Ali v Racebolt Pty Ltd
[2015] FCCA 1101
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v RACEBOLT PTY LTD | [2015] FCCA 1101 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act claim – small claims list – dispute as to how the applicant should be classified – applicant paid as level 1 – finding that applicant should be classified as level 3. |
| Legislation: Fair Work Act 2009 (Cth), s.548; Federal Circuit Court of Australia Act 1999, s.76; |
| Mcshane v Image Bollards Pty. Ltd [2011] FMCA 215; Kucks & CSR Limited (1996) 66 IR 182; Transport Workers Union of Australia & Coles Supermarkets Australia Proprietary Limited [2014] FCCA 4 928; Transport Workers Union of Australia & Coles Supermarkets Australia Proprietary Limited [2014] FCAFC 148; Carpenter v Carona Manufacturing Pty. Ltd (2002) 122 IR 387; McMenemy v Thomas Duryea Consulting (2012) 223 IR 125; Tucker v Digital Diagnostic Imaging Pty. Ltd [2011] FWA 1767; Joyce v Christofferson (1990) 26 FCR 261; Federated Clerks’ Union of Australian Industrial Union of Workers (WA) Branch v Cary (1977) WAIG 585 |
| Applicant: | BEVERLEY MAY ALI |
| Respondent: | RACEBOLT PTY LTD TRADING AS CASALI'S |
| File Number: | BRG 258 of 2014 |
| Judgment of: | Judge Willis |
| Hearing dates: | 12 & 13 March, 24 April 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Cairns |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dalton |
| Solicitors for the Applicant: | Miller Harris Lawyers |
| Solicitors for the Respondent: | Peter Bosel Lawyers |
ORDERS
THE COURT DECLARES THAT:
The Respondent contravened the Fair Work Act 2009 and the Fair Work Act instrument in the terms of the Retail Industry Award – State 2004 and Clerks – Private Sector Award 2010.
THE COURT ORDERS THAT:
The Respondent shall forthwith pay the Applicant the sum of TEN THOUSAND, FIVE HUNDRED AND SIXTY EIGHT DOLLARS AND EIGHTY FOUR CENTS ($10,568.84) inclusive of prejudgment interest.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
BRG 258 of 2014
| BEVERLEY MAY ALI |
Applicant
And
| RACEBOLT PTY LTD TRADING AS CASALI'S |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Beverley May Ali (“the applicant”) was employed by the respondent Racebolt Proprietary Limited trading as Casali’s (“the respondent”) at a retail and service store operated by the respondent involving repair and sale of tractors, mowers, smaller engines and spare parts in Mareeba.
The applicant alleges that, during her employment with the respondent during the period 24 March 2008 to 21 May 2013 (“the claim period”), the respondent breached the applicable modern and state awards by failing to pay wages and superannuation in accordance with those awards. Specifically, the applicant claims that, during the period of employment, she was not paid the correct rate having regard to her duties and that she was therefore underpaid during the claim period. The applicant was employed with the respondent for much longer than this period, being initially employed from 1989 until 1991, and then again in 1994 until May 2013.
The applicant’s position at the commencement of the trial was that she ought to have been paid pursuant to the Retail Industry Award – State 2004. Further and specifically, the applicant contends she ought to have been classified under the applicable award during the claim period as a clerical officer level 3 or level 4 and that she was therefore underpaid.
The applicant sought payment of her outstanding entitlements pursuant to Section 548(1A) of the Fair Work Act 2009 (Cth) (“FW Act”) for the claim period.
Each of the applicant and respondent rely on their material as read into the record and shown on their respective case outlines. On 12 March 2015 the applicant was granted leave to amend her claim filed on 24 March 2014 and to file an amended Form 5. The details of her claim are set out in the schedules annexed to that document.
The respondent opposes the claim and submitted at the commencement of the trial that the applicant ought to have been paid pursuant to the Clerical Employees – State 2002 and that under any applicable award, the applicant ought to be classified as a level 1 employee.
By the conclusion of the trial, the respondent conceded that the Retail Industry Award – State is the relevant award and the Clerks – Private Sector Award 2010 is the appropriate modern award.
The parties are in agreement about the quantum of the applicant’s claim under either award, or on any classification, in the event that the Court determines her claim to be successful.
Procedural background
On 23 May 2014 these parties made their first appearance in this Court before Judge Baumann, who transferred this matter to Cairns for a final hearing. On 19 August 2014 the respondent filed an application that it be granted leave to be legally represented at the final hearing. That was opposed by the applicant. On 4 September 2014 following a hearing on that day I gave ex-parte reasons and issued orders granting leave for the parties to be legally represented at the final hearing. Other procedural orders were made including that the parties attend mediation on 2 December 2014. Registrar Belcher provided a mediation report noting that the matter did not settle.
Although this matter proceeded under the Court’s small claims jurisdiction, the matter proceeded over two days on 12 and 13 March 2015. Given the number of witnesses each party had, the evidence concluded in that time, but there was no time for submissions. The matter proceeded with all the hallmarks of a contested hearing. In McShane v Image Bollards Pty. Ltd[1] Lucev FM (as he then was) said of the small claims process:
[1] [2011] FMCA 215
Section 548(3) of the FW Act provides as follows:
“Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act”
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.”
Rule 45.11(2) of the FMCA Rules provides as follows:
“(2) The Court is not bound by the rules of evidence when dealing with a small claim application, but may inform itself of any matter in any manner as it thinks fit.”
Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.[2]
[2] Mcshane v Image Bollards Pty. Ltd [2011] FMCA 215, paragraphs 5-7.
Each party had several witnesses, there being eleven in all, including the Applicant and Mr Arena, a director of the Respondent. The evidence concluded in the two days, but not however the submissions. An order was made for written submissions and a further date was allocated on 24 April 2015.
