Joanne Helen McCarthy v Dan Archer Medical Pty Ltd T/A Foot Biotec
[2024] FWC 361
•9 FEBRUARY 2024
| [2024] FWC 361 [Note: An appeal pursuant to s.604 (C2024/1143) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Joanne Helen McCarthy
v
Dan Archer Medical Pty Ltd T/A Foot Biotec
(C2023/617)
| COMMISSIONER SCHNEIDER | PERTH, 9 FEBRUARY 2024 |
Alleged dispute about any matters arising under the modern award and the NES; [s146]
Background
Mrs Joanne Helen McCarthy (the Applicant) has applied, under section 739 of the Fair Work Act 2009 (Cth) (the Act), for the Fair Work Commission (the Commission) to deal with a dispute.
The dispute arises in accordance with the dispute resolution clause under the General Retail Industry Award 2020 (the Award).[1]
The application has been lodged in relation to the Applicant’s employment with Dan Archer Medical Pty Ltd T/A Foot Biotec (the Respondent).
The Applicant raised several issues, arising under the Award, with the Respondent during her employment. There was no resolution to the dispute at an internal level and, subsequently, the Applicant lodged this application.
The dispute, primarily, centres around the taxonomy of the Applicant’s employment and the associated benefits or, in the Applicant’s submission, lack thereof. The Respondent denies that the Applicant did not receive the appropriate remuneration and conditions associated with her role.
The application was the subject of two conferences before the Commission and the parties were unable to resolve the dispute via conciliation.
The parties agree to consent arbitration to resolve the dispute. The parties were issued Directions to file materials. Both parties filed submissions accordingly.
Question for arbitration
The question to be determined in this decision is as follows:
· What was the correct classification under the General Retail Industry Award that the Applicant should have been employed under during her employment with the Respondent?
Relevant Legislation and Instrument
In accordance with the dispute resolution clause within the Award, the Applicant has brought this dispute to the Commission, noting section 738 of the Act which allows for an application under Part 6-2, Division 2 to be made in such circumstances:
“738 Application of this Division
This Division applies if:
(b) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; …”
The application has been brought under section 739 of the Act, which allows for the Commission to assist the parties to resolve a dispute:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
In accordance with section 146 of the Act, clause 36 of the Award contains the dispute resolution clause.
Clause 36 of the Award, as quoted below, details the procedure that must be followed in raising and escalating a dispute as well as the scope of the Commission’s involvement in resolving such dispute:
“36. Dispute resolution
36.1 Clause 36 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
36.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
36.3 If the dispute is not resolved through discussion as mentioned in clause 36.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
36.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 36.2 and 36.3, a party to the dispute may refer it to the Fair Work Commission.
36.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
36.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
36.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 36.
36.8 While procedures are being followed under clause 36 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
36.9 Clause 36.8 is subject to any applicable work health and safety legislation.”
Noting that the dispute explicitly concerns the Applicant’s classification under the Award, it is useful to note the relevant classification definitions.
Level 1, under which the Applicant is currently classified, reads as follows:
“A.1 Retail Employee Level 1
A.1.1 Retail Employee Level 1 means an employee performing any of the following functions at a retail establishment:
(a)receiving or preparing for sale or displaying goods in or about a shop; or
(b)pre-packing, packing, weighing, assembling, pricing or preparing goods, provisions or produce for sale; or
(c)displaying, filling shelves, replenishing or any other method of exposing or presenting goods for sale; or
(d)selling or hiring goods by any means; or
(e)receiving, arranging or paying by any means; or
(f)recording a sale or sales by any means; or
(g)wrapping or packing goods for despatch or despatching goods; or
(h)delivering goods; or
(i)window dressing or merchandising; or
(j)loss prevention; or
(k)demonstrating goods for sale; or
(l)providing information, advice or assistance to customers; or
(m)receiving, preparing or packing goods for repair or replacement or making minor repairs to goods; or
(n)as a direct employee of the retailer, providing cleaning, store greeting, security, lift attending, store cafeteria services or food services; or
(o)any function of a Clerical Assistant Level 1; or
(p)work that is incidental to, or connected with, any of the functions mentioned in clause A.1.1(a) to clause A.1.1(o).”
The Applicant asserts that the correct classification should be that of a Level 4, defined as follows in the Award:
“A.4 Retail Employee Level 4
A.4.1 Retail Employee Level 4 means an employee performing work at a retail establishment at a higher level than a Retail Employee Level 3. This may include an employee who has completed an appropriate trades course or holds an appropriate Certificate III and is required to use their qualifications in the course of their work.
