Creed v Jolong Park Pty Ltd

[2018] FCCA 3692

FEDERAL CIRCUIT COURT OF AUSTRALIA

CREED v JOLONG PARK PTY LTD [2018] FCCA 3692

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Amusement, Events and Recreation Award 2010 – consideration of applicable employee classification – underpayment of wages – unpaid overtime and public holiday rates – unpaid leave entitlements – scope of small claims jurisdiction.

Legislation:

Fair Work Act 2009, ss.90(2), 325, 548

Fair Work Regulations 2009, reg 4.01

Amusement, Events and Recreation Award 2010, cls. 4.2, 13, 21.1, 23.1, 23.3, 23.5, Schedule B

Applicant: NICOLA HALINA CREED

Respondent: JOLONG PARK PTY LTD

File Number: MLG 2024 of 2018

Judgment of: Judge Mercuri

Hearing date: 10 September 2018

Date of last submission: 10 September 2018

Delivered at: Melbourne

Delivered on: 19 December 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. Within 21 days of the date of these orders, the respondent pay to the applicant the amount of $3,558.40 consisting of:

   (a)the sum of $866.88 in respect of underpayment of wages;

   (b)the sum of $1,487.79 in respect of unpaid overtime;

   (c)the sum of $50.83 in respect of unpaid annual leave; and

   (d)the sum of $1,152.90 in respect of unpaid public holiday pay.

2. The applicant’s application filed 12 July 2018 is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2024 of 2018

NICOLA HALINA CREED

Applicant

And

JOLONG PARK PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks orders for payment of various entitlements arising from her employment with the respondent. 

2. The application was brought in the court’s small claims jurisdiction and, as such, is regulated by the provisions in Division 3 of Part 4.1 of the

   
   Fair Work Act 2009

   (Cth) (“the FW Act”) and Regulation 4.01 of the

   
   Fair Work Regulations 2009

   (“FW Regulations”).

3. Neither party was legally represented. 

Background

1. The applicant was employed by the respondent from 21 January to 8 April 2018.  In her application she states that she was employed as the Bookings/Tour Manager and the work or services she performed included:

   Office Administrator for the front office, manager of all: bookings, trail rides, riding school, equine education, school holiday program and horses.  Helped stable staff bring in horses, muck out yards & feed horses.  Trained horses.

2. In her application she sets out a brief summary of her duties in more detail in response to question 18.

3. Exhibit D is a copy of the applicant’s employment contract with the respondent.  That contract, although dated 21 February 2018 states that her employment commenced on 29 January 2018.  It relevantly provides that the applicant was employed in the position of ‘Office Admin and Bookings/Tour Manager at Jolong Park Pty Ltd’.[1] 

   [1] Exhibit D.

4. It also states that she reports to the Operation Manager and that her roles and responsibilities include, but are not limited to:

   Job Description – Office Admin Role

   -    Greeting clients

   -    Assisting clients with requests and enquiries

   -    Answering phones and directing calls

   -    Processing phone and online bookings

   -    Sending emails to customers

   -    Booking lunches

   -    Ensuring all risk forms are completed before riding

   -    Ensuring customer area clean and tidy

   -    Opening and closing procedures are adhered to

   Job Description – Tour Manager Role

   -    Manager all tours including:- preparing horse lists, check in all customers, ensure customers complete risk forms, managing customer expectations and safety riders

   -    Manage employee process of new tour guides

   -    Weekly rosters prepared monthly

   -    Management of staff training and development

Horse Care

-    Daily management of horse health eg sun screen, girths cleaned, saddle blankets cleaned, regular horse spa days, rugs, feed, farrier, worming, correct grooming etc

-    Ensure horse tack room is always spotless and on show

-    Management of tie up bays and general cleanliness

-    Prepare weekly reports on staff issue, horse issues and performance[2]

[2] Exhibit D.

1. In terms of remuneration, the contract provides that the employee will be paid an annual salary of $40,000 per annum which equates to an hourly rate of pay of $20.24 based on a 38 hour week.[3]  This is the amount that was paid to the applicant during her employment.[4] In addition, there is reference to ‘sales commission’ which was to be paid in addition to the annual salary.

