australia] Pty Ltd [Tasmania] Agreement 1998. [7] This enterprise agreement was approved pursuant to s.61J(1) of the Act, however, it does not contain a provision for severance pay. This, of course, does not deprive the former employees to such an entitlement for the following reasons. [8] In 1985, a Full Bench of this Commission considered an application made by the Tasmanian Trades and Labor Council re: job protection, termination and change. In its decision1 the Commission, for various reasons, decided to opt for a case-by-case approach when dealing with the issue of severance pay. [9] Secondly, the International Labour Conference - Convention 158 - Termination of Employment at the Initiative of the Employer allows, through its various articles, the awarding of severance payments where the employment of a worker has been terminated based on the operational requirements of the undertaking, establishment or service. [10] Thirdly, the Industrial Relations Amendment Act 1997 (No.18 of 1997) made provision to enable registered organisations or former employees to apply for a hearing in respect of an industrial dispute relating to "severance pay for an employee or a former employee whose employment is to be or has been terminated as a result of redundancy."2 [11] Given the above, I would have to conclude that employees falling within the jurisdiction of this Commission do have a prima facie entitling to a severance pay on the termination of their employment where:
[12] Given the submissions and circumstances of this application, I propose to grant the application and issue an order for severance pay calculated on the basis claimed by Mr Paterson as I am of the view that the employees, being the subject of the application, meet the necessary criteria for such an entitlement. Order Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Watts Communications Australia Pty Limited [In Liquidation] pay, by way of a severance payment, to the former employees named in the schedule below, the amount appearing along side their name. Such payment is to be made within twenty-one days of the date of this decision.
R J Watling Appearances: Date and place of hearing: 1 T.125 of 1985 13/9/1985 |