Each party was legally represented in the matter. I wish to place on record my thanks to both Mr Dalton of Counsel for the applicant and Ms Langtree, solicitor advocate for the respondent, for their assistance with this matter including their written submissions and their research of the relevant case law. In my view, there was nothing further either advocate could have done to further advance their client’s case.
Alleged underpayment of wages
It is agreed between the parties that during the claim period, the applicant was paid a total of $130,863.30 as set out in the agreed table 1 under heading “Quantum”.[3] The applicant acknowledges that the figure of $126,027.32 set out at paragraph 1.1 of Schedule A of the amended claim is incorrect.[4]
[3]Applicant’s written submissions filed 8 April 2015, paragraph 139.
[4]Applicant’s written submissions filed 8 April 2015, paragraph 139.
Calculations – classification as level 4 clerk
The applicant set out the relevant calculations at Table 2[5] if the Court finds that the applicant fell within the classification of a level 4 clerk during the claim period.
[5]Applicant’s written submissions filed 8 April 2015, paragraph 141.
The applicant submits that the shortfall in wages payable to the applicant during the claim period is in the amount of $13,983.69, being the difference between Table 1 and Table 2[6].
Superannuation
[6]Applicant’s written submissions filed 8 April 2015, paragraph 142.
The applicant claims superannuation on this shortfall at the rate of 9% being an additional sum of $1,258.50.
Total amount – classification level four
The total amount of the applicant’s claim, including superannuation, amounts to $15,242.19.[7]
[7]Applicant’s written submissions filed 8 April 2015, paragraphs 143-144.
Calculation - classification as level 3 clerk
Table 4 sets out the amount of wages the applicant ought to have received if the court finds that, during the claim period, the applicant fell within the classification of a level 3 clerk under the relevant award.[8]
[8]Applicant’s written submissions filed 8 April 2015, paragraphs 149-152.
The shortfall in wages payable to the applicant during the claim period based on this calculation is in the amount of $9,104.39 being difference between Table 1 and Table 4.[9]
Superannuation
[9]Applicant’s written submissions filed 8 April 2015, paragraph 150.
The applicant claims superannuation on this shortfall at the rate of 9%, being an additional sum of $819.40.
Total amount – classification level three
The total amount of the applicant’s claim including superannuation amounts to $9,923.79.
Interest
The applicant also seeks interest on the unpaid wages and superannuation at a rate of 6.5% pursuant to Section 76 of the Federal Circuit Court of Australia Act 1999.[10]
[10]Rules 26.01 and 39.06 of the Federal Circuit Court Rules 2001.
I note that interest has been calculated relevant to each of the classifications.[11]
[11]Applicant’s written submissions filed 8 April 2015, paragraphs 157-159.
Agreed issues
Through the process of this trial and thanks to the efforts of their legal representatives, there is now agreement on the following issues[12]:
a.The applicant was employed by the respondent between 18 March 1994 and 21 May 2013;
b.The claim period is 24 March 2008 to 21 May 2013;
c.There is power under the Fair Work Act to make an order for compensation for the claim period;
d.A state award covers and applies to the applicant’s employment for the period 24 March 2008 to 30 June 2010.
[12]Applicant’s written submissions filed 8 April 2015, paragraph 5.
As referred to earlier, it is no longer in dispute as to which award applies and, in any event, the court notes the submissions and accepts that they are very similar. The respondent has conceded at the conclusion of the trial that the Retail Industry Award – State is the relevant award and the Clerks – Private Sector Award 2010 is the appropriate modern award.
It is agreed that, during the claim period, the applicant was paid a total of $130,863.50. The various hourly rates set out in the relevant tables in the applicant’s submissions under the heading “Quantum” are agreed.
Response
The respondent denies the allegations of the applicant and contends that the applicant has been paid under the appropriate award in line with a level 1 classification.
The primary duties undertaken by the applicant are not in dispute, save and except for the issue of her alleged workshop supervision.
It remains for the Court to determine what duties the applicant undertook during the claim period and the appropriate classification for the applicant under the relevant awards. The applicant submits under all levels of the awards, she ought to be classified as a Clerical Officer level 3 or 4. The respondent submits that the applicant ought to be classified as level 1.
The final issue is to determine the quantum of wages and superannuation according to the appropriate classification.
The parties have helpfully provided the Court with copies of the relevant Awards.
Relevant legislation
This is an application made in the Federal Circuit Court small claims jurisdiction. Section 548(3) is found in Division 3 of Chapter 4 of the Fair Work Act which provides as follows:
(3) In small claims proceedings, the Court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
Also contained within the provisions of Section 548 are the limitations on award in small claims proceedings which note that the court may not award more than $20,000.00 or, if a higher amount is prescribed by the regulations, that higher amount.
The significant issue in dispute in this matter is a factual dispute regarding what duties the applicant undertook during the period of her employment generally and, specifically, what duties the applicant undertook during the claim period.
To assist the Court as to how to properly approach the construction of the relevant award and which classification the applicant falls within, the applicant and respondent have referred me to the decision in Kucks & CSR Limited (1996) 66 IR 182 (“Kucks”), in which Madgwick J said:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evidence purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other meaning. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons for such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are, in general, to be accorded their ordinary or usual meaning.[13]
[13]Kucks & CSR Limited (1996) 66 IR 182, paragraph 39.
In looking at the issue of classification, I have also been referred by the applicant to the case of Transport Workers Union of Australia & Coles Supermarkets Australia Proprietary Limited[14]. On this topic, I am also referred to Kucks, quoting the passage I have earlier referred to. The respondent has helpfully provided the Court with a copy of the first instance decision of Judge Driver in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty. Ltd. Judge Driver has referred to other cases within his decision, as noted. I have also been referred to the Federal Court decision of the appeal of Judge Driver’s first instance decision by the Full Court of the Federal Court in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty. Ltd[15].
