Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman
[2017] FCCA 423
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HINDU SOCIETY OF VICTORIA (AUSTRALIA) INC v FAIR WORK OMBUDSMAN | [2017] FCCA 423 |
| Catchwords: INDUSTRIAL LAW – Compliance notice – review of compliance notice – review application dismissed. |
| Legislation: Fair Work Act 2009, ss.570, 716(2), 717(3) Restaurant Industry Award 2010 |
| Cases cited: Hindu Society Of Victoria (Australia) Inc v Fair Work Ombudsman [2016] FCCA 22 |
| Applicant: | HINDU SOCIETY OF VICTORIA (AUSTRALIA) INC |
| Respondent: | FAIR WORK OMBUDSMAN |
| File Number: | MLG 2645 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 23, 24 & 25 August 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fitzgerald |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the Respondent: | Ms Dowsett |
| Solicitors for the Respondent: | Office of the Fair Work Ombudsman |
ORDERS
The application filed 23 December 2014 be dismissed.
Pursuant to s.717(3) of the Fair Work Act 2009, the Compliance Notice issued to the Applicant on 19 November 2014 be confirmed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2645 of 2014
| HINDU SOCIETY OF VICTORIA (AUSTRALIA) INC |
Applicant
And
| FAIR WORK OMBUDSMAN |
Respondent
REASONS FOR JUDGMENT
Background
In 2011, the Applicant, the Hindu Society of Victoria (Australia) Inc, employed Mr SN to work in the Temple that they operate in Melbourne. Mr SN travelled from India to Australia to take up the position, which included accommodation on the Temple premises. The (Applicant’s) employment terms were set out in a contract of employment entered into by Mr SN. Mr SN commenced work on 16 June 2011.
Mr SN ceased working for the Hindu Society in November 2012, after a workplace injury suffered when operating a flour grinding machine. Following that injury, he attended upon a solicitor who made a complaint on his behalf to the Fair Work Ombudsman (“the FWO”), highlighting that the contract of employment provided for a lower rate of pay than that which would have been applicable under the relevant industry award for a person working in a kitchen.
Following investigations, the FWO concluded that the appropriate award for the work actually being carried out by Mr SN was the Restaurant Industry Award 2010 (“the Award”) and issued a Notice under s.716(2) of the Fair Work Act 2009 (“the Act”).
The Applicant argues that the Notice should be cancelled under s.717(3) as it has not contravened the Act by failing to make payments in accordance with the Award, on the basis that:
a)the Applicant is not “in” the restaurant industry and therefore not covered by the Award;
b)Mr SN was not appropriately classified as a cook under the Award; and
c)the calculations carried out by the FWO in drawing the compliance notice were incorrect.
In Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman [2016] FCCA 22, I considered the operation of the provisions and found that the Applicant bore the onus of proof.
This matter requires consideration of two substantive matters; whether or not the Applicant, in running its canteen in the Temple (and later in the Cultural and Heritage Centre) was operating a business within the ambit of the Award; and whether or not Mr SN was fulfilling his contract by providing religious services as an assistant priest, or alternatively was working within the definition of a cook covered by the Award.
The evidence
Nine witnesses provided affidavits and gave evidence on behalf of the parties. In addition, a number of documents were tendered including, importantly, the annual reports of the Applicant through relevant years.
The Applicant called Kandasamy Sampanthar, the current president of the Hindu Society, to give evidence. He explained that the Applicant is a not-for-profit organisation run to benefit its members, by providing for the religious and cultural needs of Hindus in Victoria. The Hindu community in Victoria includes members from a wide variety of overseas countries. Mr Sampanthar has been a member of the Applicant since 2007 and held positions on the management committee prior to becoming president. He was the vice-president during the relevant period. He produced a copy of the contract which describes the role of Mr SN as a priest, and a letter setting out his religious duties.
The visa application, for which the Applicant was the sponsor, described Mr SN as an assistant to a priest and within the occupation of “religious worker”. Mr Sampanthar said that the employee’s duties included some food preparation and cooking in the Madapalli kitchen.
Following the FWO’s Notice, the Department of Immigration concluded that Mr SN had worked as a cook and kitchenhand, and as a result, it suspended the Applicant’s ability to act as a sponsor for 12 months. However the Migration Review Tribunal overturned this decision on review. Based upon evidence provided by the Applicant to the Tribunal, the member concluded that Mr SN was acting as a Madapalli priest, and was carrying out the duties of a Madapalli priest, and therefore revoked the suspension. In the proceedings before this Court, that decision is not binding as it is a decision of an administrative body, and made in circumstances where neither Mr SN nor the FWO were able to place evidence before the Tribunal.
