Battershill v Cathstar Pty Limited
[1996] IRCA 390
•10 Jul 1996
DECISION NO: 390/96
CATCHWORDS
INDUSTRIAL LAW - BREACH OF AWARD - recovery of, and imposition of PENALTY for, underpayment of WAGES - employee present long hours and not clearly told long hours' work not required
Motel Accommodation and Resorts Award 1992
Jones v Dunkel (1958) 101 CLR 298
WILLIAM ROBERT NOEL BATTERSHILL v CATHSTAR PTY LIMITED
QI 1128 of 1995
CORAM: MADGWICK J
PLACE: BRISBANE
DATE: 10 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QI 1128 of 1995
BETWEEN WILLIAM ROBERT NOEL
BATTERSHILL
Applicant
AND CATHSTAR PTY LIMITED
Respondent
CORAM: MADGWICK J
PLACE: BRISBANE
DATE: 24 JULY 1996
ORDER
THE COURT DECLARES THAT
The Respondent breached terms of the Motel Accommodation and Resorts Award 1992 by underpayment of wages due to the Applicant;
AND ORDERS THAT
The Respondent pay forthwith to the Applicant the sum of $33,025.59 plus interest in the sum of $9,775.63 (to 10 July 1996);
The Respondent pay forthwith to the Applicant a penalty of $100.00.
Date entered: 21 August 1996
Deputy District Registrar
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QI 1128 of 1995
BETWEEN WILLIAM ROBERT NOEL BATTERSHILL
Applicant
AND CATHSTAR PTY LIMITED
Respondent
CORAM: MADGWICK J
PLACE: BRISBANE
DATE: 25 JULY 1996
MINUTES OF ORDER
THE COURT DECLARES THAT
The Respondent breached terms of the Motel Accommodation and Resorts Award 1992 by underpayment of wages due to the Applicant;
AND ORDERS THAT
The Respondent pay forthwith to the Applicant the sum of $33,025.59 plus interest in the sum of $9,775.63 (to 10 July 1996); and
The Respondent pay forthwith to the Applicant a penalty of $100.00.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QI 1128 of 1995
BETWEEN WILLIAM ROBERT NOEL BATTERSHILL
Applicant
AND CATHSTAR PTY LIMITED
Respondent
CORAM: MADGWICK J
PLACE: BRISBANE
DATE: 10 JULY 1996
REASONS FOR JUDGMENT
MADGWICK J: This is an application for the imposition of a penalty and for the recovery of wages in respect of alleged underpayment of the applicant under the Motel Accommodation and Resorts Award 1992 (the Award) during his employment by the respondent for about 11 months from 10 December 1992.
It is admitted that the respondent company is a respondent to the Award and that that Award was at relevant times applicable to the applicant’s employment by the respondent.
There were two major issues in the case: (1) the quantum of hours worked by the applicant, it being conceded that more than the ordinary hours were worked; and (2) what work he actually did and its categorisation into an appropriate grade under the Award. It was common ground that the Award was applicable.
Background
The respondent company operated a motel and, in association with that, a restaurant at Caloundra on the Sunshine Coast in Queensland. The moving spirit of the respondent company was its managing director, Mr Stewart, an astute businessman who had built up the business in both its sides - motel and restaurant - over the years to late 1992. By that time, for personal reasons, Mr Stewart wished to reduce the extent of his own close involvement in the affairs of the respondent. Until then, the day-to-day management of the affairs of the respondent had been left in the hands of Mr Butler and his wife. They were called the “Managers” of the resort style complex.
Mr Stewart’s plan was to hire another married couple to be called the “Assistant Managers”. Accordingly, he advertised for applications and arranged interviews with prospective employees. Two sets of prospective employees, both married couples, impressed him. The couple whom he thought the most impressive were the O’Malleys and the couple whom he next favoured were the Battershills, that is, the applicant in these proceedings and his wife.