[14] [2014] FCCA 4 928.
[15] [2014] FCAFC 148.
The respondent’s submission is that the Full Court of the Federal Court of Australia disagreed with the principles used by the primary judge with respect to the determination of award coverage but, importantly, agreed with the principles used for the determination of award classification.
Each of the applicant and respondent’s legal representatives agree that, with respect to the classification issue, the authorities reflect that the Court must decide what was the “major and substantial employment”[16] of the employee or the “principal purpose” or the “primary function” of the employee. In order to determine these matters, it is necessary to consider the nature of the work that the applicant was employed to do.
[16]Transport Worker’s Union of Australia v Coles Supermarkets Australia Pty. Ltd [2014]FCCA 4 928, paragraphs 64, 70, and 128-133.
The respondent contends that, consistent with the decisions in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty. Ltd (both first instance and Full Court), when classifying the applicant pursuant to the Awards, the Court should only be concerned with the principal purpose or primary function of the applicant’s employment at the material time, which involves an assessment of the duties which the applicant was employed to do, and the nature of the work the applicant was employed to do, not what the applicant may have taken it upon herself from time to time to perform. In relation to this issue, I note it is the respondent’s position that if the applicant did do other work beyond her level 1 classification, she did this without any direction to do so from the applicant.
At paragraph 168 of Judge Driver’s first instance judgment of Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty. Ltd, and when referring to the test for determining agreement coverage and the “primary function test”, Judge Driver referred to the test being set out by the Full Bench of the AIRC in Carpenter v Carona Manufacturing Pty. Ltd (2002) 122 IR 387 (“Carpenter”). In Carpenter the Full Bench said at paragraphs 336 – 338:
In determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.
Reference is also made to Carpenter being followed by the Full Bench of the Fair Work Commission in McMenemy v Thomas Duryea Consulting[17] where the Full Bench said:
...consistent with the decision (in Carpenter) an own employee’s estimation of the quantification of their workload is not determinative of the classification, if any, in an award, into which they might fall. One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform. This is why the Full Bench [in Carpenter] articulated the task of ascertaining the principal purpose of the employment as requiring “an examination of the nature of the work [ ] the employee is employed to do”…
(emphasis added)
[17] (2012) 223 IR 125.
Judge Driver set out other authorities which set out the range of factors relevant to the principal purpose assessment as seen in Tucker v Digital Diagnostic Imaging Pty. Ltd[18] in which reference was made to the following being relevant to the principal purpose test:
the contents of any job description, person specification or job advertisement; the actual time occupied in different duties (a substantive role/function analysis); possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed; the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose; and the nature and extent of any role as representative of the employing organisations to third parties.[19]
[18] [2011] FWA 1767.
[19] Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767, paragraph 169.
A test similar to the principal purpose test was adopted by Justice Gray in the Federal Court of Australia in Joyce v Christofferson[20] in the context of whether an employee was engaged in a clerical capacity for the purpose of determining whether that employee fell within union coverage rules. Justice Gray stated that:
in the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary function.[21]
(emphasis added)
[20] (1990) 26 FCR 261.
[21] Joyce v Christofferson (1990) 26 FCR 261, paragraph 271.
His Honour referred to the Federated Clerks’ Union of Australian Industrial Union of Workers (WA) Branch v Cary[22] and said:
In Pritchard’s case (at 78), the test applied was whether the primary functions of the person concerned were directed to the recording, processing and disseminating of information. In the case of a person exercising clerical and non clerical functions, the question will always arise as to which of them are the primary functions. A good illustration of this problem is found in The Federated Clerks Union of Australian Industrial Union of Workers (WA Branch) v Cary (1977) WAIG 585. In that case, the question was whether a person employed in a firm of real estate agents to deal with the leasing of premises was a clerk. Her principal duties were to negotiate tenancy agreements, supervise performance by tenants of those agreements, advise landlords as to the termination of tenancies and act on instructions in relation to them. Inevitably, she did a great deal of work that was essentially of a clerical nature. The Industrial Appeals Court held that she was not a clerk. Bur CJ said (at 586)
“If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The “substance” of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much produce of a value judgement.”[23]
[22] (1977) WAIG 585.
[23] Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767, paragraph 272.
The respondent submits that the employer should not be penalised or be required to pay the applicant a higher amount as a result of the applicant taking it upon herself, from time to time, to perform various duties, which may have been consistent with a higher classification, or as a result of the applicant performing higher duties prior to the claim period.[24]
[24]Respondent’s written submissions filed 22 April 2015, paragraphs 102-103.
Judge Driver in the matter before him observed in his first instance judgement that:
Courts and industrial tribunals have developed principles to be applied to ascertain whether an employee fits within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
In Logan v Otis Elevator Company Pty. Ltd for example, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services Pty Ltd where his Honour observed:
“The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.”
It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character contain elements which if taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration.[25]
[25]Transport Worker’s Union of Australia v Coles Supermarkets Australia Pty. Ltd [2014] FCCA 4 928, paragraphs 128-129.
Judge Driver continued noting:
The approach of examining the major and substantial employment of the employees has been applied in a range of decisions. In other decisions, there has been an examination of the “principal purpose” or “primary function” of the employee. For example, in Merchant Service Guild of Australia v J Fenwick & Co Pty. Ltd, Ludeke J said:
“To ascertain the course of the calling of particular employees, is not enough merely to make a quantitative assessment of the time spent in carrying out the various duties. In my opinion, not only should the nature of the work done by the class of employee be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if the worker is required by his employer to carry out diverse duties, the enquiry should be directed to ascertain the principle purpose for which the worker is employed.”[26]
[26]Transport Worker’s Union of Australia v Coles Supermarkets Australia Pty. Ltd [2014] FCCA 4 928, paragraph 131.
After referring to other authorities, Judge Driver concluded:
The task of the Court or Tribunal is to examine the major, substantial or principal aspect of the work performed by the employee. That will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title.[27]
[27]Transport Worker’s Union of Australia v Coles Supermarkets Australia Pty. Ltd [2014] FCCA 4 928, paragraph 133.
Evidence
The applicant gave evidence and was cross-examined. The applicant called evidence from witnesses, who relied on affidavits and who were also cross-examined, namely Ali Zini, Jim Plozza, Daniel Duncan, and Jonathan Neville.
The respondent was represented by Lisandrino Arena, the owner of the business, who gave evidence and was cross-examined. The respondent called evidence from witnesses who relied on affidavits and who were also cross examined namely Grasiella Arena, Francesco Barbieri, Andy Trabucco, Kathleen Camilleri and Bruce Fabian.
The Applicant
I am satisfied that the applicant is generally an honest witness with quite an accurate recall of most events. The applicant was prepared to make admissions against her own interest, such as accepting freely that she made a mistake with the MYOB system when she did the payroll duties when filling in for Mrs Grace Arena when Mrs Arena was on leave. The applicant also did not exaggerate her evidence and was very specific about ensuring that she did not overstate the position, such as occurred in the evidence as to how many times a year she would be responsible for the payroll system when Mrs Arena was away.
She is a long standing employee who has worked in the business for over 20 years. Her language was that of an experienced employee who knew the industry she worked in. I am satisfied that she has been relied upon, given her experience and knowledge of the business, to do a variety of duties.
The applicant has set out in her affidavit that she was employed as a clerical officer on a casual basis, commencing work initially in 1989 until 1991, then she resumed employment again on a casual basis, in 1994 and resigned finally in May 2013. The respondent's business retails agricultural equipment such as tractors, mowers, bailers, slashers, chainsaws, brush cutters and engines. Repair services are also offered for this equipment.
During that time, and back in 1998 the applicant entered into a training agreement with the Department of Employment, Training and Industrial Relations, at the request of Mr Arena, for training in “Office Administration level III”. The applicant did this training with the Mr Arena’s wife. The following year in 1999, the Mr Arena organised and the applicant undertook two further certificates in training, being Certificate II and Certificate III in Business (Office Administration). Mr Arena accepted that this training system was part of a government initiative at the time wherein the government would provide money or incentive to employers to have their staff undertake the training. The respondent received $4000.00 per applicant. Mr Arena’s wife, who also undertook this training, works for the respondent and worked seemingly very closely with the applicant. The respondent's wife, who is the Office manager, had her classification increased from level 2 to level 3 in the months following the training and when computers were acquired.[28]
[28] Transcript dated 13 March 2015, page 78, line 30.
The Training Agreement states in part:
Your training agreement with Casali's in the occupation of Office Administration In Level 3 has now been registered with us....The probation period and term of your training program has been set by the State Training Council....Wage progression will be dependent on the attainment of competencies and skills possessed for competency based programs and/or particular industrial relations arrangements for time based programs...Following successful achievement of all competencies in the training plan, a qualification will then be issued by this office.
In 2004, the applicant undertook further specialised training in warranty administration with Kubota Tractor Australia Pty. Ltd. The respondent sells Kubota Tractor's and is one of the largest distributors of Kubota machinery on the Atherton Tablelands. The training course which the applicant successfully participated in and completed contained topics such as Kubota warranty terms and conditions, warranty online system, warranty administration and warranty claim preparation. I am satisfied that the area of warranties was a significant and ongoing function of the applicant. This work involved the applicant liaising with the spare parts department of the respondent, and comparisons of the different models and types of the respective engines and completion of claim forms with a description of the nature of the problem. There was, it seems to me, much to learn and know about the issue of making a claim on the warranty as suggested in the topics covered by the specialist training. Various manufacturers had time frames which the warranty applied to for equipment failure. A large component of the work which the applicant was required to undertake involved work with warranties. The applicant was tasked with the responsibility of ensuring that all of the warranty issues to do with the sale of the small and large machinery (which ranged from a mower to tractor) were recorded with the relevant company following a sale. It was also the applicant's sole responsibility to deal with the lodging of claims under the warranty when a customer notified the respondent of failures in the machinery purchased. As I have said elsewhere, Mr Arena organised for the applicant to receive specialist training from one of the companies whose machinery was sold by the respondent.
The applicant also encountered and dealt with the warranty claims that were “out of warranty policy” and dealt with customers about the expiration of the warranty period, whilst also dealing with the manufacturer about the repairs and authorisation of repairs and sought approval from the manufacturer for such repairs.
As agreed to by Mr Arena, it was the applicant's job to register the equipment, particularly with the Kubota equipment and to make sure the relevant rebates were paid back to the respondent.[29] Mr Arena said that at present they sell up to 60 tractors a year, and that it was less in 2008 but it has steadily increased towards 2013. The rebate was worth significant funds to the respondent, such as about $100,000.00 to $150,000.00, back in 2008.
[29] Transcript dated 13 March 2015 page 14, line 15-20.
The applicant was also involved in sending out invoices and statements to customers (this was usually done together with Mrs Grace Arena, though not if the last day of the month fell on a weekend) and further, the applicant was also responsible for verifying the accuracy of the invoices being sent out to clients and the account statements, as at the day they were sent out. Mr Arena vehemently denied that this was so saying, “what's the point of having a computer if you manually amend?”, however, despite these denials (which were unfortunately characteristic of the manner in which his evidence was given) I am satisfied that the applicant did do this work. This was one of many matters in which Mr Arena held a strong and somewhat naïve belief that if the work was done by a computer, there could be no mistakes. As the transcript will show, it was only after the absurdity of this conclusion was pointed out to Mr Arena, that he finally accepted that mistakes could be made entering data into a computer.