Mr Sampanthar explained that food is an integral part of the religious observances of the Hindu community. There is food given to worshippers for free after it is blessed by the Temple priest. There is also food available for purchase that has been blessed by the priest. In addition, there is a particular type of food that is offered to the deities which must be prepared by the priests. All the food is vegetarian. The cooking must be, at a minimum, supervised by a Hindu, if not cooked by the priests.
At the Temple, the original kitchen, which is referred to as the Madapalli kitchen, is now only used to prepare the food for the offerings to the deities, with the balance of the food being prepared in a large commercial kitchen in the Cultural Centre. Mr Sampathar said that 28,000 plates of free food were given away in 2016, and that there was considerable demand from the community for Temple food which is often given to relatives and friends as blessed food. It is also clear that a considerable number of people attend at the Cultural Centre as visitors (often school groups and aged groups attending by bus) who partake of the food available at the Cultural Centre canteen.
The Annual & Financial Reports of the Applicant (Exhibit ‘2’) give some indication of the size of the undertaking. By the 2012/13 financial year, the catering income being generated by the Applicant was in excess of $680,000. However, this represented a relatively small proportion of the Applicant’s overall revenue stream which totalled in excess of $2.5 million for the year. Whilst the gross income of the canteen has been increasing over the years, it had already reached more than $280,000 per annum at the time that Mr SN was engaged (as shown in the 2010/2011 financial statements for the Applicant). In the Annual Report for that year, the following appears:
HSV canteen
An experienced chef and an additional cook have been recruited to the canteen. With this additional resource the canteen now caters a variety of dishes. Additional space has been provided for dining in. Take away and external catering for functions too are becoming popular. As in the past several volunteers help to sell and serve food as well and help in large scale cooking and cleaning.
I am satisfied on the material that the reference to “additional cool” is a reference to Mr SN.
At p.8 of that Annual Report it was said that the income from the canteen in that year was similar to the previous year but that “For the most part of the year canteen was staffed by only one paid staff.” Whilst there was no reference to kitchen staff in the 2011/2012 Annual Report of the Applicant, a reference appeared in the 2012/2013 Annual Report, where it said on p.3:
Kitchen staff: This year we have given farewell to one of our most hardworking staff Mr. Sabramani. Mani was recommended by Rangaiah and he never failed to follow his father-in-law’s footsteps. We also got a new cook, Mr Ramesh Javali. Now we have a good talented and professional cooking team under our Head Chef Mr. Panneer who is a specialist in both North and South Indian dishes.
It seems clear from this that the canteen was being staffed by a chef and a cook on an ongoing basis.
The document goes on to discuss canteen growth, saying:
Canteen Growth: Compared to last year we are happy that we have achieved a growth of more than 50%. The reasons being our quality food, satisfying customer service, enhanced eat-in facility and competitive pricing. As mentioned before, we have taken various measures to develop and update our infrastructure to match the growth. Though we have focused on maintaining canteen growth, we are also cautious in maintaining our food price at a very reasonable and affordable level. During the year our canteen price increases are very modest and very competitive. We are also mindful that our clientele are mainly families and people travelling from faraway places. We never forget our community service obligations in our service and pricing decisions.
The witness explained that a great number of people volunteered in the canteen (saying there were around 60 to 70 volunteers). The volunteers donate their services for spiritual satisfaction, to help the Applicant, and to help the Cultural Centre to save money. From Mr Sampathar’s perspective, the primary focus of the canteen is to provide food to worshippers. However, the takings of the canteen and the extent of its work (particularly with catering) makes it clear that the canteen had significantly outgrown a purely religious service.
The Applicant also called Mr Mahendran Vasanthakumar to give evidence. He was the treasurer of the Applicant for the 2012/2013 financial year, and the assistant treasurer the year before that. He had not checked the specific payments to Mr SN as he understood him to be on an annual salary and, in any event, he was not Mr SN’s direct supervisor. He was able to explain the financial statements and the areas of operation they related to. He pointed out that a large amount of rice and lentils are donated to the Temple.
The canteen is clearly a significant undertaking in its current form as it seats 200 people. The current arrangements provide for sweets to be sold in the Temple for devotees to give to the gods, but other food is generally provided elsewhere. Mr Vasanthakumar said that sometimes the food is made in both locations, to give away, but clearly the majority of it was made in the commercial kitchen.
Mr Vasanthakumar was not involved in the visa application that had been made to the Department of Immigration.
Mr Vasanthakumar confirmed that the Temple gates are closed at night and that the Temple had a time clock. The priests have the key and, on occasions, he had been there over the weekend, when he had obtained the key from the priests and given it back to them. Like most who are involved with the Temple, Mr Vasanthakumar is also a volunteer. He said that the time clock was initiated after a fire occurred in the Madapalli kitchen and the insurance assessor said that there should be a record of who is working in locations at all times.
