Industrial Relations Commission of New South Wales CITATION : Notification under s130 by NSW/ACT Independent Education Union and another of a dispute with Yeshiva College Limited re payment of compulsory superannuation contributions and other matters [2003] NSWIRComm 313 NOTIFIERS NSW/ACT Independent Education Union PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch RESPONDENT Yeshiva College Limited FILE NUMBER: 3672 and 4481 of 2003 CORAM: Sams DP CATCHWORDS : Industrial disputes - failure to pay salaries and superannuation of teachers - undertakings given - respondent's inability to meet its obligations to employees - respondent under administration - Supreme Court proceedings - orders sought under s368 and s379 of the Act - orders not opposed by administrator - orders granted. LEGISLATION CITED : Industrial Relations Act 1996 Corporations Act 2001 (Cth) HEARING DATES: 07/18/2003; 08/11/2003; 08/12/2003; 08/20/2003 DATE OF JUDGMENT: 09/19/2003 NOTIFIER (IRC3672 of 2003) Ms V Heron, NSW/ACT Independent Education Union NOTIFIER (IRC4481 of 2003) Ms S Bravini, Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch RESPONDENT: LEGAL REPRESENTATIVES: (18/07/03 and 11/08/03) Ms C Lovell and Mr M Carr, Association of Independent Schools (12/8/03) Mr H Kinstlinger, College Secretary (20/08/03) Mr O Kassem for the Administrator JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 19 September 2003 IRC03/3672 NOTIFICATION UNDER SECTION 130 BY NSW/ACT INDEPENDENT EDUCATION UNION OF A DISPUTE WITH YESHIVA COLLEGE RE PAYMENT OF COMPULSORY SUPERANNUATION CONTRIBUTIONS AND OTHER MATTERS IRC03/4481 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH, OF A DISPUTE WITH YESHIVA COLLEGE RE THE NON PAYMENT OF WAGES AND SUPERANNUATION DECISION [2003] NSWIRComm 313 1 This decision deals with two dispute notifications under s130 of the Industrial Relations Act 1996 (the 'Act'). The first, filed by the NSW/ACT Independent Education Union (the 'IEU') on 3 July 2003, was notified in the following terms: … The Yeshiva College has not paid compulsory superannuation contributions on behalf of our members for the last twelve month period. Our members have been informing us over the last 12 months that superannuation contributions have not been made on their behalf. The fund, the Non Government Schools Superannuation Fund has contacted the school over the non payment, however payment still has not been forthcoming. ... 2 At compulsory conference proceedings on 18 July, Ms V Heron, for the IEU, advised the Commission there were two issues the Union wished to have dealt with by the Commission; the first being the non payment of superannuation payments, and the second being the irregular payment of salaries to teaching and non-teaching staff of the Yeshiva College (the 'College'). 3 On that occasion the College was represented by Ms C Lovell (with Mr M Carr) from the Association of Independent Schools and accompanied by Mr H Kinstlinger from the College. Ms Lovell gave assurances, on behalf of the College, regarding the payment of salary and superannuation obligations and the matter was adjourned for report back on 15 August. 4 However, on 8 August, the Commission received correspondence from the IEU advising that its members had received only one salary payment in the intervening period and only a few staff members had had superannuation contributions made on their behalf. The IEU requested the urgent re-listing of the matter as there were concerns the College would be forced into liquidation prior to the scheduled report back date. This situation had arisen as a result of Supreme Court proceedings involving the College's debts that were required to be paid. 5 Accordingly, the Commission re-listed the matter on 11 August 2003 and Ms Lovell again appeared for the College. Rabbi Feldman from the College was involved in proceedings before the Supreme Court that day and was unable to be present. As Ms Lovell had very limited instructions, the Commission adjourned the matter to the next day and ordered that a representative of the College be present at that time. It was Ms Lovell's instructions that, in the event of the school's closure, all employee entitlements would be paid. That being said, the Commission directed the College, through Ms Lovell, that it was required to give such an undertaking in writing within the next twelve hours. 6 On 12 August, the College was represented by Mr H Kinstlinger (the College Secretary) who advised the Commission that a stay application was before the Supreme Court concerning an appeal against the Court's earlier ruling on the College's debt. Proceedings were continuing on that day. The College hoped to obtain a loan in order to keep the College open. He outlined various possibilities regarding re-financing and advised the Commission that the religious ethos of the College was one that requires payment of all salaries and entitlements to employees. However, should the College close, any employee debts would be determined by the assets available and the remaining equity in those assets. 