Johnson v Monti-Haitsma Enterprises Pty Ltd
[2014] FCCA 259
•20 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOHNSON v MONTI-HAITSMA ENTERPRISES PTY LTD | [2014] FCCA 259 |
| Catchwords: INDUSTRIAL LAW – Claim for underpayments and penalties – applicant working for a long period as a live in manager at a motel – applicant responsible for the day to day management of the motel – informal employment arrangement including non cash benefits – consideration whether the applicant was covered by an award or, if not, whether she was paid less than the minimum wage by reference to her hours worked. |
| Legislation: Fair Work Act 2009 (Cth), ss.16, 20, 45, 293, 294 |
| Kerr v Jaroma Pty Ltd trading as Treasury Motor Lodge [1996] IRCA 539 Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 |
| Applicant: | DEBRA JOHNSON |
| Respondent: | MONTI-HAITSMA ENTERPRISES PTY LTD (IN EXTERNAL ADMINISTRATION) |
| File Number: | SYG 1503 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 18-21 February 2014 |
| Date of final submission: | 5 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R deMeyrick |
| Solicitors for the Applicant: | CBD Law |
| Counsel for the Respondent: | Mr B Cross |
| Solicitors for the Respondent: | Australian Business Lawyers |
ORDERS
The application as amended on 1 August 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1503 of 2012
| DEBRA JOHNSON |
Applicant
And
| MONTI-HAITSMA ENTERPRISES PTY LTD (IN EXTERNAL ADMINISTRATION) |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Ms Johnson) seeks various orders set out in an amended application under the Fair Work Act 2009 (Cth) (Fair Work Act) filed on 1 August 2013. Ms Johnson relies upon the following sections of the Fair Work Act and its predecessor legislation:
a)section 45 of the Fair Work Act (contravention of a modern award);
b)sections 718, 719 and 720 of the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) (enforcement of money claims and recovery of penalties under pre-reform awards);
c)section 293 of the Fair Work Act concerning minimum wages[1];
d)schedule 16(4A) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) relating to the contravention of a NAPSA; and
e)section 546 of the Fair Work Act (civil penalties).
[1] see formerly s.194 of the Workplace Relations Act
Ms Johnson also relies upon the Motels, Accommodation and Resorts (State) Award (State Award) and the Hospitality Industry (General) Modern Award (Modern Award). Her case is that she was at all material times an award employee covered by the State Award (applying as a NAPSA) until the advent of the Modern Award. She claims that the most appropriate category of her employment under the former State Award is hospitality services grade 2 and that under the Modern Award the schedule suggests a pay grade of front office grade 1, although she concedes that other categories of classification are arguable.
In the alternative, Ms Johnson claims that she was entitled to at least the national minimum wage rate of pay at all material times of her employment.
Ms Johnson also seeks orders in relation to an alleged consequential underpayment of superannuation entitlements.
The application is opposed by the respondent (Monti-Haitsma) which relies upon its response and amended points of defence filed on 5 September 2012 and 14 August 2013 respectively. Proceedings were originally brought against Ms Robyn Westley-Smith in her personal capacity but those proceedings were discontinued in favour of the amended application seeking relief against Monti-Haitsma. There is no dispute that Monti-Haitsma was Ms Johnson’s employer and is the appropriate respondent in the proceedings. Although Monti-Haitsma is in external administration, that is voluntary, in consequence of its ceasing trading, and there is no issue as to its solvency.
Monti-Haitsma disputes that either the State Award or the Modern Award apply (or applied) to Ms Johnson’s employment. Monti-Haitsma asserts that Ms Johnson was employed in a managerial capacity but concedes the relevance of the national minimum wage. In respect of that, Monti-Haitsma denies any underpayment. A factual issue of controversy in the case is the number of hours worked by Ms Johnson over many years. Monti-Haitsma asserts that Ms Johnson has been paid her entitlements by reference to the national minimum wage and the number of hours it asserts Ms Johnson worked.
The evidence
Ms Johnson relies upon her affidavit in chief made on 27 September 2013 and her affidavit in reply made on 26 November 2013. She also relies upon the affidavit of a co-worker (Maralin Hyndes) made on 30 September 2013, Lisa Scealy (another co-worker) made on 27 September 2013 and the affidavit of David Buckworth (Ms Johnson’s former partner) made on 19 February 2014.
Monti-Haitsma relies upon the affidavit of Robyn Westley-Smith made on 13 November 2013 and the annexures to it.
All of the deponents were cross-examined on their affidavits. I also received the following exhibits:
·R1 – Business records of Monti-Haitsma;
·R2 – Notice to Produce;
·R3 – Subpoena to Gosford RSL, 29.01.2014;
·R4 – Gosford RSL information sheet regarding Galaxy Star Rewards.
