T9889
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Kenchi Gar Ryu Pty Ltd, trading as Daytona Security
Industrial dispute - Security Industry Award - agreement not registered - alleged breach of award - superannuation - order REASONS FOR DECISION [1] This application, lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch on 8 November 2001, pursuant to Section 29 of the Industrial Relations Act 1984 (the Act), was for the purpose of settling a dispute with Kenchi Gar Ryu Pty Ltd, trading as Daytona Security. [2] At the first hearing held in Ulverstone on 4 December 2001, Mr P Tullgren, together with Mr G Goss, appeared for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the ALHMWU). Ms J Tuttle, a legal practitioner, sought and was granted leave to appear for the employer. [3] Ms Tuttle made application for an adjournment on the grounds that her legal firm had received very late instructions on the matter. Following a brief conference with the parties I determined that the matter should proceed at least to the point of taking witness evidence. This procedural decision was based on the following:
[4] Before proceeding I indicated that the hearing would be adjourned at the conclusion of the witness evidence. This adjournment was intended to facilitate discussions between the parties. In the event that there was a contest as to the facts, I indicated that an application to recall any or all witnesses for the purposes of cross-examination would be considered on its merits. [5] Mr Tullgren then proceeded to call the following witnesses:
The evidence of all witnesses was essentially the same in respect of material facts. [6] In summary, the witnesses had been interviewed by Mr Steven Tull and/or Mr Andreas Shulzesler. Both gentlemen presented as representatives of the employer. [7] During the former employees' interview with the employer, a document purporting to be an industrial or enterprise agreement was read and/or shown to the witnesses. They were told that the rate of pay would be $13 per hour for all hours worked. In most instances the witnesses were told that signing the agreement was a precondition for employment with the employer. Some of the witnesses, but not all, signed the document. It would appear that the former employees were not provided with a copy of the document. [8] Upon engagement, the employees were directed to commence work at an industrial site on Farquar's Road, Natone. Their duties were described as "static guard and patrol work". [9] The evidence indicates that the employees worked on a four on four off, 12-hour shift roster, alternating between day shift and night shift. Once established, the roster was not subject to significant variation. [10] The witnesses indicated that during the early months of employment, pay slips were not provided. Eventually, pay slips identified as Daytona Security were supplied. Subsequently, the identification changed to Kenchi Gar Ryu Pty Ltd. [11] Mr Harding's evidence was that he had been voted as spokesman for the employees. This led him to make inquiries with relevant State and Commonwealth Government Agencies as to the status of the "enterprise agreement". These inquiries led him to the conclusion that the agreement was not registered under either the Commonwealth Workplace Relations Act 1996 or the Tasmanian Industrial Relations Act 1984. [12] On or about 24 July 2001, the employees were asked to attend a meeting with Mr Adam Bennett who presented as the Company manager, located in Western Australia. Mr Bennett advised the employees that their employment was terminated with immediate effect. [13] At the conclusion of the evidence, the hearing was adjourned sine die with directions for the parties to confer on the application. [14] A hearing scheduled for 5 March 2002 was vacated at the joint request of the parties. The indication at the time was that negotiations were proceeding. [15] By letter dated 18 April 2002 the ALHMWU advised:
[16] As a consequence, the Commission reconvened the hearing for 2.00 pm on 22 May 2002 in Ulverstone. The notice of hearing, dated 22 April 2002, was sent to Kenchi Gar Ryu Pty Ltd trading as Daytona Security at the following addresses:
The notice was also sent to the employer's solicitors, Crisp Hudson & Mann, in Burnie. On 9 May 2002, the notice was sent to 9 Ellen St, Fremantle, WA 6160, which, according to a company search, is the registered office of the employer. [17] By letter dated 15 May 2002, Crisp Hudson & Mann enclosed a notice of Ceasing to Act as Practitioner for the respondent. [18] When the hearing reconvened on 22 May 2002, the employer was not represented. As no explanation had been offered as to the employer's non-attendance, I determined to proceed and hear the balance of the applicant's application. [19] Mr Tullgren advised that on 13 March 2001 the ALHMWU had sent revised calculations to the solicitors acting for the employer. No response, either accepting, rejecting or questioning the calculations had been forthcoming from the solicitors then acting, or indeed, anyone else. [20] Mr Tullgren submitted that the "enterprise agreement" has no legal standing in Tasmania and therefore the terms of the Security Industry Award (the award) has application to the work in question. [21] Mr Tullgren submitted that the following clauses of the award had been breached:
[22] Mr Tullgren sought orders from the Commission to remedy the alleged award breaches. Findings [23] It is plainly obvious from the foregoing that the employer has made no attempt to bring forward any counter evidence or submissions. The only material I have before me is that which has been provided by the ALHMWU. Notwithstanding this unsatisfactory situation, the Commission has made due inquiry in the course of the hearing and in the formulation of this decision, so as to reasonably satisfy myself as to the integrity of the applicant's claim. [24] Having done so, I make the following findings: 1. The relevant award is the Security Industry Award. 2. The appropriate classification is that of Security Officer - Level 1. 3. The relevant wage rates and allowances are those prescribed in Order No. 2 of 2000, operative from the beginning of the first pay period to commence on or after 1 August 2000. 4. In respect of the employment of employees subject to this application, the following clauses have been breached:
5. I am satisfied that the calculations provided by the ALHMWU accurately reflect the difference between wages actually paid and entitlements due under the award. Such calculations are contained in the file. Superannuation [25] The ALHMWU asserts that superannuation contributions have not been made on behalf of the employees subject to this application. Given the nature of superannuation and the lack of cooperation from the employer, it is inherently difficult to prove a negative. My order reflects this difficulty. Order Pursuant to s.31 of the Industrial Relations Act 1984, I hereby order that Kenchi Gar Ryu Pty Ltd, trading as Daytona Security Services, 9 Ellen Street, Fremantle, WA 6160, pay to each of the former employees listed below the total amounts owing.
Such payments are to be made payable to the individuals concerned, care of the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch, 165-167 Davey Street, Hobart, not later than 5.00pm on Wednesday, 3 July 2002. I further order pursuant to s.31 of the Industrial Relations Act 1984 that Kenchi Gar Ryu Pty Ltd, trading as Daytona Security provide written evidence that the requirements the Superannuation Guarantee Charge Act 1992 have been complied with in respect of:
Such written evidence is to be provided to the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch not later than 5.00pm on Wednesday, 3 July 2002. In the event that satisfactory evidence is not provided in accordance with this order, the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch is directed to refer this decision to the Australian Taxation Office.
Tim Abey Appearances: Date and place of hearing: |