TASMANIAN INDUSTRIAL COMMISSION

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

Michelle Maree Bessell
(T9432 of 2001)

and

Hospital Newsagency Trust
trading as The Hospital Shop Newsagency

Long service leave dispute - pro rata entitlement - deemed transmission of business - continuous employment - claim granted - consent Order

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 Michelle Maree Bessell (the employee) and Hospital Newsagency Trust trading as The Hospital Shop Newsagency (the employer), arose when the employer terminated the employee's employment on 30 June 2000, for the reason that the position she occupied was made redundant.

When the hearing commenced at 9.30am on 4 April 2001, a report, prepared by the Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, (the report) in accordance with s.13 of the Act, formed a significant part of the evidence in these proceedings.

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 employer did not challenge the report, nor the submissions presented in support of the employee's application.

FINDING

I concluded the employee had a valid claim for the following reasons.

The employee's employment history was as follows:

I am satisfied that employee was employed by four employers between 12 September 1987 and 30 June 2000. All four employed her as a Retail Employee Grade 4 under the Retail Trades Award at the same premises i.e. 272 Charles Street, Launceston. In each case she was employed by the new employer within a day 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 satisfies all the essential elements of s. 2(2) of the Act, the business of Kim and Stephan Nicholas, trading as Hospital Newsagency is deemed to have been transmitted to Kay and Tony Lesley, trading as Hospital Newsagency; the business of Kay and Tony Lesley, is deemed to have been transmitted to Kevin and Trudy Humphries, trading as Hospital Newsagency; and the business of Kevin and Trudy Humphries, is deemed to have been transmitted to Hospital Newsagency Trust trading as The Hospital Shop Newsagency.

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 12 September 1987 to 30 June 2000, that is, 12.80219 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 she occupied was made redundant, her claim for pro rata long service leave satisfies s.8(3)(d) of the Act, in that, her employment was terminated by the employer for reason other than serious and wilful misconduct.

CONFERENCE

During the course of hearing this matter, the employer and the employee participated in private discussions to consider the form of any Order the Commission might issue. At later time they advised that the dispute had been settled and they requested the following Order be issued with their consent.

ORDER

Given that request, and pursuant to Section 13(3) of the Long Service Leave Act 1976, I hereby Order the Hospital Newsagency Trust (the employer) pay to Michelle Maree Bessell (the employee) of 1 Summer Rise, Summerhill, Tasmania the sum of five thousand and eleven dollars and ten cents ($5,011.10) for accrued pro rata long service leave entitlement, and such payment to be made in the following manner:

1. Each payment set out in this Order shall be paid, by the employer, into a bank account nominated by the employee.

2. An amount of fifteen hundred dollars ($1500.00) before 5.00pm on Monday, 16 April 2001;

3. Eight instalments of One hundred and forty dollars ($140.00) to be paid as follows:

Instalments	Dates	Amounts
First Second Third Fourth Fifth Sixth Seventh Eighth	No later than 16 May 2001 No later than 16 June 2001 No later than 16 July 2001 No later than 16 August 2001 No later than 16 September 2001 No later than 16 October 2001 No later than 16 November 2001 No later than 16 December 2001	$140.00 $140.00 $140.00 $140.00 $140.00 $140.00 $140.00 $140.00

4. Eleven instalments of One hundred and ninety nine dollars twenty five cents ($199.25) and one instalment of One hundred and ninety nine dollars thirty five cents ($199.35) to be paid as follows:

Instalments	Dates	Amounts
First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelfth	No later than 16 January 2002 No later than 16 February 2002 No later than 16 March 2002 No later than 16 April 2002 No later than 16 May 2002 No later than 16 June 2002 No later than 16 July 2002 No later than 16 August 2002 No later than 16 September 2002 No later than 16 October 2002 No later than 16 November 2002 No later than 16 December 2002	$199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.25 $199.35

5. This Order is in full and final settlement of the industrial dispute, stated in application T9432 of 2001.

6. Nothing in this Order shall be construed as to prevent the employer from paying the above mentioned instalments in full prior to the due dates.

7. Further, if the employer defaults on any of the payments set out in this Order, then the balance of the monies outstanding are due and payable within seven (7) days of the date of default.

R J Watling
DEPUTY PRESIDENT

Appearances:
Mr G Thomas with Mr T Hurley for the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania
Mr S Bessell for Michelle Maree Bessell
Kerry David Scurrah for Hospital Newsagency Trust

Date and place of hearing:
2001
April 4
Launceston