By the time the interview process was completed, Mr Butler, one of the then managers, had informed Mr Stewart that he intended to leave the respondent’s employ after the Christmas/January peak period. Mr Stewart was then faced with the need not only to hire Assistant Managers, but to plan imminently for the engagement of Managers. He therefore engaged the Battershills, with effect from 10 December 1992, as the Assistant Managers, and indicated to them that they would be considered for possible appointment as Managers. In the event, they were not so appointed, but the O’Malleys were. The latter appointment occurred in the second half of January of 1993. Mr Butler and his wife left the employ of the respondent in mid-January of 1993.
The applicant had for some years run a prestigious restaurant in Brisbane with marked success. However, ill-fortune followed and he was out of work for a number of years.
A fairly major division of labour between the applicant and his wife suggested itself to them in the beginning: that the applicant should more concern himself with the restaurant side of the business and that his wife should concern herself with the housekeeping aspects of the motel side of the business.
The restaurant was a buffet style operation, open for breakfast and dinner seven days a week. Mr Stewart had correctly foreseen that there was a market for a “no-frills” but wholesome and relatively inexpensive operation in Caloundra, both for tourists and for locals. At the outset, it seems to have been contemplated by everyone that the applicant would assist in the co-ordination and supervision of employees of lower grades than his own and that, as might be required, he would assist in the training of at least some of the restaurant staff. He was also to prepare and/or cook a limited range of basic food items such as potato chips and crumbed fish and to assist generally in most aspects of the running of the restaurant. The applicant was also to perform minor handyman’s work about the complex generally, to receive and store liquor and to perform a number of other, comparatively petty, tasks.
Mr Battershill set to work with a will. A general pattern of his commencing work at about 6.30am and continuing through until about 10.00 to 10.30pm was, in my view, established while Mr Butler was still there. It is likely that “lunch” was taken at about 3.30pm and probably during this time was under an hour.
However, one has the impression that, very welcome as any type of work was to him, the applicant had something of a culture shock in his new job. He was in his 60s by this time and his demeanour - dignified, severe even - which no doubt had served him well in an upmarket restaurant, was not one to which, after a time, Mr Stewart felt that the patrons of his business were responding. The applicant must have been disappointed when the O’Malleys were appointed Managers, over his head.
It is highly likely that Mr Butler was preoccupied with his own intended future as an independent businessman over the month or so during which the applicant was inducted into his new employment. That time was also the busiest time of the year for the respondent. There had never been Assistant Managers before and, as Mr Stewart said, he had contemplated and had correctly foreseen that everyone would be feeling their way at first.
Hours worked
As to the hours worked, which is the key dispute in the matter, none of the witnesses was entirely satisfactory. The applicant, I am quite satisfied, at some point commenced to keep detailed records of the hours that he asserted he was working. A book detailing these hours and other calculations was produced at the hearing (Exhibit C). It looks suspiciously like a fair copy compiled from other records, so far as the alleged hours worked are concerned. However, the applicant said that it was his original record, that he kept the book in the kitchen of his quarters and noted the hours down every day. He said that, for the period during which the records were kept (about 11 months), he kept one biro pen with the book. For a man meticulous by nature, he strangely omitted to enter into the allegedly contemporaneous record that he had had a particular day off sick. Further, he asserted in evidence that the hours there recorded were also the hours worked by his wife. So far as breaks in the middle of the day were concerned, however, his wife, who was too ill to come to court, gave different evidence by affidavit.
Mr Stewart was generally not present during the earliest hours after the opening of the restaurant (let alone during earlier preparations for its opening) and he was generally not there during the later hours of its operation. There is a contest as to the applicant’s claim that he was performing work in the restaurant at these times. Mr Stewart claims that he conveyed a number of requests to Mrs Battershill, (to whom he warmed more than her husband the applicant) that the applicant might desist from being about the restaurant as often as he was. However, this seems to have occurred in reaction to a complaint by a customer only in August of 1993 about the applicant’s manner and which caused Mr Stewart to write an indignant letter to the applicant. The thing that tells severely against Mr Stewart’s credit, however, is that he was prepared to alter employment records to pretend that there had been a firm engagement of the Battershills for one year only. The truth is that he knew from Mrs Battershill, who became his friend, that she had in mind a two year period of employment so that she and her husband could "get on their feet" financially and buy their own small business. The very strong probabilities are that Mr Stewart altered that record to improve his position in relation to a claim for reinstatement which the applicant was then wishing to take before the Queensland Industrial Relations Commission.
While, as I have indicated, there are aspects of the applicant’s evidence that are not entirely satisfactory, at any point that it becomes necessary to compare the evidence of the two men, I would decidedly prefer that of the applicant to that of Mr Stewart. Exceptions to this will be implicit in this judgment where I have adopted a version of events attested to by Mr Stewart. These exceptions exist however because, in those instances, what Mr Stewart said seems to accord with what appear to me to be the objective probabilities of the matter.
The respondent also called Mr Butler to give evidence. He had not been asked to recall what had transpired with the applicant at the motel complex until a couple of days before the hearing commenced. He was shown to have erroneously reconstructed some important matters. For example, as to whether Mr Stewart had prepared a formal statement of duties for Mr and/or Mrs Battershill, he said that there was such a document; but the basis for his reconstruction was simply his general knowledge that Mr Stewart was a capable manager, generally keen on having written plans and documents for employees. I think Mr Butler confounded what he had subjectively intended would be the way things would operate vis-a-vis himself and the applicant with what in fact did happen: it would have made sense in general that the Manager and Assistant Manager should “split” some of the supervisory work. Thus Mr Butler, in my opinion, thought that some days the Manager would commence at about 6.30am but would knock off at about 9.00pm, whereas other days he might start later and finish later, at about 11.00pm, with the Assistant Manager working later or earlier, as the case may be, than he did. However, the very high likelihood is that Mr Battershill, both by his nature and his background, was very keen in the initial stages to learn, to impress, and simply to work, after years of not working. It is in my opinion no more than human nature for those who are assisted by somebody working long hours to come to depend upon that state of affairs. That, I think, is what happened.
That pattern was established by the time the O’Malleys arrived. Objectively, by this time, there would have been many aspects of the work at the motel complex about which the applicant knew more than Mr O’Malley and, very naturally, Mr O’Malley would for some little time have needed to lean on the applicant’s greater local knowledge. I draw the inference that the pattern of hours worked by the applicant, established in the first month of the applicant’s employment by the respondent, continued. This inference is made irresistible, in my opinion, whatever the difficulties of the applicant’s own evidence, by the respondent’s failure to call Mr O’Malley. The only excuse tendered for that failure was that he was employed at Moura as a miner. Moura is about eight hours drive from Brisbane and I have no reason to believe that public land and air transport is not available to and from that town. The respondent was facing a claim for many thousands of dollars, and was manifestly well-represented. There was no suggestion that Mr O’Malley had departed from the respondent’s employ in circumstances which might have prejudiced him against the respondent. There are, no doubt, cases in which one ought to be cautious about drawing Jones v Dunkel inferences, but in my view this is not one of them.
In consequence, because of the matters which, by the process of reasoning just set out, I find proven as to the pattern of hours worked, I need not finally determine whether the applicant was being truthful or not when he said that Exhibit C is the original record of hours worked. In any case, Exhibit C is, for present purposes, an honest enough account of the times at which the applicant offered himself for work. It is notable that these times reduced in the middle of the day during the quieter times of the year and did not increase again in the busy September/October period of 1993, by which time Mr Stewart had indicated that he wanted the applicant, as far as possible, to stay away from restaurant customers. I was very impressed with the applicant's evidence with possible exceptions as to when he commenced keeping the detailed records of the hours he worked and as to whether Exhibit C is itself a contemporaneous record of the hours worked. He is an intelligent man, proud of his own integrity, but bitter at what he sees as never having been given a fair chance to prove himself in a managerial role at the respondent’s complex and, once he became fully aware of his award rights, at having been exploited. I am satisfied in general to act on the applicant’s records to establish the hours worked.