I accept the applicant's own evidence and that of Mrs Grace Arena (Mr Arena’s wife) who readily admitted that if a payment came in on an invoice after it had been printed, that she would alert the applicant to the payment, and the applicant would manually amend the statement and invoice that went to the client.[30] I note that there were hundreds of invoices each month and that the process of cross checking with the other departments and then finally amending the invoices took generally another three or four days before the statements were finally ready to go.
[30] Transcript dated 13 March 2015, page 77, lines 10-35.
The applicant also attended to following up customers regarding outstanding accounts and further, she attended to collection of bad debts. There were significant sums involved with many of the invoices, at times being for hundreds of thousands of dollars. The applicant was requested by Mr Arena to follow up these sums and when they remained unpaid, further action was taken. The applicant was the representative of the respondent who liaised with a solicitor on occasions when solicitors were used to initiate legal action in relation to these large sums, to secure an outstanding payment. Eventually, the solicitors indicated that they would not take action for sums under $5,000.00.
There were also two occasions when the applicant alone, with no lawyer acting for the firm, initiated the legal action on behalf of the respondent and followed the whole debt recovery process through dealing with the staff at the Magistrates Court and the local Magistrate.
The applicant explained that she has, from time to time, become involved in selling the retail stock. It initially started when she was in the workshop, and Mrs Grace Arena would come to her and ask her to come to the show room and help out with a customer. This often happened when the respondent was away or out visiting a customer on a property or otherwise out of building doing other business. The applicant said, and I accept, that Mrs Grace Arena was not as outgoing as the applicant and not inclined to want to do those types of tasks.
The applicant accepts that there were salespeople employed from time to time from 2000 to 2006. After that period from 2006 to 2013 Mr Arena was the sales person and the applicant said he could not be in two places at the same time. The applicant explained that she knew some of the basics to do with some of the machinery given her regular work on the warranties and the registrations of new purchases. The applicant said she was able to converse with the customers and depending what item it was, sometimes she knew more than others. However, she also admitted that there were plenty of occasions when she did this, and then left a message for Mr Arena to ring the customer saying that the customer wants to buy a tractor or a mower. Mr Arena would then contact the customer and invariably the sale would go through.
The applicant was not, in my view, attempting to overstate her involvement in sales, but in a matter of fact fashion, explained how she was asked by both Mr Arena and his wife, from time to time to go and look after a customer. The applicant explained that sometimes she would go searching for Mr Arena and find him working on the computer, not wanting to be interrupted. Often once he was told that there was a customer out in the show room, he would reply “Can’t you deal with it, go and deal with it…You know, you know what to do”.[31] The applicant said that in general terms, she sold items regularly and possibly two a week, or one sale every two or three days.
[31] Transcript dated 12 March 2015, page 21, lines 10-25.
I am aware of the records produced by Mr Arena to demonstrate what he says were the sales recorded and who the sale was undertaken by and that those records indicate the applicant doing minimal sales compared to himself or a salesperson. However, even if I accept those records, (which I find less than persuasive particularly given other records produced by Mr Arena to try and prove when other staff have worked there, only to later find out that those records were not validated by pay slips) that does not satisfy me that the applicant was not working in the salesroom regularly as explained by her. Her evidence was that there were many occasions when she assisted the customer as much as she could, and then left the details for Mr Arena to contact to complete the sale.
I also accept that when Mr Arena was away travelling overseas or interstate, that the applicant was left to fulfil and be responsible for various roles, including roles to do with finalising sales. There has been at least one occasion when the applicant dealt with the local council about a purchase they wished to follow through with as a matter of urgency, in the period from 2010 to 2012 when Mr Arena was away. It seems to me that Mr Arena was willing to have the applicant become involved in sales on a regular basis as it was convenient for him to have this task attended to. Also, the responsibility has fallen to the applicant when the respondent was away overseas or interstate as referred to earlier.
The applicant’s regular involvement in sales in the show room are some of the duties that she has undertaken, which Mr Arena says she was not required to do. I accept though the evidence of the applicant that she was asked to do this work. Mr Arena has regularly acquiesced to the assistance offered by the applicant and on other occasions has specifically asked her to attend to customers. Whilst the applicant asserted that he would tell the applicant to “leave many, many times”[32] when she would assist in other areas of the business, the evidence suggests otherwise. It seems clear to me, that the respondent was willing to have the applicant engage with customers when it suited him, as to do otherwise would have meant that potential new or regular customers could walk in and be left with no sales person to speak with them, if Mr Arena was involved with another customer, or if there was no else around. This work of the applicant was in my view important to the ongoing and overall service offered by the respondent.
[32] Transcript dated 13 March 2015, page 33, line 42.
Whilst I accept that the applicant did not have the technical knowledge that Mr Arena had (though I do not accept that she knew nothing), and whilst I accept that Mr Arena was a significant salesperson, I also accept that the applicant had sufficient basic knowledge through her work and experience and training over many years, to be able to engage with customers at a level to ensure that their inquiry was initially dealt with when they entered the show room. I also accept that at times, with small purchase, the applicant was able to look after those sales. On other occasions, the applicant was able to ensure that the customer was attended to until such time as Mr Arena or another sales person was able to do so, or alternatively that there was a proper follow up upon the customer’s visit to the showroom.
Mr Arena admits that the applicant made sales, but disputes the level of sales and has maintained that the applicant was told not to get involved in the sales. What she was doing was looking after prospective customers of the respondent and doing the “soft sell”, as it were, on her knowledge, albeit she did not have the same knowledge as the respondent. This activity was valuable to business in that it meant that the customer stayed and was engaged until a salesperson was available rather than walk out in frustration of not being served, or it meant that the customer was contacted by a salesperson to follow up with the sale after they left the showroom
I am satisfied that the applicant has worked with the mechanics in the workshop. Much time was spent on this aspect at the trial. The applicant opened up work cards, liaised with the mechanics about the
work recorded on the work cards, and followed up with the labour component to ensure that no time was left unbilled. There was no consistency in the title given to those who were classified as workshop managers or workshop supervisors.