Mr Paneer Selvam was also called to give evidence. He is currently employed as a chef by the Applicant and has been in this role since 2011. Mr Selvam said that he was the only chef employed when he first started, and he worked with Mr SN. He said that he accorded Mr SN respect for his role as a Madapalli priest, and that others did as well. Mr Selvam said that Mr SN worked to his own timeframes for any preparation required and generally worked with a delegate of the Temple committee, rather than being under the direct control of the chef. He was not aware of what duties Mr SN performed in the Temple outside of the kitchen.
Mr Selvam explained that the provision of food expanded once the larger kitchen opened at the Cultural Centre, and went into some detail about the various functions performed in the kitchen (see paragraph [10] of his affidavit.) Mr Selvam explained that there was no profit target because in his view, the canteen sold food at less than commercial rates. He said that he did not manage Mr SN because he was an assistant priest. Mr Selvam was also of the view that he had not requested, nor was there a need for, Mr SN to work such long hours as shown on the time sheets, said to set out the work carried out by Mr SN. Mr Selvam said, in cross-examination, that if there were not enough volunteers, Mr SN would come to help and that he would often perform duties such as grinding flour and making batter.
Mr Selvam said that some devotees would prefer Brahmins to cook the food. He said that each day there were five people in the kitchen as volunteers. He also agreed that during the period, another board member was trying to grow the food business, utilising electronic media.
The Applicant also called Mr Ponniah Indraharan. He had served in various voluntary positions on the management committee, and provided an affidavit in response. In his affidavit, he said that the witnesses called by the FWO would not have been able to distinguish the particular role carried out by Mr SN. He said that in the old kitchen he would have coordinated with Mr SN, the chef and volunteers to produce a number of “blessed food plates that would be required” and that Mr SN would be guiding the volunteers and the chef. Mr Indraharan’s evidence was that Mr SN’s role was to provide the Madapalli ritual functions in preparing the food to be served to the devotees (see paragraph [27] of his affidavit.) He further said at paragraph [28] that Mr SN’s role “required him to contribute the religious aspects of preparing the blessed food, and in such effort, he was assisted by other employees and volunteers.” Mr Indraharan said that no complaint was ever raised by Mr SN, even though he was responsible for managing him. He also said Mr SN performed the role expected by him at his chosen times of convenience.
The Employment Documents
The specific duties set out in the contract dated 17 June 2011 and signed by the Applicant and Mr SN were:
SPECIFIC DUTIES
1) To assist all priests in their duties which are currently performed in the temple to the scheduled time limits.
2) Wash and iron all fabrics used for decorating deities.
3) Prepare Naivethiam (special food offerings to deities) and prasadam.
4) Make fresh flower garlands daily for deities.
5) Clean and maintain all brass and silverware used in rituals.
6) Maintain and clean all shrines in accordance with Indian Architectural traditions.
7) Maintenance and cleaning of the temple kitchen and utensils.
A similar list of duties was contained within the letter of appointment sent to Mr SN in January 2011, where the following was set out:
SPECIFIC DUTIES
1, To share all duties, which are currently performed by the priests of the temple by arrangements with them and the managers.
2, To attend to the “yagasalai” and “kumba” arrangements for various poojas.
3, To decorate the deities (saathupadi) for all kind of utaavas.
4, To prepare “naiveithiam” and “prasadam” for the temple requirements.
5, To conduct and / or participate in pooja functions and to ensure they are conducted strictly according to the time limits and schedule.
6, To prioritise and for see the requirements for the forthcoming events and make necessary arrangement in conjunction with the other Priests and the Manager.
7, To be responsible for cleaning and maintenance of the deities and sanctum sanctorum ( all Moolasthanam ) and all oher property belonging to the temple and used in the pooja and ceremonies.
8, To make garlands for deities.
9, To account all monies, other items and property received for and on behalf of the temple.
10, To perform any other duties as and when directed by the manager or his assistant.
11, To attend, participate and conduct religious and cultural functions and promote Hinduism and Hindu culture at the temple.
The timetable of work set out in that letter is a table marked as Attachment 4, a copy of which is attached as Schedule 1 to this judgment.
In keeping with these documents, the nomination made to the Department of Immigration for the visa for Mr SN described the benefit to the nominating agency (the Applicant) as follows:
Religious (Hindu) workers are very difficult to locate within Australia, and is in short supply. Maintenance of the temple provides employment for other related workers, expansion of the business of the temple contributing to the overall economy even by tourism to the temple.