   [3] Exhibit D.

   [4] Exhibit C.

2. Under the heading ‘Commission System’, the contract relevantly states:

   -    Membership card/Riding Lessons/Trail Ride: 5% commission of monthly sales achieve $10,000

   -    Function and Events: Assist with Marketing Manager to follow up the event from quotation to complete the service, commission TBC

   -    Associate with other colleagues to achieve yearly sales target, yearly commission TBC.[5]

   [5] Exhibit D.

3. In addition, the contract provides for superannuation and annual, personal, carer’s and compassionate leave in accordance with the FW Act.

4. The applicant claims that her employment was covered by the

   
   Amusement, Events and Recreation Award 2010

   (“Award”) and that she ought to be classified as a Grade 9 employee under that award for the purpose of calculating her entitlements.

5. In the course of the hearing, the respondent conceded that the Award applied to the applicant’s employment but said that her position ought to be classified as Grade 3 not Grade 9. 

6. The Award sets out the industry to which it applies in clause 4.  In light of the concession made by the respondent that it is the appropriate award to apply to the applicant, I will not take this matter any further but am satisfied for the purposes of this decision that the respondent operates a leisure and recreational facility and would therefore arguably fall within clause 4.2(a)(i) of the Award. 

7. Clause 13 of the Award provides that all employees covered by the Award must be classified according to the structure and definition set out in Schedule B.  It further provides:

   Employers must advise their employees in writing of their classification upon commencement and of any subsequent changes to their classification.[6]

   [6] Amusement, Events and Recreation Award 2010, cl. 13.

8. In this case, this was not done.

Proper classification

1. It was agreed that the applicant’s employment was regulated by the Award. However, the applicant alleged her role should have been classified as a Grade 9 employee and that she ought to have been paid on this basis. The respondent stated that the applicant’s role would be better classified as a Grade 3 employee. 

2. A Grade 3 employee is defined, among other things to include supervisors and operators (where four or more are employed).  In addition, an employee employed at Grade 3 level:

   …will possess the following skills and may be required to perform the following duties:

   (a)Works from complex instructions;

   (b)Assists in the provision of on the job training;

   (c)Can perform a greater variety of tasks competently in accordance with the established procedures within their work classification

   (d)Can provide assistance for problem solving and work direction

   (e)Is trained in and can apply a higher level of quality control and customer service.

   (f)Performs work which is the subject of final checking only;

   (g)Has good health and safety knowledge

   (h)Works individually under general supervision while having the ability to co-ordinate work within a small team environment.

   (i)Communicates effectively with other workers in their work section.

   (j)…

   (k)… handles animals … animal health management… basic stable/animal compound management, … specialised animal care, assistance with animal training, preparation of animal feed and animal care, animal management, maintenance of enclosures … tour guide duties and presentations to the public, …bookings and reservations … ordering stock and stock control …[7]

   [7] Amusement, Events and Recreation Award 2010, sch. B.4.4.

3. The descriptor for a Grade 4 employee states that “work performed at this level will be trade level or equivalent”.[8]

   [8] Amusement, Events and Recreation Award 2010, sch. B.5.1.

4. The descriptor for a Grade 5 employee relevantly provides:

   An employee at this level is an employee who in addition to being a technician, tradesperson or equivalent is required to supervise staff, general hands technicians, and/or generally supervise projects including basic administration.[9]

   [9] Amusement, Events and Recreation Award 2010, sch. B.6.

5. The descriptor for a Grade 6 employee states:

   An employee at this level may include a Head technician maintenance person, Restoration officer, Museum technician and Senior animal attendant or trainer.[10]

   [10] Amusement, Events and Recreation Award 2010, sch. B.7.

6. The descriptor for a Grade 7 employee states:

   An employee may have specific supervisory duties and the authority to direct other staff; however the greater percentage of their time need not be spent on management functions.

   An employee at this level performs work of a greater complexity because of one or more of the following factors…[11] (none of which apply to the applicant’s work).

   [11] Amusement, Events and Recreation Award 2010, sch. B.8.2.