Mr Arena suggested that the applicant could not have been a workshop manager or supervisor as she did not have technical skills. However, he also gave evidence that other workshop managers did not either. Whatever title is used for the applicant’s work, I am satisfied that she was undertaking duties which included, at times, overseeing the workflow of others in the workshop and carefully checking the job cards prepared by the mechanics to create accounts for the respondent.
Much was made during the trial of the location of a second desk in the other building that the applicant said she used from time to time when doing the workshop tasks. Whether or not she sat at the desk in the smoko room or in her first desk in the main building, I am satisfied that in the absence of another workshop supervisor/manager, the applicant fulfilled most if not all of the tasks associated with that role.
It is true that the applicant was not a mechanic, however, it is not the case, as suggested by Mr Arena, that the applicant would not know or have the necessary technical knowledge to have discussions with the mechanics regarding transferring information in relation to billing of parts and labour to a particular client. Given her years of experience with the warranties and some experience in spare parts, and her involvement with the business generally, I accept the applicant’s evidence in this regard. I also accept the evidence of the applicant’s witnesses and the respondent’s witness, Mr Trabucco, who whilst he did not agree that the applicant was ever a workshop supervisor, readily agreed that the applicant was able to converse in the mechanics language showing an understanding of the work they undertook, and of parts and labour.[33]
[33] Transcript dated 13 March 2015, page 105, lines 1-15.
The applicant said, and I accept, that Mr Arena asked her to make sure that all the mechanics’ hours added up to eight hours and that there were eight hours out charged out. I accept that she did this work at least
for the period November 2010 until April 2011. This work was important, and critical to the profitability of the respondent’s business. I accept that when the applicant did this work, she was also responsible for giving the jobs out to the mechanics .
I accept also that the applicant has been responsible for training the newly appointed work shop supervisors, other clerical staff and Mrs Grace Arena, who was employed at a level 2 and then, after the joint external training in business administration undertaken by Grace Arena and the applicant, was elevated to a level 3.
Overall I found the applicant to be candid about her work duties and able to describe them with great particularity. She has fulfilled various duties and it seems to me she has always had the profitability and efficiency of the respondent upper most in her conduct and approach to her work. The applicant has approached her work with a highly developed sense of responsibility and was aware of the amount of money involved in terms of the rebate and the ramifications of failures in the system. At times she has been meticulous in her cross checking. Wherever her evidence conflicts with evidence of Mr Arena, I prefer the evidence of the applicant.
Other witnesses for the applicant
Others who gave evidence in support of the applicant were Aliz Zini, Jim Plozza and Daniel Duncan.
Jim Plozza is a retired car mechanic who worked with the respondent from 2000 to 2006. He recalled that the applicant used the desk over in the workshop, not all the time, but some of the time. He recounted that the applicant spoke with customers about what sort of work they wanted done, said he would work out an appraisal and the applicant would ring the customers and then liaise back with the mechanics to give them the go ahead or the stop sign. In his view, the applicant was the manager. I accept this witness gave an honest account of his recollections which primarily supported the applicant’s evidence.
Daniel Duncan was a mechanic who worked with the respondent from October 2002 until July 2004. Mr Duncan gave evidence that the applicant organised the day-to-day running of the workshop. He gave a well particularised account of the applicant allocating the job cards, briefing him on what he had to do for the day, as well as the applicant being in contact with the customers and tagging out the smaller machines. He observed the applicant finish the job cards and said the applicant would ask questions about the job card and would invoice it. He also said that the applicant would organise additional spare parts if he needed them, or write them on the job card and he would write a brief description of what work he had performed on the machinery. He confirmed that her desk was right beside the smoko table in the left hand side of the work shop while he was working there. He said he had worked in workshop management roles prior to his employment with the respondent for big business Toyota dealership and Argyle diamonds. In his view, from his observations, when he went to work for Mr Arena, the applicant was running the workshop in every aspect, the same way he had undertaken management roles. In terms of looking at the example of a job card, Mr Duncan said that the example provided by Mr Arena was a “one in a million” example of a mechanic who could spell and who knows how to write, and this such an example is not indicative of how job cards usually look. Mr Duncan gave his evidence in a truthful manner and impressed me as having a good understanding of the day-to-day workings of the respondent’s workshop area. I accept his evidence.
The Respondent
Mr Arena is the director of Racebolt Pty. Ltd and says he is responsible for the day to day running of the business “Casali’s”. Clearly he is knowledgeable in his field and conveys the impression of being a hardworking man committed to his business. It seems he has been responsible for establishing a successful retail enterprise. He explains that 80% to 90% of all equipment sales are commercial items and the remaining 10% to 20% of equipment is purchased for personal or household use.
His evidence was affected by his unfailing belief that all of the tasks undertaken by the applicant are simple, or that the computer does the work with those using the computer (including the applicant) being regarded as something akin to an automaton. The solicitor acting for the respondent had earlier informed the Court that Mr Arena is very stressed about this litigation. For one reason or another, he was very reluctant to willingly acknowledge any complexity or difficulty in the work undertaken by the applicant throughout his evidence and he was quick to find criticism in the work performed by the applicant. He also appeared to, at times, exhibit a naïve view of the capacity of their computer system. By the end of his evidence, I did not have much confidence that he personally knew as much about the operations of the business as he would have the Court accept.
He was unfortunately routinely dismissive of the work and the level of responsibility contained in that work undertaken at his request by the applicant. He would not willingly agree to many propositions, and it was only when pressed to do so under cross-examination, that a concession would be made. This made the cross-examination much longer than it ought to have been.
