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T11830 and T11871

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
(T11830 and T11871 of 2005)

and

Spotless Services Australia Limited t/a Spotless and Spotless Property and Facilities

 

COMMISSIONER JP McALPINE

HOBART, 23 March 2005

Industrial dispute - alleged breach Clause 9(c) Annual Leave - Cleaning and Property Services Award - Order issued

REASONS FOR DECISION

[1] On 29 November 2004, and 4 January 2005, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch, (LHMU - 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 an industrial dispute with Spotless Services Australia Limited t/a Spotless and Spotless Property and Facilities (Spotless Services), concerning a breach of the Cleaning and Property Services Award (the Award) in relation to annual leave by Sheryl Hobson, Annette Onions, Doreen Hill and Scott Bailey.

[2] The President convened a hearing (conciliation conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Tuesday, 18 January 2005 at 1.00 pm. The Commissioner convened a further hearing on Tuesday, 8 March 2005 at 2.15 pm.

[3] The hearing commenced by way of a conference in an attempt to settle the dispute.

[4] The applications T11830 and T11871 are very similar in nature and as such both parties agreed the matters be heard together.

[5] The four employees, Doreen Hill, Scott Bailey, Sheryl Hobson and Annette Onions were employed by Spotless Services as cleaners at the Mercury building in Hobart until 29 October 2004. The four employees were all classified as permanent part-time workers.

[6] Late in September 2004 Spotless Services failed to retain the contract to clean the Mercury building. The contract formally ended on 29 October 2004.

[7] The respondent had no other work available in the immediate future for the four employees.

[8] It is alleged the respondent breached the Award by requiring the named employees to take annual leave without their agreement or without affording them appropriate notice. The respondent did not directly contest that adequate notice was not given, but relied on the statutory declaration of the respondent's sole witness to assert such.

[9] Some communications were acknowledged between the employer, through Mr Scott Seabourne and some of the employees about the end of September where the issue of taking leave was raised, but no concrete outcome is evident. Further communications with some of the employees took place in early November that led to them taking leave, against their will.

[10] This dispute was initiated by the LHMU on behalf of the employees in early November 2004 citing the employer's alleged breach of award. It was alleged, as a result of negotiations in good faith, an agreement was then reached with the Tasmanian Chamber of Commerce and Industry Limited (TCCI), on behalf of the respondent, with the LHMU. The conditions of the agreement were accepted on behalf of the employees by the LHMU.

[11] At a later stage it is alleged the respondent withdrew the settlement offer.

[12] Evidence was taken from: -

    Scott Anthony Bailey
    Doreen Nelly Hill
    Sheryl Anne Hobson
    Annette Joy Onions
    Scott Anthony Seabourne

    BACKGROUND

    [13] Mr Tullgren in his submission set out to establish that the respondent failed to give at least one month's notice of annual leave to employees, as stated in Clause 9 (c) - Annual Leave of the Award.

    [14] All the employees gave similar evidence in that in September 2004, once the fate of the contract was known, discussions with Mr Seabourne regarding taking leave were of an informative and casual nature, not directive nor specific.

    [15] Mr Bailey claims in a discussion in early November 2004 with Mr Seabourne he was told he would be on leave from the following day.

    [16] Miss Hill maintains she only found out she was on leave when she received her pay advice that stated such.

    [17] Both Ms Hobson and Ms Onions, however, attested they had received letters from Mr Seabourne on or around 3 November 2004 informing them of the accrued annual leave hours and the requirement to take leave from 4 November 2004;

    In the case of Ms Hobson

    "... I confirm you have 373 hours of accrued annual leave and we require you to take this leave commencing Wednesday. ..."1

    In the case of Ms Onions

    "... I confirm you have 401 hours of accrued annual leave and we require you to take this leave commencing Wednesday. ..."2

    [18] The respondent's representative was new to the business and as such was not a party to the alleged award breaches. He relied on evidence from the incumbent at the time of the alleged breach, Mr Scott Seabourne. Mr Seabourne read from a prepared statutory declaration in which he states: -

    " ... On or around the 20th of September, I received written advice that the Mercury cleaning contract was to end effective of the last shift at the end of October 2004. I spoke with the employees on the following morning and advised them of this termination and that we would endeavour to relocate them. They were advised that if at the end of the contract suitable alternative employment had not been found those with outstanding annual leave would be required to take this leave in the interim. While some indication of dissatisfaction was expressed, I believe this advice constitutes suitable notice."3

    [19] Under cross examination he agreed he only met two of the four employees on the day mentioned, the other two he communicated with by telephone.