7. A Grade 8 employee is one:

   who possesses qualifications or experience such as advanced engineering or technical skills or post trade or diploma level or who undertakes duties of a more advanced or complex level.[12]

   [12] Amusement, Events and Recreation Award 2010, sch. B.9.

8. The descriptor for a Grade 9 employee relevantly provides that:

   …an employee appointed to this level undertakes three or more of the following duties:

   (a)Responsible for implementation of all major turf projects for the facility according to the course architects design.

   (b)Responsible for the development of an annual work program for all outdoor staff that incorporates both further development and continued maintenance.

   (c)Responsible for supervision of all outdoor staff.

   (d)Responsible for the operation and maintenance of all turf equipment.

   (e)Responsible for all occupation and health and safety management in outdoor areas.

   (f)Responsible for purchasing within limits imposed by policy and the budget.

   (g)Responsible for ensuring that all administrative systems are complied with by the staff under their direction.[13]

   [13] Amusement, Events and Recreation Award 2010, sch. B.10.1.

9. The applicant argued that she ought to have been classified and paid as a

   
   

   Grade 9 employee on the basis that her management duties were extensive.  Her evidence was that she managed the “entire equestrian centre”.[14]  Her evidence about her duties was as follows:

   [14] Transcript page 5 at line 16.

   I managed the entire equestrian centre which involved managing the online booking system … ensuring that up to date information was always there, ensuring risk forms were completed before people had came (sic) to the facility to undergo a trail ride, … undertook safety briefings.  I managed the day-to-day goings of the facility which was sometimes as simple as sending emails to customers, ensuring the place was clean and tidy. If there was an incident, I would be responsible for … following all the procedures and ensuring I filled out an incident report. 

   I managed all the tours, which included preparing the horse lists, managing the safety of riders, checking in all the customers, ensuring they had completed their risk forms, managing the customer expectations.  … I also analysed the skill of the rider and see which horse suited best.  I managed the … trails… ensuring all the health and safety procedures had been followed.  I prepared rosters.  I made sure that all the tours ran on time.  If there was an issue, I had to resolve that on site.  I was the only person on site during the day-to-day activities that was involved in that… aspect of the tours as a management role.  Sometimes other management would come, but they would just usually… have a walk around and then they would leave. 

   …

   I usually had two or three staff who I gave direction to.  I gave them their horse lists and the day-to-day runnings of that entire day and they would come to me if they had any questions.  … I was also responsible for the horse management … horse health, ensuring the management of the tidy-ups. 

   I would always analyse the horses and ensure that they were safe for the rides.  If one of them was sore, for instance, I would analyse whether we needed to get a physio out or whether there was an issue with the gear that we had been using for that horse.  … I would be responsible for getting the chiropractor out …I was also responsible for going out and purchasing any gear … that we required for those tours.  I was also responsible the management of the staff training, and … if we needed to hire anyone else for the tours, and all the bookings … for the trail rides, and for the lessons that we ran in the riding school …[15]

   [15] Transcript page 5 at line 16 to page 6 at line 16.

10. In response, Mr Wang who appeared for the respondent said that the applicant’s main responsibility was to “look after the booking system and prepare the horses”.[16]  He further said that it was not part of her responsibility to supervise any other workers.[17]  He also said that the nature of the respondent’s business is to provide horse riding and school holiday programs.  As such, she was not required to supervise other staff members.[18]  Moreover, Mr Wang said that the applicant was not the only person who used the booking system and that they have employed more than three people who use the booking system.[19]  He also said that the respondent operates in two markets, the local Australian market and the Chinese market.  He further stated that about 80% of the respondent’s business is in the Chinese market and the respondent employs another person to look after the Chinese market.[20]

    [16] Transcript page 9 at lines 42 to 43.

    [17] Transcript page 9 at lines 44 to 45.

    [18] Transcript page 10 at lines 5 to 6.

    [19] Transcript page 10 at lines 8 to 10.

    [20] Transcript page 10 at lines 10 to 13.

11. In relation to this last point, the applicant agreed that she did work with another employee who was Chinese but she said that this person would often message her about proposed bookings because she did not fully understand the booking system and therefore all the bookings actually went through the applicant.[21] 

    [21] Transcript page 11 at lines 11 to 16; 24 to 36.

12. Mr Wang also said that from the respondent’s perspective, the applicant was employed on an ‘annual salary’ to work an average of 37.5 hours per week on Monday, Tuesday, Thursday, Friday and Sunday.[22]  He further stated that “overtime hours will be compensated as actual personal leave”.[23]  Mr Wang also confirmed that no time sheets were kept for the applicant’s work hours and therefore the time sheets which the applicant produced cannot be confirmed by the respondent because the applicant was not asked by a manager or a supervisor to work those hours.[24]  She was only ever required to work an average of 37.5 hours a week.

    [22] Transcript page 7 at lines 18 to 22.

    [23] Transcript page 7 at lines 21 to 22.

    [24] Transcript page 6 at lines 26 to 31.

13. I pause here to note that the contract which Mr Wang refers to simply says that ‘it is expected that you will work an average of 37.5 hours per week during general business hours’.   It does not go so far as to say that the applicant would be entitled to overtime for any hours worked over and above 37.5 hours.  In any event, the Award provisions would apply irrespective of the terms in the contract to the extent that they provide more beneficial terms. 

14. Mr Wang submitted that a Grade 3 employee was the appropriate classification under the Award because the applicant’s duties were essentially to look after the booking system and prepare the horses.  He said that the applicant did not have management experience, or any responsibility to supervise any other workers.[25] 

    [25] Transcript page 9 at lines 44 to 45.

15. The applicant pointed to the following aspects of her role as justification for her claim that she ought to have been classified as a Grade 9 employee:

    a)in relation to clause B10.1(c) with respect to ‘responsibil(ity) for supervision of all outdoor staff’ she says:

    i)she was responsible for the tour guides who were going out on those tours;

    ii)if they had an issue they would go to her for help; and

    iii)if there was an incident, she was the manager on duty and therefore had to fill out the incident report;[26]

    [26] Transcript page 13 at lines 6 to 11.

    b)in relation to clause B10.1(e) with respect to ‘responsibil(ity) for all occupational health and safety management in the outdoor areas’, she says:

    i)she conducted safety briefings for the riders before all rides; and

    ii)she ensured that customers had completed risk forms before riding;[27]

    c)in relation to clause B10.1(f) regarding ‘responsibil(ity) for purchasing within the limit imposed by policy and the budget’, she said she was required from time to time to go to the horse store called ‘Horseland’ and purchase things which they did not have. She provided an example of having to source, order and purchase girths for the horses;

    d)in relation to clause B10.1(g) with respect to ‘responsibil(ity) for ensuring that all administration systems are complied with by staff and under their direction’, she said:

    i)she was responsible for the booking system;

    ii)her role as front of house involved delegating a list of tasks to the tour managers;

    iii)she trained the tour managers in basic administrative duties so that if she was absent they could take care of what needed to be done; and

    iv)she was therefore responsible for the administrative duties as well.[28]

    [27] Transcript page 13 at lines 16 to 24.

    [28] Transcript page 13 at lines 39 to 47.

Consideration

1. In considering the proper classification that applied to the applicant’s role, it is important to look at the applicant’s overall duties and the classification requirements in context.  When one considers the classification structure in context, it is clear that a Grade 9 employee is the most senior employee within that structure.  It is also clear that a Grade 9 employee has some significant supervisory and managerial functions.  This is particularly so when regard is had to the classification descriptor for a Grade 7 employee which outlines that a person employed at that level has a significant level of complexity, responsibility and management in performing their role.  The descriptors in the Grade 9 employee level must be read in that context. 

2. Even accepting the applicant’s version of the duties that she was required to perform, I do not accept that the applicant’s role would fall within the classification of a Grade 9 employee. 

3. The best evidence of the nature of the applicant’s duties is as set out in her contract of employment.  The contract essentially describes a front office administrative role which involves responsibility for the horse rides conducted by the respondent.  Whilst the contract does make reference to managing tours, managing employee processes and management of staff training and development, these duties do not give rise to the level of responsibility required for the role to be properly classified as a Grade 9 employee.

