T8103
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Maree Maina-Stocks and Jane and Robert de Little
Appeal - decision by President F D Westwood on 5 November 1998 in matter T7643 of 1998 - appeal dismissed - decision confirmed REASONS FOR DECISION The appellant in this matter, who is also known as Maree Maina, worked as a piece worker picking apricots for the respondent, Jane and Robert de Little, Mount Lord Apricots, during the period 1 January - 5 February 1997. The appellant, alleging breach of the Farming and Fruitgrowing Award,1 told the President-who heard the matter at first instance-that when she applied for the job the payment offered was $1.60 per 10kg box pursuant to the piece work provisions (Clause 5) of the award. However, Ms Maina-Stocks later discovered that the award wage for a Level 2 Orchard Hand-the employee classification specified in Clause 5 of the award-produced an hourly rate of $10.80. The appellant, in the proceedings before the President, alleged that according to Clause 5 of the award a piece worker should receive "at least 12½% more than the hourly equivalent for an employee classified as farm hand and/or orchard hand level 2 (as defined)". The President published two decisions in the course of determining the matter. The first decision, dated 28 July 1998, dealt with the meaning of Clause 5 of the Farming and Fruitgrowing Award having regard to the relationship between that provision and Section 50(3) of the Industrial Relations Act 1984. The second decision, dated 5 November 1998, dealt with the appellant's entitlements, ie the days and hours of work performed by her during the period 1 January - 5 February 1997 inclusive and the rate of pay that should apply to that work. In subsequently dismissing the appellant's application, the President concluded that:2
From that decision Ms Maina-Stocks now appeals, pursuant to Section 70(1)(b) of the Act. In her appeal the appellant relied on the following two grounds:
The appeal grounds, both of which appear to us to relate to what is essentially the one issue, refer to what was Exhibit 18 in the proceedings before the President. In that hearing, as before us, the appellant represented herself. Exhibit 18 comprises two pages. The first page shows, according to the respondent's records, the days worked by Ms Maina-Stocks and the number of boxes that she picked on each of those days. The respondent, believing that piece-work did not require the keeping of records going to hours worked, conceded that there were no records available to show the hours actually worked by the appellant on the days in question. The second page of the Exhibit sets out the respondent's calculations showing, according to her methodology, the maximum amount of the appellant's claim. The particular page also shows, this time according to the respondent's methodology, a "fair and equitable" sum that might be payable should the Commission reject the respondent's submissions concerning the proper construction of Clause 5 of the award. It is abundantly clear from the transcript of proceedings before the President that Ms Maina-Stocks vigorously challenged the content of Exhibit 18 so far as it purported to reflect: 3 (a) the number of days she actually worked for the respondent; and (b) the number of boxes she picked each day or, expressed differently, the number of hours she actually worked each day of her employment to pick those boxes. The transcript shows that the President, after questioning the appellant at some length regarding these issues, gave her further time to "think about it and provide me with what you consider to be the accurate hours that you worked and the days you worked and the boxes you picked".4 The appellant subsequently responded by letter dated 18 September 1998, a copy of which the President sent to the respondent's agent with a request for further comment. The respondent replied by letter dated 12 October 1998. It is our understanding that, in addition to Exhibit 18, the appellant also refers to these items of correspondence in her appeal. There was some suggestion from the appellant at the outset that, even though she categorised the respondent's evidence before the President as hypothetical, she appeared to have nonetheless concluded that the respondent's Exhibit 18 calculations of a "fair and equitable" sum amounted to an offer of settlement.5 We do not agree with that suggestion because, on our reading of the transcript of proceedings, the calculations were clearly put to the President on "the basis that all our submissions fail".6 Mr Rice, for the respondent both at first instance and before us, confirmed the conditional nature of the submission that was before the President on this point. The appellant took us through her objections to the content of Exhibit 18 conceding, as she did so, that all her evidence was before the President. For that reason, we do not find it necessary to record the details here. However, she contended, the President "added it up in another way" and, in doing so, took notice of the respondent's way of seeing things.7 In particular, the appellant explained, the President declined to accept her submission that for most of the days concerned she had worked six hours each day when, in fact, the respondent never said she had not worked those hours. In the absence of records, Ms Maina-Stocks said, there was no way that she could get the necessary evidence to support her case. The appellant further argued that "I don't see why they [the employer] should get away with not paying the right wage because of their book work".8 In summary, we understand the thrust of the appellant's contentions to be that, while the President ruled that her evidence was unreliable, he did not make the same ruling about the respondent's evidence which, she urged, was equally unreliable and hypothetical. The appellant included in the category of evidence rejected by the President the comments contained in her letter of 18 September 1998. In that letter, the appellant said, she explained to the President that, unless one were a machine, it was not possible to pick more than six boxes an hour. The respondent's submissions in that regard, in the appellant's view, were simply not factual or, in her own words, "I just say that the whole result Mr Westwood did ... is not factual at all". In short terms, the appellant submitted, the President did not place sufficient weight on the information provided in her letter of 18 September 1998. Mr Rice, for the respondent, gave us the benefit of quite detailed submissions in reply. However, given the straightforward nature of the issue put to us, we do not find it necessary to record those details. It is quite clear to us, from reading the President's Reasons for Decision of 5 November 1998, that he was fully aware of the evidence put to him by the appellant, both at the time of the hearing and subsequently in written form and the shortcomings that she perceived to exist in the respondent's work records and calculations. That much appears plainly from pages 4 and 5 of his decision, where the President recorded the substance of Ms Maina-Stocks' submissions, and at page 7 where he discussed and rejected her written submissions of 18 September 1998. After considering and weighing that evidence, the President found it to be unreliable. We believe that approach was open to him in the circumstances since, being required to make findings of fact in relation to alleged award breaches, it was his duty to positively satisfy himself that such breaches had, in fact, occurred. In that regard the burden of proof clearly lay on the appellant, an onus that she failed to discharge. In the circumstances, we do not see that the President had any other option than the one he took, ie to dismiss the appellant's application for want of substantiation. For these reasons we reject both grounds relied on by the appellant and dismiss the appeal. Having come to that conclusion we are not, however, without sympathy for the plight in which the appellant found herself, both before the President and before us, concerning the respondent's inability to provide appropriate records. We note that the President expressed concern about this issue in the following terms:9
We share the President's expression of concern.
B R Johnson Appearances: Date and Place of Hearing: 1 T No 7643 of 1998. |