Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch v Gem Business Investments t/as Mangrove Jacks [2005] NSWIRComm 238

Industrial Relations Commission of New South Wales

Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch v Gem Business Investments t/as Mangrove Jacks [2005] NSWIRComm 238 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch PARTIES: Gem Business Investments t/as Mangrove Jacks

FILE NUMBER(S): IRC 6582 of 2004

CORAM: Harrison DP

CATCHWORDS: Notification pursuant to s 130 of an industrial dispute re alleged breach of award - s380 application for recovery of wages - election to proceed as small claim pursuant to s379 - application not defended heard ex parte - evidence of applicant accepted - payment of wages awarded - costs against respondent - application for interest refused

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 07/04/2005

DATE OF JUDGMENT: 07/15/2005

APPLICANT Mr C Acev LEGAL REPRESENTATIVES: ALHMWU

RESPONDENT No appearance

JUDGMENT:

- 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Friday, 15 July 2005

Matter No IRC 6582 of 2004

Notification under section 130 by Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch of a dispute with Gem Business Investments t/as Mangrove Jacks re alleged breach of award

DECISION

[2005] NSWIRComm 238

1 This matter commenced with the filing of a dispute notification by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ("the union") pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") on 10 November 2004. The notification identified the issues in dispute to be: A) Failure of the Respondent to maintain records in accordance with Industrial Relations (General) regulation 1996 Clause 6, Clause 8, Clause 9, Clause 10, and Clause 11. B) Failure of the Respondent to correctly classify and remunerate Ann-Marie Bailey in accordance with the Restaurants, & Employees (State) Award. 2 The matter was first listed for compulsory conference proceedings before Mr Commissioner Ritchie on 16 November 2004. On 12 November 2004 the parties advised the Commissioner that discussions were taking place between them and sought deferral of proceedings for 28 days. The matter was rescheduled to 15 December 2004. 3 The proceedings of 15 December 2004 explored prospects of settlement resulting in arrangements for the parties to further confer and report to the Commission on 25 January 2005. 4 In the proceedings of 25 January 2005 Ms Moriarty appeared for the union. Mr A Duc, an officer of the Restaurant and Catering Industry Association, appeared on behalf of Mangrove Jacks, the respondent. 5 The Commission was informed that the parties had reached an in principle agreement which had been expressed in a draft Deed of Settlement. Mr Duc, supported by Ms Moriarty, advised the Commissioner that there had been agreement that Ms Anne- Marie Bailey was employed at grade 3 of the Restaurants, &c., Employees (State) Award 321 IG 759 ("the award"), and that calculation of monies owing of approximately $7,500 had been agreed to be paid in monthly instalments over a period of four months. 6 Commissioner Ritchie noted the progress of the parties and set the matter down for a further report back on 25 February 2005 on the basis that should the parties execute settlement and file a notice of discontinuance as anticipated the proceedings would be vacated and the matter concluded. 7 Report back proceedings took place on 25 February, 7 March and 18 March 2005. The anticipated settlement did not eventuate. On 18 March 2005 Commissioner Ritchie issued a Certificate of Attempted Conciliation and gave directions for the parties to file and serve material for arbitration. 8 In accordance with directions the union filed an affidavit sworn by Ms Bailey and a claim in the form prescribed by the Act seeking payment of $8,355.68 plus interest, costs and superannuation on 6 April 2005, two days prior to the requirement to file and serve on 8 April 2005. 9 The claim confirms an election to have the matter dealt with as a small claim pursuant to s 379 of the Act. 10 The directions required the respondent to file and serve in reply by 29 April 2005. No communication or response was received from the respondent. Enquiries were made to the Restaurant and Catering Association resulting in a reply on 3 May 2005 which states: "The Respondent was required to file and serve its evidence by 29 April 2005, as per Practice Direction 16, set down by Commissioner Ritchie when the matter was previously before the Commission.