Australian Aviation Equipment Pty Ltd
[2009] FWA 713
•29 OCTOBER 2009
[2009] FWA 713 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 7 - Application for determination of designated award for purpose of no-disadvantage test
(AG2009/10977)
COMMISSIONER WHELAN | MELBOURNE, 29 OCTOBER 2009 |
Application for designated award.
[1] This is an application under clause 7 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 for the determination of a designated award for the purposes of the no-disadvantage test.
[2] Following the application being lodged, Fair Work Australia conducted inspections at the worksite, held a conference with the applicant and invited submissions from the applicant. A statement of findings from the inspection and information provided by the applicant was prepared and provided to the applicant for comment.
[3] The employer in this matter is a franchisee of 7-Eleven. 7-Eleven operates a national franchise comprising 387 stores, 171 of which are located in Victoria. There are 81 Fuel Stores and 90 Retail Stores. The business in this case falls within the category of a retail store. The store sells a range of general grocery items, newspapers, confectionary, cigarettes, Metcards and other items consistent with the description of a ‘convenience’ store. It also provides fresh coffee from a vending machine and a range of pre-packaged food items both chilled (sandwiches, salads etc) and heated (pies, sausage rolls etc) as well as a range of muffins, cakes and sweet pastry items.
[4] The business is progressively increasing the range of fresh food products available in the store although sales of such products are not the dominant source of revenue and such products do not dominate the available space. The handling of fresh food does however require additional skills and responsibilities for staff.
The approach to determining appropriate award coverage.
[5] In Carpenter v Corona Manufacturing Pty Ltd a Full Bench of the Australian Industrial Relations Commission stated:
In our view, 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. 1
[6] The Full Bench cited a number of cases in support of that proposition. The first of these is Ware v O’Donnell Griffiths (Television Services) Pty Ltd in which Sheldon J, in considering an appeal from the Chief Industrial Magistrate, said:
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 and 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: the quality of the different types of work done is also a relevant consideration. 2
[7] The Full Bench also cited the decision of Ludeke J in Merchant Services Guild of Australia v J Fenwick and Co Pty Ltd where His Honour said:
To ascertain the course of the calling of particular employees, it is not enough merely to make a quantitative assessment of time spent in carrying out various duties. In my opinion, not only should the nature of the work done by the class of employees be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if a worker is required by his employer to carry out diverse duties, the inquiry should be directed at ascertaining the principal purpose for which the worker is employed. 3
[8] In Robinson v Roxbury and Alexander Pty Ltd (t/as ‘Power Price’), after referring to these other cases, Chief Industrial Magistrate Miller referred to ‘the essence or object of the complainant’s work’ 4 in construing the application of the Commercial Travellers (State) Award to his employment, and in Comdox (No. 272) Pty Ltd (t/as Ronald Stead Golf) v Dawson, Maidment J referred to the ‘dominant purpose test’ in determining whether the work in question fell within coverage of a particular award.5
[9] Finally in Logan v Otis Elevators Co Pty Ltd, after citing a number of these cases, Moore J determined that ‘it is thus necessary to ask what the major and substantial employment of Mr Logan was’. 6
[10] The expressions used vary – ‘Major and substantial employment’; ‘principal purpose’; ‘essence or object of the work’; ‘dominant purpose’ – they do however provide guidance on the approach to be taken, in my view, in determining which award ought to be designated for the purpose of the no disadvantage test.
