Crosbie v Morris and Sons Melbourne Pty Ltd

[2019] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSBIE v MORRIS AND SONS MELBOURNE PTY LTD [2019] FCCA 3102

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – General Retail Industry Award 2010 – retail employee classification – meal breaks – hours of work – commencement of full time employment from casual employment – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.542, 548.

General Retail Industry Award 2010, cls.16, 31.1, sch. B.

Applicant: MARGARET CLARE CROSBIE

Respondent: MORRIS AND SONS MELBOURNE PTY LTD

File Number: MLG 1530 of 2019

Judgment of: Judge Mercuri

Hearing date: 14 October 2019

Date of Last Submission: 14 October 2019

Delivered at: Melbourne

Delivered on: 1 November 2019

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. The applicant’s application filed 17 May 2019 be dismissed.

2. Within 21 days, unless the respondent has already paid these amounts to the applicant, the respondent pay to the applicant:

   (a)the sum of $860.30 in respect of unpaid wages; and

   (b)the sum of $81.30 to the applicant’s nominated superannuation fund in respect of outstanding superannuation entitlements.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1530 of 2019

MARGARET CLARE CROSBIE

Applicant

and

MORRIS AND SONS MELBOURNE PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction and claims

1. This application came before the court in its small claims jurisdiction under the Fair Work Act 2009 (Cth) (“the FW Act”).

2. The applicant alleged that she had not been paid all payments to which she was entitled under the General Retail Industry Award 2010 (“the Award”) for work performed during her employment with the respondent.

3. The applicant’s claim was brought in this court’s small claims jurisdiction. Pursuant to section 548 of the FW Act, small claims proceedings can only be dealt with if:

   a)an applicant indicates they wish to have their matter dealt with as a small claim;[1] and

   b)importantly, the claim relates to an amount referred to in section 548(1A) of the FW Act that an employer was required to pay to or on behalf of an employee:

   i)under the FW Act or a fair work instrument;

   ii)because of a safety net contractual entitlement; or

   iii)because of an entitlement of the employee arising under section 542(1) of the FW Act.

   [1] Fair Work Act 2009 (Cth), s. 548.

4. In this instance, the applicant’s claims arise largely under the Award.

5. The applicant claimed:

   a)she was employed as a Specialty Wool Retailer Store Manager from 29 October 2016 to 30 November 2018 on a full time basis;[2]

   b)during her employment she was not paid all of her entitlements to wages, Saturday penalty rates and higher duties allowances;[3]

   c)she was not paid the superannuation amount referable to these amounts;[4] and

   d)the respondent failed to provide her with a final payslip and statement of entitlements.[5]

   [2] Applicant’s application filed 17 May 2019, page 3 at paragraphs [16] and [17] and page 4 at paragraph [21].

   [3] Applicant’s application filed 17 May 2019, Annexure to Part I pages 2 to 4.

   [4] Applicant’s application filed 17 May 2019, Annexure to Part I page 4 at paragraph [33].

   [5] Applicant’s application filed 17 May 2019, Annexure to Part I page 4 at paragraph [34].

6. The applicant claimed a total underpayment of $31,493.14.[6] However, she waived her claim to any amount in excess of this court’s small claims jurisdiction.[7] Therefore, in essence, the applicant sought payment of $20,000.[8]

   [6] Applicant’s application filed 17 May 2019, page 7 at paragraph [26].

   [7] Applicant’s application filed 17 May 2019, page 7 at paragraph [26].

   [8] Fair Work Act 2009 (Cth), s. 548(2)(a).

7. The respondent denied the applicant’s claims and said:

   a)the applicant was not employed as a store manager and was correctly employed and remunerated at a Level 3 classification;[9]

   b)the applicant did not commence employment on a full time basis until she started at the Richmond store on 29 January 2016 and therefore her claim to unpaid wages for the period between 29 October 2015 and 29 January 2016 is misconceived;[10]

   c)the applicant was directed to take meal breaks every day, either by closing the store if she was alone on that day and leaving either the designer, Ms Mitchell, or the store manager in charge whilst she took a break;[11]

   d)the applicant was not required to commence work before, or finish work after, her rostered start time;[12] and

   e)the appropriate classification for the work performed by the applicant under the Award was as a Level 3 Retail Employee.[13]

   [9] Respondent’s outline of case dated 8 October 2019 page 3 at paragraph [14]. This document was not filed but was handed up by the respondent during the proceedings.

