TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.15 referral of long service leave dispute

Barry James Downham
(T8444 of 1999)

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 Barry James Downham (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:

"For the purposes of hearing and determining a dispute under section 13 of the Act a Commissioner-

(a) may, by notice in writing, delivered or forwarded by registered post, require a person to appear before him and tender evidence to him on the date, and at the time and place, specified in the notice;"

On 28 June 1999, a notice was forwarded by registered post to:

• Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania

• Barry James Downham

• Bestpac Pastoral Pty Ltd ACN 007 092 926

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:

"(d) an employee whose employment is terminated by HIS employer for any reason other than serious and wilful misconduct of the employee."

The employee's employment history was as follows:

The employee commenced employment, as an apprentice butcher, on 23 February 1987, with Kings Wholesale Meats, at Sugerloaf Road Risdon Vale. Kings Wholesale Meats was a partnership owned by S & D King. The Kings' operated three businesses and on 24 August 1987, The King Group Pty Ltd was formed with S & D King becoming Directors.

On 9 September 1991, the employee was transferred from Sugerloaf Road to 77 Main Road Moonah, being another of The King Group Pty Ltd butchers shop. Their he remained, working as a butcher, until 19 March 1993. The employee was terminated, on that date, when The King Group Pty Ltd withdrew from the lease at 77 Main Road Moonah and sublet the premises to Robbos Meats Tas Pty Ltd.

The employee, on 22 March 1993, commenced employment with Robbos Meats Tas Pty Ltd, as a butcher, at 77 Main Road Moonah. He was terminated on 1 May 1998 when the lease held by Robbos Meats Tas Pty Ltd was due to expire.

Bestpac Pastoral Pty Ltd then moved into the premises at 77 Main Road Moonah whereupon the employee commenced employment on 4 May 1998, as a butcher, until he was terminated on 27 June 1998.

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:

1. The employee had been employed by the employer, at 77 Main Road Moonah, as a butcher, from 4 May 1998 to 27 June 1998. During this time the employer leased the premises at that address.

2. The employer had intended to purchase the butchers shop at 77 Main Road Moonah and, when that did not eventuate, there was no position for the employee. This, it was said, was the reason for his termination.

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) both of whom confirmed they had employed the employee during the periods mentioned above.

The employee, between 23 February 1987 and 27 June 1998, had been employed by all previous employers, as a butcher, at 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:

"(2) Where an employee is employed in or about any place in the business of an employer and the employment of the employee with that employer is terminated, and, not later than the expiration of a period of 2 months from the date on which that employment was so terminated, the employee becomes employed in or about that place in the business of some other employer, the business of the employer by whom his employment has been terminated shall, for the purposes of this Act, be deemed to have been transmitted to the employer by whom he so becomes employed if the business in which he so becomes employed is of the same, or substantially the same, kind as the business in which he was employed in the employment that has terminated."

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 and the business of Robbos Meats Tas Pty is deemed to have been transmitted to Bestpac Pastoral Pty Ltd.

Section 5(4) of the Act states:

"(4) Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as "the transmittor") to another employer (in this subsection referred to as "the transmittee") and a person who at the time of transmission was an employee of the transmittor in that business becomes an employee of the transmittee -

(a) the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and

(b) the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of his employment, with the transmittor."

By virtue of s.5(4) of the Act, the employee is deemed to have continuous employment from 23 February 1987 to 27 June 1998, that is, 9.81629 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 Barry James Downham of RMB 3145 Grass Tree Hill Road, Richmond, Tasmania 7025, the sum of Four thousand three hundred and thirteen dollars and twenty eight cents ($4,313.28) 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
COMMISSIONER

Appearances:
Mr R Millhouse for the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania
Barry James Downham for himself

Date and place of hearing:
1999
July 15
Hobart