T11466
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T11681 Industrial Relations Act 1984 Paul Anthony Burridge and Peter K Pinchin t/a Pete's Statewide Couriers
Industrial dispute - breach of an award - annual leave entitlements - superannuation contributions - order issued REASONS FOR DECISION [1] On 29 April 2004, Paul Anthony Burridge ("the applicant"), applied, pursuant to s.29(1A) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Peter K Pinchin t/a Pete's Statewide Couriers ("the respondent") arising out of alleged breaches of the Carriers Award. [2] The claim, as set out in "Annexure "B" of the application, is that at the time the employment ceased the applicant was allegedly owed "at least 10 weeks wages" for annual leave entitlements, three days' sick pay and 3.5 years of unpaid superannuation entitlements. He was employed from July 2000, with the final day of employment being 13 October 2003. [3] A notice of hearing was posted to the respondent on 3 May 2004. A hearing commenced at the Supreme Court, Cameron Street, Launceston, Tasmania on Tuesday 18 May 2004 at 9.30 am. Ms J Bourke sought and was granted leave to appear behalf of the applicant. The employer made no appearance. On that date a facsimile was received by the Commission, in which Mr Peter Pinchin, said inter alia:
[4] At the hearing I determined that the matter should be adjourned until 31 May 2004, and that if the respondent did not attend on that day, the matter would proceed in his absence. [5] On 19 May 2004 a notice of the 31 May hearing date was sent to the respondent by facsimile. [6] The hearing resumed on 31 May 2004 at 11.30am. Again, there was no appearance on behalf of the employer. Earlier that day correspondence was received from him which said, inter alia:
[7] The statement then set out a number of points disputing aspects of the claim. [8] Pursuant to section 21(2)(e) of the Act I proceeded to hear the matter in the absence of the respondent. [9] The respondent's statement was admitted as Exhibit R1. The Claim [10] Ms Bourke submitted that, at the time of Mr Burridge's resignation he was owed the amounts as set out in the claim. The sick pay component was for the final three days of his employment, for which he had a medical certificate. Subsequently, it was conceded that the sick leave certificate covered two working days, not three. [11] Ms Bourke said that there had been a substantial amount of correspondence from Workplace Standards Tasmania to Mr Pinchin. Workplace Standards had calculated the entitlements according to the Carriers' Award and as set out in Annexure "D" of the application which are as follows:
[12] On 1 June 2004, correspondence was received from Ms Bourke, seeking to amend the claim in relation to superannuation, as follows:
The Applicant's Evidence [13] Mr Burridge testified that the holiday pay accrued over a period of three and a half years, based on four weeks per annum. He had never been paid that amount. He said that every time he had requested holidays it had been denied. [14] He said that no superannuation was ever paid into an account on his behalf. His evidence was that:
[15] Mr Burridge said that he had requested that he be paid out all money owed when he resigned. After a fortnight he contacted Workplace Standards who had negotiations with Mr Pinchin, but the investigations were discontinued because of the employer's failure to return calls or [respond to] letters. [16] According to Mr Burridge, his wage was $497.50 per week, gross. His final payment was $430.00. Since his resignation he had received two payments totalling $1300, which were for part payment of the annual leave. Those payments had been deducted from the original claim and were not included in the claim before the Commission. [17] The applicant's claim for annual leave was amended, on the record, to $4572.50 to take account of the fact that the final year was not a full year and therefore altered the leave loading calculation. The Respondent's Statement and Submission [18] Mr Pinchin's statement said that Mr Burridge had "grossly misrepresented" the position. He said that the annual leave claim is wrong, because the amount due is $430 [per week] after tax. [19] Mr Pinchin wrote that Mr Burridge left his employ on 13 October 2003 after taking two weeks' leave, for which he was paid leave loading. In relation to his claim, he should not receive leave loading because he had not actually had holiday leave. [20] According to Mr Pinchin, the amounts owed are:
