Davies v Punthill Apartment Hotels Pty Ltd

[2014] FCCA 1158

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIES v PUNTHILL APARTMENT HOTELS PTY LTD [2014] FCCA 1158

Catchwords:
INDUSTRIAL LAW – Small claims list – claimed contraventions of the Award – whether applicant covered by Award – found applicant not covered by Award – application dismissed.

Legislation:

Fair Work Act 2009, s.45

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[2006] FCA 813
Kucks v CSR Ltd(1996) 66 IR 182
Amcor Ltd v Construction, Forestry, Mining and Energy Union[2005] HCA 10; (2005) 222 CLR 241

Applicant: MONICA DAVIES

Respondent: PUNTHILL APARTMENT HOTELS PTY LTD

File Number: MLG 218 of 2014

Judgment of: Judge Jones

Hearing date: 16 May 2014

Date of Last Submission: 16 May 2014

Delivered at: Melbourne

Delivered on: 13 June 2014

REPRESENTATION

Counsel for the Applicant: Mr Davies appearing in person on behalf of the Applicant

Solicitors for the Applicant: Self represented

Counsel for the Respondents: Ms Caras appearing in person on behalf of the Respondent

Solicitors for the Respondents: Self represented

ORDERS:

1. The application filed on 10 February 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 218 of 2014

MONICA DAVIES

Applicant

And

PUNTHILL APARTMENT HOTELS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application and Form 5 Small claim under the Fair Work Act 2009 (Cth) “(the Act”) together with a statement of claim filed on 10 February 2014, MONICA DAVIES (“the applicant”) claims that PUNT HILL APARTMENT HOTELS (“the respondent”):

   a)contravened s.45 of the Act by contravening terms of the Hospitality Industry (General) Award 2010 (“the Award”); and

   b)breached the applicant’s contract of employment.

2. There is no dispute that the applicant, together with her husband Mr Davies, was employed by the respondent as a Resident Manager. The respondent claims that the applicant was not covered by the Award. The applicant claims that she was employed by the respondent at all times under classification D.2.9 Managerial staff – hotels, Schedule D – Classification Definitions to the Award. The applicant does not claim that she was otherwise employed under any other classification specified in Schedule D to the Award. Accordingly, the Court must first decide, before it proceeds to consider the breaches of the Award and contract of employment alleged by the applicant, whether the applicant was employed under classification D.2.9 Managerial staff – hotels, schedule D to the Award.

3. The applicant relied on her affidavit filed on 17 April 2014, together with her Statement of Claim. She gave evidence and was cross examined. She tendered an exhibit (“A1”) being photographs of a building described as Punthill Apartment Hotels. The respondent relied on an affidavit of Ms Robin Lynne Caras, joint proprietor of the Punthill Apartment Hotel Group, filed on 11 March 2014. Ms Caras gave evidence and was cross examined.

4. Ms Caras’ evidence was that the Punthill Apartment Hotel Group comprised of 14 properties, including serviced apartments and conference facilities, a centralised head office where senior management were located. The reservations for accommodation or conference facilities are made through the head office. The respondent employs Resident Managers who live on site and whose duties included checking guests in and out and coordinating service staff such as cleaners. She stated that the respondent had conference facilities, the use of which may involve the provision of alcohol as part of a package comprising food and beverages negotiated with the client. However, she stated that neither conference delegates, any person off the street or guests could purchase alcohol from the respondent. She pointed out that there were no minibars in the apartments. In cross examination she agreed that there were arrangements for the apartments where guests could order food and alcohol from an attached or nearby restaurant which would then be delivered as room service. She said these restaurants were not owned by the respondent. She stated that guests would either pay the restaurant direct or the expenses would be covered by the respondent and charged back to the guest on checkout. She said the respondent was not licensed to sell liquor. She stated that the respondent had a limited liquor license to enable alcohol to be served at conferences. However, the alcohol served was limited to the alcohol specified in the package. A conference delegate was not at liberty, for example, to order a bottle of wine outside the provision of alcohol as specified in the package. As Ms Caras evidence was not disputed, I accept her evidence regarding the nature of the business of the respondent.