[11] The relevant award or awards, are:
• the Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 7; and
• the National Fast Food Retail Award 2000. 8
[12] I have also taken into account that these awards will be replaced on 1 January 2010 with:
• the General Retail Industry Award 2010 9; and
• the Fast Food Retail Industry Award 2010. 10
[13] The Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 operates as a common rule award in Victoria. It covers employees in the industry defined as:
- selling goods by retail, whether in a shop or elsewhere;
- a wholesale or retail bookseller or newsagent or a lending library conducted for profit;
- a retail grocer;
- a retail fruiterer and greengrocer;
- a seller by retail of dairy produce, cooked meat or delicatessen;
- a seller by retail of bread, confectionery or pastry; and
- a seller by retail of uncooked fish or poultry or other prepared food which is not to be consumed on the premises. 11
[14] A Retail Worker Grade 1 under the Award is defined ‘as a shop assistant, a sales person, an assembler, a demonstrator, a ticket writer, a window dresser, a merchandiser and all others.’ 12
[15] The National Fast Food Retail Award 2000 is also a common rule in Victoria and has application in all states and territories with the exception of parts of Queensland. The award applies as follows:
“4.3 This award shall apply to all work in or in connection with the receipt of orders for and/or preparation and/or sale and/or delivery of:
• meals, snacks and/or beverages, including but not limited to, pizzas, hamburgers, chicken, fish and chips, souvlakis, kebabs, muffins, noodles, rice, sandwiches, rolls, ice cream, coffee, juices, which are sold to the public primarily for take away; and/or
• take away foods and beverages packaged sold or served in such a manner as to allow their being taken from the point of distribution to be consumed elsewhere should the customer so decide; and/or
• food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing primarily a sit down service in other than food courts of shopping centres and retail complexes.” 13
[16] The Common Rule Declaration in Victoria does not apply to:
“4.1 The heating or reheating of pre cooked or prepared foods which are sold in, milk bars, grocery shops or shops trading as delicatessens, or,
4.2 Employers who are primarily engaged in the preparation and/or cooking and/or packaging of take away food items where such items are only sold wholesale.” 14
[17] Retail Food Employee Grade 1 means ‘an employee (other than in NSW) engaged in any one or more than one of the receipt of orders for or the preparation (including cooking), sale, serving or delivery of food and beverages but does not include a tradesperson employed as such.’ 15
[18] The General Retail Industry Award 2010 defines the ‘general retail industry’ to mean:
“general retail industry means the sale or hire of goods or services to final consumers for personal or household consumption including:
• food retailing, supermarkets, grocery stores;
• department stores, clothing and soft goods retailing;
• furniture, houseware and appliance retailing;
• recreational goods retailing;
• personal and household goods retailing;
• household equipment repair services;
• bakery shops;
but does not include:
• community pharmacies;
• pharmacies in hospitals and institutions providing an in-patient service;
• hair and beauty establishments;
• hair and beauty work undertaken in the theatrical, amusement and entertainment industries;
• stand-alone butcher shops;
• stand-alone nurseries;
• retail activities conducted from a manufacturing or processing establishment;
• clerical functions performed away from the retail establishment;
• warehousing and distribution;
• motor vehicle retailing and motor vehicle fuel and parts retailing;
• fast food operations;
• restaurants, cafes, hotels and motels; or
• building, construction, installation, repair and maintenance contractors engaged to perform work at a retail establishment”. 16
[19] It is expressed so as not to cover employers in the fast food industry.
[20] A Retail Employee Level 1 is defined as:
“B.1 Retail Employee Level 1
B.1.1 An employee performing one or more of the following functions at a retail establishment:
• the receiving and preparation for sale and or display of goods in or about any shop;
• the pre-packing or packing, weighing, assembling, pricing or preparing of goods or provisions or produce for sale;
• the display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods;
• the sale or hire of goods by any means;
• the receiving, arranging or making payment by any means;
• the recording by any means of a sale or sales;
• the wrapping or packing of goods for despatch and the despatch of goods;
• the delivery of goods;
• window dressing and merchandising;
• loss prevention;
• demonstration of goods for sale;
• the provision of information, advice and assistance to customers;
• the receipt, preparation, packing of goods for repair or replacement and the minor repair of goods;
• all directly employed persons engaged in retail stores in cleaning, store greeting, security, lift attending, store cafeterias and food services;
• Clerical Assistants functions Level 1; or
• work which is incidental to or in connection with any of the above.” 17
[21] The Fast Food Industry Award 2010 defines the industry to mean:
“fast food industry means the industry of taking orders for and/or preparation and/or sale and/or delivery of:
• meals, snacks and/or beverages, which are sold to the public primarily to be consumed away from the point of sale;
• take away foods and beverages packaged sold or served in such a manner as to allow their being taken from the point of sale to be consumed elsewhere should the customer so decide; and/or
• food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing primarily a sit down service inside the catering establishment.” 18
[22] It does not cover employers in the general retail industry.
[23] A Fast Food Employee Level 1 is defined as:
Fast Food Employee Level 1
• An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.
• A Fast Food Employee Level 1 will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning and cleaning of toilets. 19
[24] The employer in this case has nominated the National Fast Food Retail Award 2000 as the proposed designated award. Historically, the employer has applied the Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 but now considers that the business has substantially evolved from a small grocery store or mixed business to one where a greater emphasis is being placed on that part of the business which involves the preparation, handling and sale of food. The employer submits that the clear focus of the shop assistants relates to take away food and that the National Fast Food Retail Award 2000 is therefore the more appropriate award for the purposes of applying the no disadvantage test.
