Electrical Trades Union of Australia, NSW Branch - v - M & K Tree Solutions [2005] NSWIRComm 1204 (24 November 2005)

Last Updated: 28 November 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Electrical Trades Union of Australia, NSW Branch - v - M & K Tree Solutions [2005] NSWIRComm 1204

FILE NUMBER(S): 4214

HEARING DATE(S): 26/08/2005, 24/11/2005

DECISION DATE: 24/11/2005

PARTIES:

APPLICANT

Electrical Trades Union of Australia, New South Wales Branch

RESPONDENT

M & K Tree Solutions

JUDGMENT OF: Stanton C

LEGAL REPRESENTATIVES

APPLICANT

Russell Wilson (ETU Organiser)

RESPONDENT

No appearances

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STANTON C

24 November 2005

Matter No IRC 4214 of 2005

Notification under section 130 by Electrical Trades Union of Australia, New South Wales Branch of a dispute with M & K Tree Solutions re alleged underpayment of wages.

DECISION

[2005] NSWIRComm 1204

1 This matter concerns a notification pursuant to Section 130 of the Industrial Relations Act 1996 ("the Act") lodged by the Electrical Trades Union of Australia, New South Wales Branch ("the Union") and M & K Tree Solutions ("the Respondent") concerning underpayment of wages and a subsequent small claim pursuant to Section 380 of the Act on behalf of Mr Richard Redman, a member of the Union.

2 The notification was filed on 11 August 2005 and set down for compulsory conference on 26 August 2005 at the request of the Union.

3 In correspondence dated 22 August 2005, Mr P W Gidley of Lawler Partners advised the Hunter Regional Industrial Registry that he had been appointed trustee of the bankrupt joint and separate estates of Michael Stephen Brouggy and Karin Mary Brouggy, the Respondent's principals, effective 10 August 2005. Mr Gidley further advised the Registry that neither he nor a representative of the trustee would be attending the hearing.

4 When the matter was listed for compulsory conference on 26 August 2005, Mr R Wilson appeared for the Union.

Submissions

5 Mr Wilson submitted Mr Redman was engaged by the Respondent as a Grade 1 Labourer under the Electrical, Electronic and Communications Contracting Industry (State) Award.

6 Mr Wilson informed the Commission that the matters subject to this dispute were also subject to compulsory conference proceedings before Redman C, as he then was, in IRC 6766 of 2003 on 26 November 2003. Mr Wilson advised he also appeared for the Union in that matter and Mr G Boyce from the Electrical Contractors Association of New South Wales appeared for the respondent with Ms K Brouggy.

7 The matter was stood over to enable the Commission to access the archived file in Matter No IRC 6766 of 2003 and the Union to prepare a small claim application.

8 Mr Wilson subsequently filed a small claim pursuant to section 380 of the Act on 31 August 2005 which included details concerning Mr Redman's pay for the period between 31 May 2002 and 27 November 2003 supporting the claim for underpayment of wages. Mr Wilson requested the Commission to quantify the underpayment claim.

9 A certificate of attempted conciliation was issued on 2 September 2005.

Matter No IRC 6766 of 2003

10 The archived file in this Matter sets out the following chronology of events:

Compulsory conference proceedings before Redman C on 26 November 2003 were subsequently stood over at the request of the parties to enable settlement discussions to proceed.

On 21 June 2004, Mr Wilson advised the Commission that settlement discussions were continuing.

On 27 August 2004, the Commission was advised that settlement negotiations had stalled. Report Back and further compulsory conference proceedings scheduled on 23 September 2004 were vacated on the grounds of renewed settlement negotiations.

Further proceedings set down for 14 October 2004 were vacated on the advice of the Union that the matter had settled. The file was subsequently closed.

Hearing

11 The matter was listed for hearing and determination on 24 November 2005.

12 The trustee advised the Registry that he would not be attending the hearing.

13 Mr Wilson provided further details concerning the claim and referred to documents filed on 31 August quantifying the claim. Mr Wilson also amended the small claim to include a further underpayment by way of unpaid superannuation. Mr Wilson submitted the Respondent had underpaid Mr Redman wages amounting to $3,089.63 plus $278.67 in unpaid superannuation.

Consideration

14 The Commission has been afforded the opportunity to consider all the material submitted by the Union on behalf of Mr Redman in support of his claims concerning underpayment of wages and unpaid superannuation entitlements and concludes that the Respondent has underpaid Mr Redman wages amounting to $3,089.63 plus $278.67 in unpaid superannuation.

15 The Commission is conscious that there was no appearance by the Respondents' trustee in bankruptcy to defend the Union's application and small claim. The Registry has been vigilant in advising all parties in this matter, including the trustee, of hearing dates in this matter. The Commission is satisfied that the Respondents and their trustee were aware of these proceedings generally and had appropriate notice about the nature of the respective hearings concerning this matter. Accordingly, the Commission make the following orders.

Orders

Pursuant to section 380 of the Industrial Relations Act 1996 the Commission orders that:

i. The trustee of the bankrupt estates of Michael Stephen Brouggy and Karin Mary Brouggy shall pay Mr Richard Redman the amount of $3,089.63 by way of underpayment of wages and further, an amount of $278.67 by way of unpaid superannuation entitlements within twenty-one days of today.

ii. This order shall take effect on and from today, 24 November 2005.

I so order.

J D Stanton

Commissioner

LAST UPDATED: 24/11/2005