TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Mrs Glenda Patricia Slater
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:
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:
On 4 August 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 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:
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:
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
Date and place of hearing: