T8443
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 William George Smith and Bestpac Pastoral Pty Ltd ACN 007 092 926
Long service leave dispute - pro rata entitlement - deemed transmission of business - continuous employment - claim granted REASONS FOR DECISION 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, for a hearing to settle a dispute concerning the non-payment of pro rata long service leave. The matter was referred to me by the President, in accordance with the provisions of s.15(1)(e) of the Industrial Relations Act 1984, for hearing and determination under the provisions of the Long Service Leave Act 1976 (the Act). The dispute, between William George Smith (the employee) and Bestpac Pastoral Pty Ltd ACN 007 092 926 (the employer), arose after the employer, trading as Danny's Meat, 77 Main Road Moonah, terminated the employee's employment on 27 June 1998, when there no longer existed a position for him. Section 3(2) of the Long Service Leave Regulations 1977 states:
On 28 June 1999, a notice was forwarded by registered post to:
A "Delivery Confirmation - Advice Receipt" from Australia Post was returned in respect of each of the above. When the hearing commenced at 10.30 am on 15 July 1999, there was no appearance entered for or on behalf of the employer. Having satisfied myself that all parties to this dispute had been properly notified, in accordance with Regulation 3(2), I proceeded to hearing in the absence of the employer. The unchallenged report, prepared by the Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, in accordance with s.13 of the Act, formed a significant part of the evidence in these proceedings, along with the evidence adduced, under oath, from the employee. The employee was claiming an entitlement to pro rata long service leave pursuant to s.8(2)(b) of the Act, for the reason of s.8(3)(d), that is:
The employee's employment history was as follows:
The Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania report shows that, when interviewed by an Inspector under the Act, on 25 November 1998, Mr Graham Clifford, for the employer, conceded that:
In addition, the Inspector interviewed Mrs S King (Director of The King Group Pty Ltd) and Mr A Kingston (Director of Robbos Meats Tas Pty Ltd) who confirmed they had employed the employee during the periods shown above. I am satisfied that employee was employed by three employers between 4 February 1991 and 27 June 1998. All three employed him as a butcher at the same premises i.e. 77 Main Road, Moonah. In each case he was employed by the new employer within days of being terminated by the previous employer. Section 2(2) of the Act states:
As the employee meets all the essential elements of s. 2(2) of the Act, the business of The King Group Pty Ltd is deemed to have been transmitted to Robbos Meats Tas Pty Ltd and the business of Robbos Meats Tas Pty Ltd is deemed to have been transmitted to Bestpac Pastoral Pty Ltd. Section 5(4) of the Act states:
By virtue of s.5(4) of the Act, the employee is deemed to have continuous employment from 4 February 1991 to 27 June 1998, that is, 7.39220 years. Section 8(2)(b) of the Act provides for a pro rata long service leave entitlement [subject to s.8(3)] where an employee has completed 7 years', but less than 15 years', continuous employment with the employer. As the employee was terminated, by the employer, after the position he occupied was made redundant, his claim for pro rata long service leave satisfies s.8(3)(d) of the Act, in that, his employment was terminated by the employer for reason other than serious and wilful misconduct. For all the above reasons I conclude that the employee is entitled to a payment for pro rata long service leave, from his last employer. Therefore, pursuant to Section 13(3) of the Long Service Leave Act 1976, I hereby Order that Bestpac Pastoral Pty Ltd ACN 007 092 926 of 9 Creswick Road, Ballarat, Victoria 3350 pay to former employee William George Smith of 1 Cotswald Place, Moonah, Tasmania 7009, the sum of Two thousand eight hundred and fifteen dollars and five cents ($2,815.05) for accrued pro rata long service leave entitlement, and such payment to be made no later than 5.00pm on Wednesday, 25 August 1999.
R J Watling Appearances: Date and place of hearing: |