4. The question then arises as to what the appropriate classification is for the applicant’s role.

5. As noted above, the respondent suggests that the appropriate classification is a Grade 3 employee.  I do not agree with this submission.  Although the applicant may have sought to overstate her managerial and supervisory obligations, her evidence is that she was often the most senior employee at the workplace.  This submission was not contradicted by the respondent.  Moreover, the applicant’s employment contract provides that in relation to the horse tours, she had a significant level of responsibility not only to run the tours but also to manage the training of staff in this regard and also to manage the horse health.  These tasks would require a level of autonomy and discretion which does not match the description for a Grade 3 employee.  The contract further provides that the applicant reports to the Operations Manager although no evidence was given by the respondent about where the Operations Manager was located and/or the level of supervision provided to the applicant on a daily basis.

1. I am not satisfied that the applicant was fully responsible for the booking system as claimed.  Whilst she may have had a greater level of knowledge of the booking system having worked with it before, this does not equate to being responsible for the booking system as alleged.

2. Having regard to these matters and the classification descriptors set out above, I find that the applicant’s role falls within that of a Grade 5 employee. 

3. I am satisfied on the basis of the evidence before me that the applicant’s role was:

   a)to supervise the tour guides who ran the horse tours;

   b)insofar as she was responsible for the horse tours, she had general supervisory duties including ensuring that participants completed the requisite pre-ride training, risk forms and the like; and

   c)to undertake basic administration. 

Applicant’s claims

Underpayment of wages claim

1. It is not in dispute that the applicant was paid an hourly rate of $20.24.  So much is clear from Exhibit C.

2. The applicant produced a spreadsheet attached to her application which outlines the hours she says she worked during her employment.   As stated above, the Award provides that ordinary hours will not exceed 38 hours per week, rather than 37.5 hours as claimed by the applicant.  

3. The respondent has not produced any records which deal with the question of the hours worked by the applicant.  Indeed, the respondent submitted that it did not keep any such records.  In the absence of records from the respondent which confirm the hours worked by the applicant, I accept the applicant’s evidence that she in fact did work the hours as set out in her spreadsheet.

4. On that basis, I find that the applicant worked a total of 504 hours as ordinary hours pursuant to clause 21 of the Award.

5. At the relevant time, the pay rate for the applicant at the Grade 5 level was $21.96 per hour.  The applicant therefore was underpaid $1.72 per hour.

6. The applicant is therefore entitled to a payment of $866.88 by way of an underpayment of her ordinary hours of work.

Overtime claim

1. The applicant claims that she regularly worked overtime but was not paid for that work.  She produced a spreadsheet attached to her application which outlines the hours she worked and the basis of her claim for overtime.

2. The respondent has not produced any records which deal with this issue.  Indeed, the respondent submitted that it did not keep any such records.  In the absence of records from the respondent which confirm the hours worked by the applicant, I accept the applicant’s evidence that she in fact did work the hours set out in her spreadsheet.

3. Clause 21.1 of the Award relevantly provides:

   The ordinary working hours for a full-time employee will not exceed an average of 38 hours per week in accordance with a roster that conforms with one of the following:

   (a)38 hours in one week;

   (b)76 hours in two weeks;

   (c)114 hours in three weeks;

   (d)152 hours in four weeks.

4. There was no evidence as to what, if any, roster cycle was employed by the respondent.  In the absence of such evidence, I have dealt with the overtime issue on the basis that overtime was payable in respect of any hours worked in excess of 38 hours per week.  I note that the applicant has calculated her overtime entitlement by reference to a 37.5 hour week.  This is not consistent with the Award.

5. Clause 23.1 of the Award relevantly provides that:

   All time worked by any full-time… employee in excess of the rostered working hours as provided on any one day, or in excess of an average of 38 hours per week in any rostered workcycle as provided in clause 21.1, will be deemed to be overtime and will be paid for at the rate of time and a half for the first three hours and at the rate of double time after that. 