A.4.2 Indicative of the tasks that might be required at this level are the following:
(a)managing a defined department or section; or
(b)supervising up to 4 sales staff (including self); or
(c)stock control; or
(d)buying or ordering requiring the exercise of discretion as to price, quantity, quality and other matters; or
(e)utilising the skills of a trades qualification for the majority of the time in a week; or
(f)any function of a Clerical Officer Level 2.”
Submissions and Evidence
Applicant
The Applicant filed a series of documents in support of her application. Included in the Applicant’s bundle of documents was a Form F8 – General protections application involving dismissal. It should be noted that this Form was not submitted in the usual manner nor distinguished as a pending application. The nature of this document only became apparent to Chambers on the morning of the hearing.
At the hearing on 16 November 2023, I confirmed with the Applicant that she understood this document had not been received by the Commission as an application for processing and that, while the Commission was content to refer to the document as constituting part of her submissions, the current matter before the Commission is a dispute arising under the Award and National Employment Standards, not a dispute in relation to her dismissal from the Respondent.
The Applicant’s issues with the Respondent are varied and numerous. However, the Respondent’s compliance with the Award during the Applicant’s employment is central to this application and her concerns.
Notably, the Applicant raised concerns in relation to the below items and allegations of the Respondent’s non-compliance with the Award:
· Rostering and hours of work;
· Request to change working arrangements;
· Roster meal and rest breaks;
· Minimum rates of payment; and
· Correct Award classification level.
In relation to the above points, the Applicant made the following submissions in support of her position.
The Applicant submits that the Respondent failed to meet obligations under clause 15.7(d)(i) of the Award, to ensure that the Applicant was provided with two consecutive days off work per week or three consecutive days off per two-week cycle.
The Applicant provided a copy of her roster which outlined that the Applicant was working the below times:
| Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday |
| 9.00am to 5.00pm | 9.00am to 5.00pm | Not rostered | 9.00am to 5.00pm | Not rostered | 9.00am to 5.00pm | Closed |
The Applicant submits that the Respondent failed to comply with the Award when it removed a regularly rostered Saturday shift from the Applicant and failed to provide her with 7 days written notice, as required by clause 10.10(a) of the Award.
The Applicant submits that, due to the nature of the Respondent’s operations being conducted through pop-up stall inside larger shopping centres, she could not adequately take the meal or rest breaks he was entitles to under the Award.
The Applicant submits that, unless she was training other staff members, her shifts were undertaken on a solo basis and no other staff member were present to cover for meal or rest breaks.
As a result of the pop-up format, the Applicant submits that there was no ability to securely close the store to safely cater for meal and rest breaks.
The Applicant noted that any toilet or rest break had to be taken rapidly to ensure the Respondent’s goods were not stolen.
The Applicant submits that the Respondent’s own staff training manual outlined that staff could be held responsible for stolen goods. The Applicant submits that this caused concern over taking her entitled breaks in fear of being held accountable for stolen stock.
The Applicant submits that she felt her position was better classified as “casual” due to the work potentially being seasonal. Accordingly, the Applicant submits that she should have been paid as a casual employee rather than as a permanent employee.
The Applicant submits that when she was required to work weekend shifts, she was not paid any form of penalty rate in accordance with the Award.
The Applicant submits that she had been incorrectly classified as a Retail Employee – Level 1 under the Award. The Applicant submits that many of the duties she was required to complete were more consistent with that of a Retail Employee – Level 4 under the Award.
Specifically, the Applicant submits that the following duties were consistent with a Level 4 classification:
· Open and closing of the pop-up stall.
· Training of new staff members.
· Stocktake and inventory at the start and end of each shift.
· Record keeping of all sales (both cash and EFTPOS).
· Reporting of daily sales to head office in Sydney.
· Provision of petty cash for cash sales.
· Banking of cash sales during the Applicant’s own time.
Respondent
The Respondent submits that the Applicant was engaged under the Award and that the position and duties she undertook were consistent with a classification of Retail Employee – Level 1 under the Award.
The Respondent submits that the Applicant was paid an hourly rate of $23.50 per hour, which was $0.12 per hour over the Award rate at that time.
The Respondent submits that the Applicant received entitlements of a permanent employee such as annual leave.