In the submissions in support of the application provided to the Department, the list of employees at the Temple provided the four categories of positions: priests, assistant priest, supporting assistant to priest, and managers. There was no mention in the material of a chef or cook. The duties and responsibilities set out in that document were:
The Assistant Priest has the following duties and responsibilities:
· Performing daily poojas including Abishekams, Sahastra Namarchanas, and Homas;
· Assisting the priest in performing Brahmothsavas including Angurarpana poojah, Thwajarohanam (flag hoisting), Rathotsavam, Yaga Sala rituals (fire ceremony), and Theerthotsavam (water cutting ceremony);
· Preparing a variety of prasadam (food such as coconut rice, lemon rice, sweets, Lattu, Panchamirdam, Modakam, Vadai etc;
· Washing and ironing all Vasthiram (fabric) used for deitie;
· Making garlands from fresh flowers for deities;
· Clean and maintain all brasswares/silverware and utensils used for poojas;
· Periodic cleaning of granite and Panchaloka Vigrahas, and the shrines to meet necessary hygienic standards;
· Keep temple kitchen tidy, clean and maintain it to a level which meets the Australian standards;
· Open temple everyday for the public.
The core skills were described as:
The skills required for this position include:
· Capacity to work under pressure with minimum supervision;
· Ability to work as a member of a team;
· Prioritising work load and organising team activities;
· Excellent oral communication to understand the requirements of the congregation.
Notably, none of the core skills involved cooking. Following this list, there is some discussion of the importance of sanctified food served to the deities and then to worshippers. The reference is clearly to food that is “offered by the priest to the deities before distribution to the devotees.”
However, in the additional background material, it is said, “It should be noted that just being a professional cook or chef will not qualify a person to prepare sanctified food in a Hindu Temple.” Rather, the job should be undertaken by persons who have been vegetarian since birth, teetotallers, and non-smokers, who have been inducted into temple service from younger days.
In light of the evidence of the applicant’s own witnesses generally, it is difficult not to come to the conclusion that the witness, Mr Indraharan and Mr Selvam were minimising the extent of the cooking role of Mr SN in the operations of the Temple. The tenor of the documents and evidence, to the effect that the Applicant was primarily focused upon religious duties as an assistant priest, is inconsistent with the material contained in the Annual Report of 2010/2011, where Mr SN was described as a new cook. Not only are the duties inconsistent with the description in the Annual Report, the description does not sit well with the argument that Mr SN was employed to join the organisation in a position that involves at least some degree of religious leadership, which one would expect would ordinarily result in the organisation giving considerable respect to him in title (not referring to him as a cook) and in treatment of him as a religious worker.
The FWO called five witnesses: the inspector, Mr SN, and three other members of the Applicant. At the time that the investigations were being carried out, the then president of the Applicant, Mr Pendyala, cooperated with the FWO’s inspector but did so, on a confidential basis, as there were rifts within the management committee of the Applicant. Mr Pendyala provided the clock cards to the inspector on which the calculations of the wages owing to Mr SN were made.
Ms Brodie Smith, the inspector, was cross-examined at some length about her inquiries. Ms Smith denied that she was told that the clock cards were unreliable, and confirmed that she took the view that the Applicant was a trading entity as a result of looking at the financial records, undertaking a search of the Applicant, and seeking advice from her legal team. This accords with the compliance notice wherein it was set out:
6. During the Contravention Period, a substantial character of the Employer’s enterprise included the operation of a restaurant function within the meaning of the Restaurant Award.
Ms Smith said that, in interviews during the investigation, she had been told that the clock card system had been implemented to keep track of who had come and gone, rather than to calculate wages.
Rather unfortunately, the investigator when speaking to the Applicant, following being asked whether or not the discussions were for “legal purposes”, said that it was not a “record of interview” and that this discussion was for her purposes only and for information purposes. It appears to me that this was misleading, and may have resulted in the interview being excluded from evidence, had an objection been taken. As it transpires, the statements made in the interviews are, in substance, consistent with the case of the Applicant.
Mr SN gave evidence that he worked as a cook, preparing blessed food at the temple. He explained that he was the one who wrote the times on the clock cards as sometimes they had to start early when the office was closed, therefore the clock cards could not be punched in the machine. Mr SN was cross-examined on whether or not he was working as an assistant priest or a cook. He maintained that he was performing cooking in the canteen. Mr SN said that working in the Temple was also a form of worship and that he did extra in service of the deities.
Mr SN explained that whilst he was allowed in the Madapalli, he was not permitted to work there, although he did work there when another priest was present, having said in his affidavit:
38. I was never asked or directed to work in the Madapalli at the Hindu Society. The only times I went in the Madapalli was on my days off. On my days off, I would go to the temple to pray and then visit my nephew, Vasu, in the Madapalli. Vasu worked there as a Madapalli priest. As I enjoyed the work and enjoyed spending time with Vasu, I would help him out in the Madapalli. However, I never made Prasadam while I was employed at the Hindu Society.