5. The applicant’s evidence was that she believed the respondent’s premises were hotels as they were similar to other hotels she had worked having regard to the salary and working arrangements at the respondent’s premises.

Relevant Award Provisions

1. Clause 4 of the Award sets out the Award’s coverage. Clause 4.1 provides that the Award covers employers in the hospitality industry and their employees in the classifications within schedule D to the award.

2. Clause 4.2 of the Award sets out the scope of the phrase “hospitality industry” and provides:

   “4.2For the purpose of clause 4.1, hospitality industry includes hotels; motor inns and motels; boarding establishments; condominiums and establishments of a like nature; health or recreational farms; private hotels, guest houses, serviced apartments; caravan parks; ski lodges; holiday flats or units, ranches or farms; hostels, or any other type of residential or tourist accommodation; wine saloons, wine bars or taverns; liquor booths; resorts; caterers; restaurants operated in or in connection with premises owned or operated by employers otherwise covered by this award; casinos; and function areas and convention or like facilities operating in association with the aforementioned.” (Emphasis added)

3. Classification D.2.9 Managerial staff – hotels, schedule D is as follows:

   “D.2.9 Managerial staff—hotels

   [D.2.9 varied by PR994455 from 01Jan10; Managerial staff—hotels renamed as Managerial staff (Hotels) by PR540249 ppc 15Aug13]

   For the purpose of this additional classification, hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.

   In this additional classification, hotel manager means an employee (however designated) who:

   ·under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and

   ·directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and

   ·implements policies, procedures and operating systems for the hotel;

   but excludes an employee who is employed to undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:

   ·Company secretary;

   ·Chief accountant;

   ·Personnel or human resources manager;

   ·Financial controller;

   ·Industrial relations manager;

   ·Venue manager;

   ·General/hotel manager;

   ·Executive assistant manager;

   ·Regional manager; or

   ·a Manager to whom any of those positions report or are responsible.

   An employee appointed as a Manager will have completed an appropriate level of training in business management or have relevant industry experience including the supervision of staff in one or more areas of an hotel. In a General Hotel, this classification is commonly known as an Assistant Manager. In an Accommodation Hotel, this classification may include any of the following positions: Duty Manager; Assistant Food and Beverage Manager; Assistant Rooms Division Manager; Assistant Front Office Manager or equivalent position.

   This additional classification does not apply to:

   ·Any hotel manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) where the Hotel Manager holds sufficient number of shares to entitle the Hotel Manager to voting control at general meetings of the company; or

   ·Any hotel manager who is the senior partner of a partnership or has at least 49% of that partnership; or

   ·A parent, spouse or de facto partner, son or daughter of a hotel manager excluded from the additional classification by this paragraph.

4. The award does not provide a definition of hotel in the Definition and Interpretations clause (Clause 3).

Applicant’s Submission

1. The applicant submits that classification D.2.9 must be read in the context of clause 4.2 of the coverage clause in the Award. The applicant submits that having regard to the comma located after the word “hotels” in the opening line of clause 4.2, the specification of entities, businesses or establishments which follow in that clause are intended to be construed as examples of entities which fall within the meaning of “hotels.” One such entity which is identified is, “private hotels, guest houses, serviced apartments.”

2. The applicant submits that the respondent’s business is that of serviced apartments. This she submits is an entity specified in clause 4.2 as being an example of the scope of the meaning of the word “hotels”. Consequently, the reference in classification D.2.9 to “hotels means hotels,” is also a reference to serviced apartments.

3. The applicant was employed as a Resident Manager by the respondent and therefore was classified at classification level D.2.9 of the Award.

Respondent’s Submission

1. The respondent submits that its business is not a retail licensed establishment. Consequently, it is not a hotel within the meaning of clause D.2.9. The respondent submits that classification D.2.9 applies only in specified venues such as licensed hotels. It submits that the definition contained in classification D.2.9, unlike the coverage clause of the Award, does not include serviced apartments and does not cover premises such as the Punthill Apartments where there is no hotel licence or general liquor licence. The respondent further submits that, even if it fell within the meaning of “hotel” in D.2.9, the applicant was not employed in that classification because she did not undertake the duties specified, nor did she have the requisite qualifications or industry experience.