It emerged at the trial of this matter that a major controversy between the parties was the amount of time Ms Johnson considered herself “available” for work as opposed to the amount of time she actually performed duties. This controversy extended to the amount of time Ms Johnson spent at the nearby Gosford RSL Club. I permitted the parties to submit material after the trial which would assist me in examining and weighing the evidence bearing upon these issues. The parties also made oral submissions at the conclusion of the trial. It was agreed between the parties that Ms Johnson’s claim could not extend further back than the limitation period of six years before the institution of proceedings.
Consideration
The issues to resolved in this case are, first, the character of Ms Johnson’s employment and whether that employment was governed by the terms of either of the industrial instruments upon which she relies. A further issue is the hours worked by Ms Johnson which bears both upon the application of the industrial instruments (if they apply) and whether Ms Johnson has been underpaid by reference to the minimum wage standard. The factual issues in dispute between the parties, which were examined at the trial of this matter, are of fundamental importance in resolving these issues.
Debra Johnson
Ms Johnson was, at the relevant time, the onsite manager of the Ashwood Motor Inn (the Ashwood) operated by Monti-Haitsma on the New South Wales central coast. She had commenced working at the Ashwood in 1999 as a housekeeper and took over the onsite management position with her then husband in 2001 following the dismissal of the previous onsite managers. Their duties included generally managing the motel, preparing food and delivering it to the rooms of patrons, assisting patrons in the front office with check in and check out, assisting (and supervising) cleaners in stripping rooms and doing laundry, general office duties and pool and yard cleaning. Ms Johnson and her husband were paid a gross weekly wage of $400 each.
In May 2005 Ms Johnson and her husband separated. She continued to perform the duties of onsite manager alone and her salary was increased to $550 per week gross. Her duties did not materially change although she deposes that her hours of work became more lengthy. She deposes that 24 hour check in was available at the Ashwood and that she was, from time to time, required to get up to assist with late arrivals or early departures.
Ms Johnson deposes that she supervised casual cleaners, including Lisa Scealy, Maralin Hyndes and another woman called Jill. Ms Johnson’s daughter Courtney also worked at the Ashwood on a casual basis. She assisted with cleaning and in the office. When she was not working at the Ashwood, Ms Johnson did banking in West Gosford and occasionally drove to Ms Westley-Smith’s property at Kurrajong in the Blue Mountains in order to provide accounting and other business records.
The Ashwood was sold in 2008. Ms Johnson was asked to stay on until the sale. Ms Johnson’s employment was terminated by the sale to the Gosford RSL (a purchaser Ms Johnson had suggested to Ms Westley-Smith) and Ms Johnson was made redundant on 28 June 2012.
Ms Johnson received a letter from Ms Westley-Smith on 30 June 2012 concerning her termination benefits. That letter advised her that she had been underpaid by reference to the minimum wage standard from 1 July 2010 onwards. She was paid termination benefits of $12,507.23. It is evident that that letter (and perhaps the substantial sale price of the Ashwood) excited the interest of Ms Johnson of exploring her entitlements as an employee.
Ms Johnson was a reliable witness in terms of her general employment history. She became unreliable, however, when cross-examined about the amount of time she actually performed duties at the Ashwood. It was apparent that there were two reasons for this. The first was that Ms Johnson considered that she was working whenever she was available for work (which she took to mean during ordinary office hours). A difficulty with that position is that Ms Johnson lived on the premises in a suite of rooms so that there was no clear differentiation between her working time and her personal time. Further, Ms Johnson was assisted in her duties by her daughter and the other employees. The second was that Ms Johnson was sensitive about information obtained under subpoena from the nearby RSL Club (where she now works) about the amount of time she apparently spent at the Club. It appeared, by reference to her club membership card, that Ms Johnson spent very many hours over a long period at the Club and played poker machines there. She conceded in cross-examination that she did go to the Club although she claimed that her card was also used by her former partner (David Buckworth), although this was an acknowledged breach of club rules. Ms Johnson apparently developed a system with her daughter so that her daughter would staff the office during periods when she was at the Club and would call her if there was a need for her attendance at the Ashwood. Ms Johnson claimed that she was nevertheless available to work during these periods. The credibility of that claim suffered under cross-examination.
Ms Johnson’s evidence also suffered under cross-examination by reference to how busy the Ashwood was. It was common ground that the business was a profitable one until the year or so before its sale. The Ashwood became progressively quieter as the years passed. In the year or so prior to its sale, the Ashwood was a very quiet place indeed.
