T10515
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Securefast Pty Ltd t/a Chubb Security Australia
Industrial dispute - breach of award - underpayment of wages - order issued REASONS FOR DECISION [1] On 30 October 2002 the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch ("the union"), 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 Securefast Pty Ltd ABN 31 395 801 248 t/a Chubb Security Australia ("Securefast"] arising out of the alleged breach of the Security Industry Award. [2] On 1 November 2002, the President convened a hearing at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania to commence at 11.30 am on Tuesday 10 December 2002. In correspondence dated 29 November 2002 the union requested that the date be vacated in order to allow the parties to explore the possibility of a settlement to the dispute. In further correspondence dated 19 January 2003 the union requested that the matter be relisted for hearing no earlier than 24 February 2003. The hearing proceeded on 25 February 2003. On that day Mr P Tullgren appeared for the union. No appearance was entered on behalf of the respondent. I am satisfied that the respondent was properly served with a Notice of Hearing and that it was received. Pursuant to s.21(2)(e) of the Act the hearing proceeded in the absence of the respondent. I indicated that the transcript of the hearing would be provided to the employer who would then be allowed fourteen days in which to make written submissions, which would be taken into account. [3] Evidence was given by Stanley Walker Fawcett, who testified that he was employed by Mr Kris Fyle from 3 June 2001 as a security officer, through Securefast Investigations Pty Ltd, trading as Chubb Security. His work included static guard work, mobile patrols, crowd control work, and security work at Ashley Youth Detention Centre. Different work was performed on different days. [4] Mr Fawcett's evidence was that he was paid $13.50 per hour for working Monday to Friday, $15.00 per hour for Saturday work, $18.00 per hour for Sunday work and $22.00 per hour for work on public holidays. His rate of pay did not increase during the period of his employment. At some stage after 11 July 2001 he was given a document to sign which set out the rates of pay and he was told by Mr Fyle that it was all that he could afford to pay, and that if Mr Fawcett did not sign it, then he would not have a job. [5] For the first two months of his employment he received a travelling allowance of $27 per trip for travelling to Ashley. After two months that allowance was reduced by 50% by Mr Fyle. No reason was given. Sixteen months into the period of employment payment of the travel allowance was stopped altogether, Mr Fawcett said. [6] A record of hours worked was tendered. The record had been prepared by Mr Fawcett from his diary. Also tendered was a copy of a training agreement between himself and Securefast Pty Ltd, dated 11 July 2001. The training agreement states that Mr Fawcett will be paid according to the Security Industry Award and not according to the National Training Wage. [7] Mr Fawcett said that there had been no discussion about the training agreement, it was just put in front of him. The training organisation involved was Tas Train. Mr Scott said that he was told that he would obtain a Certificate 3 in security guarding. During the period of the traineeship he received no formal training from Tas Train whatsoever. There was no formal training provided at all in respect of the traineeship. On the job training consisted of being placed with another employee who had some experience through having done the work before. The traineeship was for two years but Mr Fawcett completed it in one year. During the whole of the period he was never visited by anyone from Tas Train, nor was he ever visited by anyone from any other training organisation, or by any representatives of any government body overseeing training. He worked unsupervised. [8] Mr Tullgren submitted that Securefast trading as Chubb Security had underpaid Mr Fawcett, under the terms of the Security Industry Award, an amount of $15,738.32. Work and Training Ltd [who had originally been named on the application] had agreed to meet the union's claim, therefore a dispute no longer existed with them. Mr Tullgren sought leave to amend the application to delete reference to Work and Training Ltd. The application was amended in the manner sought. [9] A schedule of the underpayments had been provided to the Commission. Copies had also been provided to Mr Andrew Cameron of the Tasmanian Chamber of Commerce and Industry, who had represented the company until around 17 February 2003. On 19 February the union provided a copy directly to Securefast. [10] Mr Tullgren said that the Security Industry Award was the relevant award and that Mr Fawcett should have been classified as a Level 2 Security Officer under that award. He was a full time employee, working 38 hours per week or more. The schedule of calculations provided to the Commission was based on the hours worked applying the relevant award provisions. The flat hourly rates that he was paid were not the rates provided under the award. He received no overtime and no shift penalties. [11] The evidence showed that Securefast convinced Mr Fawcett to enter into a traineeship, but the registered training organisation, Tas Train, provided no training. Most of the time Mr Fawcett worked by himself and received no on the job training. Mr Fawcett was not, in reality, a trainee, he was an employee under the Security Industry Award. He was performing the role of a security officer and the training arrangement was a sham in an attempt to avoid the award. He was given no on-the-job training, he was given no off-the-job training. If the Commission were to accept that it would completely subvert the award system, Mr Tullgren said. Employer's Response [12] On 11 March 2003 the Commission sent the respondent employer a copy of the transcript of the proceedings, together with a covering letter, which invited a response to the applicant's submissions. The letter said, inter alia:
[13] The following letter, dated 14 March 2003, was received in response:
FINDINGS [14] In the absence of any evidence to the contrary, I accept the evidence of Mr Fawcett as to hours worked and the nature of the work performed. [15] I find that, although Mr Fawcett signed a training agreement, which makes him a trainee under the provisions of the Vocational Education and Training Act, he was not a trainee under the provisions of the National Training Wage (Tasmanian Private Sector] Award. [16] Under the National Training Wage Award a "Trainee" is defined as:
[17] "Approved training" is defined as:
[18] Whilst Mr Fawcett and Securefast signed a training agreement, part of which said that he would be paid according to the Security Industry Award, for the purposes of the National Training Wage (Tasmanian Private Sector) Award Mr Fawcett was not a trainee, because he received no structured training, no formal instruction, either theoretical or practical, and he worked unsupervised. Therefore the rates of pay set out in the National Training Wage (Tasmanian Private Sector) Award have no application to Mr Fawcett. [19] On the evidence before me, I would have to agree that the training arrangements were a sham. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T10515 of 2002 that Securefast Pty Ltd [ABN 31395801248] trading as Chubb Security Australia, 10 Cordell Place, Turners Beach, Tasmania 7315 pay to Mr Stanley Walker Fawcett of 116 Charles St, Squeaking Point, Tasmania the sum of Fifteen Thousand Seven Hundred and Thirty Eight Dollars and Thirty Two Cents by close of business on Tuesday 18 May 2003.
P C Shelley Appearances: Date and place of hearing: |