Construction of Awards

1. The principles governing the construction of awards are set out in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[2006] FCA 813; (2006) 153 IR 426, where at 438 French J (as his Honour then was) stated:

   “[53]The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part or to other documents with which there is an association.” It may also include “... ideas that gave rise to an expression in a document from which it has been taken” — Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).

   ...

   [57]It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

   “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

2. This approach now appears to be universally accepted: Kucks v CSR Ltd(1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union[2005] HCA 10; (2005) 222 CLR 241 per Gleeson CJ and McHugh J at 249; Kirby J at 267 and 270; Callinan J at 283.

Consideration

1. There is no dispute and I am satisfied that the respondent is in the business of the provision of serviced apartments together with conference facilities. There is no disputing and I am satisfied that the respondent does not hold a retail liquor licence.

2. In determining whether the applicant was employed by the respondent in classification D.2.9, the Court must first determine whether the respondent is a hotel within the meaning of classification level D.2.9. In considering this the Court has regard to the context and purpose of the classification as well as the instrument as a whole.

3. I do not accept the applicant’s submission that the entities identified following the reference to hotels in clause 4.2 are but examples of the types of hotels which are said to fall within the hospitality industry. This would require the Court to read into clause 4.2, after the reference to the word “hotels”, the word “including”. I am not prepared to do so. In my opinion to do so would be far removed from the intentions of those who drafted the clause. I am fortified in this opinion by the fact that at the commencement of clause 4.2 the word “includes” is used in the phrase “hospitality industry includes.” It is unlikely that those drafting clause 4.2 would use an inclusive phrase at the commencement of the clause but failed to do so subsequently in the clause if they intended the clause to mean that the word “hotels” included the entities specified thereafter.

4. Schedule D provides for various classifications. There are the Food and Beverages Stream, Kitchen Stream, Guest Service Stream, Administration Stream, Security Stream Leisure Activities Stream, Stores Stream and Maintenance and Trades. None of these are limited in their application to a particular type of entity in the hospitality industry.

5. Classification D.2.9 is unique in that the classification is limited to a manager (as defined by duties, responsibilities, qualification or industry experience) employed in a hotel as defined in the classification.

6. Having regard to the contextual meaning must involve a consideration of the coverage clause of the Award, clause 4. The coverage of the Award is specified, in clause 4.1, as employers in the hospitality industry and their employees in classifications in schedule D. Clause 4.2. it is plainly directed to specifying these entities which the reference to hospitality industry in clause 4.1 includes. Each of the entities which are said to be included in the term “hospitality industry” is separated by a semi - colon. Thus “hotel” is identified as one entity; “motor inns and motels” is identified as another entity and so on. Another identified entity is, “private hotels, guest houses, serviced apartments.”

7. There can be no doubt that the inclusion of a Manager classification was intended to be limited to particular entities in the hospitality industry, as defined in the classification.

8. In my opinion, it strains the ordinary meaning of classification D.2.9 to construe the reference to hotels as including serviced apartments. This is apparent by contrasting clause 4.2 which specifies numerous entities which the hospitality industry is said to include with classification D.2.9 which defines hotels as meaning a subgroup of the entities specified in clause 4.2 (hotels, resorts, casinos, taverns, and wine saloon) and an additional category. The additional category specified in clause D.2.9 is expressed as “wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.”

9. Clearly, in defining the meaning of “hotels” for the purpose of clause D.2.9, a particular subset of the coverage clause, clause 4.2, together with an additional entity were specifically selected. I am satisfied that if the meaning of “hotels” in classification D.2.9 was intended to include “serviced apartments”, this entity would have been specified in the classification.

10. A further question which arises is whether the respondent falls within the meaning of the phrase “other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith”.

11. There is no dispute that the respondent is not a retail licensed establishment, hence I am satisfied that this broad description of businesses which falls within the meaning of “hotels” for the purpose of clause D.2.9 does not include the respondent.

Conclusion

1. I find that the respondent, being a business which provides serviced apartments and conference facilities and which is not a retail licensed establishment, is not a hotel within the meaning of clause D.2.9 of the Award.

2. Accordingly, I find the applicant is not covered by the Award. Having regard to my findings, the applicant’s application filed on the 10 February 2014 is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  13 June 2014