T12252
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister for Infrastructure, Energy and Resources and Ross Clifton Woodhouse and Jan Maree Woodhouse
Industrial dispute - alleged breach of award - order issued REASONS FOR DECISION [1] On 30 August 2005, the Minister for Infrastructure, Energy and Resources, (the applicant), applied, pursuant to s.29(1c) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Ross Clifton Woodhouse and Jan Maree Woodhouse, (the respondents) arising out of the alleged breach of the Carriers Award ("the award") regarding alleged underpayment of wages to Mr G Locke. [2] A hearing commenced at the Courthouse, Ulverstone, Tasmania on Monday 24 October 2005 at 11.30 am. Mr Graeme Williams, with Mr John Coffey appeared for the applicant and the respondents, Mr Ross Woodhouse and Mrs Jan Woodhouse, were self-represented. [3] After hearing preliminary submissions, the matter was adjourned into conference, pursuant to s.29(3) in an attempt to settle the dispute through conciliation, which attempt proved unsuccessful. The matter then proceeded to hearing. BACKGROUND [4] The background, as established through submissions and documentary evidence, is as follows: [5] Mr Grant Rodney Locke was employed by the respondents from 23 June 2003 until 9 January 2004. [6] During all relevant times his employment was governed by the terms of the Carriers Award of this Commission. Some nine months after the employment relationship ended, Mr Locke made a complaint to Workplace Standards Tasmania, alleging underpayment of wages. This application is made as a result of that complaint. [7] Mr Locke's employment involved driving a log truck for Ross and Jan Woodhouse. The parties agreed that the correct award classification was Level 6 of the award and that Mr Locke was a casual employee, as defined at Clause 7 - Definitions:
[8] Clause 18(a)(i) - Contract of Employment provides:
[9] Mr Locke and the respondent agreed that it had been stated at the commencement of his employment that he was hired on a casual basis. He was not paid for annual leave or sick leave. [10] His rate of pay was $16.00 per hour during the whole period of his employment, for all hours worked. Records show that he worked a considerable amount of overtime, although the parties are in dispute as to the actual number of hours worked. [11] The applicant submitted that during the total period of Mr Locke's employment he was underpaid a total of $14,771.63.1 In support of this contention copies of documents entitled "Operators Worksheet" were tendered in evidence.2 [12] The respondent presented evidence of times the log truck was weighed at a weighbridge, which, they submitted, showed that the hours worked were less than those claimed by the applicant.3 They contended that the difference between the hours claimed for and the hours actually worked differed on most days, with the difference ranging from ½ hr to 2 hours less each day than the amount set out in the applicant's claim. [13] Both parties indicated that they wished to put no further evidence in support of their positions. [14] The respondents made a statement to the Commission to the effect that they were in financial difficulties and would be unable to make a lump sum payment. Mr Woodhouse said that at no time during his employment had Mr Locke ever queried his rate of pay, and that the claim was made nine months after the employment relationship had ended. FINDINGS [15] Having considered the submissions and the evidence, I find that Mr Locke was employed under the terms of the Carriers Award and should have been paid under the terms and conditions of that award based on the rate for Division A - General Cartage - Grade 6. [16] Whilst the large number of hours worked each week would not, in other circumstances, support a contention that the employee was a casual employee, I accept the submissions of both parties that it was agreed at the time of hiring that his employment was on a "casual hiring" basis and the award enables such an arrangement. I find that wages due should be calculated on the basis of Clause 18(b) Casual Employment, which reads:
[17] There is considerable uncertainty as to the exact hours worked each day, but it is clear that a substantial amount of overtime was worked. I am of the opinion, having taken the submissions and evidence of both parties into account, that the amount underpaid was approximately $10,000, and will make an order accordingly, pursuant to section 31)(1) of the Act, which reads:
[18] In the absence of any submissions to the contrary, I agree to the respondent's request that payments be made in instalments. 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 T12252 of 2005, that Ross Clifton Woodhouse and Jan Maree Woodhouse pay to Grant Rodney Locke the sum of Ten Thousand Dollars in ten payments as follows:
If any of these payments are not made by the due date then the whole amount becomes payable immediately. P C Shelley Appearances: Date and place of hearing: 1 Exhibit A1
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