The Respondent provided evidence in the form of payslips to confirm that the Applicant received penalty rates for work conducted on weekends.
The Respondent also outlined that the Applicant was eligible for a commission-based sales incentive payment. On assessment of the evidence (payslips) provided by the Respondent, it is evident that such payments were also paid to the Applicant, as an additional payment.
Under cross examination, Mr Daniel Zhang (Mr Zhang), CEO of the Respondent, confirmed that the Applicant was entitled to take breaks when required during her shifts with the Respondent.
Mr Zhang also confirmed that the employee manual was inaccurate when it stated that employees would be deducted the cost of lost stock whilst they were working.
Observations and Recommendations
I note that the Respondent is a smaller business and appears to have limited or no internal Human Resource Management or Industrial Relations support.
However, having considered the material before the Commission in this matter, I do hold concerns over the conduct of the Respondent in relation to several of the requirements outlined in the Biotec Retail Staff Training Manual.
Most notably, the following clauses raise concern:
· 8) Cash Handling – Staff are responsible for arriving at work with a small personal cash kitty to facilitate cash sales. Staff take full responsibility for cash safety.
· 9) Cash Deposits – Cash sale deposits must be made immediately after work either in a Deposit ATM machine attached to an ANZ bank in the Shopping Centre, or deposited electronically via EFT.
Noting the position of the Respondent, that the Applicant and fellow employees are engaged as a Retail Employee – Level 1, I have formed that opinion that the above duties would not generally be consistent with duties of a Level 1 employee under the Award.
Based on the comments outlined below, it appears the Respondent would benefit from considering seeking specialist Human Resources/Industrial Relations support to ensure greater understanding of and compliance with the Award.
There appears to be confusion over the status of the Applicant’s engagement, being that it is unclear whether the Applicant was a permanent part-time or permanent fulltime employee. Neither the Applicant nor the Respondent were able to provide a contract of employment which could have assisted in ensuring the parties had a consistent understanding of the nature of the Applicant’s engagement and correct entitlements.
Having considered the evidence provided, such as the payslips provided by the Respondent, it would appear the Applicant was working between two and five shifts per fortnight. The hours worked by the Applicant would be more consistent with engagement pursuant to a permanent part-time arrangement than that of a permanent full-time arrangement.
Based on the above, it is apparent that the intent of the relationship and circumstances surrounding the employment reflect that the Applicant was engaged as a permanent part-time employee. As a result, the Respondent had numerous obligations under the Award which appear to have been neglected during the Applicant’s engagement.
In this regard, I note clause 10.5 of the Award, which states:
“the employer must agree in writing with the employee on a regular pattern of work that must include the following:
(a)the number of hours to be worked on each particular day of the week (the guaranteed hours); and
(b)the times at which the employee will start and finish work each particular day; and
(c)when the meal breaks may be taken and their duration.”
Further, the Award, at clause 10.8, also requires that:
“for any time worked in excess of their guaranteed hours agreed under clause 10.5………the part-time employee must be paid at the overtime rate specified in Table 10 – Overtime Rates. “
Clause 10.10 of the Award deals with changes to regular pattern of work by employer. This clause of the Award requires that the employer provide the employee 7 days written notice, or in an emergency 48 hours’ notice, of a change in the employee’s regular pattern of hours.
I acknowledge that there was a significant volume of material provided by the parties in the form of WeChat messages which discuss various roster requirements of the Respondent’s business operations.
The Respondent has a legal obligation to ensure that the totality of the Award terms are complied with and, based on the evidence provided, I am not satisfied that the Respondent had complied with such obligations.
The Respondent’s failure to comply with clause 10.5 of the Award has, in all probability, resulted in the Applicant not receiving the totality of the relevant entitlements. However, given the short tenure of the Applicant’s employment (around 6 weeks), any such underpayment would be limited.
In relation to the concerns pertaining to the apprehension over the taking of breaks, clause 7 of the Respondent’s staff manual states:
“Stock Security – it is your responsibility during your shift to make sure the stocks in your store are secure. If under anyone there are missing items for three times or over depending on the situations we will review if the person is suitable for the job or not”. (emphasis added)
I note that, while under examination, Mr Zhang stated the business would not seek to recover the cost of stolen stock from employees. In his testimony, Mr Zhang communicated that the Respondent was aware of the nature of the pop-up stall format and related elevated risk of theft, and expressed the relieving sentiment that such loss would not be the fault of the employee.
