TASMANIAN INDUSTRIAL COMMISSION

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

Construction, Forestry, Mining and Energy Union, Tasmanian Branch
(T12694 of 2006)

and

Willow Court Training and Construction Pty Ltd

Industrial dispute - severance pay - termination as a result of redundancy - order issued

REASONS FOR DECISION

(1) On 8 June 2006 the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with Willow Court Training and Construction Pty Ltd (the employer) arising out of severance pay in respect of termination of employment as a result of redundancy for Mr T Shaw, Mr C Ramsdale and Mr S O'Brien. The application was later amended to include Mr B Hall.

(2) A hearing commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart on Thursday 22 June 2006 at 10.30 am. Mr M Huxley appeared for the CFMEU. No appearance was entered on behalf of the employer. Mr M Swanton of the Australian Municipal, Administrative, Clerical and Services Union and Ms N Wells of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought and were granted leave to intervene.

(3) I am satisfied that a notice of hearing was correctly served on the employer and I determined that the matter would proceed ex parte, pursuant to section 21 (2)(e), and that, in the interests of natural justice, I would forward copies of the transcript, exhibits and documentary evidence to the employer, with seven days in which to make written submissions, if desired.

(4) Mr Huxley said the employees were called to a meeting by Mr Craig O'Malley, the manager of Willow Court Training and Construction Pty Ltd, who informed them that it had been reported in the newspaper that the principal of the company had been deregistered as a superannuation advisor and that there would be no funds to pay them. The last pay they received was on 16 May 2006. The employees were told that they could either stay on and see if "the mess" could be sorted out, or they could go home, but that there was no money to pay them for the week that they had just worked.

(5) The CFMEU's claim in respect of the four employees is set out in Exhibit A1 (as amended), which details the length of service, the date of termination and the rate of pay for each of the employees. The claim is based on the payments provided for in section 47AH - Redundancy - of the Act, which provides:

"(1) Unless prescribed otherwise in an Act, award or agreement or determined otherwise by the Commission, an employee with more than one year's employment with an employer must be given not less than 4 weeks' notice of the employer's intention to terminated the employee's employment on account of redundancy or 4 weeks' pay in lieu of such notice.

(2) Unless prescribed otherwise in an Act, award or agreement or determined otherwise by the Commission, if an employee's employment is terminated on account of redundancy, the employee is entitled to a redundancy severance payment calculated on the basis of 2 weeks' wage for each completed yet of employment with the employer, up to a maximum of 2 weeks."

(6) Mr Huxley said that the employees had not received any notice payments.

(7) As was agreed on the day, the CFMEU subsequently provided evidence in support of the claim. This included a statutory declaration from Mr Brendan Hall, which states that he was told on 12 May 2006 that he was redundant and that he has received no wages, annual leave or redundancy payment, nor has he received a separation certificate; separation certificates for Troy Shaw, with the final day of work shown as 19 May 2006; Samuel O'Brien, final day 17 May 2006; and Craig Ramsdale, final day 19 May 2005.

(8) On 29 June the Commission was informed BY Mr BK Hamilton that he had been appointed administrator of Willow Court Training and Construction Pty Ltd on 20 June 2006 and that he was not aware of the hearing until after the event.

(9) Further correspondence was received from Mr Hamilton on 7 July 2006:

"...Other than noting that clause 12(a)(1) of the Building and Construction Industry Award provides that "one day's notice of termination of employment shall be given on either side or one day's pay shall be paid or forfeited" we make no other representations in the matter."

FINDINGS

(10) I find that all four employees were made redundant as a result of the fact that Willow Court Training and Construction Pty Ltd ceased trading. The date of the termination is the date recorded on the separation certificates.

(11) I note the comment by the administrator, Mr Hamilton, that the relevant award only provides for one day's notice of termination to be given by either side, but, in my view, that does not apply in cases of redundancy. The award is silent on the question of redundancy. The Act is quite clear that: "unless prescribed otherwise in an Act, award or agreement or determined otherwise by the Commission, an employee with more than one year's employment with an employer must be given not less than 4 weeks' notice..."

(12) I have decided to award each of the employees a severance payment of two weeks' pay for each completed year of service and four weeks' pay in lieu of notice.

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 T12694 of 2006 that Willow Court Training and Construction Pty Ltd (Administrator Appointed) pay to:

as a redundancy payment by close of business on 16 August 2006.

P C Shelley
Deputy President

Appearances:
Mr M Huxley for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Mr M Swanton intervening for the Australian Municipal, Administrative, Clerical and Services Union
Ms N Wells intervening for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Date and place of hearing:
2006
June 22
Hobart