Industrial Relations Commission of New South Wales CITATION: ALHMWU v Murawina Mt Druitt Co-op Ltd [2005] NSWIRComm 1017 APPLICANT ALHMWU PARTIES: RESPONDENT Murawina MT Druitt Co-op Ltd FILE NUMBER(S): 128 and 496 of 2005 CORAM: Macdonald C CATCHWORDS: Dispute Notifications - non payment of annual leave entitlements and threatened dismissal of employees - orders issued LEGISLATION CITED: Industrial Relations Act 1996 (NSW) CASES CITED: Hill v Department of Education (NSW) 85 IR 201 HEARING DATES: 02/04/2005 DATE OF JUDGMENT: 02/09/2005 APPLICANT Mr N Quinn (union official) LEGAL REPRESENTATIVES: RESPONDENT No Appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 9 February 2005 Matter No IRC 128 AND 496 of 2005 ALHMWU v MURAWINA MT DRUITT CO-OP LTD Applications by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch of disputes with Murawina Mt Druitt Co-Op Ltd re alleged non payment of annual leave entitlements and threatened dismissal of employees DECISION [2005] NSWIRComm 1 The Commission has before it two dispute notifications by the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the Union") against the Murawina Mt Druitt Co-Op Ltd ("the Respondent"). 2 The first dispute notification lodged by the Union is IRC 128/05 and concerns an alleged non payment of annual leave entitlements to 16 employees (amended to 15 employees in later proceedings). The dispute notification was made pursuant to s 130 of the Industrial Relations Act 1996 (" the Act "). The notification also foreshadowed a small claim application pursuant to s 380 of the Act . 3 The dispute notification was listed for a Compulsory Conference on 17 January 2005. Mr N Quinn, Research Officer, and Ms McKeown, union organiser, appeared for the Union. There was no appearance entered for the Respondent. The dispute notification named the Respondent's contact person as Ms Margaret Campbell, Principal Executive Officer. The Commission was provided with a copy of correspondence which demonstrated that Ms Campbell was aware of the Compulsory Conference proceedings but would not be in attendance. This correspondence was a facsimile of 17 January 2005 and gave as the reason for non-attendance: "... we have been advised by our Solicitor that you (the Union) have not given sufficient time to prepare this matter. " (The Respondent's correspondence is NQ6 of an Affidavit of Noel Quinn filed 25 January 2005.) Another document, NQ5, is on union letterhead and is a facsimile transmission of 14 January 2005 - addressed to the Respondent. NQ5 advises of the Compulsory Conference listing for 17 January 2005. Mr Quinn advised that the dispute notification concerned 16 employees who had proceeded on annual leave for the annual Christmas shutdown but had not been paid their Christmas holiday pay by the Respondent. The Commission set the matter down for a further Compulsory Conference on 31 January 2005. The Commission notified the Respondent in writing of the second court listing. Ms Campbell was notified by facsimile transmission and by mail. Inter alia, the Commission impressed upon Ms Campbell the requirement for her to be in attendance as the Union was seeking to proceed to a Hearing and obtain Orders from myself for payment of outstanding annual leave entitlements. 4 Subsequent to the 17 January proceedings, the Union filed, on 25 January, documentation being Particulars of Small Claim on behalf of its members. Also filed on the same day, were supporting Affidavits from the affected members. 5 The Commission was also provided with an Affidavit of Service of Noel Quinn stating that on 27 January he served certain documentation on Margaret Campbell. One document went to the next court listing of 31 January and to which he deposed Ms Campbell stated she had knowledge of that court listing. The other documentation were the Particulars of Small Claim and supporting Affidavits. 6 At the Compulsory Conference proceedings of 31 January, no appearance was entered by the Respondent. The Commission received a facsimile from Margaret Campbell prior to the commencement of the Compulsory Conference. The facsimile advised of her inability to attend because she is "... the only (1) Professionally Trained Teacher - on site at our Pre School & Child Care Centre, with 12 children, by Doc's (sic., Department of Community Services) I must be on site all times. We have no Funds to Pay Relief & our staff have not returned to work. Please see following information. " The attached information was a letter from the Union advising of the court listing for 31 January and advising that the Union would be filing a notice of motion " that we are seeking orders for payment of Annual Leave ". The Union sought to convert the Compulsory Conference into a Hearing for the purpose of seeking orders for payment of annual leave. The Commission declined to do so on the ground of denial of natural justice. That is, the Respondent was only aware that the proceedings was set down for a Compulsory Conference. The Commission set the matter down for a further Compulsory Conference (3 February) with the option of converting the same into a Hearing. The Commission also directed the Union to amend a few of the filed documents (Small Claims and Affidavits) where such documents were missing signatures. 