T12829, T12830, T12831, T12833, T12837 and T12842
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Brett Charles Smith and Findhorn Tasmania Pty Ltd
Industrial dispute - alleged breach of the Cleaning and Property Services Award - order issued REASONS FOR DECISION [1] On 30 October 2006, Brett Charles Smith, Toni Louise Suter and Trudy Anne Gleeson, on 2 November 2006, Gloria Beryl Knowles, on 6 November 2006 Malcolm Neil Dennis and on 15 November 2006 Michelle Louise Viney (the applicants) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Findhorn Tasmania Pty Ltd in respect to an alleged breach of the Cleaning and Property Services Award. [2] When this matter came on for hearing on 22 November 2006, the applicants were self-represented. No representative of the employer was present nor had any explanation been provided to the Commission concerning the lack of representation. [3] In the circumstances I decided to take sworn evidence from the applicants. At the conclusion of the hearing I indicated that the transcript and supporting documentation would be forwarded to the employer inviting a response within fourteen days. [4] On 5 December the Commission wrote to the employer in the following terms:
[5] No response was received from the employer. However on 7 December 2006 the Commission did receive a circular letter from Deloitte Touche Tohmatsu advising that the Company had been placed in voluntary administration. Jurisdiction [6] Section 440D of the Corporations Act 2001 reads:
[7] The jurisdiction of the Commission to make orders against a company under administration was discussed in detail in Greed v Australian School of Fine Furniture Ltd (Administrator Appointed)1. For the reasons advanced in Greed I conclude that the Commission does have jurisdiction to hear and determine these applications. [8] As no submission was received from the employer, the applications are decided on the basis of the material before me. Evidence [9] Sworn evidence was taken from each applicant. The following is a summary of that evidence. Note that in each case the calculations undertaken by Workplace Standards Tasmania (WST) concluded on 27 March 2006, notwithstanding that employment may have continued after that date. 27 March 2006 was the date the Commonwealth Work Choices legislation came into effect and arguably altered the award coverage status of the employer. Brett Charles Smith · Employed by Findhorn as a cleaner from 2 August 2004 to 31 July 2006. · Provided timesheets and payslips to WST which had calculated an underpayment of $7565. Toni Louise Suter · Employed by Findhorn as a cleaner from 4 January 2005 to 31 July 2006. · Provided payslips to WST which had calculated an underpayment of wages of $5205. Trudy Anne Gleeson · Employed by Findhorn as a cleaner from 5 November 2005 until 31 July 2006. · Provided payslips to WST which had calculated an underpayment of wages of $4624. Gloria Beryl Knowles · Employed by Findhorn as a cleaner from 29 March 2004 until 31 July 2006. · Provided payslips to WST which had calculated an underpayment of wages of $9239. Malcom Neil Dennis · Employed by Findhorn as a cleaner from 29 March 2004 to 31 July 2006. · Provided payslips to WST which had calculated an underpayment of wages of $11544. Michelle Louise Viney · Employed by Findhorn as a cleaner from 29 March 2004 until 31 July 2006. · Provided payslips to WST which had calculated an underpayment of wages of $10038. Findings [10] I am satisfied that all material times the employer was engaged in the business of contract cleaning and, as a consequence, was subject to the Cleaning and Property Services Award. [11] I am satisfied that at all material times the applicants were engaged in duties which are described in the definition of Property Service Employee Grade 1. [12] I am satisfied that the calculations undertaken by WST accurately reflect the extent of underpayment in each case. [13] As a consequence I find that applicants have properly made out their respective cases and the applications are granted. ORDER Pursuant to section 31 of the Industrial relations Act 1984 I hereby order that Findhorn Tasmania Pty Ltd (Administrators Appointed) pay to the persons mentioned below the following amounts: (a) Brett Charles Smith, seven thousand five hundred and sixty five dollars ($7565); (b) Toni Louise Suter, five thousand two hundred and five dollars ($5205); (c) Trudy Anne Gleeson, four thousand six hundred and twenty four dollars ($4624); (d) Gloria Beryl Knowles, nine thousand two hundred and thirty nine dollars ($9239); (e) Malcolm Neil Dennis, eleven thousand five hundred and forty four dollars ($11544); and (f) Michelle Louise Viney, ten thousand and thirty eight dollars ($10038).
Tim Abey Appearances: Date and Place of Hearing:
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