On his days off, Mr SN said that he assisted the priest on a voluntary basis.
Mr SN said that in India, he believed he was coming to Australia to assist in the Madapalli as an assistant priest. For him, this involved preparing Prasadam and temple cleaning, however he said that he had not cleaned inside the shrine, and had not washed any of the statues of the gods.
Mr SN accepted that part of the religious experience of attending the Temple, for worshippers, was to eat food prepared by those in the Brahmin caste. He confirmed that he had never complained about his duties, but maintained that whilst initially he did work in the Temple, he subsequently worked in the canteen. Mr SN said that he was disappointed because this work was not as important as working in the Temple. On festival days, Mr SN said that he assisted in preparing the food that was given away, but on other days it was simply commercial cooking. He said that usually the free meals were only on Saturdays and Sundays, when volunteers would come. In his interview with the inspector, Mr SN had said that free meals occur every day. It is difficult to conclude that this was a specific change in the version of events, as his evidence on both occasions was given through interpreters, and it is clear that a significant number of meals are given away, as well as a very large number of meals prepared for sale.
Mr SN said that he was often the last one there when he finished working, and that none of the other priests ever came into the canteen. He confirmed that his attitude was that he would do whatever work was given to him at the Temple. He said that he did eat when he was clocked on, although he was not clocked on when he was assisting with the Madapalli. Mr SN was not cross-examined in detail as to whether the time taken for his meals would consist of a proper break.
Mr SN said that a special skill of his was working as an assistant priest and cook, as he is a good cook and that is a family tradition. In India, most of his duties are in the Madapalli preparing holy food and sometimes catering for others. At present, he works in three temples, earning extra if he cooks. He also undertakes some work in catering for special occasions in India. It appears that the catering he undertakes in India is effectively a small business on the side of being a priest at the temples.
Mr Letchuman Satasivam (a Certified Practising Accountant and member of the Applicant) gave evidence that he had looked into the issues relating to GST when GST was enacted by the Federal Government. He concluded that on the GST rules, food given away inside the Temple was free of GST as it was part of the religious process. The food that sold from the canteen all has GST imposts that must be accounted for in the GST returns. Mr Satasivam said that food prices were set at a market price, as the surplus was able to be used to run the Temple, effectively converting the value given by the volunteers to value for the Temple, rather than simply less expensive food for worshippers. In his view, anyone can be a cook at the Temple and priests are needed for the Prasadam only.
Mr Rajagopal Chari gave evidence. He was elected as vice-president of the Applicant for a year in September 2012, assisting the Temple particularly with respect to IT issues as he is a technical project manager with a large IT corporation. He is also of the Brahmin caste and so took an interest in Temple issues and helped the canteen with catering orders. Mr Chari explained that he spent 20 to 30 hours a week at the Temple without being paid, simply wanting to serve the community. While he assisted at the Temple, he never worked in the canteen. Mr Chari agreed that most of the customers were devotees. He confirmed that the Prasadam is always made in the Madapalli. The other food that is distributed for free, he says, only occurs on 30 different days during the year and that it is otherwise sold. Mr Chari thought that Mr SN was working as a cook rather than a priest.
Mr Raghu Pendyala gave evidence that he was the vice-president and then president of the Applicant, ending his period as president in 2014. Through that period he was working full time as an engineer. Mr Pendyala had pressed the Applicant to move to a more commercial focus. Some of his initiatives were not successful when matters went to a vote of the members. From his perspective, the food given away is not blessed, and the Prasadam was prepared only in the Madapalli. Mr Pendyala confirmed that part of the Hindu tradition was giving away food. On his understanding of the catering part of the operations, it was almost solely for Hindu people.
It appears that Mr Pendyala had interactions with the authorities without advising the lawyer acting for the Applicant, as he wanted to be anonymous. In his view, Mr SN was not a Madapalli priest; however, he did not raise concerns with the management committee about him doing different work to that of the priest.
There is clearly a significant rift between those members of the management committee that were called by the FWO and those called by the Applicant.
All of the witnesses presented quite well when giving evidence. There was a degree of variance in their understandings of the rules or principles operating with respect to the conduct of the priests in the Temple and their tasks. However, when viewing the evidence as a whole, it seems apparent that this is reflective of differences in understanding and opinion as to the practice of religious organisations, rather than any attempt to mislead the Court.
The rift between different factions within the Applicant explains why quite different views about some matters were given by different witnesses within the one organisation. However, the underlying reasons for that rift are not relevant to the matters that must be determined in this case.
