TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29(1) application for hearing of industrial dispute

United Voice, Tasmanian Branch
(T13850 of 2011)

and

Avante Cleaning Services

COMMISSIONER JP McALPINE 
HOBART, 16 April 2012

Industrial dispute - alleged breach of the Cleaning and Property Services Award – Matter heard in absentia - breach of award upheld – Order Made

REASONS FOR DECISION

[1] On 10 November 2011 United Voice, Tasmanian Branch (Union) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Kym Maree Jackson trading as Avante Cleaning Services (the respondent) arising out of alleged breaches of the Cleaning and Property Services Award (the award).

[2] The Union listed two grounds for the dispute in that the employee Mr Christopher Anthony Carr:

• was not paid $5027 in accrued leave upon resignation
• was not paid $1197 in outstanding wages upon resignation

[3] A hearing was convened on 14 February 2012.  Mr Tullgren appeared for and on behalf of the Union.  No appearance was entered for or on behalf of the respondent.

[4] Communications to the respondent were as follows:

• Notice of application 14 November 2011, by mail
• Notice of hearing 2 December 2011, by mail
• Further notice of hearing 6 January 2012, by mail
• Telephone call, no response
• Amended notice of hearing 11 January, by mail and registered post
• Transcript of hearing 25 February 2012, by mail

[5] Correspondence by mail was sent to both the respondent’s post office box and the street address. The telephone number contacted was shown to be that of the respondent in business Yellow Pages.

[6] The Act at s88 provides for the proper serving of documentation at (1):

(a) In the case of a person who is neither a body corporate or a firm –
…

(iii) by sending it by post to that person’s place of residence, business, place of employment last known to the person required or authorised to serve the notice or document.

…

(c) In the case of a firm –

…

(iii) by sending it by post to the place or principal place of business of the firm in Tasmania last known to the person required or authorised to serve the notice or document.”

[7] It was the Commission’s view that notice had been properly served on the respondent.  This being the case the matter should proceed in absentia.  The Commission undertook to provide the respondent with a transcript of the hearing and seek a response prior to deciding the matter.

[8] At the hearing Mr Tullgren sought to amend the application by removing the reference to outstanding wages.  The amendment was agreed to.

[9] Mr Tullgren stated that the matter had taken some time to come before the Commission because of various changes to federal legislation, but having established that the respondent is a sole trader it correctly should fall under state legislation.

BACKGROUND

[10] Mr Carr was employed by the respondent as a cleaner from November 2007 until December 2009 at which point he resigned.  He was wholly employed at the Tassal plant in Huonville.  He normally worked from midnight until 5am, 5 shifts per week, one of which was on a Saturday.

[11] He said he chose to resign in December 2009 over disagreement with Ms Jackson over paid annual leave which was only resolved on the intervention of the Union.  He took and was eventually paid for 2 weeks leave in the second year of his employment.

[12] Mr Carr said he was led to believe that he was only entitled to two weeks annual leave each year by Ms Jackson.

[13] Mr Tullgren tendered a series of spread-sheets showing the hours Mr Carr worked and his pay for the period in question (exhibit A1.)  The details contained therein were provided by Mr Carr.  He said the exhibit had been supplied to the respondent and had not been challenged.  The information shows Mr Carr worked for 118 compete weeks with the respondent. 
 
[14] The award at Clause 9 Annual Leave states:

“9. ANNUAL LEAVE

(a) Period of Leave

A period of 28 consecutive days leave…shall be allowed annually to an employee other than a casual after 12 months continuous service…
 …

(j) Proportionate Leave on Termination of Service

(i) Where an employee terminates the employment…payment shall be made on the basis of:

(1) 4/52nd of a week's wages for each completed week of continuous service.”

[15] It is clear from the spread-sheets Mr Carr was a permanent employee with continuity of service throughout his employment with the respondent.

[16] Transcript of the hearing was sent to the applicant by express post on 24 February 2012.  She was asked to provide a response by close of business on 12 March 2012.  The respondent did not provide any comment on the content of the transcript.

FINDINGS

[17] For want of any contrary evidence I accept the evidence given by Mr Carr and the veracity of the contents of the documentation provided by the Union.  By failing to pay Mr Carr his accrued leave entitlements upon his resignation the respondent Kym Maree Jackson trading as Avante Cleaning Services breached the Cleaning and Property Services Award, I so find.

[18] Mr Carr acknowledged that during his employment with the respondent he took and was paid for 2 weeks annual leave.  In applying the award conditions, and discounting the 2 weeks already taken, Mr Carr is entitled to receive accrued annual leave equivalent to 7.077 weeks wages at his termination rate of pay of $609.65 per week, I so find.

ORDER

[19] I hereby order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement in the matter T13850 of 2011 that Kym Maree Jackson trading as Avante Cleaning Services pay to Mr Christopher Anthony Carr the sum of four thousand, three hundred and fourteen dollars and forty five cents ($4314.45) by close of business on Wednesday May 9, 2012.

James P McAlpine
COMMISSIONER

Appearances:
Mr P Tullgren for United Voice, Tasmanian Branch

Date and Place of Hearing:
2012
February 14
Hobart