T9456
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Diane Mackey and Hobart Central Child Care Pty Ltd
Industrial dispute - proportionate long service leave - age for retirement - order REASONS FOR DECISION This was an application for a dispute hearing made under Section 29(1A)(a) of the Industrial Relations Act 1984 (the Act) by Mrs Diane Mackey of Campania. Mrs Mackey was in dispute with Hobart Central Child Care Pty Ltd (the Child Care Centre) over the non-payment of her alleged entitlement to payment for proportionate long service leave on the termination of her employment by the Child Care Centre. At the hearing, Mrs Mackey was represented by the Australian Municipal, Administrative, Clerical and Services Union (the Union), and the Child Care Centre was represented by the Tasmanian Chamber of Commerce and Industry Limited (the Chamber). Following preliminary submissions, the Commission adjourned proceedings to enable the parties to discuss the matter privately. The parties were unable to settle the matter and requested the Commission to proceed to arbitration. The Union relied upon two separate grounds to show that Mrs Mackey was entitled to a proportionate long service leave payment. One was that she had reached retirement age and having complied with the other relevant requirements of the Long Service Leave Act 1976 (the LSL Act), she was therefore entitled; the other ground was that she had been certified medically as unfit for work on account of illness and, on the same basis, was therefore entitled. It was not disputed that Mrs Mackey had been employed by the Child Care Centre for a period of nine years, that is, from 20 June 1992 until 23 January 2001. Proof of Mrs Mackey's age in the form of a Record of Birth from the Registrar-General, was produced by the Union1. Mrs Mackey had turned 60 years of age on 22 January 1997. She had resigned from her employment at the Child Care Centre effective from 23 January 2001. Mrs Mackey's gross wage was $485.10 per week. The Chamber accepted that, for the purposes of the LSL Act, as prescribed in Section 2(1), Mrs Mackey's age for retirement was 60 years. She had therefore been eligible to retire from work on 22 January 1997. Mrs Mackey had only been employed by the Child care Centre for nine years and, therefore (if eligible) came within Section 8(2)(b) of the LSL Act which prescribed:
The Chamber submitted that Section 8(3) of the LSL Act which prescribed:
actually laid down four "terminating factors" which were outside the control of the employee. In other words, once Mrs Mackey continued working past the age for retirement she terminated her eligibility for a proportionate long service leave payment. The Chamber said Mrs Mackey had chosen to work past the age for retirement and, therefore, cut off her entitlements under the LSL act. The Chamber said:
FINDINGS An employee's eligibility for long service leave is primarily prescribed by two key provisions of the LSL Act. One is the definition of an "employee" in Section 2(1):
The other is the basic entitlement to long service leave as prescribed in the LSL Act, Section 7A:
Mrs Mackey was at all times an employee and, therefore, having satisfied the eligibility requirements under Section 8(2)(b) (re proportionate leave entitlement) and Section 8(3)(a) (re attainment of the age for retirement), is eligible for a proportionate long service leave payment. Once Mrs Mackey satisfied all requirements, in particular being an employee, I am satisfied as to her entitlement, even though she delayed her cessation of work past the age for retirement. I consider she was able and eligible to claim her entitlement at any time after attaining the age for retirement. I do not accept that her eligibility for long service leave was terminated when she attained the age for retirement. Having determined that Mrs Mackey is entitled to a long service leave payment on the grounds of age, I do not propose to consider or rely on the ground of her illness or otherwise. During the course of the hearing there were references made to the provisions of the Anti-Discrimination Act 1998 and the Workers Rehabilitation and Compensation Act 1988 and their possible relevance to this application. I am satisfied in this case that Mrs Mackey's entitlements under the LSL Act are not subject to the provisions of those other two Acts. Order In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this decision, I hereby order that within twenty-one (21) days of the date of this decision, Hobart Central Child Care Pty Ltd of 108 Bathurst Street, Hobart, pay to Mrs Diane Mackey of 32 Native Corner Road, Campania, Tasmania 7026, the sum of five thousand and thirty-seven dollars and twenty-eight cents ($5,037.28), being a proportionate long service leave payment due on the termination of her employment.
P A Imlach Appearances: Date and place of hearing: |