   [10] Respondent’s outline of case dated 8 October 2019 page 2 at paragraph [6].

   [11] Respondent’s outline of case dated 8 October 2019 page 2 at paragraph [8].

   [12] Respondent’s outline of case dated 8 October 2019 page 3 at paragraph [11].

   [13] Respondent’s outline of case dated 8 October 2019 page 3 at paragraph [14].

8. The respondent conceded that it had incorrectly paid the applicant for hours worked by her on a Saturday, and consequently an amount of $860.30 is owed plus a superannuation payment of $81.30.[14]

   [14] Respondent’s outline of case dated 8 October 2019 page 4 at paragraph [16].

9. The respondent otherwise stated that the applicant’s application ought to be dismissed.[15]

   [15] Respondent’s outline of case dated 8 October 2019 page 4 at paragraph [17].

Issues

1. The issues which arose for consideration in this matter are as follows:

   a)when did the applicant’s full time employment with the respondent start?

   b)what classification level under the Award applied to the applicant’s role?

   c)was the applicant provided with a meal break as required by the Award?

   d)what hours was the applicant required to work?

Evidence

1. The respondent operates two retail specialty wool and craft stores in Melbourne; one at Collins Street, Melbourne (“Melbourne store”) and the other at 202 Bridge Road, Richmond (“Richmond store”).

2. It is common ground that the respondent renovated and fitted out the Richmond store in the latter part of 2015 and the works took longer than initially anticipated.

3. When the respondent offered the applicant employment, it provided her a written offer of employment dated 29 October 2015 which appears to have been signed by the applicant on 11 November 2015.[16]

   [16] Offer of employment with Morris and Sons Melbourne Pty Ltd dated 29 October 2015. This document was not filed but was handed up by the respondent and referred to during the proceedings.

4. The applicant resigned from her employment in November 2018.[17]

   [17] Applicant’s application filed 17 May 2019 page 4 at paragraph [21].

5. The offer of employment relevantly contained the following terms:

   We would like to… formally offer you the position of Sales Assistant.  This letter sets out the terms and conditions of the offer and your acknowledgement and acceptance of them.

   …

   Your employment conditions are governed by the General Retail Industry Award 2010 for Shop Employees (State) Award Retail Employee Level 3.

   …

   If you work a shift of more than five continuous hours, you will receive one 30 minute unpaid meal break.

   If you work a shift of seven hours but less than ten hours you will receive two 10 minute rest pauses during your shift, one before your meal break, one after your meal break.[18]

   [18] Offer of employment with Morris and Sons Melbourne Pty Ltd dated 29 October 2015 page 1.

Contract start date

1. The employment contract did not contain a commencement date.[19]

   [19] Offer of employment with Morris and Sons Melbourne Pty Ltd dated 29 October 2015.

2. The applicant produced two emails which she argued evidenced the commencement date.[20] Each email was marked as an exhibit.

   [20] Exhibit A; Exhibit B.

3. Exhibit A relevantly says:

   Just a brief update for you…

   …

   We have been given a confirmed 4 week time frame for the fitout from our go ahead which should be from tonight.  Just finalizing costs and finishes, but all looks good to go.

   …

   Also, I will be preparing your contract and other paperwork and will email that through for you early next week.[21]

   [21] Exhibit A.

4. Exhibit B relevantly says:

   I think we may have been optimistic regarding the finish date for the store.

   …

   Regarding the start date, I had a chat with Alana, and I believe that she may have given you a call about doing a few shifts there.  When you commence that shift, that will signify the beginning.  While you are there, you can spend some time going though samples for the new store.  For now, I suggest getting samples from the current stores and shortly we can get new samples made (emphasis added).[22]

   [22] Exhibit B.

5. In particular, the applicant relied upon the emphasised text above as evidence that the respondent’s intention was for the applicant’s first shift at the Melbourne store to be the commencement of her employment on a full time basis.

6. The applicant also relied upon the following clause in her contract which relevantly provides: “Minimum 3 hours up to a maximum of 38 hours per week. Minimum period of engagement per shift 3 hours.”[23]

   [23] Offer of employment with Morris and Sons Melbourne Pty Ltd dated 29 October 2015 page 1.

7. The applicant gave evidence that she commenced her first shift in the Melbourne store a few days after receiving the email from the respondent on 15 November 2015.[24]   The applicant claimed from that point onward, she should have been paid at a full time rate.

   [24] Transcript page 7 at lines 16 to 23.

8. She gave further evidence that she did not commence working in the Richmond store until late January 2016.[25]  Between the middle of November 2015 and late January 2016, she worked a few days per week, for which she was paid.[26]

   [25] Transcript page 8 at line 4.

   [26] Transcript page 8 at lines 6 to 21.

9. In the course of cross examination, the applicant confirmed that she had read the affidavit of Ms Beck and did not take issue with anything in that affidavit.[27]  Rather, she said she relied on what the store owner had emailed her.[28]

   [27] Transcript page 8 at lines 43 to 46.

   [28] Transcript page 8 at lines 46 and 47.

10. The respondent relied upon the following affidavits:

    a)affidavit of Ms Alana Beck affirmed on 20 September 2019;

    b)affidavit of Ms Teresa Redrup affirmed on 25 September 2019; and

    c)affidavit of Ms Victoria Armes affirmed on 18 September 2019.

11. The applicant did not wish to cross examine any of these witnesses and as noted above, did not take issue with Ms Beck’s evidence.[29]

    [29] Transcript page 9 at lines 3 to 4 and page 20 at lines 23 to 34.

Affidavit of Ms Beck

1. Ms Beck’s evidence was she was employed as Store Manager by the respondent from March 2015 to September 2016.[30]  In that role, she was responsible for the management of the Melbourne store.  She also became responsible for managing the Richmond store from January 2016 when it commenced trading.[31]  Ms Beck’s evidence was she reported to Mr Albert Morris, one of the respondent’s directors, who passed away in early 2019.[32]

   [30] Affidavit of Alana Beck affirmed 20 September 2019 page 1 at paragraph [1].

   [31] Affidavit of Alana Beck affirmed 20 September 2019 page 1 at paragraph [1].

   [32] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [3].

2. In her affidavit, Ms Beck deposes that she spoke to the applicant on about 6 August 2015 about the possibility of her being employed at the Richmond store:

   At the time it was not known when the Richmond store would be ready to open so we discussed the possibility of Ms Crosbie undertaking some casual work in the Melbourne city store and then commencing full time employment once the Richmond Store was ready to open.[33]

   [33] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [4].

3. Ms Beck further stated that on approximately 13 August 2015, she recalled explaining to the applicant, ‘her full-time employment would start once the Richmond Store opened and that Morris was unable to guarantee when that would be.’[34]  

   [34] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [5].

4. Ms Beck’s affidavit annexed an email to the applicant in which she said, among other things:

   You will begin full time employment at the new The Granny Square Richmond Store from the time it opens.

   At this stage we are unable to guarantee when the Richmond Store will be opening.  As such we are unable to provide an exact date as to when your full time employment will begin, however you will be forwarded a Contract of Employment prior to the Richmond Store opening and you are happy to proceed on that proviso.

   Prior to commencing employment at the Richmond Store, you are agreeable to casual employment at our Melbourne Store with a maximum of two shifts per week, dates to be confirmed.  The purpose of this is to bring you up to speed with current Procedures and the Point of Sale system so that you feel comfortable with those processes and are prepared in time for the Richmond Store opening.[35]

   [35] Affidavit of Alana Beck affirmed 20 September 2019 at Annexure A.

5. Ms Beck recalled an email to the applicant on 11 September 2015 where she explained that the previous tenants of the Richmond store would vacate the premises on 9 October 2015 and the store would ideally be operative within two weeks of that date.[36]  However, she conceded this did not occur as the respondent decided to renovate the Richmond store before opening.[37]

   [36] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [6].

   [37] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [6].

6. Ms Beck also annexed time sheets evidencing the applicant’s shifts at the Melbourne store from approximately 25 November 2015.[38]

   [38] Affidavit of Alana Beck affirmed 20 September 2019 at Annexure B.

7. It was put to the applicant in cross examination that Ms Beck’s intention (as evidenced in her affidavit) was for the applicant to commence employment at the Melbourne store on a casual basis until such time as the renovation of the Richmond store was completed. In response, the applicant said:

   This is where I believe I signed a contract which was for full-time employment not casual employment and my contract stated something like I could work between four and 38 hours and it was full-time employment, not casual employment.[39]

   [39] Transcript page 12 at lines 23 to 25.

8. It was also put to the applicant that she did not raise any concerns about her entitlement to payment on a full time basis during this period until after her resignation three years later in November 2018.[40]  In response, the applicant said that she had discussed these matters with Mr Albert Morris many times.[41]

   [40] Transcript page 12 at lines 32 to 34.

   [41] Transcript page 12 at lines 33 and 34.

9. As to whether there was evidence of an intention that the applicant would be paid on a full time basis whilst renovations at the Richmond store were being completed, the applicant said:

   There’s no evidence… I can clearly remember on three occasions having words with Albert, and they weren’t very pleasant words.  The job suited me.  I live locally.  I could walk to work.  …I have an elderly mother that I take care of.  Unfortunately, after we had words, things started to change.  He requested that I work in the city four days a week, which wasn’t possible at all.  So it was… because of my words with Albert… and your mother that things changed, and that’s when I got very upset, because I couldn’t work in town four days a week.  That was not what I was employed to do.[42]

   [42] Transcript page 13 at lines 7 to 15.

10. On the basis of the totality of the evidence, I find the agreement between the parties was that the applicant would commence full time employment once she commenced at the Richmond store, and prior to that, she was employed on a casual basis and paid accordingly.

11. Accordingly, the applicant has failed to make out her claim for payment on a full time basis from 29 October 2016.

Proper classification

1. It is not disputed that the applicant’s employment was subject to the Award.  Clause 16 of the Award relevantly provides:

   16.1All employees covered by this award must be classified

   
   

   according to the structure set out in Schedule B – Classification.  …

   16.2The classification by the employer must be according to the

   
   

   skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.

2. The applicant asserted that she ought to have been paid at the rate of a Level 6 employee.[43]

   [43] Applicant’s application filed 17 May 2019, Annexure to Part I page 4 at paragraph [32].

3. Conversely, the respondent’s position is that the bulk of the applicant’s duties fell within the duties of a Level 1 employee.[44]  However, the respondent appropriately conceded that the applicant was required to open and close the Richmond store and consequently, this additional responsibility brought her employment within the classification of a Level 3 employee.[45]

   [44] Respondent’s outline of case dated 8 October 2019 page 3 at paragraph [14].

   [45] Respondent’s outline of case dated 8 October 2019 pages 3 and 4 at paragraph [14].

4. Schedule B of the Award containing the classification levels is annexed to the affidavit of Ms Armes.  I will not set out the classification descriptors in full here, however, I have had regard to them in their entirety.

5. I take particular note of the following:

   a)A Level 1 Retail Employee is:

   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 display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods;

   …

   ·the receiving, arranging or making payment by any means;

   …

   ·window dressing and merchandising;

   ·loss prevention;

   …

   ·the provision of information, advice and assistance to customers…[46]

   [46] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.1.1.

6. Indicative job tiles usually within the definition of a Level 1 Retail Employee include a shop assistant.[47]

   [47] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.1.3.

7. A Level 3 Retail Employee is an ‘employee performing work at a retail establishment at a higher level than a Retail Employee Level 2’[48]. Indicative tasks which might be required at this level include:

   ·opening and closing of premises and associated security;

   ·security of cash…[49]

   [48] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.3.1.

   [49] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.3.2.

8. Indicative job titles at Level 3 include a senior sales person.[50]

   [50] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.3.3.

9. A Level 6 Retail Employee is ‘an employee performing work in connection with a retail establishment at a higher level than a Retail Employee Level 5.’[51]Indicative job titles which usually fall within this classification include:

   ·Section/Department manager with 5 or more employees (including self),

   ·Manager/Duty Manager in a shop without Departments/Sections (may be under direction of person not exclusively involved in shop management).[52]

   [51] Affidavit of Alana Beck affirmed 20 September 2019 Annexure C at B.6.1.

   [52] Affidavit of Alana Beck affirmed 20 September 2019, Annexure C at B.6.2.

10. In order to understand the classification descriptor associated with a Level 6 Retail Employee, consideration must be given to each of the descriptors below that level.

1. For example, a Level 4 Retail Employee is an employee who performs “at a higher level than a Retail Employee Level 3.”[53]  Indicative tasks associated with such a role include management of a defined section or department, supervision of up to four sales staff, stock control, and buying or ordering requiring the exercise of discretion as to price, quantity and quality.[54]

   [53] Affidavit of Alana Beck affirmed 20 September 2019, Annexure C at B.4.1.

   [54] Affidavit of Alana Beck affirmed 20 September 2019, Annexure C at B.4.2.

2. Ms Beck’s evidence was that at all times, the applicant was subject to her direction in the performance of her duties.[55]  Moreover, Ms Beck stated that the applicant:

   a)did not have any duties which could be described as managerial;

   b)did not have any supervisory duties;

   c)was not responsible for the employment of staff; and

   d)had no capacity to deal with issues of stock and stock control.[56] 

   [55] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [7].

   [56] Affidavit of Alana Beck affirmed 20 September 2019 page 2 at paragraph [7].

3. Essentially, Ms Beck deposed that the applicant’s main duties were to serve customers who attended the Richmond store.[57]

   [57] Affidavit of Alana Beck affirmed 20 September 2019 page 3 at paragraph [7].

4. When this was put to the applicant, she conceded that she was not required to roster staff, nor was she required to supervise any other staff member or have any responsibility for hiring staff, as she was the only employee at the Richmond store.[58]  The applicant also said that she received inventory.[59]  Whilst she conceded she reported to Ms Beck, she made the point that Ms Beck was in another store so she was not physically there on a day to day basis.[60]

   [58] Transcript page 9 at lines 40 to 43.

   [59] Transcript page 9 at line 44.

   [60] Transcript page 10 at lines 1 to 3.

5. The applicant disputed the assertion that she did not have any managerial responsibility.  She said that as the person responsible for opening and closing the shop and being responsible for its aesthetics, she had a level of managerial responsibility.[61]  The applicant conceded that she did not have responsibility of stock but added that if she required additional stock, she could request it.[62] Similarly, she would respond to requests from the Melbourne store for stock to be transferred there if required.[63]

   [61] Transcript page 10 at lines 6 and 7.

   [62] Transcript page 10 at lines 27 and 28.

   [63] Transcript page 10 at lines 30 and 31.

6. Having regard to the totality of the evidence, I find that the applicant’s duties bring her within the descriptor of a Level 3 Retail Employee, particularly having regard to the fact that she was responsible for opening and closing the store.  A Level 4 Retail Employee onwards has significant supervisory responsibilities which the applicant by her own admission, did not have.

7. I therefore find that the applicant was properly classified as a Level 3 Retail Employee.

Meal breaks

1. Clause 31.1(a) of the Award provides that where an employee works for more than 5 hours and less than 7 hours, they are entitled to one 10 minute rest break and one meal break of not less than 30 minutes.  Where the employee works more than 7 but less than 10 hours, they are entitled to an additional 10 minute break.

2. The applicant’s evidence was that she regularly worked during her lunch breaks. Consequently, this meant that she worked 39 hours per week but was only paid for 36.5 hours per week.[64]

   [64] Applicant’s application filed 17 May 2019, Annexure to Part I page 2 at paragraphs [17] to [20].

3. The respondent’s case was that the applicant was directed at all times to take her meal break, by:

   a)being relieved by her manager, if she was at the Richmond store;

   b)being relieved by the designer Ms Mitchell, who worked above the Richmond store; or

   c)closing the store for 30 minutes whilst she took her break.[65]

   [65] Respondent’s outline of case dated 8 October 2019 page 2 at paragraph [8].

4. The applicant also relied on evidence given by a friend, Dr Ward in relation to the lunch breaks issue.

5. Dr Ward’s evidence was that:

   a)he lives close by to the Richmond store; and

   b)he himself has visited the Richmond store as a customer; and

   c)he frequently brought lunch to the store for the applicant because he knew that she did not get a lunch break.[66]

   [66] Transcript page 17 at lines 45 to 48.

6. When asked about this by me, he said:

   The circumstances of my employment is I have a home-based role, so my hours are my own to keep.  … I live about 80 metres from the store.  I used to run a catering business, so there was always food in the fridge at home and I knew that (the applicant) wasn’t getting a scheduled lunch break and I took it upon myself at least three to four times a week to take lunch up there …just something to drop in.  And my observations in that store were that the table of what they call sit and knit, which is pretty common in knitting, fabric-type stores, is that the customers purchase their wool and consume it in-house.  So they would sit there and there could be anything from two to a dozen of them at the table, and there were also customers coming in and purchasing at the same time.  Now, I observed those sales and occasionally I would sit on the back step at the same time with Clare and just gobble down a sandwich.

   … I knew the circumstances of the disputes between [the applicant] and… Mr Morris were that there was no scheduled lunch break.  He was telling her, ‘That’s too bad.  Close the store if you can.’ Was basically the ultimatum that was put to her.[68]

   [68] Transcript page 18 at lines 12 to 15.

7. Ms Beck deposed that the applicant would need to close the store if she was alone to allow her time to have a half hour lunch break.[69]  Ms Beck’s evidence was that she specifically gave these instructions to the applicant.[70]

   [69] Affidavit of Alana Beck affirmed 20 September 2019 page 3 at paragraph [8].

   [70] Affidavit of Alana Beck affirmed 20 September 2019 page 3 at paragraph [8].

8. In addition, Ms Beck stated that another employee, Ms Mitchell, sometimes worked from the Richmond store as a designer and if she was there, the applicant was to take her lunch break and Ms Mitchell would ‘cover for’ the applicant during that period.[71]  The applicant conceded that this was the case when Ms Mitchell was there.[72]

   [71] Affidavit of Alana Beck affirmed 20 September 2019 page 3 at paragraph [8].

   [72] Transcript page 11 at lines 16 to 22.

9. Ms Beck further deposed that on occasions when she visited the Richmond store, she told the applicant to go upstairs and have her lunch and that she would cover the store to allow her the break.  Ms Beck went on to say:

   despite what I told her she seemed content to eat her lunch in the shop whilst I attended to customers.  I was never made aware that Ms Crosbie was not closing the store at other times or that [Ms Mitchell] was not looking after the store during [the applicant’s] lunch breaks.[73]

   [73] Affidavit of Alana Beck affirmed 20 September 2019 page 3 at paragraph [8].

10. The applicant agreed with the evidence given by Ms Beck in this regard, but suggested it was only on a few occasions that Ms Beck was at the store and able to relieve her at lunch time.[74]

    [74] Transcript page 11 at lines 17 and 19.

11. In relation to the lunch break issue, Ms Armes stated that the applicant had mentioned that on occasion she was not closing the Richmond store to take her lunch break.[75]  Ms Armes said in her affidavit:

    I made it very clear to her that she was expected to close the store if no one else was there in order to take her lunch break.  I had understood that this was the practice that had always existed in relation to people working alone in one of our stores.[76]

    [75] Affidavit of Victoria Armes affirmed 18 September 2019 page 2 at paragraph [4].

    [76] Affidavit of Victoria Armes affirmed 18 September 2019 page 2 at paragraph [4].