The role of the employee
Even on the evidence of the witnesses for the Applicant only, there was a significant variance between the overall nature of the duties as described in the documents prepared to engage the employee and obtain his visa, compared to the substantive duties that he carried out. Whilst the witnesses for the Applicant sought to place greater emphasis on the non-cooking duties, on the evidence as a whole I am persuaded that, in substance, the duties carried out by Mr SN were effectively that of preparing food, and almost entirely food that was to be either given to worshippers or sold, rather than the specially prepared food to be offered to the deities. This is not only the overall impression one has from the entirety of the witnesses’ evidence, but clearly reflected in the Annual Report of 2010/2011 where Mr SN was described as a new cook.
The clock-card records
Whether the clock cards were intended to simply be a record of who was present in the canteen section of the building at any given time, or not, a perusal of the cards leads to the conclusion that they were completed in the nature of employment records for the hours performed rather than as a record of location. For example, whilst Mr SN lived on the premises and was present throughout much of the week, he nonetheless records days when he was not working, yet does not appear to have recorded when he came and went on those days. Similarly, on days where he worked throughout the day, it is recorded “no break” on the card. On other days where he was not working until the afternoon, it is recorded as “off”. The entries are invariably signed, even on days when all of the entries were created by the clock rather than written. Ultimately, I am persuaded that, whilst the management committee may have viewed the records as being largely in the nature of movement records, they were compiled by Mr SN to represent the hours of work performed by him in his roles.
The Award
The Restaurant Industry Award 2010 covers “Employers throughout Australia and their employees in the restaurant industry” (see cl.4.1). The term “restaurant industry” is given a definition in cl.3.1 as follows:
restaurant industry means restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:
(a) Hospitality Industry (General) Award 2010;
(b) Registered and Licensed Clubs Award 2010; or
(c) Fast Food Industry Award 2010
Clause 4.8 provides a number of exclusions, relevantly:
This award does not cover employers in the following industries or activities or their employees:
(a)contract caterers whose principal and substantial business activity is that of providing catering services and/or accommodation services on a contract or fee-for-service basis;
(b)retail industry;
(c)fast food industry;
(d)in-flight catering for airlines;
(e)catering services provided by aged care employers;
(f)hotels, motels, hostels and boarding establishments;
(g)clubs registered or recognised under State or Territory legislation;
(h)boarding schools, residential colleges, hospitals or orphanages; or
(i)restaurants operated in or in connection with hotels, motels, hostels and boarding establishments, and/or clubs registered or recognised under State or Territory legislation.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
Importantly, in cl.4.7 there is acknowledgement that employers may be covered by more than one award, the clause providing:
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
Some background to the Award is given in the Award Modernisation Statement 2009 AIRCFB 865, made on 25 September 2009 by the Industrial Relations Commission. In that statement the coverage issues were referred to, and in particular a request by the Minister to ensure that the Award was separate from those covering the hospitality industry, with respect to hoteliers, accommodation or gambling services. The Minister was of the view that the Award should establish a penalty rate and overtime regime that takes account of the operational requirements of the restaurant and catering industry, including the labour intensive nature of the industry, and the industry’s core trading times. (See paragraph [182].)
At paragraph [185], the Commission outlines submissions from the Australian Government in 2009, including:
[185] In its Stage 4 submission of 24 July 2009 the Australian Government clarified the intention of the variation to the request in the terms:
“Scope of the modern award
10 The Minister’s variation to the request that ‘restaurant and catering’ be removed from coverage under the HIGA (the Hospitality Award) is intended to refer to those restaurants and catering activities that are operated as part of a restaurant business.
11 The variation is not aimed at stand-alone catering businesses such as those operating on a contract basis in the airline, defence or mining indsutires. Nor is it direted towards eateries established within licensed clubs, hotels or other similar premises.
:12 The Government considers that these types of restaurant nad catering businesses have a very different operating base to restaurants and should remain covered by the broader Hospitatlity Award.
…”
When dealing with the scope of the Award, the Commission said:
[188] The 28 May 2009 variation to the consolidated request requires the Commission to create a modern award covering the restaurant and catering industry, separate from those sectors in the hospitality industry providing hotelier, accommodation or gaming services. The intent of that variation, as explained by the Government’s 24 July 2009 submissions, was to require the making of a modern award covering those restaurants and catering activities that are operated as part of a restaurant business. It follows that such an award should not cover restaurants which are operated as part of another business, such as a hotel or a catering operation.
[189] The coverage clause of the exposure draft has been developed to achieve that end. Dealing first with restaurants, the clause defines restaurant by reference to a restaurant within a restaurant business. ...
