T12501
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Robert Bruce Godfrey and Barry Edward Fahey trading as Faheys Courier Service
Industrial dispute - alleged breach of award or registered agreement - order issued REASONS FOR DECISION [1] On 13 January 2006, Robert Bruce Godfrey (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Barry Edward Fahey trading as Faheys Courier Service, ABN 49-293-849-912 (the respondent) arising out of an alleged breach of award or registered agreement. [2] Hearings commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart on Wednesday, 1 February 2006 (Conciliation Conference) and 28 February 2006. [3] The respondent engaged the applicant during 2002. The applicant ceased employment with the respondent, of his own volition, in June 2005. During that time the applicant asserted he was not paid the correct rates reflected in the Carriers Award. The respondent was declared bankrupt on 27 August 2005. The application was lodged on the 13 January 2006 with the applicant's full knowledge the respondent had been declared bankrupt. BACKGROUND [4] It was not contested that in 2002 the applicant approached the respondent seeking work. The respondent asserted he made it clear to the applicant he could only pay in the region of $10 per hour, which was under the award rate, by nature of the business. It was not contested the applicant accepted this arrangement. It was not contested the applicant was provided with a vehicle, which he utilized for his courier work as well as personal use and for earning remuneration for private activities not related to the respondent's business. [5] On cessation of the business the respondent asserted he arranged for the applicant, and others, to be hired by another company, providing some continuity of employment. This was not contested. [6] It was not contested the applicant was an employee of the respondent. [7] The respondent acknowledged he had copies of the applicant's alleged record of work and the calculations made from that data by Workplace Standards Tasmania1. He chose not to dispute them. [8] The respondent and the applicant both agreed the Commission should rely on the calculations of alleged outstanding monies provided by Workplace Standards Tasmania in its determination of this matter. FINDINGS [9] The respondent did not appear at the first conciliation conference, on advice from the person responsible for the administration of his bankruptcy. He alleged he was told, at PN155 of transcript: "... Don't bother going. That's the end of it." [10] He apologised for not attending, but acknowledged the futility of the situation. I accept he was following advice. [11] The respondent approached the proceedings with what appeared to be a defeatist demeanour. He did not deny underpayment of wages, but cited the `gentleman's agreement' he had with the applicant. The applicant was fully aware of the wage rate the business could sustain. I accept the respondent's assertion; he gave the applicant work to help him out of a dire situation.
[12] The respondent did not challenge the applicant's claim of unpaid hours worked. He did not seek a discount from the sum claimed by the applicant for benefits gained by the applicant by dint of the private use of the vehicle provided to him. [13] I find Barry Edward Fahey trading as Faheys Courier Service, ABN 49-293-849-912, did breach the Couriers Award. 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 T12501 of 2006, that Barry Edward Fahey trading as Faheys Courier Service, ABN 49-293-849-912 pay to Robert Bruce Godfrey the sum of fifty five thousand one hundred and seventy eight dollars and ninety seven cents ($55,178.97) as detailed in the calculations provided by Workplace Standard Tasmania, Exhibit A1.
James P McAlpine Appearances: Date and place of hearing: 1 Exhibit A1
|