12. Having regard to the totality of the evidence, I find that the applicant was directed to take her meal breaks and was given a number of options as to how this might occur, particularly in circumstances where she was often the only employee at the Richmond store.

13. Although the tone which he attributed to the direction given was less than positive, Dr Ward’s evidence was consistent with the respondent’s evidence that the applicant had been told on numerous occasions to take a meal break, including by closing the store to do so. 

14. In circumstances where the applicant was often the only employee in the store, it was entirely within her control as to when she could take a break.  I am not satisfied that the applicant was told not to take a meal break, or indeed that the store was so busy and understaffed to prevent her from taking a meal break. 

15. I accept the respondent’s evidence in this regard and find that the applicant has not established to the requisite standard that the respondent failed to provide her with meal breaks as required by the Award. 

Hours of work

1. In terms of start and finish times, the applicant conceded that her contracted hours were from 10:00am to 6:00pm on Tuesday to Friday and 10:00am to 5:00pm on Saturday.[77] 

   [77] Transcript page 11 at lines 24 and 25.

2. However, the applicant stated she often started work 10 to 15 minutes early to open up.  In this regard, the applicant said:

   On many occasions, I was happy to come in early.  The managers who did come in and transfer stock would need to rush into the Melbourne store and have it opened by 10 o’clock … and because I live locally, I was happy to walk up at 9.30, quarter to 10.[78]

   [78] Transcript page 11 at lines 29 to 32.

3. Ms Redrup was employed as the store manager by the respondent from August 2016 until January 2018.[79] In her affidavit, she gave similar evidence in relation to the applicant’s hours of work and the lunch break issue, namely that the applicant worked from 10:00am to 6:00pm Tuesday to Friday and 10:00am to 5:00pm on Saturday.[80]

   [79] Affidavit of Teresa Redrup affirmed 25 September 2019 page 1 at paragraph [1].

   [80] Affidavit of Teresa Redrup affirmed 25 September 2019 page 1 at paragraph [3].

4. Ms Armes took over the role of store manager in July 2018 and continues in that role.  She stated that her role was to manage both the Melbourne and Richmond stores.[81]

   [81] Affidavit of Victoria Armes affirmed 18 September 2019 page 1 at paragraph [1].

5. In her affidavit, Ms Armes gave evidence that she regularly dropped into the Richmond store and spoke to the applicant.  She deposed that:

   a)upon commencing her role in July 2018, the applicant was employed on a full time basis at the Richmond store and her duties were to open and close the store and to attend to the daily banking;[82] and

   b)at some point, she altered the applicant’s work arrangements to work one or two days per week in the Melbourne store.[83] 

   [82] Affidavit of Victoria Armes affirmed 18 September 2019 page 1 at paragraph [3].

   [83] Affidavit of Victoria Armes affirmed 18 September 2019 page 1 at paragraph [3].

6. Ms Armes stated she did this for training purposes and to allow the whole team to experience both stores.[84]

   [84] Affidavit of Victoria Armes affirmed 18 September 2019 page 1 at paragraph [3].

7. Ms Armes further deposed that she did not, at any stage, give the applicant instructions that ‘she should commence work 15 minutes before the Richmond store opened or finish work 15 minutes after it closed.’[85]

   [85] Affidavit of Victoria Armes affirmed 18 September 2019 page 2 at paragraph [5].

8. I prefer the evidence of the respondent and find that the applicant was not directed to start work early or finish work late. 

Conclusion and orders

1. For each of these reasons, I find that the applicant has not established her claims.

2. I note that the respondent conceded that the applicant was incorrectly paid in respect of the work performed on Saturdays.  I therefore make an order that, if the respondent has not already done so, within 21 days, it pay:

   a)to the applicant, the sum of $860.30 in respect of unpaid wages; and

   b)to the applicant’s nominated superannuation fund, the sum of $81.30 in respect of outstanding superannuation entitlements.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:              1 November 2019

[67] Transcript page 17 at lines 43 to 47 and page 18 at lines 1 to 8.