    [20] Other aspects contained in his statutory declaration were also contradicted during cross examination: -

    "Right. So you met with two of them and you spoke to others, Now, the evidence of all the four employees, that is, Mr Bailey, Mrs Hill, Mrs Hobson, and Mrs Onions, is that you never put it to them that you were requiring them to take annual leave when you spoke to them in September, that what you said effectively was that you had annual leave that was available. Do you agree that is what you said? ---Yes, I'll have to agree with that."4

    [21] Mr Seabourne also conceded his view of the suitability of the "notice" was subjective, from his experience. He also conceded in the first days of November he notified some of the employees to advise they would be on annual leave forthwith.

    [22] The respondent relied solely on the evidence of Mr Seabourne in response to the allegations.

    FINDINGS

    [23] Evidence in examination and cross-examination agree that no formal notification to take leave at the end of the contract was given in late September 2004. It is also agreed in early November Mr Bailey, Ms Hobson and Ms Onions were informed they were on leave forthwith. The assertion by Ms Hill that she only realised she was on leave when receiving her pay advice was not contested.

    [24] The issues at question are, were the employees formally notified they were being required to take leave from a certain point in time and when did this formal notification take place? Following from the answers to these questions, was appropriate notice afforded them in compliance with the Award?

    [25] The Award, Clause 9(c) states: -

    "Annual leave shall be taken at a time mutually agreed upon by the employer and employee and in the absence of agreement at a time to be fixed by the employer after at least one months notice to the employee."

    [26] The award is silent on what form "notice" should take. It is my view when dealing with any aspect of employee entitlements the instant transaction should be in written form, as the minimum an employee should be afforded. It is common practice in business when an employee requests leave and that leave is granted or not, the transaction is initiated and recorded in writing. I see no difference in circumstances should an employee be directed to take leave.

    [27] It is clear from the evidence of all witnesses that "agreement" of the employees to take leave was never obtained. The weight of evidence establishes "at least one month's notice" was not given.

    [28] In the cases of Mr Bailey and Ms Hill the initial alleged notice to take leave was imprecise, communicated in passing and not supported in writing. When directed, verbally to take leave Mr Bailey was given no notice. Ms Hill was only made aware of the situation after the fact.

    [29] In the cases of Ms Hobson and Ms Onions the initial alleged notice to take leave was imprecise, communicated in passing and not supported at the time in writing. However written notice of the company's intent was received by both employees on or around 3 November 2004.

    [30] I find in the cases of Mr Bailey and Ms Hill, Clause 9(c) of the Award, was breached by the respondent, Spotless Services, in that the respondent failed to give clear notice to the employees that they would be required to take annual leave and it follows that Spotless Services also breached the award by failing to give at least one month's notice to the employees of it's intention to require them to take leave.

    [31] It follows in the absence of both formal notification and adequate notice both Mr Bailey and Ms Hill would be deemed to have been available for work from 1 November 2004.

    [32] I find in the cases of Ms Hobson and Ms Onions, that formal notice to take leave was given by letter, however, Clause 9(c) of the Award was breached by the respondent, Spotless Services, in that it failed to give at least one month's notice to the employees of it's intention to require them to take leave.

    [33] It follows in the absence of one months notice to take leave Ms Hobson and Ms Onions would have been available for work from 1 November to 3 December 2004 and from the exhaustion of their leave entitlement.

    ORDER

    Mr Bailey to have all leave taken from 30 October 2004 to 8 March 2005, the date of the hearing, credited in full. This amounts to 25 hours at normal time, $418.00. Also to be paid his normal weekly wage and entitlements for the same period.

    Ms Hill to have all leave taken from 30 October 2004 to 8 March 2005, the date of the hearing, credited in full. This amounts to 48 hours at normal time, $802.56. Also to be paid her normal weekly wage and entitlements for the same period.

    Ms Hobson, in lieu of one month's notice to take leave, be credited with one calendar month's wages for the period 4 November to 3 December 2004, which is equivalent to 131.82 hours at normal time, $2,204.03. Also to be paid her normal weekly wage and entitlements from the exhaustion of her 373 hours of leave until the date of the hearing, 8 March 2005.

    Ms Onions, in lieu of one month's notice to take leave be credited with one calendar month's leave, which is equivalent to 135.5 hours at normal time, $2,265.56. Also to be paid her normal weekly wage and entitlements including supervisory allowance from the exhaustion of her 401 hours of leave until the date of the hearing, 8 March 2005.

     

    James P McAlpine
    COMMISSIONER

    Appearances:
    Mr Peter Tullgren with Ms M Jamieson for the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
    Mr Rick Dorling for and on behalf of Spotless Services Australia Limited, trading as Spotless and Spotless Property and Facilities

    Date and place of hearing:
    2005
    January 18
    March 8
    Hobart

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