[21] Mr Pinchin said that he did not dispute the amount of $2856.00 owing for superannuation as set out in the claim, but he was awaiting notification of Mr Burridge's current superannuation fund. [22] At the conclusion of the hearing, I indicated that I would provide a copy of the transcript of the proceedings to Mr Pinchin, and give him seven days in which to respond by way of submission, but that no new evidence would be accepted. The opportunity for presenting evidence was at the hearing, and he had chosen not to attend. The applicant would have seven days in which to reply to any submissions the respondent might make. [23] A copy of the transcript was posted to the respondent on 7 June 2004. A response was received on 15 June 2004, which acknowledged that no new evidence could be presented. The submission refers, in some detail, to the negotiations with Workplace Standards and the timing thereof. [24] Mr Pinchin, in his submission, said that Workplace Standards calculations were always based on eight weeks holiday pay and never ten weeks. [25] Mr Pinchin said that if the $1000 [which was paid] was for two weeks annual leave, then the amount of the cheque would have been a net amount. [26] He set out what he referred to as the "Agreed Facts as Per Hearing Transcript" $3980.00 gross for eight weeks' holiday pay less $300 already paid, 6 weeks' leave loading $522.37, and 2 days' sick leave $199.00, making a total gross amount of $4701.37. [27] Still in dispute, he said, was the payment of $1000 made on 15 October 2003, (or two weeks' holiday pay). FINDINGS [28] There was some dispute between the parties about aspects of their dealings with Workplace Standards in relation to timing and other matters about which I make no findings, on the basis that those matters are not relevant to the questions to be decided. [29] It is also clear, and acknowledged by the parties, that the figures that are set out in Annexure "D" do not reflect the final calculations of Workplace Standards, because they include a deduction for a payment of $300 made on 24 March 2004, which postdates Workplace Standards' involvement by three months. Length of Service [30] It was stated at various times that Mr Burridge had entitlements accrued over three and a half years, which was not challenged. However, it was also not challenged that he commenced employment in July of 2000 and his final day of employment was 13 October 2003. Whilst the actual date in July was never established, for these purposes I have assumed a mid-July date making the length of service three and a quarter years, not three and a half, as claimed. The difference is relevant to the calculations in respect of annual leave. It is of interest that the superannuation entitlements, presumably based on Workplace Standards' calculations, are based on 168 weeks of service, ie approximately three and a quarter years. I find, therefore, that the period of service was three and a quarter years. Taxation [31] The issues concerning taxation are not issues for this Commission, which is concerned only with gross payments. The employer has submitted that the employee's claim is wrong because it is based on wages before tax deductions, and that what is owed is the after tax amount. As far as an order of this Commission is concerned, the employer is wrong. If there is an underpayment of wages, then the underpayment, and, consequently, any order for payment, is the amount expressed in the relevant award, not the award rate less tax. Taxation matters are matters for the Australian Taxation Office. All the Commission is required to do is to determine what, if any, amounts are owed under the terms of the award, that is, the gross amounts. [32] There was a lack of clarity as to whether the $1300 already paid was taxed or not. That makes no difference to my deliberations. $1300 simply needs to be deducted from the total gross amount, if any, owed under the terms of the award. Taxation to be deducted and remitted to the Australian Taxation Office in relation to any amount ordered by the Commission is a matter for the employer, the employee and the Australian Taxation Office, but not for the Commission. Annual Leave and Sick Pay [33] It is agreed between the parties that Mr Burridge was paid $497.50 per week gross. He was employed as a driver. The Carriers Award, at Grade 2, shows a rate for a driver of $497.50 per week in October 2003, the relevant time. [34] Mr Burridge was employed for three and a quarter years. Clause 11, annual leave, provides for an entitlement of 28 consecutive days (four weeks) annual leave for each completed year of service, with proportionate payment on termination for an incomplete year. [35] The parties differ as to whether any annual leave had been taken during Mr Burridge's period of employment. Mr Burridge testified that, at the time of termination, he had not been paid for annual leave, nor had he ever taken holidays. [36] Mr Pinchin said in his written statement that:
[37] This statement is ambiguous and contradictory. On the one hand it implies that Mr Burridge was on annual leave (otherwise the leave would not attract leave loading), on the other hand it says that no leave loading was due because Mr Burridge "has not actually had holiday leave". Although it is conceivable that what is referred to are different periods of leave, some of which was paid and is therefore not part of this application, it was agreed between the parties that for the final few days of his employment, Mr Burridge was on sick leave, not on annual leave. [38] Mr Burridge's evidence was that "every time I requested holidays I always got denied.3 [my emphasis] [39] Mr Pinchin was not available to be cross-examined in relation to his assertions. I must therefore give more weight to the evidence that was given, under oath, by Mr Burridge. to the effect that he had never taken "holidays" (annual leave) and accordingly I find that Mr Burridge had, at the time of the termination of his employment, an entitlement to 13 weeks' annual leave based on three and a quarter years' of service with no annual leave taken during that period. [40] There is an inconsistency in the application in relation to annual leave. Annexure "B" claims an amount of "at least" ten weeks' pay." "Annexure D" sets out the calculations of the claim based on eight weeks' pay. During the hearing, Ms Bourke said that the difference might be as a result of the $1000 that had already been paid. In fact, $1300 was the total amount paid. That amount would represent payment for three weeks' net pay. In this scenario, based on an entitlement of 13 weeks' pay, then the amount of annual leave still owing is 10 weeks' pay, which is the amount claimed in Annexure "B". [41] It was submitted by the employer that "Workplace Standards calculations were always based on eight weeks holiday pay and never ten weeks." There is no evidence in support of this; however, what the calculations may or may not have been in December is of little relevance to this decision. Nonetheless, it seems unlikely that the calculations were "always" based on eight weeks, given the length of the applicant's service. [42] Based upon three and a quarter years' service, Mr Burridge was entitled to 13 weeks of annual leave. For the completed three years he was entitled to 17½ per cent leave loading, ie 17½% of 12 weeks pay. [43] In addition, he was entitled to two days of paid sick leave for which he provided a sick leave certificate in accordance with the award and for which he was not paid.
[44] The undisputed evidence was that Mr Burridge has been paid $1300, leaving an amount due of $6411.25. I find, therefore, that Mr Burridge is owed $6411.25 in unpaid award entitlements in respect of annual leave and sick leave. Superannuation [45] The superannuation clause in the Carriers Award has not kept pace with the totality of superannuation payments due under the Superannuation Guarantee (Administration) Act 1992. Clause 40 - Superannuation - of the award, deals with Superannuation and provides for $17.00 per week, to be paid into the nominated fund, which is the TWU Superannuation Fund. [46] The evidence reveals that the employer has made no superannuation contributions whatsoever and I find that the award has been breached in that respect. [47] I note that the employer does not dispute the figure of $2856.00, based on 168 weeks x $17.00 per week and I find that is the amount required to be paid under the terms of the award. [48] I am in no doubt that the employer owes substantially more under the terms of the Superannuation Guarantee (Administration) Act 1992, which is a matter for the employee to take up with the relevant authorities, but is outside the jurisdiction of this Commission. 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 T11466 of 2004 that (1) Peter K Pinchin trading as Pete's Statewide Couriers pay to Paul Anthony Burridge the sum of Six Thousand Four Hundred and Eleven Dollars and Twenty Five Cents by close of business on Thursday 26 August 2004 and that (2) Peter K Pinchin trading as Pete's Statewide Couriers pay Two Thousand Eight Hundred and Fifty Six Dollars in superannuation contributions for Paul Anthony Burridge into the TWU Superannuation Fund by close of business on Thursday 26 August 2004
P C Shelley Appearances: Date and place of hearing: |