However, from about the end of January 1993 until his employment came to an end in November of that year, I think that it would be prudent to reduce the daily hours claimed by an overall factor applied to each day of 5%. The choice of such a factor needs explaining. In the first place, by the end of the case, both counsel, did not wish to contest that some step such as this might be appropriate: the employer had chosen not to see that proper records were kept. Secondly, the evidence is that, despite talk of busy and less busy times of the year, the aim of the business, to a large extent achieved, was to maximise customer numbers, both on the restaurant and on the motel side of the venture. This was variously achieved by marketing strategies aimed at encouraging bus tours, including some tours of people who came for overnight stays, and by making the restaurant attractive, through pricing and menu selection, to local people from Caloundra and its environs. In the result, even in leaner times of the year, the restaurant might be very well patronised for breakfast on a Sunday, and usually was well patronised on a Friday and Saturday night. Thirdly, faced with a keen employee, or a bored one, who offers and attends for work over a long spread of hours, an employer who does not wish to have to pay for work, even only a little work, done in such times needs to be astute to bring home clearly and directly to the employee concerned that excessive zeal, or using the workplace, out of required hours, as a retreat against boredom, is not wanted. Nevertheless, in the way of things, I think there simply must have been times when the applicant would have recorded hours worked when in reality he was probably doing not much more than wandering about the complex at a loss to know what else to do. Finally, a degree of conservatism generally is in my view appropriate. I bear in mind, however, that in ways explained by Ms Linnane, counsel for the applicant, the claim itself is a conservative one, not seeking to exact every last dollar due under the award.
The appropriate award rate
The evidentiary basis for comprehending what the award contemplates was somewhat slender. The Award itself, at least as explained to me, is economical of expression to an unhelpful degree, except to those who presumably were inside the negotiating room when it was framed. The question is whether Mr Battershill ought to have been paid as a grade 2 or as a grade 3 employee. The award provisions are:
"Hospitality services grade 2
(ii) Shall mean an employee who has not achieved the appropriate level of training and who is primarily engaged in one or more of the following:
(1)(A) receiving, storing and distributing goods;
(B)servicing accommodation areas and cleaning thereof;
(C)tray service to guests' rooms;
(D)transferring guests' baggage and/or property;
(E)driving a passenger vehicle or courtesy bus;
(F)providing butler service, basic food and beverage services with personalised guest services;
(G)assisting in dry-cleaning process;
(H)cleaning duties using specialised equipment and chemicals;
(I)"handyperson" shall mean a person who is not a tradesperson and whose duties include the performance of routine repair work and maintenance in and about the employer's premises and other general duties such as pool, garden, etc.;
(J)security officer.
(2)(A) preparing and/or cooking a limited range of basic food items such as breakfasts, grills and snacks and a cook employed alone;
(B)undertaking general waiting duties in a restaurant of food and/or beverages, including cleaning of restaurant equipment, preparing tables and sideboards, taking customer orders, serving food and/or beverages and clearing tables;
(C)supplying, dispensing or mixing of liquor, including cleaning of bar area and equipment, preparing the bar for service, taking orders and serving drinks;
(D)taking reservations, greeting and seating guests, taking telephone orders;
(E)assisting in the cellar;
(F)receipt of monies;
(G)attending a snack bar, buffet or meal counter.
Hospitality services grade 3
(iii)Shall mean an employee who has the appropriate level of training and who is primarily engaged in one or more of the following:
(1)undertaking general cooking duties, including a la carte cooking, baking, pastry cooking;
(2)undertaking general waiting duties of both food and/or beverages, including cleaning of restaurant equipment, preparing tables and sideboards, taking customer orders, serving food and/or beverages and clearing tables;
(3)supplying, dispensing or mixing of liquor, including cleaning of bar area and equipment, preparing the bar for service, taking orders and serving drinks;
(4)assisting in the cellar;
(5)receipt of monies;
(6)taking reservations, greeting and seating guests and taking telephone orders;
(7)receiving, storage and distributing goods;
(8)assisting in the training, co-ordination and supervision of employees of lower grades;
(9)major repair of linen and/or clothing including basic tailoring and major alterations and refitting;
(10)dry-cleaning;
(11)"handyperson" shall mean a person who is not a tradesperson and whose duties include the performance of routine repair work and maintenance in and about the employer's premises and other general duties such as pool, garden, etc.;
(12)providing butler services, basic food and beverage services with personalised guest services."
