T12866
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Adam Leigh Breadmore and John and Colette Hunt
Industrial dispute - termination of employment - breach of award - Order issued REASONS FOR DECISION [1] On 21 December 2006, Adam Leigh Breadmore (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 John and Colette Hunt (the respondent) arising out of: A dispute in relation to termination of employment; and alleged breach of award or registered agreement. [2] The matter was listed for hearing (Conciliation Conference) on Thursday, 11 January 2007 at 2.30 pm at The Court House, 19 King Edward Street, Ulverstone, Tasmania. However, in correspondence received by the Commission on 10 January 2007, the parties representatives jointly requested the hearing date be vacated, and that the matter be relisted on application by either party on short notice. [3] At the request of the parties, the matter was listed for hearing on 8 and 23 March 2007. [4] Mr M Verney, Verney Walker & Co., Lawyers, for the applicant; Mr J Hunt for the respondent. BACKGROUND [5] The applicant was employed by the respondent on a full time basis, from 26 June 2006 to 6 December 2006 as a dairy farm hand. [6] On 8 March 2007 this Commission was asked to issue a Consent Order on behalf of the parties. The basis of the Order obliged the respondent to pay the applicant the sum of $9,100.00 in full and final payment of the dispute T12866 of 2006. The parties informed the Commission that although the sum was agreed the timeframe of the payment was not. [7] The parties sought leave to pursue a negotiated position within a specified time. However agreement was not reached by the parties and consequently the matter was listed for arbitration. [8] At the hearing on 23 March 2007 this Commission heard argument with respect to the schedule of payment. The respondent, who was no longer represented by the counsel that had negotiated the monetary aspect of the consent agreement, represented himself at the hearing. [9] The respondent's position was that he required until the end of October 2007 to be able to fund the payment because of operational factors. Mr Verney, for the applicant, rejected this proposition as being an excessive and unreasonable delay and sought the payment to be made within 28 days. [10] Mr Verney further argued that the respondent had a responsibility to recompense the agreed sum for the underpayment of wages suffered by the applicant in a reasonable and timely manner. He said the applicant had endured a financial loss progressively over the previous ten months, by being denied his rightful wage, and to wait a further six months for reparation was unacceptable. He highlighted the applicant had only recently managed to obtain full time employment. It was also pointed out the applicant had a young family to support and was "financially strapped" 1 [11] The respondent informed the Commission that he had taken on a position of 33% share farmer with Van Diemen's Dairy Limited (VDDL) in June of 2006. He and his young family had moved from New Zealand to take up the venture. He asserted he had taken on the venture going in to a significant drought that had impeded his ability to earn the income he expected.
[12] The respondent argued that, as a consequence of the drought, his cows had gone on to once a day milking in November and that they were being "dried out" progressively since then, contributing to a significant reduction in milk production and hence income. He further asserted that the little milk production he was currently generating was about to cease and not fully resume until October of this year, during which time he would have no income, but still be liable for the running expenses of the farm. He described how the year overall had suffered low milk yield because of the effect of the prolonged drought. [13] The respondent illustrated this by explaining he received around $25,000.00, which he considered below expectation, for his best month, while typically in recent months he has been receiving around $12,000.00. Indeed the April revenue, which is the last income until after July, could be less than half of this sum. [14] The respondent further stated that the resumption of his income stream only occurs once the cows had calved and resumed producing milk. Calving, he explained, occurred in early July followed by about eight weeks build up to full milk production, which takes the process in to late September early October. [15] It was explained that in the dairy business one could expect to earn sufficient revenue throughout the year to carry the business through the low non-productive period. However, as a result of the drought, the volume and quality of the product this year significantly impacted on revenue.
