T11721
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Gerald Michael Rowe and H & K Timber Pty Ltd, ACN 103 359 280
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - threshold matter - matter to be set down for hearing REASONS FOR DECISION [1] On 16 September 2004, Gerald Michael Rowe (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with H & K Timber Pty Ltd, ACN 103 359 280 (the respondent) arising out of a dispute over severance pay in respect of termination of employment as a result of redundancy. [2] The matter was listed for hearing (Conciliation Conference) at the Workers Rehabilitation and Compensation Tribunal Rooms, Second Floor, Cnr St Johns and Brisbane Street, Launceston, Tasmania 7250 on Tuesday 12 October 2004 at 4.00 pm. [3] At the conciliation conference on the above date the applicant sought, with the consent of the respondent, to amend the application to include "s.29(1A) of the Industrial Relations Act 1984". [4] The conference commenced with preliminary submissions, followed by the parties entering into private discussions in an attempt to settle the dispute. When the conference reconvened, the parties informed the Commission that the negotiations had not settled the dispute. The hearing was adjourned sine die. [5] The matter was again listed for hearing in the Supreme Court, Cameron Street, Launceston, Tasmania on Wednesday, 17 November 2004 at 12.00 noon. [6] Mr A Bain, Simon Brown, Barristers and Solicitors, for the applicant; and Mr P Mazengarb, Tasmanian Chamber of Commerce and Industry Limited, with Mr Bernard McKay and Mr Brett McKay, for the respondent. [7] At the commencement of the hearing on the above date, the respondent introduced a threshold matter with which I will deal before proceeding further with this dispute. THRESHOLD MATTER [8] Mr Mazengarb informed the Commission it was his belief the respondent is party to the Federal Timber and Allied industries Award 1999 and, as such, this dispute is outside of this Commissions jurisdiction. [9] Mr Mazengarb presented a submission covering three criteria for determining if a federal award applies in a particular situation. The affirmative in any one of which is sufficient prove jurisdiction. 1) if the employer is named individually in a federal award; 2) if the employer is a member of a respondent association or organization; and 3) if the employer is the successor of a respondent business. [10] In his evidence, in support of his assertion, Mr Mazengarb illustrated the following: 1) The company's previous name, Hume and Kerrison Pty Ltd as being listed as a respondent to the award. Not the current trading name. 2) By written submission from the Tasmanian Sawmillers Industrial Association that H&K Timbers were indeed a recent members of that association and that the said association is a respondent to the Federal award referred to. 3) H&K Timbers is indeed the successor to a respondent business, Hume and Kerrison. [11] Mr Mazengarb went into some detail to illustrate that the functions Mr Rowe performed for the business aligned themselves with various elements of the Federal Timber and Allied Industries Award. [12] Mr Bain for the applicant would not confirm if the alleged content of Mr Rowe's role, as presented, were accurate. [13] There are no agreed facts. [14] In Exhibit R1, which is the alleged contract between the applicant and the respondent, the applicant's designation is Production Manager - Timber Division. The list of the applicant's responsibilities outlined in the contract, in my view, does not align with those illustrated in Mr Mazengarb's submission. FINDINGS [15] For the Commission to determine the validity of the jurisdictional challenge, the applicant's function and duties must be presented to the Commission, either by agreement or educed from evidence. [16] The jurisdictional issue will remain a threshold matter until sufficient evidence is presented upon which Commission can make a determination. [17] The Commission will proceed with the hearing to enable the parties to complete their submissions on all aspects of the application.
James P McAlpine Appearances: Date and place of hearing: |