Diener (for Hinz) v Maceturn Pty Limited [2003] QIRC 135 (2003) 173 QGIG 1176

1176 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 August, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Jenny Diener (for William Hinz) AND Maceturn Pty Limited (No. W56 of 2003) COMMISSIONER BROWN 28 July 2003 DECISION This decision deals with an application lodged on 6 May 2003 by Jenny Diener (the applicant) of the Department of Industrial Relations on behalf of William Henry Hinz seeking an order that Maceturn Pty Limited (the respondent) pay the sum of $8,138.24 to William Hinz pursuant to s. 278 of the Industrial Relations Act 1999 (the Act). The applicant stated that the amount in question represented payment for pro rata accrued long service leave which became payable on 28 February 1998, the date of William Hinz’s resignation from the respondent. William Hinz was a partner (1 of 4 or more partners) in the partnership J. B. Hinz and Sons that operated a saw mill in Rockhampton. Due to an expansion in the business to include roof truss and wall frame manufacturing, the partnership acquired a Company (Maceturn Pty Limited, the respondent) in order that Maceturn Pty Limited might formally employ those employees not directly employed in sawmilling thus avoiding a higher premium for those workers for WorkCover. The applicant and the respondent agreed that at some stage the respondent became the employer of William Hinz. There was contention as to when that may have been. The applicant claimed either 3 June 1986 (the date Maceturn Pty Limited was acquired) or soon after. The respondent maintained that William Hinz did not become an employee of the respondent until after approximately July 1989. Both agreed that the employment of William Hinz ceased on 28 February 1998. -- 1 of 2 -- 8 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1177 The respondent argued that as, on their estimation, William Hinz had less than 10 years’ service (1989 – 1998) with the respondent at the time of his resignation, he was not entitled to long service leave. The applicant claimed that William Hinz had more than 10 years with the respondent (1986 – 1998) and in any event could be regarded as a transferred employee for the purposes of continuity because of his previous service with J. B. Hinz and Sons which both parties agreed commenced well before 1986. Evidence was given by William Hinz for the applicant and Kevin Hinz for the respondent. On the evidence of the witnesses and the submissions of the parties I believe the applicant is correct. Both agreed that J. B. Hinz and Sons was a partnership involving 4 or more partners in which William Hinz performed work. Both agreed that William Hinz’s employment was transferred to the respondent and that William Hinz performed work for the respondent from the date of transfer (either June 1986 or July 1989) until 28 February 1998. It is not necessary to determine whether or not William Hinz worked for 10 years with the respondent as I accept the argument of the applicant that previous service with J. B. Hinz and Sons may be relied upon to cover any shortfall in the 10 year requirement. I find that William Hinz was an employee with the respondent and prior to that with J. B. Hinz and Sons. (see s. 5(e) of the Act and s. 5 of the Industrial Conciliation and Arbitration Act 1961 definition of “employee”) I find that William Hinz was a transferred employee pursuant to the Industrial Conciliation and Arbitration Act 1961, s. 17(7)(b) and as such possessed the continuity of service at least necessary to qualify for the payment of pro rata long service leave upon his termination on 28 February 1998. (see s. 44 of the Act) The amount sought in the application was not challenged. Having regard to all the evidence and submissions and the relevant legislation, I order Maceturn Pty Limited pay William Hinz the amount of $8,138.24, taxed according to law, within 22 days of the date of release of this decision. D. K. BROWN, Commissioner. Hearing Dates: 2003 21 July Appearances: Ms J. Diener for the Department of Industrial Relations. Mr K. Hinz for Maceturn Pty Limited. -- 2 of 2 --