T10085
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Rina Howard and Silver Sands Services Pty Ltd, trading as
Long service leave dispute - Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award - continuity of service - transmission of business - minimum hours requirement met - order REASONS FOR DECISION [1] This application was made by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, pursuant to s.13 of the Long Service Leave Act 1976 (the Act) for a hearing to settle a dispute concerning the non-payment of long service leave. [2] The dispute is between Rina Howard and Silver Sands Services Pty Ltd, trading as Silver Sands Resort Hotel Motel. [3] When this matter came on for hearing on 24 April 2002, Mr G Williams appeared for the Secretary, Department of Infrastructure, Energy and Resources. Miss Rina Howard represented herself. The employer was not represented. [4] Having satisfied myself that the employer had been properly notified of the hearing, I resolved to proceed to hear the application. At the conclusion of the hearing I indicated that the transcript would be forwarded to the employer, allowing 14 days for a written response. Mr MD Webb, Manager, Silver Sands Services Pty Ltd, duly responded within this time frame and his submission has been taken into account. [5] Miss Howard indicated that she first commenced employment at Silver Sands in 1974 and worked there until March 1983. She left for a period of two and a half years and then returned to work at Silver Sands in September 1985. Miss Howard stated that she continued to work at Silver Sands until 1 April 2001. It is this latter period of employment that is the subject of this application. [6] At all relevant times Miss Howard was a casual employee, classified as Guest Service Employee Grade 1, under the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award. This is a Federal Award that does not have provision for Long Service Leave and hence the application of the Act. [7] The applicant, through the Department, provided evidence of her employment during the relevant period. In the main this took the form of group certificates for the period 1989/90 to 2001. For the tax year 1997/98 an extract from Miss Howard's tax return was provided. [8] Evidence in the form of a letter from her then employer confirmed that Miss Howard was employed at Silver Sands from September 1985 until 1 November 1989. [9] In 1995 Miss Howard took a six-week break to undergo a medical operation for which she said a doctor's certificate was provided. This was not contested and hence, in accordance with s5[1][c] of the Act, this absence would not break the continuity of service. [10] Mr Webb in his correspondence of 10 August 2001 and 16 May 2002 said that he had "proof of only nine years service". [11] Having examined all the available documentation, I am satisfied that Miss Howard's employment during the period in question is represented by the following table.
[12] Miss Howard said that during the earlier part of employment, she worked on average between 20 and 25 hours per week. This later changed to an average of 11 to 15 hours per week. Miss Howard said that over the last 12 months of her employment she worked an average of 11 hours per week at $14.80 per hour. [13] Apart from the six-week break covered by a medical certificate, Miss Howard said she worked continuously on substantially the same duties. [14] Section 5[4] of the Act states:
[15] In the instant case I am satisfied that on each occasion the business changed hands there has been a transmission of business within the meaning of the Act. It follows that service with the transmittee is on each occasion deemed to include employment with the transmittor. [16] I am satisfied that continuity of employment has not been broken by reason of the transmission, or for any other reason. [17] I am also satisfied that the requirements of s.5[3] relating to a minimum of 32 hours employment in each four week period, have been met. [18] I therefore conclude that, having been employed for a continuous period of 15 years and six months, Miss Howard has a Long Service Leave entitlement in accordance with s.8[2][a][i] and [iii] of the Act. [19] Miss Howard's hours of work varied substantially over her period of employment. On the available evidence I am satisfied however, that had Miss Howard continued to work in accordance with the projected roster provisions of s.11 [2][b] of the Act, she would have worked an average of 11 hours per week at the rate of $14.80 per hour. The entitlement has been calculated on this basis. Order Pursuant to Section 13[3] of the Long Service Leave Act 1976, I hereby Order that Silver Sands Services Pty Ltd, trading as Silver Sands Resort Hotel Motel, of Peggys Point, Bicheno, pay to Rina Howard, C/- Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, 3rd Floor, Henty House, 1 Civic Square, Launceston, the sum of two thousand one hundred and eighty seven dollars and sixty cents [$2187.60], such payment to be made not later than 21 days after the date of this decision.
T J Abey Appearances: Date and place of hearing: |