[16] The respondent asserted that the revenue from milk solids was his only source of income. His wife also worked on the farm. It was not educed whether she drew a salary. The respondent said he was paid 33% of the total revenue from the sale of milk solids and from that had to pay wages, machinery repairs and maintenance and running costs. Costs associated with the well being of the herd were carried by VDDL. [17] The respondent claimed that as a share farmer, he did not own the land, the fixed assets or the cattle. He asserted the land, cattle and fixed property were all owned by VDDL. He also asserted any assets he had were tied up with farm production. He stated that he owned some farming equipment and an old car. His major asset, a tractor was purchased though a loan of $35,000 given to him by his parents for that purpose. He was committed to paying back the loan at approximately $1,000.00 per month. [18] The respondent produced examples of statements for his two bank accounts. One account was an "every day" account, the other ostensibly for GST payments. Under cross-examination, Mr Verney established that the respondent's accounting practices were somewhat flexible. The respondent did not demonstrate he was fully up to date with current transaction activity. [19] Mr Verney challenged the respondent to commit to borrowing further monies to pay off the agreed sum. The respondent stated he was refused overdraft facilities by his bank because he did not have a credit rating in Tasmania when he first undertook the job. The lack of such a credit rating, he asserted, prevented him from being able to borrow funds. He stated he had no capacity to borrow from VDDL. He totally rejected the suggestion he might try and borrow more from his parents to pay off the sum. He stated he was not prepared to go further into debt. [20] On 27 April 2007, the Commission received a communication by way of a letter from Mr Verney declaring that he had been instructed that the respondent's evidence contained inaccuracies and he wished to put further evidence before the Commission. His intent was to file Statutory Declarations on the matter with the Commission within 14 days of that date. [21] On 7 May 2007, the Commission received further communication from Mr Verney stating in part:
FINDINGS [22] In evaluating this application I am drawn to s.20 of the Act:
[23] The respondent's argument centred round his inability to generate sufficient income through his business before the end of October to pay the applicant. He cited the drought as being the major factor behind his current financial situation. [24] It has been reported regularly and widely in the press, and comments made by economists and those charged with managing the economy, that the drought over the past year has had significant impact on the economy. There has been a plethora of adjectives used to describe the severity of the drought and its impact on individuals. [25] Mr Verney did not challenge the impact of the drought on the respondent's business, I accept that it was material. [26] Mr Verney, again, did not challenge the respondent's stated lower than expected income stream for the current financial year. I accept that the financial buffer of "normal" years is not available to him. [27] Also, the herd management regime, as outlined by the respondent, was not refuted by Mr Verney. It follows that the estimate of the near future income stream has to be accepted. There was no evidence educed which gave any reason to suspect the respondent had any other source of income. [28] As a share farmer I accept the respondent has few assets relating to his business that he could liquidate. [29] The respondent's lack of precision when cross-examined on the issue of his bookkeeping, in my view, demonstrated a want of preparedness rather than mismanagement of his funds. [30] The respondent's refusal to pursue borrowing money as a means of satisfying his liability to the applicant on the surface was disturbing. However, given his level of debt already and his expected lack of income for the next few months, I have some sympathy with his stance. [31] This Commission was not privy to the arguments surrounding the underpayment of wages, therefore I cannot rely on any mitigating circumstances which may have arisen. [32] No evidence was put to the Commission that possible extended schedules of payments had been pursued between the parties. From this, I take it, that only the positions alluded to by the parties are acceptable to them. [33] Whilst I have considerable sympathy for the applicant's position, I find the respondent's situation compelling. [34] The respondent demonstrated a clear acceptance that he had to pay the agreed sum to the applicant. He also presented a logical calendar of events needed to occur to enable him to make this payment. I find the respondent requires until the end of October to make the payment. ORDER I hereby order, pursuant to section 31 of the Industrial Relations Act 1984, that John and Colette Hunt pay to Adam Leigh Breadmore the sum of nine thousand one hundred dollars ($9,100.00) by close of business on Wednesday, 31 October 2007. This Order is in full and final settlement of the industrial dispute stated in application T12866 of 2006. Nothing in this Order shall be construed as to prevent the respondent from paying the above-mentioned sum prior to the due date.
James P McAlpine Appearances: Date and Place of Hearing: 1 Para 52 of Transcript
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