The references to "the appropriate level of training" are the subject of a definition. The phrase primarily means completion of "a training course deemed suitable" for a particular classification by tourist industry authorities; or, secondly, that an "employee's skills have been assessed to be ... the equivalent of those attained" through such a suitable course, "such assessment to be undertaken by a qualified skills assessor"; or, thirdly, that "for a transitional period until two years after 24 April 1991 the employee is appointed in a position that the classification relates to". In the absence of evidence as to the concrete meaning or applicability of the first two of these criteria, one is left with the third. That simply drives one back to the spare descriptions in and of the classifications themselves. Doing the best I can with it, and I stress the lack of expert, evidentiary assistance, "grade 2" employees seem to be relatively unskilled, but having some skills and not necessarily working closely to an employee in a higher grade. Grade 3 employees seem to be fully skilled for general (as distinct from specialty) cooking, front-of-house work or the other kinds of work referred to, and/or those who might be called upon to assist in the supervision etc. of employees of lower grades.
Mr Battershill and his wife were engaged as "Assistant Managers" and there were staff who had no managerial role at all. This description, along with most of the work at least initially done by Mr Battershill, to my mind, smacks of Grade 3 work. Mr Battershill must have had fairly high-level skills within the range of those of a worker of the Grade 3 description.
Mr Battershill nearly, but not quite, talked himself into Grade 2 work. He complained that he was treated as a "dogsbody", in the sense of having no supervisory or assistant-supervisory role, under the O'Malley regime. However, it was not until August 1983 that events crystallised, such that one could say that Mr Battershill's work had been downgraded by the employer to Grade 2 level. Those events were principally evidenced by a letter from Mr Stewart upbraiding Mr Battershill over a "front-of-house" incident and making clear that Mr Battershill was not to be in a position where he would deal with restaurant customers; this would have had the necessary consequence that he could not exercise supervisory functions.
I agree with counsel for the respondent that, except as to time worked on public holidays, there is no justification for payment of any time worked at the rate of double and a half ordinary time pay. Double time is, apart from public holiday work, the maximum provided.
The parties submitted various calculations. Conformably with my findings, as I understand the calculations, and after allowing the respondent the value of board and lodging at award rates provided to the applicant, I believe that there has been an underpayment to the applicant of $33,025.59 made up as follows:
Entitlement in accordance with my findings $57,131.19
Less: amount actually paid as wages $18,295.60
value of board $5,810.00
$24,105.60
Amount due $33,025.59
To this should be added interest for 11 months at 5% (to reflect the accrual of the shortfall) over the period of the employment and then at 10% for two and a half years. That is, an addition, referable to interest, of 29.6% to the above amount due, should be ordered.
I have said that I "believe" that that is what the calculations show. It may be that I have misunderstood the figures or misapplied them and I want to correct any such error before making final orders.
I will make formal orders to give effect to my belief unless, within 14 days, I receive by facsimile or post, written submissions and calculations, in the general format employed by Ms Linnane, suggesting error on my part.
In relation to a penalty, the punitive effect of having to pay some thousands of dollars which were not budgeted for is considerable. The case is not a particularly aggravated one, for example, of a deliberate flouting of an award. I think that a penalty of $100 is appropriate.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 10 July 1996
APPEARANCES
Counsel for the Applicant: D M Linnane
Solicitor for the Applicant: Bennett & Philp
Counsel for the Respondent: J A Logan
Solicitor for the Respondent: Watkins Stokes Templeton, Town Agents for Griffiths McColm & Parry
Date of hearing: 6, 7 & 9 November 1995
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