Regardless, I am still concerned that the content of the staff manual used to train employees would reasonably lead to fears, of financial responsibility and termination of employment, deterring employees from taking their very much needed breaks. Such a conclusion is evidenced in the fear held by Applicant and presented in her submissions.
The wording contained within the staff manual does not, even remotely, convey a similar sentiment to that of the one Mr Zhang expressed in his testimony. On assessment of the materials before the Commission, it remains unclear if the Respondent’s actual practices in response to theft, apparently being the much more reasonable approach as suggested in Mr Zhang’s testimony directly in conflict with the approach suggested in the manual, have been made apparent to any employees.
Despite Mr Zhang’s statements that the manual does not reflect the Respondent’s practices in reality, such statements do not detract from the alarming contents of the manual and the impact on employees.
In any case, the Respondent appears to pass the buck to the Applicant and its employees for the management of stock security, whilst also expecting such employees to manage their breaks during lone shifts, despite the clear issue posed by an unmanned pop-up stall.
Rather than leaving the worrying task of stock security as the sole responsibility of employees, who the Respondent classifies as Retail Employee – Level 1, the Respondent would more greatly facilitate its compliance with the Award if it took the additional responsibility to ensure that the employees are provided with the reassurance or tools required to alleviate theft concerns, enabling them to freely enjoy and take their entitled breaks.
Consideration
Noting that there has been considerable discussion regarding the wider circumstances and issues in this matter, for reference, I again note the question for arbitration in this matter:
· What was the correct classification under the General Retail Industry Award that the Applicant should have been employed under during her employment with the Respondent?
In relation to the above question, I make the following findings.
The Applicant was employed as a permanent employee, either on a permanent part time or permanent fulltime basis and I am satisfied that the Applicant was not employed as a casual employee.
In relation to the duties undertaken by the Applicant, I find that most of the duties that were required to be performed by the Applicant fall into the Level 1 classification under the Award.
Having reviewed the Respondent’s staff manual, it is clear that the Respondent placed significant importance on the below tasks being completed every shift by the Applicant:
· Opening and closing of the pop-up stall;
· Stock counting;
· Completion of daily sales sheets and administration requirement to head office;
· Stock security;
· Provision of petty cash; and
· Cash deposits.
The Applicant asserts that her role would have been better classified as a Level 4 under the Award.
Although I am not satisfied on the materials before me that such a finding is appropriate, I have also closely considered the details of other classifications within the Award and agree that the Level 1 classification does not appear to have been an appropriate classification.
Having considered the other classifications, I note that of a Retail Employee – Level 3, which, under the Award, includes the following:
“Retail Employee Level 3 means an employee performing work at a retail establishment at a higher level….
Indicative tasks that might be required at this level are the following:
(a)providing supervisory assistance to a designated section manager or team leader; or
(b)opening and closing the premises or providing associated security; or
(c)securing cash; or
(d)fitting a surgical corset.”
Having considered the duties of the Applicant and the importance placed on specific duties and tasks by the Respondent I have found that the Applicant and her duties are more properly consistent with the definition of a Retail Employee – Level 3 classification under the Award.
I note that Award also notes job titles consistent with the Retail Employee – Level 3 classification as including “person employed alone, with responsibility for the security and general running of a shop”. I find that this definition is consistent with the duties performed by the Applicant when employed with the Respondent.
On this basis, it follows that there was a discrepancy in the wages paid to the Applicant to the tune of approximately $0.79 cents per hour for each ordinary hour worked with the Respondent during the approximately 6 weeks of her employment with the Respondent.[2]
For the parties’ benefit, I note Commission’s limited powers to make orders for payment and express that I would strongly encourage, and recommend, the Respondent undertake an urgent review of its employment arrangements for the Applicant and its employees in general to adequately rectify the issues noted throughout this decision.
Conclusion
Accordingly, in response to the question:
“What was the correct classification under the General Retail Industry Award that the Applicant should have been employed under during her employment with the Respondent?
I answer, Retail Employee – Level 3.
COMMISSIONER
[1] [MA000004].
[2] This figure is based off the following calculation: taking the applicable Retail Employee – Level 3 rate under the Award, at the time of the Applicant’s employment, and subtracting the Applicant’s actual hourly rate of pay during her employment ($24.29 - $23.50 = $0.79).
Printed by authority of the Commonwealth Government Printer
<PR771176>
1
0
0