6. I therefore find that the applicant worked the following overtime:

   a)11 hours in the week commencing 29 January;

   b)14.5 hours in the week commencing 12 February;

   c)2.5 hours in the week commencing 26 February;

   d)5 hours in the week commencing 5 March; and

   e)4.5 hours in the week commencing 19 March.

7. The applicant should have been paid at the rate of $32.94 per hour for the first three hours and $43.92 per hour after three hours. 

8. On the basis of the evidence before me, I find that the applicant is entitled to a payment in respect of unpaid overtime in the total sum of $1,487.79.  This sum is calculated on the basis that she worked a total of 14.5 hours in respect of which she was entitled to payment at the rate of time and a half, and 23 hours in respect of which she was entitled to payment at double time.

9. For completeness, I note that the respondent submitted that it was the respondent’s understanding that any overtime would be “compensated as actual personal leave”.[29]  I understood this to mean that an employee could take leave in lieu of overtime.

   [29] Transcript page 7 at lines 21 to 22.

10. Clause 23.5 of the Award does provide for time off in lieu of overtime.  However, it requires that any such arrangement be agreed in writing between an employer and an employee.[30]  There was no evidence of any such agreement having been reached in writing between the parties. Moreover, in the absence of any timesheets or other records from the respondent as to the hours of work actually undertaken by the applicant, it is not possible in any event to determine whether the applicant was awarded time off in lieu pursuant to such an arrangement consistent with the terms of clause 23.5.

    [30] Amusement, Events and Recreation Award 2010, cl. 23.5(a).

Unpaid leave claim

1. The applicant also claimed unpaid leave.  The respondent produced evidence that it had in fact paid the applicant’s outstanding leave entitlements on

   
   

   15 May 2018.[31]  This document identifies that the applicant was paid for 29.55 hours of untaken annual leave.  I note however, that that payment was calculated at the rate of $20.24 per hour.  For the reasons set out above, the correct rate of pay for the applicant’s unpaid leave should have been $21.96 per hour.

   [31] Exhibit C.

2. The applicant is therefore entitled to a further sum of $50.83 in respect of her unpaid annual leave.  An employee is not entitled to payment in lieu of untaken personal leave and the applicant has not established a contractual or other entitlement to such a payment. 

Public holidays claim

1. The applicant also claims that she worked on two public holidays, being

   
   

   12 March (Labour Day) and 31 March (Good Friday) but was not paid penalty rates.

2. Clause 23.3(b) of the Award relevantly provides that all time worked on a public holiday will be paid for at double time and a half. 

3. In the absence of any evidence to the contrary from the respondent, I accept the applicant’s claim.  She is entitled to be paid a further sum of $1,152.90 in respect of the unpaid public holiday pay.

Commission claim

1. The applicant’s contract of employment dealt with the issue of commission in the terms set out earlier in these reasons.

2. There is a question as to whether this part of the applicant’s claim can properly be dealt with under the court’s small claims jurisdiction. 

3. Section 548(1)(b) of the FW Act provides that a proceeding may be dealt with as a small claim if the order sought relates to an amount referred to in subsection (1A). It is not entirely clear how the unpaid commission falls within section 548(1A) of the FW Act.

4. In any event, the applicant has not established that she has an entitlement to any commission payment under her contract.  The contract itself is less than clear with respect to the circumstances under which a commission will be payable.  It does however, seem to make a distinction between a commission payable on the basis of monthly sales generated by the individual employee on the one hand and collective yearly sales target generated by all employees. 

5. I accept therefore that the reference to monthly sales of $10,000 is a reference to sales generated by the applicant and not by the enterprise more generally.  In those circumstances, the applicant has not established to the requisite standard or proof that she has met this benchmark.

Conclusion

1. For each of these reasons, I make orders in the following terms:

   a)Within 21 days of the date of these orders, the respondent pay to the applicant the amount of $3,558.40 consisting of:

   i)the sum of $866.88 in respect of an underpayment of wages;

   ii)the sum of $1,487.79 in respect of unpaid overtime;

   iii)the sum of $50.83 in respect of unpaid annual leave;

   iv)the sum of $1,152.90 in respect of unpaid public holiday pay; and

   b)the applicant’s application is otherwise dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:              19 December 2018