T8934
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, Tasmania No.1 Branch and Our Place Inc.
Industrial dispute - redundancy entitlements - further decision following hearing of new evidence - file closed REASONS FOR FURTHER DECISION [1] On 12 April 2000, the Health Services Union of Australia, Tasmania No. 1 Branch (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 an industrial dispute with Our Place Inc. (the respondent) regarding redundancy entitlements and payment in lieu of notice for employees who had been employed under the Disability Service Providers Award. [2] The background to the dispute was that forty-one nominated employees were dismissed from their employment with Our Place Inc. which operated a group homes service on the North West of Tasmania. On 28 March 2000 the employees were informed that the service was closing and that their employment would be terminated from midnight on 31 March 2000. [3] A number of those employees had transferred from North West Residential Support Service to Our Place Inc. and Our Place Inc. had agreed to recognise prior service and to recognise all service as being continuous for all purposes. [4] Upon the closure of Our Place Inc. the affected employees received nothing by way of severance payments or payment in lieu of notice, instead they were informed that there was no money to pay for any employee entitlements. They were told that another organisation, Devonfield Enterprises, had agreed to provide client services to all clients of Our Place Inc. from midnight Friday 31 March 2000. Employees were informed by the Board of Directors of Our Place Inc. that Devonfield Enterprises would make contact with all Our Place Inc. staff. As later transpired, the services previously provided by Our Place Inc. were spread across three organisations: Devonfield Enterprises, North West Residential Support Services and Youth and Family Focus Inc. [5] The matter was heard on 14 April, 28 April and 8 May 2000, and a decision was issued on 6 June 2000, awarding affected employees 12 weeks' pay in lieu of notice, and severance pay of 2.5 weeks wages per year of service or part thereof. The amount of wages was determined having regard for the hours worked by each employee, their hourly rate of pay including regular penalty payments and loadings. Each employee was named in an Order issued on the date of decision. [6] An appeal, T No. 9069 of 2000, was subsequently lodged by the Tasmanian Chamber of Commerce and Industry (TCCI), citing 10 grounds. On the day of hearing, 6 April 2001, the TCCI sought and was granted leave to proceed on one ground only, namely, that the Commissioner had "determined an amount of severance pay that was manifestly excessive in all the circumstances." [7] The TCCI submitted that circumstances had changed since my determination of 6 June 2000. It was claimed that since the decision was handed down three service providers had employed all of the former employees of Our Place Inc. and had recognised their service with Our Place Inc. for the purposes of long service leave and in the event of redundancy. Accordingly, the TCCI sought to have both the Decision and the Order of 6 June 2000 set aside. [8] The Appeal Bench noted that there was disagreement between the parties as to the actual events which transpired at the time of the termination of employment and that the details of those events needed to be considered. There was uncertainty regarding the terms of employment offered and/or accepted by former employees of Our Place Inc. [9] The Full Bench also noted that Our Place Inc. did not dispute the merits of the decision at first instance, only that the circumstances presented at the time and upon which the decision was based were significantly different to what actually happened. [10] The Full Bench found that there were changed circumstances and that new evidence was available that had not been available at the time of the decision. The nature and effect of those changed circumstances were not agreed and the Full Bench considered that they should be reviewed. The changed circumstances constituted new evidence not raised in earlier proceedings and accordingly pursuant to s.71(8) of the Act the Full Bench referred the matter back to me in order that I might hear from the parties in respect of that new evidence. [11] The Full Bench revoked the Order made in respect of this dispute and directed me to hear the new evidence and to assess the eligibility of those employees named in the Order, applying the principles and formulae determined and outlined in my decision of 6 June 2000. [12] Following the decision of the Full Bench, the applicant requested, pursuant to s29 (1E) of the Act, that they be supplied with further and better particulars in relation to the new evidence to be considered, including agreements entered into between the Crown and North West Support Services Inc., Devonfield Enterprises Inc. and Youth and Family Focus Inc. On 4 July 2001, I issued Directions to the effect that the respondent provide those particulars to the applicant and to the Commission no later than by close of business on 11 July 2001. [13] The hearing resumed on 8 August 2001. Mr O'Neill informed me that there had been some problems with complying with the Directions issued on 4 July 2001, in that he was unable to obtain a copy of the agreements referred to in the Directions and had no instructions which would enable him to be able to tender it. However, there had been some recent developments, including a meeting between the TCCI and the applicant where a proposal was put forward in an attempt to resolve the matter. There was a need for further discussions, but the proposal was that an agreement pursuant to s.55 of the Act be entered into between North West Residential Support Service and the union, and between Devonfield Enterprises and the union. Mr O'Neill sought an adjournment to allow those discussions to take place. [14] Mr Brown, for the union, said that there were a number of elements to be considered, and that time was required for that to take place. If it were possible for section 55 agreements to answer all the issues then it would be appropriate to come back to the Commission to determine whether or not what was arrived at by the parties satisfied the requirements that had been placed by the Full Bench. [15] Following that date of hearing, a number of meetings took place between the parties, and I presided over a conference. In addition, the parties kept me appraised of events and progress. [16] On Friday, 13 December 2002, I indicated that I would approve two section 55 agreements: T10511 which was an agreement between the union and North West Support Services, and T10512 which was an agreement between the union and Devonfield Enterprises. Those agreements have subsequently been approved and decisions have been issued saying that the agreements will be referred to the Acting Registrar in accordance with the requirements of s.56[1] of the Act [17] The arrangements, in effect, allowed for the transmission of all service of employees the subject of the Orders issued in respect of this dispute for long service leave and redundancy purposes. Service that had previously transmitted to Our Place Inc. is also recognised in the agreements. The parties to the agreement informed me that there were written commitments that the agreements would continue to be renewed for as long as any affected employees remained in the employment of North West Support Services and Devonfield Enterprises. Further, the agreements contained clauses giving priority in allocation of additional hours as they became available to previous Our Place Inc. employees who may have lost hours as a result of the transmission to their new employers. The agreements also set out provisions for severance payments and notice provisions in the case of redundancy. [18] On Friday 13 December 2002 this matter was brought back on at the request of the parties. On that day Mr O'Neill said that he was able to demonstrate to the Commission what the changed circumstances were. He said that the changed circumstances and the new evidence were embodied in T10511 and T10512, matters previously heard by the Commission. He said that those industrial agreements should satisfy the Commission that there is new evidence of changed circumstances. Mr O'Neill submitted that the Commission should now close the file. [19] Mr Kleyn, for the union, said that the decision issued by the Commission [on 6 June 2000], which still stands, was appropriate in the circumstances and put employers on notice that there is an appropriate way of dealing with issues such as these. However, the union agreed with the position as outlined by Mr O'Neill. Mr Kleyn submitted that the matter should now be closed. [20] The new evidence, as outlined by the parties, is that arrangements have been put in place to ensure that the employees of Our Place Inc., the subject of the Orders of June 2000, do not lose continuity of service in respect of long service leave and that all previous service will be counted for severance pay purposes should the employees become redundant. That evidence was not available to me at the time of the original hearing. [21] As directed by the Full Bench, I have assessed the circumstances of the former employees of Our Place Inc. in the light of the new evidence and have taken into account the formulae and principles established in that decision. I am satisfied that the agreements outlined in T10511 and T10512 settle the dispute in a manner generally consistent with the formulae and principles outlined in the original decision. [22] I have decided that, pursuant to s.21[2][c][iv] of the Act, the proceedings should be discontinued and the file closed, and I so Order.
P C Shelley Appearances: Dates and place of hearing: |