[25] If we consider the definition of the industry covered by the National Fast Food Retail Award 2000 that the only area where work performed by the employees in this business meets that definition is with respect to:
“. . . all work in or in connection with the receipt of orders for and/or preparation and/or sale and/or delivery of:
• meals, snacks and/or beverages, including but not limited to, pizzas, hamburgers, chicken, fish and chips, souvlakis, kebabs, muffins, noodles, rice, sandwiches, rolls, ice cream, coffee, juices, which are sold to the public primarily for take away; and/or
• take away foods and beverages packaged sold or served in such a manner as to allow their being taken from the point of distribution to be consumed elsewhere should the customer so decide; and/or
• food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing primarily a sit down service in other than food courts of shopping centres and retail complexes” (my emphasis). 20
[26] It needs also to be noted that insofar as Victoria is concerned, there is an exception to this so that the award does not apply to, ‘the heating or reheating of precooked or prepared foods which are sold in milk bars, grocery shops or shops trading as delicatessens’. 21
[27] In this case no food is prepared on the premises. For the most part, the handling of food (with the exception of pastry items) involves pre-packaged foods which are self-selected by customers from chillers or ambient temperature cabinets. The only food which is ‘served’ is food which is heated or reheated for sale (e.g. pies) or items such as muffins which are selected from a cabinet by the sales assistants and placed in a container for the customer.
[28] While it is clear that the 7 Eleven business has expanded the range of fresh food items it has available for sale and that this has involved an expansion of its public health and food handling responsibilities, in my view, the evidence as presented does not establish that the principal or dominant purpose for which the sales assistants are engaged is the sale of meals, snacks or beverages which are sold to the public primarily for take away.
[29] The character of the 7 Eleven store as a mixed business or small grocery store has not altered to the extent that the object of the work is the sale of fresh food items as opposed to the sale of general grocery items, including foodstuffs.
[30] A shop assistant engaged by a 7 Eleven store is required to sell a range of goods by retail, including grocery items, dairy produce, bread, confectionary and pastry. Grocery items may include dry goods as well as prepared foods, dairy products and other food items sold ready for consumption by the purchaser.
[31] I have difficulty in seeing where the work performed differs from that of an employee in a supermarket or milk bar which sells fresh sandwiches, cakes and pastries and reheated pies or similar items.
[32] While it is clearly not essential that food be prepared on the premises for a business to be covered by the National Fast Food Retail Award 2000 it is also not sufficient, in my view, that some of the items sold in the business are fresh food items which may be taken away and consumed by the purchaser.
[33] I have also given consideration to the coverage and definitions used in the General Retail Industry Award 2010 and the Fast Food Industry Award 2010. I am satisfied that the definition contained in the General Retail Industry Award 2010 for a Retail Employee Level 1 more closely reflects the range of duties of a shop assistant in a 7 Eleven store than the definition of a Fast Food Employee Level 1 in the Fast Food Industry Award 2010.
[34] For the reasons I have determined that the designated award for the purposes of the provision of Item 7 of Schedule 4 is the Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000.
COMMISSIONER
1 Carpenter v Corona Manufacturing Pty Ltd [PR925731] at [9].
2 Ware v O’Donnell Griffith (Television Services) Pty Ltd [1971] AR (NSW) 18.
3 Merchant Services Guild of Australia v J Fenwick and Co Pty Ltd (1973) Law Book Co. Current Review, 5 at 6.
4 Robinson v Roxbury and Alexander Pty Ltd (t/as ‘Power Price’) (1988) 25 IR 1.
5 Comdox (No. 272) Pty Ltd (t/as Ronald Stead Golf) v Dawson (1993) 49 IR 458.
6 Logan v Otis Elevators Co Pty Ltd (IR Cont Aust, 20 June 1997).
7 Shop, Distributive and Allied Employees Association – Victorian Shops Interim Award 2000 [AP796250].
8 National Fast Food Retail Award 2000 [AP806313CRV]
9 General Retail Industry Award 2010 [MA000004].
10 Fast Food Industry Award 2010 [MA000003].
11 AP796250 at clause 5.1.
12 AP796250, at clause 14.1.2.
13 AP806313CRV at clause 4.3.
14 AP806313CRV at Declaration.
15 AP806313CRV at clause 3.5.
16 MA000004.
17 MA000004.
18 MA000003.
19 MA000003.
20 AP806313CRV at clause 4.3.
21 AP806313CRV at clause 4.1 of the Fast Food Retail Victorian Common Rule Declaration 2005.
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