…
[191] As indicated already, we have called the exposure draft the Restaurant Industry Award 2010. Although the award will cover catering activities that are operated as part of a restaurant business, the broader catering industry will remain covered by the Hospitality Modern Award and it would be misleading to include catering in the title.
To the extent that there are exclusions for clubs provided for in the definition, I note that the Applicant is registered as an ‘Association’ under the Associations Incorporation Reform Act 2012 (Vic). This Act defines an association as:
“association” means an association, society, club, institution or body formed or carried on for any lawful purpose and that has not fewer than 5 members
In determining whether or not the Applicant is a ‘club’, I have regard to the definition of the word ‘club’ in the New Oxford Dictionary as being:
An association or organisation dedicated to a particular interest or activity: ‘I belonged to a photographic club’
All of the examples given thereafter relate to entertainment or sporting activities, although with the exception of an example of a shopping club and the euphemism ‘teetotal club’.
I am not persuaded that an organisation established as a religious organisation for the management of a church or temple is aptly described as a ‘club’ within the usual meaning of the term rather than an association or society. In the context of the Award as a whole, I am not persuaded that the Applicant comes within the exclusion in cl.4.8(g).
Counsel for the Applicant argued strongly that the industry that the Applicant was engaged in was one related to religion (although I have some hesitation in describing a religious organisation as being engaged in an “industry”) rather than being engaged in the “restaurant industry.”
It is important to note that a business or entity may be engaged in more than one industry in the operations that it undertakes. A simple example flows from the definition in the Award, where roadhouses are specifically included within the restaurant industry, yet roadhouses as commonly experienced in Australia are almost invariably engaged in the provision of petrol and diesel motor fuels, and associated automotive products, not simply providing food and beverages for travellers breaking their journey. I am persuaded that entities such as the Applicant can be engaged in more than one industry.
The issue then becomes whether or not the canteen operated by the Applicant results in the Applicant also being in the restaurant industry. The canteen in this case provides some religious foodstuffs, and a large amount of food that is given away on a religious basis. If the operation of the canteen were limited to this, I would struggle to conclude that it was in the “restaurant industry” as opposed to being an incident of the religious activities of the Applicant. However, the canteen at the Cultural Centre is engaged in providing food for sale to devotees and visitors. The sale of food to these groups (either in the canteen or by catering) is clearly of significant proportions, having resulted in revenue of over $600,000 in the last financial year for which reports were provided in evidence. These meals, whilst they may be inexpensive, are priced on the basis of generating income, which is then applied to other parts of the Applicant’s operation in providing religious services. However, overall, the Applicant remains a non-profit organisation, applying the gains generated from some centres, such as the canteen, to the continued operation of other centres, such as the Temple.
I note that the definition of restaurant industry in the Award includes businesses that are not traditionally considered restaurants, such as night clubs, reception centres, tea rooms and cafes. It appears that the Award is intended to cover those employed to prepare meals unless in an excluded category. The exclusions in cl.4.8 do not cover the activities of the Applicant, even by analogy.
Ultimately, I am persuaded that the Applicant is within the “restaurant industry”, at least to the extent of the operation of its canteen in the Cultural Centre.
Classification of the employee
In this case, I am satisfied that the overwhelming proportion of the duties actually carried out by Mr SN were duties in the kitchen as an assistant cook. Whilst the description given to the employment by the employer in the employment documents was that of an assistant priest, and the contract of employment specified matters not involving cooking in the canteen, the proper determination of the role of Mr SN is one having regard to the actual duties carried out. (For example, see Foulsham v JJ Corbett Plumbing & Gasfitting Pty Ltd [2015] FCCA 1290, per Jones J.)
In this case, schedule B to the Award provides a definition for a cook grade 1 as follows:
B.3.4 Cook grade 1 means an employee who carries out cooking of breakfast and snacks, baking, pastry cooking or butchering.
The definition of cook grade 2 is in similar words but includes the words “appropriate level of training.” Cook grade 3 is limited to a person who has passed the appropriate trade test. Whilst it is arguable as to whether or not the applicant falls within cook grade 2 rather than grade 1, given his training and experience in India, and the fact that his cooking duties went beyond baking, pastry cooking or butchering to general cooking, if not specialised cooking of vegetarian meals, it is not a question that I have to determine in this case as the Notice in dispute only presses the classification of cook grade 1.
The alternative classification that was referred to in argument was kitchen attendant grade 1, the definition of which is as follows:
B.3.1 Kitchen attendant grade 1 means an employee engaged in any of the following:
(a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;
(b) assisting employees who are cooking;
(c) assembly and preparation of ingredients for cooking; and
(d) general pantry duties.
