TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984 s.29 application for hearing of industrial dispute
Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (T11647 of 2004)
and
Neil Ruut & Associates
COMMISSIONER JP McALPINE |
HOBART, 18 January 2006 |
Industrial dispute - alleged failure to pay correct rate of pay and superannuation to Richard Hutt - Order issued
REASONS FOR DECISION
[1] On 9 August 2004, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (the union) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Neil Ruut & Associates (the respondent) arising out of the alleged failure to pay the correct rate of pay and superannuation payments to its member, Richard Hutt.
[2] The details of the dispute were: The respondent had failed to pay Richard Hutt his correct rate of pay and superannuation payments. Hearings took place on 29 November 2004, ex parte; 10 December 2004; 24 August 2005, ex parte and finally 21 December 2005, where Mr C Green, of Page Seager, Barristers and Solicitors, represented the respondent.
BACKGROUND
[3] At a hearing on 21 December 2005, the parties informed the Commission they had reached a monetary settlement. However, they remained in dispute with regards to the method of recompense.
[4] Mr Green elaborated on the respondent's financial situation, which was due to, he was instructed, the respondent's serious ill health. The respondent proposed an initial payment with subsequent instalments over, approximately, the next two years.
[5] Mr P Tullgren, for the union, opposed this proposal citing the already lengthy time this application had taken and the considerable financial disadvantage his client had suffered to date.
[6] However, both parties accepted putting the matter before the Commission for arbitration.
FINDINGS
[7] It was conceded by Mr Green, there had been an award breach. It was agreed by the parties that the sum of $17,019.58 is the amount owing. I find there was an admitted breach of award.
[8] I have some sympathy with the applicant's position. However the Industrial Relations Act 1984, at s.20(1)(a), with reference to the conduct of the Commission:
"... shall act according to equity, good conscience and the merits of the case ..."
[9] And at s.20(1)(b):
"... shall do such things as appear to it to be right and proper for effecting conciliation between parties ... and for settling claims by agreement between parties ..."
[10] From statements made by Mr Green, regarding the respondent's capacity to secure funds, it is my view that an Order by this Commission for the monies to be paid in a single payment has the distinct possibility the matter may be relocated to another jurisdiction, further inconveniencing the applicant. I, however, do not accept the protracted regime of payments offered by the respondent is in any way fair or reasonable.
[11] In view of the length of time this application has been active, the union's member, Mr Hutt, deserves reparation as expeditiously as is practicable. However, I am cognisant of the pleas of the respondent with regards to its capacity to fulfil any obligation this Commission may impose upon it.
ORDER
I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Neil Ruut & Associates, pay to Richard Hutt the sum of seventeen thousand and nineteen dollars and fifty eight cents ($17,019.58) in full and final resolution of this matter, in the following manner:
1. The sum of $3,819.58 on or before 5.00 pm, Monday, 30 January 2006.
2. A further eleven (11) equal monthly instalments as follows:
Instalments |
Dates |
Amounts |
First |
No later than 5.00 pm on Tuesday, 28 February 2006 |
$1,200.00 |
Second |
No later than 5.00 pm on Tuesday, 28 March 2006 |
$1,200.00 |
Third |
No later than 5.00 pm on Friday, 28 April 2006 |
$1,200.00 |
Fourth |
No later than 5.00 pm on Monday, 29 May 2006 |
$1,200.00 |
Fifth |
No later than 5.00 pm on Wednesday, 28 June 2006 |
$1,200.00 |
Sixth |
No later than 5.00 pm on Friday, 28 July 2006 |
$1,200.00 |
Seventh |
No later than 5.00 pm on Monday, 28 August 2006 |
$1,200.00 |
Eighth |
No later than 5.00 pm on Thursday, 28 September 2006 |
$1,200.00 |
Ninth |
No later than 5.00 pm on Friday, 27 October 2006 |
$1,200.00 |
Tenth |
No later than 5.00 pm on Tuesday, 28 November 2006 |
$1,200.00 |
Eleventh |
No later than 5.00 pm on Thursday, 28 December 2006 |
$1,200.00 |
As the parties have agreed, the payments are to be by direct debit.
Should Neil Ruut & Associates default on any of the payments set out in this Order, the balance of the money outstanding is due and payable immediately from the date of default.
Nothing in this Order shall be construed as to prevent Neil Ruut & Associates from paying the above-mentioned sums prior to the due dates.
James P McAlpine COMMISSIONER
Appearances: Mr N Swancott (29.11.04, 10.12.04) Mr P Tullgren (26.8.05) for the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch Mr N Ruut (10.12.04) Mr C Green (21.12.05), Page Seager, Barristers and Solicitors, for Neil Ruut & Associates
Date and Place of Hearing: 2004 November 29 December 10 Hobart 2005 August 26 December 21 Hobart
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