TASMANIAN INDUSTRIAL COMMISSION

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

Mrs Glenda Patricia Slater
(T8520 of 1999)

and

Brecaryan Pty Ltd ACN 009 549 375

Long service leave dispute - payment of long service entitlement - s.8(2)(a) of the Act - deemed transmission of business - deemed continuous employment - claim granted - Order issued

REASONS FOR DECISION

This application was made by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania (the Department) 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.

The matter was referred to me by the Acting 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 Act.

The dispute, between Mrs Glenda Patricia Slater and Brecaryan Pty Ltd ACN 009 549 375), centred around the non-payment of long service leave pursuant to s.8 (2)(a) of the Act.

That Section states:

"(a) On the completion by an employee of a least 15 years' continuous employment with his employer --

(i) 13 week's long service leave in respect of the first 15 years' continuous employment with his employer;

(ii) 8 2/3 weeks' long service leave in respect of each additional 10 years' continuous employment with his employer; and

(iii) on the termination of his employment, an additional period of long service leave in respect of the number of years' continuous employment with his employer since the last accrual of entitlement to long service leave under the foregoing provisions of this paragraph, such period of long service leave as bears the same proportion to 13 weeks as that number of years bears to 15 years;"

Mrs Slater was claiming an entitlement, under this section of the Act, having terminated her employment after completing 18 years and 144 days continuous service at the Exeter Hotel, Main Road Exeter.

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 4 August 1999, a notice was forwarded by registered post to:

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

• Mrs Glenda Patricia Slater; and

• Brecaryan Pty Ltd ACN 009 549 375.

A "Delivery Confirmation - Advice Receipt" from Australia Post was returned in respect of each of the above.

When the hearing commenced at 11.00 am on 23 September 1999, Mrs Slater was represented by her agent Mr D Waldron and, Brecaryan Pty Ltd was represented by Mr W Dixon, a Director of the company.

Whilst I have taken into account the submissions presented by Mr Dixon, nevertheless, the evidence adduced, under oath, from Mrs Slater, along with the amended report, prepared by the Department, in accordance with s.13 of the Act, formed a significant part of the evidence in these proceedings.

Mrs Slater's evidence (which was not upset during cross-examination) and copies of her tax returns and group certificates, satisfy me that Mrs Slater was employed by three employers between 10 September 1980 and 31 January 1999, namely, J.R. & J.E Cook; R.A. & L. Harrison; and Brecaryan Pty Ltd. All three employed her in or about the Exeter Hotel, Main Road, Exeter, Tasmania, and there was no break in service between each 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 Mrs Slater's employment history satisfies all the essential elements of s. 2(2) of the Act, the business of J.R. & J.E Cook is deemed to have been transmitted to R.A. & L. Harrison and the business of R.A. & L. Harrison is deemed to have been transmitted to Brecaryan 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, Mrs Slater is deemed to have continuous employment from 10 September 1980 to 31 January 1999; that is, 18 years and 144 days.

Whilst Mrs Slater was unclear as to whether or not she was employed by her past employers on a part-time or casual basis, nevertheless, I accept her uncontested evidence that she was regularly employed by her previous employers for not less than 32 hours in each consecutive period of 4 weeks. Indeed, her average weekly hours of employment for her last 12 months of service were 23.3173 hours.

For all the above reasons I conclude that Mrs Slater is entitled to a payment for long service leave, from her last employer.

Therefore, pursuant to Section 13(3) of the Long Service Leave Act 1976, I hereby Order that Brecaryan Pty Ltd ACN 009 549 375, pay to former employee Mrs Glenda Patricia Slater of 110 Stokes Road, Bridgenorth Tasmania 7277, the sum of Three thousand six hundred and fifty nine dollars and fifty five cents ($3659.55) for accrued long service leave, and such payment must be made no later than 5.00 pm on Tuesday, 19 October 1999.

R J Watling
COMMISSIONER

Appearances:
Mr G Thomas for the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania with Ms D Simpson
Mr D Waldron for Mrs Glenda Patricia Slater
Mr W Dixon and Mrs L Dixon for Brecaryan Pty Ltd ACN 009 549 375

Date and place of hearing:
1999
September 23
Launceston