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Tasmanian Industrial Commission

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T12690

 

TASMANIAN INDUSTRIAL COMMISSION

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

Robert Francis Erskine
(T12690 of 2006)

and

Omega Computer Industries Pty Ltd, (In Liquidation),
(AR Yeo & GM Rambaldi as Joint and Several Liquidators)
ABN: 37 006 768 734, Pitcher Partners (Liquidators)

 

COMMISSIONER JP McALPINE

HOBART, 6 July 2006

Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - application dismissed

REASONS FOR DECISION

[1] On 5 June 2006, Robert Francis Erskine (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Omega Computer Industries Pty Ltd (the respondent), (In Liquidation), (AR Yeo & GM Rambaldi as Joint and Several Liquidators) ABN: 37 006 768 734, Pitcher Partners (Liquidators) re severance pay in respect of termination of employment as a result of redundancy.

[2] The matter was listed for hearing on 29 June 2006 (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania.

[3] The applicant was employed by the respondent from 19 April 2004, until he was made redundant on 19 December 2005. The respondent has gone into liquidation and is being administered by (AR Yeo & GM Rambaldi as Joint and Several Liquidators) ABN: 37 006 768 734, Pitcher Partners (Liquidators).

[4] The applicant represented himself. The respondent did not attend the hearing (Conciliation Conference).

[5] The applicant claimed he was made redundant on or about the 19 December 2005 and that the liquidators for the respondent deemed he was not entitled to redundancy.

[6] On 29 June 2006, a written submission was provided to the Commission by Pitcher Partners, Accountants Auditors & Advisors, (the Liquidators) on behalf of the respondent.

[7] In it's written submission the liquidators stated in part:

"General Employee Entitlements and Redundancy Scheme (GEERS)

...

GEERS is administered in accordance with its Operational Arrangements and only pays entitlements that are provided for in legislation, an Award, a Statutory Agreement or written contract of employment, or otherwise evidenced in writing.

In this regard, DEWR determined, on my advice, that each of the above former employees was not entitled to redundancy, as it was not provided for in any of the aforementioned industrial instruments applicable to the former employee."

[8] And:

"Stay of Proceedings

I advise that pursuant to section 500(2) of the Corporations Act 2001 no action or civil proceeding is to be proceeded with or commenced against the Company except by leave of the Court. Accordingly, without first obtaining leave of the Court, I do not believe the above former employees have standing to continue with these proceedings."

FINDINGS

[9] I draw the Liquidator's attention to s.29(1A) of the Act, as it had effect at the time of termination:

"A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to -

(a) ...; or

(b) severance pay in respect of employment of the former employee terminated as a result of redundancy; or ..."

[10] There is indeed provision "in legislation" for this Commission to award severance pay.

[11] However, I turn to s.500(2) of the Corporations Act 2001, which states:

"After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court ..."

[12] In his decision in Watervale Pty Ltd (in liquidation) v Abey, Tim, a Commissioner of the Tasmanian Industrial Commission & Manning1, Crawford J found at paragraph 18 of his Reasons for Judgment:

"Therefore, I hold that the Commissioner had no jurisdiction to hear and determine Ms Manning's application without a Court, as that word is defined in the Corporations Act, s58AA, having first given leave under s500(2)."

[13] I have relied on the reasoning in this authority.

[14] I conclude that until a Court, as defined in the Corporations Act 2001 at s.58AA, having first given leave this Commission does not have jurisdiction in this matter, and I so find.

[15] The application is dismissed.

 

James P McAlpine
COMMISSIONER

Appearances:
Robert Francis Erskine for himself

Date and Place of Hearing:
2006
June 29
Hobart

1 [2005] TASSC 67