Mr Arena agreed that the applicant had trained workshop supervisors, training Owen Harvey in 2005, Frank Otter in 2010 and Andy Trabucco in 2011. He also admitted that the applicant trained Tony Quaid in both job cards training and the Biscount software system. My strong impression was that the respondent was quite worked up about this claim of the applicant and that seemed to have permeated his thinking, making his answers at times seem irrational. Unfortunately Mr Arena portrayed himself as having a rather harsh view of the applicant’s work and took any opportunity to play down her role or point out that she had made a mistake on a particular occasion. In my view, he had little real insight into the responsible and important work undertaken by the applicant. He relied on the applicant to manage and maintain very important records to do with rebates on new purchases and the whole area of warranties.
I accept that the applicant also used to double check that the rebate had been claimed, despite the evidence of the respondent who stated essentially that he did it and he never made a mistake. When pressed Mr Arena said:
What I did your honour, was I made an account to Kubota – just say Kubota CIRs and RAPs. Okay. So what I would do, I would – it was an internal invoice, which is on the – comes up on the statement on the accounts every month, and I made up a line which is CRR, and it came up with a zero amount and then it had the description, customer incentive rebate, and RAP also was retail assistance program, and every month - when I sold a tractor, I would then charge the amount to Kubota, RAP or CIR, so we had a record, instead of having it on a paper or a book which only Bev had any knowledge of. I did not know if everything was getting claimed. I know that I used to check , and a few times, I did find where things had been missed. That's why we implemented that system.
When asked again if the applicant would check sales invoices and sales records and identify if a tractor had been sold, and then match and check the Kubota account to see if the rebate had been claimed, Mr Arena was not sure whether the applicant did it or his wife and said he had “no proof that the applicant did it”.[34] Having heard the applicant’s evidence, I accept that the applicant did this cross checking.
[34] Transcript dated 13 March 2015 page 34, line 5-10; 45.
As explained by the applicant and also Mr Arena, I consider this work to be exceeding important to the cash flow of the business. The registration of the sale triggered the rebate system. Mr Arena explained the complexity of the rebate system which he said was not a percentage. The respondent explained that it was not a simple percentage system, saying instead:
it was...like, in your Kubota machinery, you've got L series, B series, BX and MX series. On that particular month, they may have a CIR, which was a customer incentive rebate, of 5,6 thousand or 4000, and then they had a RAP, which was retail assistance program, which they might have given us 2 or 3 thousand.[35]
[35] Transcript dated 13 March 2015 page 13, lines 20-30.
Mr Arena also explained that it “changed from quarter to quarter and it changed from machine – from machine you sold to implements you sold”.[36]
[36] Transcript dated 13 March 2015 page 13, line 35.
It was then suggested to Mr Arena that it would be necessary to keep a pretty close eye on what was sold and what month it was, to which he replied:
No – sorry your honour it was every month. Okay. We didn’t sell that many tractors. You might have five tractors, if you were lucky, if had a good month, and the invoices - the minute it was a Kubota invoice, it would be put to a side, and that's how it happened. Many times, there was a procedure in doing that. First, you had to register the machine. No, sorry. First, you had to pay for the machine, then register the machine. Okay. And then the rebate – you got your rebate – rebate back. Sometimes, when Bev did the – the – what would you call it....the process...she would pay for it – register it first and pay later, where it wouldn't work, and I missed out on money many times.[37]
[37] Transcript dated 13 March 2015 page 13, lines 42 -47 and page 14, lines 1-5.
Mr Arena has been content to travel away and overseas at times, and rely on the maturity and responsibility of the applicant to carry out her functions and roles during his absence. This has happened for years. The commercial machinery of tractors mowers, small engines and spare parts is not without its complications with various models, sizes, brands and capacities. Clearly, in my view, the applicant acquired and utilized her technical knowledge on a daily basis, though Mr Arena did not wish to concede this issue.
Other witnesses for the respondent
Jon Neville, who worked as a regional service manager for Kubota, generally dealt with the applicant in relation to warranty claims relating to Kubota. He seems to have been called to give his opinion that the applicant was not a workshop manager. He said he had never been introduced to her as such. He also gave evidence about not having seen the applicant working at a desk in the workshop. His opinions and observations were of little assistance, as he is not an employee and was only calling in from time to time. I do not, in any event, consider that the work that the applicant did was dictated by where she sat. Her evidence was that she maintained two desks throughout and fluctuated between the two. Mr Neville’s evidence was of limited value.
Francis Barbieri was employed by the respondent as an apprentice mechanic from 1998 until 2002. I was not particularly assisted by the evidence of Mr Barbieri who was a very young apprentice during his employment and he was relevantly only employed there for the first half of the year 2002, in terms of giving evidence about the applicant being the workshop supervisor. Further, Mr Barbieri’s description of his own duties were likely greatly exaggerated, noting that he stated that he was the hardest working person in the organisation when it was suggested to him that the tasks he was doing at that age and stage were menial. He worked for the respondent from aged 16 to 21. He confirmed the placement of a desk in the corner of the smoko room but did not agree that the applicant’s desk was located in the workshop. His evidence was contrary to others in that he maintained that no one delegated the work or the work cards, but rather, said that the mechanics themselves just finished one job and then took the next job card after a job had been completed. He said that there was no workshop supervisor and that the mechanics did their own thing. In his view, the applicant was a warranty officer and he considered her only duty or substantive duty was to deal with all warranty issues. He says he now has a good relationship with Mr Arena as Mr Barbieri has set up his own business and he is a now valued customer of Mr Arena. Mr Barbieri said he generally has a weekly coffee with Mr Arena. I had the impression that Mr Barbieri was very keen to say what needed to be said to support the respondent’s claim and that his memories of what the applicant did were affected by his association with Mr Arena.
