T9829
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Municipal, Administrative, Clerical and Services Union and TT-Line Company Pty Ltd
Industrial dispute - alleged entitlement to pro rata long service leave payment - spouse of applicant transferred in employment - domestic or other pressing necessity - application granted - order issued REASONS FOR DECISION [1] On 4 October 2001, the Australian Municipal, Administrative, Clerical and Services Union (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with TT-Line Company Pty Ltd arising out of the alleged entitlement to pro rata long service leave for Mrs Michelle Reeves. [2] On 8 October 2001 the President convened a hearing before myself at Devonport to commence at 10.30am on Wednesday 17 October 2001. [3] When this matter came on for hearing Mrs M Midgley appeared for the ASU. Mr P Heerey, a solicitor, sought and was granted leave to appear for the employer. [4] This matter concerns an application by Mrs Michelle Reeves for the payment of an allowance equivalent to pro-rata Long Service Leave. By virtue of Clause 27 of the TT-Line Shore Based Employees Enterprise Agreement 2000 the relevant statute is the Long Service Leave [State Employees] Act 1994. [5] Section 20 of this Act provides for a pro rata entitlement when an employee has completed at least seven years but less than ten years of continuous employment and:
(6) Mrs Reeves commenced employment with TT-Line on 7 February 1994. Her employment terminated on 7 September 2001. The employer acknowledged that the continuous employment requirements had been satisfied and hence this application turns on the question of whether the circumstances of Mrs Reeves' resignation constituted a "domestic or other pressing necessity". (7) It is a matter of regret that Mrs Reeves was not called to give evidence either in person, per telephone or by lodgement of a statutory declaration. However as the facts on which this application turns are clear, this is not a barrier to the determination of this matter. (8) Mrs Reeves' letter of resignation dated 24 August 2001 reads as follows:1
(9) The employer acknowledged that TT-Line was unable to offer Mrs Reeves employment in Queensland. (10) The applicant's case is straightforward. In summary Mrs Midgley submitted that Mrs Reeves' husband had been transferred in his employment with Telstra to Queensland. The circumstances of the transfer are not relevant. Mrs Reeves made the perfectly reasonable decision to move with her husband to Queensland thus necessitating her resignation from TT-Line. This set of circumstances, Mrs Midgley submitted, clearly constituted a domestic or other pressing necessity. (11) The employer called evidence from Mr Glenn Patrick Pipkin, Manager Personnel and Workers' Compensation with TT-Line. Mr Pipkin's evidence went to correspondence and conversations with Telstra officials as to the circumstances of Mr Damien Reeves' employment transfer. (12) Upon reviewing this evidence I am satisfied that there was a significant element of choice in the decision taken by Mr Reeves to transfer to Queensland. I am also satisfied that Mr Reeves would not necessarily have been made redundant had he declined the transfer option. (13) On 10 September TT-Line wrote to Mrs Reeves in the following terms:2
(14) Mr Heerey submitted that Mr and Mrs Reeves made a mutual decision for a lifestyle change. He said adopting a plain English interpretation of the word, "that 'necessity' implies the removal of choice to a substantial degree". There was nothing that compelled Mr and Mrs Reeves to relocate to Queensland. (15) Mr Heerey also submitted that I should have regard to two public interest considerations. Firstly, the financial impact on the wider public service should the application be granted and a precedent created, and secondly, the impact on population decline on the north west coast if workers are effectively encouraged to accept their entitlements and move interstate. Findings (16) I accept the submission of Mrs Midgley to the effect that the circumstances of the transfer of Mr Damien Reeves are largely irrelevant. The undisputed fact is that he was transferred in his employment and the question of compulsion or choice has no material bearing on the decision taken by Mrs Reeves to relocate with her husband to Queensland. (17) Notwithstanding the absence of first hand evidence, I accept that the real and motivating reason for Mrs Reeves' resignation was the transfer of her husband. (18) I further find that these circumstances constituted a domestic or other pressing necessity within the meaning of the LSL Act. In support of this finding I refer to Thomas v The Examiner Newspaper Pty Ltd3 whereby the then Commissioner Watling reached the same conclusion in similar circumstances. (19) In Section 29 matters the Commission is not formally bound by the statutory public interest requirements of Section 36. Nonetheless I do take Mr Heerey's submissions seriously. I do not however accept that this decision will open the floodgates. This decision does not imply that an employee who, of their own free will, moves interstate will have a pro rata long service leave entitlement. The domestic or other pressing necessity on the reasonable person test, is that an individual has no reasonable alternative but to follow a spouse who has been transferred in employment. Order (20) Pursuant to Section 31 of the Industrial Relations Act 1984 I hereby order that TT-Line Company Pty Ltd pay to Mrs Michelle Reeves, C/- Australian Municipal, Administrative, Clerical and Services Union, 265 Macquarie Street, Hobart, Tasmania 7000 an allowance calculated in accordance with Section 20[2] of the Long Service Leave [State Employees] Act 1994, such payment to be made within twenty one days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R1 |