T13182
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984 Timothy Roy Roland and The Engineering Company
Industrial dispute - breach of award - redundancy - pro rata long service leave - annual and sick leave - Order issued REASONS FOR DECISION [1] On 14 July 2008, Timothy Roy Roland (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with The Engineering Company (the respondent) arising out of an alleged breach of award and conditions of employment. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 22 July 2008 (Conciliation Conference), 26 August 2008 (Cancelled at the request of the applicant), 27 January 2009 and 26 May 2009. [3] The applicant started employment with the Tasmanian Engineering Company, the forerunner of The Engineering Company, on 1 July 1996. He was employed on a casual basis until 1 June 2006 when his employment status was changed to that of permanent part time. The applicant was engaged to do clerical work. In mid September 2008 the applicant resigned his position. [4] The applicant’s claim was that the respondent had breached the award by underpaying him. He also alleged that he was forced to resign because the respondent was moving its place of business from Derwent Park to Brighton and he was not prepared to travel the extra distance. He said he had informed his manager in April of that year that he would resign. The applicant is seeking recompense of the alleged underpayment of wages, redundancy, pro rata long service leave and payment for outstanding annual and sick leave. BACKGROUND [5] The applicant, because he was the only clerk in the office, saw himself as the office administrator. [6] The applicant acknowledged that although he worked regularly, he did not work regular hours each week. He was not required to be at work at a particular time or leave at a particular time. Effectively he chose when he would work and for what duration. He was not required to be in attendance on any particular day. The respondent’s only stipulation, it appears, was that the timesheet reconciliations for which the applicant was responsible should be completed each week for the seven staff members. [7] Ms C de Schipper, for the respondent, acknowledged that it was a ‘very flexible work arrangement’ to cater, in part, for the applicant’s domestic responsibilities. She said that the applicant had only worked more than 20 hours in a week on two occasions. A review of the Workplace Standards Tasmania spreadsheet (Exhibit R1) clearly shows for the majority of weeks the applicant worked less than 5 hours per week. [8] The applicant said he had approached Workplace Standards Tasmania who had worked out a value of the alleged underpayment based on the classification of a Clerical and Administrative Employee Grade 7. He said that he had an agreement with the current manager and his former manager that he be classified as a tradesperson. [9] Ms de Schipper outlined to the Commission her view of the applicant’s duties and responsibilities. [10] The applicant response was: “Yes, it’s a fair summation”. (transcript p13, L20) [11] Ms de Schipper did not dispute the number of hours the applicant had said he worked. However, she argued that the applicant’s role fitted with the Clerical and Administrative Employees (Private Sector) Award (the award). She further indicated that the applicant was a Clerical and Administrative Employee Grade 2, according to the definition in the award, but that the respondent had assessed the alleged underpayment against a Clerical and Administrative Employee Grade 3. [12] When asked by the Commission as to the grade of work he felt he was undertaking, he responded: “I wouldn’t have a clue”. (transcript p16, L30) [13] When questioned by the Commission as to the reasoning behind changing the applicant’s employment status from casual to permanent part-time, Ms de Schipper responded that it was in recognition of the acknowledged underpayment of wages. [14] The applicant argued that he could not be compelled to relocate from one workplace to another and, as such, was claiming that he was made redundant. [15] Ms de Schipper asserted that there was nothing in the award or any agreement that prevented an employer relocating. [16] On termination of his employment the respondent paid the applicant for outstanding annual holiday pay accrued from 1 June 2006. FINDINGS [17] Ms de Schipper, in her opening address, sought to have the matter resolved locally even though the respondent was party to a federal award. [18] It is clear from the applicant’s own records that he did not have regular hours and very much suited himself as to how he performed the tasks required of him. There was no regular pattern to his employment. He was in every sense a casual employee until 1 June 2006. The effect of this is that the applicant received a casual loading additional to his remuneration which is designed to compensate for, among other things, annual leave. The applicant is not entitled to accumulated annual leave for the period 1 July 1996 until 1 June 2006. I so find. [19] I turn to that part of the claim of entitlement to pro rata long service leave. [20] The Long Service Leave Act 1976 stipulates who is entitled to claim long service leave and under what conditions such a claim can be made. Before any of the options to access long service leave can be pursued a fundamental condition is that the employee has attained continuous service for the required length of time. Section 5 - Nature of continuous employment, subsection (3) stipulates: “(3) Without limiting subsections (1) and (2), where an employee is regularly employed by an employer for not less than 32 hours in each consecutive period of 4 weeks, the employee shall be deemed for the purposes of this Act to be continuously employed by the employer, notwithstanding - (a) … (b) … (c) that, apart from this subsection, the employee would be regarded as being engaged in casual employment; or (d) that the employee engaged in other employment during that period.” [21] It is clear that the applicant does not meet the base ‘32 hours in each consecutive four weeks’ for the required duration; further he was a casual employee for the majority of time employed by the respondent. [22] The Commission was not made aware if the applicant had enjoyed any other employment while working with the respondent. It follows that the applicant is not entitled to long service leave. I so find. [23] I now turn to that part of the applicant’s claim for redundancy. [24] In the first instance the applicant resigned, normally an action which precludes being eligible for a redundancy. There is no evidence that at the time of his resignation he cited the relocation of the facility as the reason. There is no evidence that the applicant made any attempt to negotiate a more suitable arrangement for transfer of his place of work. [25] I find no precedent which stipulates that a person cannot be asked to relocate his place of work. One could have some sympathy for the applicant had the relocation been an excessive distance. However, the site of the relocated facility is within the same electoral boundary in which the applicant lives. Further the time to travel from the applicant’s residence to the proposed new facility is not significantly greater than the time to travel to the original facility. I see no merit in the applicant’s claim for redundancy. I so find. [26] I turn to the applicant’s claim for payment for unused sick leave. There is no facility in the award which allows for unused personal leave (sick leave) to be cashed out either on resignation or as a result of redundancy. The applicant is not eligible for the payment of unused sick leave. I so find. [27] From the evidence educed throughout the hearing it was clear to the Commission that the applicant was not aware of the Grade at which he functioned. [28] From the agreed Statement of Duties presented by Ms de Schipper and perusal of the award, the applicant is clearly a Clerical and Administrative Employee Grade 2 classification. However the respondent has accepted the applicant be categorised as a Clerical and Administrative Employee Grade 3. [29] No evidence was educed as to why Workplace Standards Tasmania categorised the applicant at a Clerical and Administrative Employee Grade 7. In their defence however, Workplace Standards Tasmania can only evaluate a situation on the information gleaned from the complainant. [30] I have reviewed Exhibit R5 and find the calculations more accurately reflect the discrepancy in payment than does Exhibit R1 based on the Workplace Standards Tasmania calculations. [31] The respondent did breach the award in underpaying the applicant from 1999 through to 2006. I so find. [32] It has been a longstanding precedent in this Commission that over-award payments cannot be discounted against under-award payments. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that The Engineering Company pay to Mr Timothy Roy Roland, the sum of four thousand one hundred and ninety three dollars and eighty cents ($4,193.80) on or before the close of business on Tuesday, 15 September 2009. This Order is in full and final settlement of the industrial dispute stated in application T13182 of 2008. Nothing in this Order shall be construed as to prevent the employer from paying the above-mentioned sum prior to the due date.
James P McAlpine Appearances: Date and Place of Hearing: |