I am satisfied on the evidence before me that the applicant’s duties went well beyond what this witness perceived. His evidence about the workshop supervisor is inconsistent with the evidence of others.
Mr Bruce Fabian is a long serving and loyal employee of the respondent, having worked as a mechanic with the respondent since 1992, some 24 years. Along with the applicant, Mr Fabian is the respondent’s longest serving employee. Overall I had the view he knew his trade very well. I consider he tried to give an honest account of his recollections. I was not persuaded, though, that the applicant had not been acting some kind of supervisor role in the workshop after hearing his account of what he could recall. Mr Fabian did recall the applicant giving him a clip board with job cards on it in the period 2002 until 2005. He remains employed with the respondent and it was clear to me in this matter that the lines have been drawn between those that support their current employer and those who no longer work there.
It is inevitable that a current employee giving evidence is under some pressure to give evidence to support their employer. Kathryn Camilleri gave evidence. She started in April 2013 and remains a current employee. I did not consider that her evidence added much to either case.
The respondent’s wife Grace Arena readily made concessions about aspects of the applicant’s work as suggested to her by Counsel for the applicant, however, whilst she agreed that the applicant would monitor the Kubota account rebate system, and that it was worth a significant amount of money, she would not agree that this was an important function saying “I wouldn’t say it was that important”.[38] This is contrary to the evidence given by her husband Lisandrino (Alex) Arena who represents the respondent. The amount of money involved in the rebate is, in my view, significant and it was of the utmost importance to the respondent. Generally this witness appeared to agree with the suggestion of what duties the applicant undertook. Mrs Grace Arena agreed that the applicant did do some selling of smaller items and agreed that the applicant knew about the stock for smaller items. She confirmed that her husband was the only person to give the applicant directions.
[38] Transcript dated 13 March 2015, page 81, lines 38-39.
Andy Trabucco gave evidence that he became the workshop manager from April 2011. Prior to that he was employed as a mechanic from April 2008. He said he took Frank Otto’s place and that there was no gap between himself leaving and Tony Quaid starting after him. He said Tony Quaid was employed to do “the paperwork side of things”. He agreed that the applicant showed him how to do a job card and open job cards. He recalled the desk in the workshop. His evidence was that at no time did the applicant do any paperwork associated with the workshop. He agreed that completing a job card or entering it on to a computer is certainly more than simply data entry. Generally I consider he attempted to give an honest account of events including when he said he could not recall the applicant being in charge when he was a mechanic.
Evaluation
I have carefully analysed the positions described in the relevant awards. I rely upon, but do not repeat, the provisions of each of the classifications referred to me by the legal representatives of each party.
I note that the “classification criteria” as set out in Retail Industry Award – State 2004 at 5.1.3 under “Clerks Classification Structure” are guidelines to determine the appropriate classification level under this Award and consist of characteristics and typical duties. At 5.1.3(b)(iii) it is noted that:
the key issue to be looked at in properly classifying an employee is the level of initiative responsibility/accountability, competency and skill that the employee is required to exercise in the work the employee performs within the parameters of the characteristics and not the duties the employee performs per se.
The respondent’s position is that the applicant has only ever performed work at level 1 of the award. The characteristics state that this level may include the initial recruit who may have limited relevant experience; initially work is performed under close direction and that such employees perform routine clerical and office functions.
I reject the submission that the respondent contends for, and that is that all of the work, essentially, that the applicant did was at the most basic level of a clerk level 1. I do not accept that the experience, the technical knowledge possessed by the applicant, nor the roles assigned to the applicant satisfy the classification of a level 1 employee.
Quite the reverse is the case. The applicant has been tasked in specialised work requiring specialised knowledge. Her work carried with it significant responsibility, for example in warranties and rebates. The applicant has trained others in positions of managers and supervisors. The applicant possesses the formal qualifications which Mr Arena asked her to undertake in business administration. Mr Arena has been content to leave her in charge of various aspects of the business while he has been absent on leave or for short periods. Mr Dalton of Counsel described the applicant as the “go to person” when issues arose in the absence of the respondent. I am satisfied that the applicant was indeed a senior member of the staff, entrusted to do tasks requiring a high level of responsibility in various areas of the respondent’s business.
I am satisfied that the applicant was responsible for working in a role equivalent to a supervisor role in the work shop for the length of time deposed to by her. That work directly relates to the costs charged out, which is income for the respondent and requires significant understanding of ensuring that the labour content also been charged with an itemised account for the replacement of the particular part required. The applicant has to be able to talk the language that the mechanics used. I do not accept that the mechanics just write out on a job card what is to be charged and this is simply an issue of data entry. I accept that it requires product knowledge and knowledge of the industry generally.
I consider that the classification of level 1 does not account for the overarching complexity and responsibility of the work undertaken by the applicant.
I have had regard to the case law regarding the classification of a position and to the characteristics and indicative duties in both classification 3 and 4. I note the reference in level 3 to being able to perform specialised features of the work and being able to work without supervision with general guidance. Reference is made to providing advice and information on the organisations products and sales and performing a broad range of clerical functions a higher level than level 2.
Having considered all of the evidence, I am satisfied that the applicant should be classified as a level 3 clerk. I am therefore satisfied that during the claim period of 24 March 2008 to 21 May 2013, the respondent breached the applicable modern and state awards by failing to pay wages in accordance with those awards.
That being so, the orders I intend to make are in accordance with the agreed positions of each party reflected in the written submissions, being a short fall in wages in the amount of $9,104.39. The applicant also claims superannuation on this shortfall at the rate of 9% being an additional sum of $819.40, so that the total amount of the applicant’s claim including superannuation amounts to $9,923.79. The interest, calculated to be an amount of $645.05, will be added, bringing the total amount of the applicant’s claim to $10,568.84.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 18 December 2015
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