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T6449

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against an order

Tasmanian Chamber of Commerce and Industry Limited
for and on behalf of Thermoform Packaging Pty Ltd

(T6449 of 1996)

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER R J WATLING

HOBART, 10 October 1996

Appeal against order issued on 25.7.96 by Commissioner Imlach in Matter T5795 of 1995 - appeal upheld - order revoked - Commissioner directed to convene further hearing to establish award entitlements, if any

REASONS FOR DECISION

On 25 July 1996, in Matter T5795 of 1995, Commissioner Imlach ordered under Section 31(1) of the Industrial Relations Act 1984 that Thermoform Packaging Pty Ltd (the company) pay to Mr Phillip John Griggs of Sandy Bay the sum of $10,000 to settle an industrial dispute. The order arose from an application under section 29(1) of the Act by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the union) on behalf of Mr Griggs that there was a dispute between it and the company

"regarding unauthorised deduction of monies from the termination pay of Mr Griggs and regarding the breach of awards of the Tasmanian Industrial Commission, particularly the Fibreglass and Plastics Award and/or the Clerical and Administrative Employees (Private Sector) Award, in that monies due and payable to Mr Griggs, pursuant to the award or awards have not been paid to Mr Griggs on time, or at all".

It had been alleged in the course of those proceedings that when the services of Mr Griggs had been terminated by the employer a sum of $10,000, being a "private loan" made by the Managing Director of the company to Mr Griggs, had been deducted without authority from Mr Griggs' termination pay.

This appeal brought by the Tasmanian Chamber of Commerce and Industry Limited for and on behalf of the company, cited the following as the grounds of appeal:

"1.   The Commissioner erred in that he failed to determine

(A)  Whether an award applied to the applicant;

(B)  What the applicant's award entitlements were on termination - if any;

(C)  Whether he possessed jurisdiction to order repayment of an amount of money and or components of that amount of money.

2.   The Commissioner erred in fact in ordering the company repay the applicant a sum of money without determining the entitlement to that money by the applicant.

3.   The Commissioner erred in finding an award(s) applied to the applicant."

Mr Gates, for the employer, took the Bench through the Commissioner's decision and the transcript, and submitted that the Commissioner had failed to specify which award had application to the work of Mr Griggs, although two awards were cited in the application; that the Commissioner had failed to specify whether either or both awards contained a classification which could have been applied to Mr Griggs, and that the Commissioner had failed to determine precisely what entitlements were due to Mr Griggs at the time his employment was terminated. It was claimed also that the evidence before the Commissioner as to what amounts of money were due to Mr Griggs by his former employer included directors' fees and over-award payments.

On the latter point, Mr Gates argued that the Commission did not have jurisdiction to order the payment of an over-award component or directors' fees which he submitted were included in the estimate of amounts due to Mr Griggs as set out in Exhibit K3 in the original matter. It was submitted that before the Commission could order the payment of allegedly unauthorised deductions, the Commission must establish what was due to the employee in accordance with an award at the time of termination of employment. It was submitted that the order made by Commissioner Imlach should be revoked in accordance with Section 71(13) of the Industrial Relations Act 1984.

In response, Ms Shelley for the union, submitted that the Commissioner had not been asked to determine whether one or both awards applied to Mr Griggs; nor had the Commissioner been asked to determine what award classification applied. Further, the Commissioner had not been asked to determine what amounts of money were due to Mr Griggs by virtue of one or both the awards. It was argued that the claim that the amount ordered to be paid included an over-award component could not be substantiated as the material before the Commission had not been tested for that purpose.

Ms Shelley submitted that the Commissioner had not relied on Exhibit K3 in determining the amount to be paid to Mr Griggs but had used Exhibits K1 and K4, including Exhibit K3, to support the conclusion that Mr Griggs was an employee for the purposes of the dispute. Ms Shelley submitted that in the proceedings before Commissioner Imlach it had not been claimed that directors' fees were included in the alleged unauthorised deduction of $10,000. It had always been the union's contention that the employer had been trying to recover a private loan of $10,000 made to Mr Griggs by his employer and this was confirmed in Commissioner Imlach's order.

Ms Shelley submitted that the dispute was about the alleged unauthorised deduction of monies from Mr Griggs' pay; it was not about over-award payments or directors' fees.

In dealing with such matters the Commission is not concerned with financial transactions between an employer and an employee other than those which are related to award entitlements or obligations. However we indicate at this juncture that we agree with the sentiments expressed by Commissioner Imlach at page 4 of his decision that "it is a very serious matter indeed for an employer to unilaterally take money from wages due to an employee".

Notwithstanding these shared sentiments, it is clear that in proceedings pursuant to section 29 of the Industrial Relations Act, before determining that an employer has made an unauthorised deduction from monies due to an employee or has breached provisions of an award, the Commission must first establish what award or awards have application and what classification applies before the amount due to the employee as a result of those entitlements can be determined. Until the precise award entitlements have been determined it is not possible to find that a deduction, unauthorised or authorised, has been made.

Having considered the submissions and material before us we are satisfied that Commissioner Imlach erred in that he failed to determine the award or awards which had applied to the employer and the employee, Mr Griggs, at the relevant time or times. The Commissioner also erred in that he failed to specify the award classification to be applied to Mr Griggs and he failed to determine precisely the monies due to Mr Griggs by virtue of any award. Hence he was unable to find that there had been an unauthorised deduction from Mr Griggs' pay or that there had been a breach of an award.

Accordingly we consider the grounds of appeal to be made out and pursuant to the provisions of section 71(13) of the Act, we:

(1)  revoke the order of Commissioner Imlach in Matter T5795 of 1995;

(2)  direct the Commissioner to convene a further hearing of the parties for the purpose of determining the application having regard to the above observations and, if necessary, issue any order arising therefrom pursuant to section 31 of the Act.

 

F D Westwood
PRESIDENT
AND PRESIDING MEMBER

Appearances:
Mr S Gates with Mr C Ayres and Mr G McCulloch for Thermoform Packaging Pty Ltd
Ms P Shelley with Mr D O'Byrne for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch

Date and place of hearing:
1996
September 9
Hobart