7 On 12 August the Commission received a dispute notification from the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch (the 'ALHMWU') concerning its members employed at the College, particularly in relation to protecting the superannuation of the members. This dispute notification (IRC4481 of 2003) was formally joined to the IEU notification and both listed for further compulsory conference proceedings on 15 August. 8 On that occasion, along with Ms Heron for the IEU, Ms S Bravini appeared for the ALHMWU and Mr Kinstlinger continued his appearance for the College. Mr Kinstlinger advised the Commission that the College had failed in its Supreme Court application for a stay and that the sheriff had taken possession of the College's Flood Street properties. He advised that meetings were under way in an attempt to keep the Preschool open and that a voluntary administrator had been appointed. Supreme Court proceedings were presently underway at which the administrator would request, under s440A(3) of the Corporations Act 2001 (Cth), that a liquidator not be appointed as an Administrator was already in place. 9 Ms Heron expressed her frustration with the proceedings and the many promises that had been made regarding payment of teachers' salaries and superannuation contributions. She advised that particulars of the employees' claims had been served on the College and requested the Commission make orders which may strengthen the position of the employees' claims with the Administrator. Ms Bravini supported Ms Heron's submissions and confirmed that the ALHMWU was also seeking orders securing its members' entitlements. 10 Although the Commission could see no good reason why the orders should not be granted at that time, for abundant caution the Unions were directed to file details of claims upon the Administrator and the matters were adjourned to 20 August. The Administrator was directed, through Mr Kinstlinger, to be present on that occasion. 11 On 20 August Mr O Kassem appeared for the Administrator. Ms Heron and Ms Bravini reported on the current situation relating to their members' salaries and superannuation entitlements and reiterated that they were still seeking orders from the Commission. Mr Kassem did not object to the orders being made. After receiving copies of the Unions' claims, tendered on behalf of their members, the Commission made the following orders: In view of the submissions of the parties and in light of the material that has been provided to the Commission, I make orders pursuant to sections 368 and 379 of the Act in terms of the schedule referred to in Exhibit "B" tendered by Ms Heron in the proceedings and in terms of Exhibits "E" and "F" tendered by Ms Bravinin in the proceedings. The orders shall take effect on and from today's date and remain in force for a period of six months thereafter. A copy of these orders is attached to this decision. 12 At the request of the Unions the matters were listed for report back on 22 September. However, on 18 September the IEU filed a Notice of Discontinuance and on 19 September the ALHMWU filed a similar notice. The Commission therefore discontinues Matters IRC3672 and 4481 of 2003, by leave, pursuant to r 138(2) of the Commission's Rules. Peter J Sams Deputy President INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 20 August 2003 IRC03/3672 NOTIFICATION UNDER s130 BY NEW SOUTH WALES INDEPENDENT EDUCATION UNION OF A DISPUTE WITH YESHIVA COLLEGE RE PAYMENT OF COMPULSORY SUPERANNUATION CONTRIBUTIONS AND OTHER MATTERS IRC03/4481 NOTIFICATION UNDER s130 BY THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH, OF A DISPUTE WITH YESHIVA COLLEGE RE THE NON PAYMENT OF WAGES AND SUPERANNUATION ORDERS 13 In view of the submissions of the parties and in light of the material that has been provided to the Commission, I make orders pursuant to s368 and s379 of the Industrial Relations Act 1996 in terms of the schedule referred to in Exhibit "B" tendered by Ms V Heron from the New South Wales Independent Education Union, on behalf of its members and Exhibits "E" and "F" tendered by Ms S Bravini from the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch, on behalf of its members. Copies of the schedules are attached to these orders. 14 The orders shall take effect on and from today's date and remain in force for a period of six months thereafter. Peter Sams Deputy President 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.