In this case, the evidence does not appear to me to show Mr SN was limited to cleaning duties, nominally assisting other employees who were cooking. Again, I note that in the Annual Report provided to members, even the Applicant categorised Mr SN as a cook rather than a kitchen attendant or priest.
I therefore find that the Applicant has not succeeded in demonstrating that Mr SN was not a cook grade 1 as covered by the Award.
Calculation of Wages
The calculations prepared by the FWO and attached to the Notice are in accordance with the Award based upon the clock card records produced and placed in evidence. The calculations do not include any penalties as a result of cl.32 of the Award, which provides minimum standards for breaks after various periods of work during the course of a day (some unpaid and some paid.) If the breaks are not provided considerable loadings are added to the hourly rate.
In evidence there was cross-examination about the fact that Mr SN ate whilst working, or whilst at work, however no real detail was established as to whether he actually took a break, or simply ate whilst in the course of continuing his work activities.
The difficulty with the case as presented by both parties is that there is little evidence about the day-to-day working routine of Mr SN in the canteen. This presents little difficulties in the morning part of the split-shift, given that cl.32.2 provides that if the unpaid meal break is rostered to be taken more than five hours after starting work, an employee must be given an additional 20 minute paid meal break. To the extent that Mr SN took time for breakfast each day during a shift (if this occurred) it would have been a paid meal break in any event. Similarly, after the break there is provision for a further paid meal break at cl.32.5, and to the extent that an employee works more than 10 hours, additional paid breaks are provided for in cls.32.6 and 32.7. In these circumstances, to the extent that Mr SN had short breaks to eat during the periods that he worked, he, at least on the best one can make of the evidence before the Court in this application, was likely to have been entitled to be provided paid meal breaks, and therefore the short breaks would not have affected the calculations as carried out by the FWO.
The real question is whether or not the clock cards provide an appropriate basis for calculating the wages that are owed to Mr SN. The evidence of the Applicant, at its highest, casts doubt upon whether or not the cards accurately reflect the real number of hours Mr SN worked as opposed to reflecting when he was present. As set out above, I am persuaded on the evidence that the cards are more likely to represent the actual working hours of Mr SN, given the way in which they were compiled, even if that was not the intention of the employer in instituting the system. On the evidence, I accept on the balance of probabilities that the cards did, in fact, represent the hours that Mr SN was working.
In this case the Applicant bears the onus of proof in order to demonstrate the actual hours worked are different to those set out in the Notice. On the material provided by the Applicant there is no basis for making a finding of any particular hours different to those shown in the Notice. For these reasons, even if I am wrong as to the accuracy of the time cards, I am not persuaded that the Applicant has established that the calculations of the FWO used for the Notice were incorrect.
As a result, I therefore find that the application to cancel the Notice compiled by the FWO should be dismissed.
Costs
Submissions were made with respect to costs in the matter. Having regard to the nature of the issues in this case, and the unusual nature of the undertaking involved (a religious organisation running a temple, and then expanding into a cultural centre), I am not persuaded that this case warrants a costs order, having regard to the provisions of the Act (see s.570). I therefore make no order as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 March 2017
Schedule A
| Time | Sunday | Monday | Tuesday | Wednesday | Thursday | Friday | Saturday |
| 7.00 – 7.30 AM | Clean the scared altar | Clean the temple altar | D | D | Clean the temple altar | Clean the temple altar | Clean the temple altar |
| 7.30 – 8.00 AM | Bathing the Deitys, decorate | Preparation of Nivedhanam | A | A | Bathing the Deitys | Preparation of Nivedhanam | Bathing the Deitys, decorate |
| 8.00 – 10.00 AM | Performing Poojas | Performing Poojas | Y | Y | Performing poojas | Performing poojas | Performing special poojas |
| 10.00 – 10.15 AM | Tea Break | Tea Break | Tea Break | Tea Break | |||
| 10.15 – 12.05PM | Performing special poojas | Clean all articles used in pooja | O | O | Performing Archanas | Clean all articles used for poojas | Performing special poojas |
| 4.00 – 5.00PM | Clean the temple altar | Clean the temple | F | F | Clean the scared altar | Clean the temple | Clean the temple and articals |
| 5.00 – 6.30 PM | Making garlands | Prepare for poojas | F | F | Preparing food for poojas | Prepare for special poojas | Prepare for poojas |
| 6.30 – 8.30 PM | Poojas,attending devotees | Poojas and attend devotees | Poojas,recite Manthiras | Perform poojas, attend devotees | Perform poojas, Archana | ||
| 8.30 – 9.00 PM | Perform last pooja | Sing and recite Manthras | Perform last pooja | Arranging for special poojas | Perform last pooja |
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