7 The Commission wrote to Ms Campbell on 31 January advising of the new court listing and the option that the Compulsory Conference may be converted into a Hearing. The Commission's correspondence urged her attendance or that of her counsel, solicitor or agent as the Commission may issue Orders in respect of outstanding annual leave entitlements. This correspondence was despatched by facsimile and registered mail. 8 The Union likewise notified Ms Campbell in person on 31 January, of the court listing of 3 February. This was deposed to by Ms K McKeown, union organiser, in her Affidavit of Service filed 2 February 2005. 9 The Union also filed a second dispute notification against the same respondent (IRC No 05/496). It was filed on 1 February 2005 and concerns: "Threatened dismissal of employees". 10 On that same day (1 February) the Commission received a facsimile (of 16 pages) from Margaret Campbell. One page was the Commission's Form D - Appointment for Hearing for 3 February. The facsimile had a covering letter of two pages and was addressed to myself. Inter alia, the letter advised: · The Respondent would not be in attendance on 3 February; · The Respondent is totally government funded and all funds have been stopped since December 2004; · The Respondent acknowledged its commitment to pay all outstanding leave and wages entitlement to the staff; · The Respondent's business was being manned with volunteers; · The Respondent was seeking a meeting with the relevant Minister in the federal government. The Commission provided a copy of this facsimile to the Union. 11 On 2 February, the Union filed certain documentation including Outline of Contentions. 12 At the Compulsory Conference proceedings of 3 February, the Respondent made no appearance. The Union pressed its case for the issuing of Orders pursuant to the proceedings being converted from a Compulsory Conference into a Hearing. The Orders went to the subject matters: outstanding annual leave and threatened dismissals. As to the threatened dismissals, the Union referred to correspondence of 28 January 2005, authored by Joanne Delaney - Chairperson for the Governing Board of the Respondent, and addressed to Ms Naomi Jenkins who is one of the 15 full time employees being represented by the Union. The letter said in part: " ... as of 28 January 2005, your services will not be required ... " at the Respondent's work site. The Union pointed out that the letter did not use the term "dismissal" and accordingly it was not clear whether Ms Jenkins (and the other employees who received the same letter) was being terminated or suspended. The Union asked the Commission to issue Orders to cover either scenario. 13 The Union also sought and was granted the joinder of the two dispute notifications. CONSIDERATION 14 The Commission has had to consider the Union's two dispute notifications and the Orders sought, without the attendance in court of Ms Campbell or some other representative for the Respondent. 15 Having considered all of the documentary material and submissions put by the Union and the documentary material facsimiled by the Respondent and having considered in particular the plight of the employees and the business circumstances of the Respondent, the Commission has decided that it is appropriate to issue Certificates of Attempted Conciliation and issue certain Orders. O R D E R (A) RE NON PAYMENT OF ANNUAL LEAVE ENTITLEMENTS The Commission orders pursuant to sections 130 and 380 of the Act that the Murawina Mt Druitt Co-Op Ltd pay to the employees listed below the sum of money, as stated, being the sum of money owing to each employee as outstanding annual leave entitlement. The sum of money, as stated, for each employee is to be paid within 21 days from the date of this Decision. Name of Employee Outstanding Annual Leave Entitlement 1 Natasha Bayley $837.80 2 Maxine Bird $2,942.56 3 Lesley Bradshaw $2,551.75 4 Jackie Donovan $894.16 5 Marion Donovan $3,058.27 6 Kathleen Ellison $2,742.56 7 Devy Grace $2,942.56 8 Ismael Hayek $779.22 9 Suzanne Hayek $779.20 10 Naomi Jenkins $2,739.04 11 Ray Martin $1,278.00 12 Michael Streeting $2,459.20 13 Maryanne Sutherland $2,942.56 14 Maryanne Wallace $779.20 15 Vicki Lee Wallace $779.20 O R D E R (B) RE THREATENED UNFAIR DISMISSAL In respect of the orders to be made by the Commission arising out of the dispute notification as to threatened unfair dismissals, the Commission sets out the following definitions: · The "Employer" is the Murawina Mt Druitt Co-Op Ltd. · The "Union" is the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch. · The "Employees" are the below listed persons: 1 Natasha Bayley 2 Maxine Bird 3 Lesley Bradshaw 4 Jackie Donovan 5 Marion Donovan 6 Kathleen Ellison 7 Devy Grace 8 Ismael Hayek 9 Suzanne Hayek 10 Naomi Jenkins 11 Ray Martin 12 Michael Streeting 13 Maryanne Sutherland 14 Maryanne Wallace 15 Vicki Lee Wallace The industrial dispute refers to either or both notifications: IRC Nos 128 and 496 of 2005. Section 137(1)(c) Order The Commission orders, pursuant to s 137(1)(c) of the Act, that the Employer not dismiss the Employees. Section 137(1)(b) Order If at the time of the making of the Order pursuant to s 137(1)(c), the Employer has dismissed any one or more of the Employees, the Commission orders pursuant to s 137(1)(b) of the Act, that the Employer reinstate any one or more Employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. The above orders made pursuant to ss 137(1)(c) and (b) commence from the date of this Decision (9 February 2005) and shall remain in force up to and including 8 March 2005. The Commission grants liberty to the Union to relist IRC No 496/05 at short notice for the above orders to be extended for a further defined period. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.