David Buckworth
Mr Buckworth is the former partner of Ms Johnson. They were in a relationship between 2008 and 2012. Mr Buckworth would stay at the Ashwood with Ms Johnson around three to four nights each week. They would often have dinner at the Club. Both were members of the Club. They used their membership cards for the purchase of food and drink and when playing poker machines. In 2009 Ms Johnson and Mr Buckworth had a conversation concerning maximising points on their cards through using one card. Mr Buckworth deposes that he used his own card for purchasing food and drinks but used Ms Johnson’s card when playing the poker machines.
The credibility of Mr Buckworth’s evidence also suffered under cross-examination. He is basically an honest man and remains loyal to Ms Johnson notwithstanding the ending of their relationship. I accept that he attended the Club with Ms Johnson but I do not accept that they always attended there together. The timing of the use of the cards did not fit with Mr Buckworth’s regular hours of duty in his employment in Sydney. Further, he displayed remarkably little knowledge of (or indeed particular interest in) playing poker machines. He may have occasionally played the machines with Ms Johnson but the conclusion I draw from their evidence as tested is that the dominant user of Ms Johnson’s membership card on the machines was her.
Lisa Scealy
Ms Scealy is currently employed by Gosford RSL Club as a cleaner at the Ashwood. She had earlier worked at the Ashwood for Monti-Haitsma. She gave credible evidence concerning her duties. She was able to recount several incidents when Ms Johnson performed duties at the Ashwood during abnormal hours. However, her evidence does not support the proposition that this was a frequent occurrence.
Maralin Hyndes
Ms Hyndes began working at the Ashwood as a housekeeper shortly before Ms Johnson and her former husband took over duties as resident managers. She gave credible evidence about her general duties and her recollection of the functioning of the motel in general terms. She was not able to be specific, however, about dates and times of particular events and her knowledge is limited to the period up to 2010 when she ceased employment at the Ashwood.
Robyn Westley-Smith
Ms Westley-Smith is a director and shareholder (with her former husband) of Monti-Haitsma which formerly operated the Ashwood. Monti-Haitsma operated the motel from around 1982 and Ms Westley-Smith had been involved with the business for approximately 30 years. Monti-Haitsma engaged live in managers to manage the Ashwood on a day to day basis. Ms Westley-Smith confirmed the general employment relationship of Ms Johnson and her former husband. Her own role included bookkeeping and bill payment (albeit at a distance). The physical distance between her home and the Ashwood meant that the live in managers were generally responsible for the running of the motel subject to her oversight. Ms Westley-Smith, in her affidavit, emphasised the declining occupancy (and revenue) at the Ashwood in the two years prior to its sale. She provided documentary evidence of receipts from the business in the six years from 2006 to 2012.
Ms Westley-Smith deposes that the live in manager effectively worked a split shift between 7.30am (or 8.30am) and 11.00am and between 4.00pm and the evening. Although the office was open until 10.00pm, there would often be nothing to do because no patrons checked in. Ms Johnson was supported in her management by casual cleaning staff and a handyman. Ms Johnson engaged those staff (including her daughter) to assist her. Ms Westley-Smith deposes that Ms Johnson has overstated the burdens of her employment, especially the burdens of cooking and serving breakfasts and out of hours work.
Ms Westley-Smith was an impressive witness. She was unshaken in cross-examination. Her evidence is supported by the documentary records of the business. I accept her evidence and prefer it to that of the other witnesses to the extent that it conflicts with their evidence.
Was the employment of Ms Johnson governed by either of the claimed Awards?
In Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd[2] I dealt at length with the principles concerning the application and interpretation of industrial instruments including awards. I need not repeat those principles here.
The Motels, Accommodation and Resorts (State) Award
[2] [2014] FCCA 4
Prior to 2010, the State Award generally covered the employment of motel employees, either of its own force or as a NAPSA. Ms Johnson claims that she was covered by the Award as a hospitality services employee, grade 2. Clause 37.1 of the State Award contains a general coverage provision specifying the application of the Award to all persons employed in any capacity whether permanent or casual in or in connection with motor inns or motels. Hypothetically, therefore, it could apply to the employment of Ms Johnson. In order to determine the application of the Award, however, it is necessary to identify a relevant classification. The Award rates for the classification specified in the Award are dealt with in clause 12. The Award rates cover two levels of hospitality services employees as well as various grades of hospitality administration and front office employees and a leisure attendant.
The term “hospitality services” is defined in clause 2.6 of the Award to mean an employee who is primarily engaged in one or more of the following:
(a) cleaning, tidying and general assistant of kitchen, food preparation, customer service areas, including the cleaning of equipment, crockery and general utensils;
(b) assembly and preparation of ingredients for cooking;
(c) handling, storing and distributing goods, including pantry items and linen;
(d) setting and/or wiping down tables, removing food plates, emptying ashtrays and picking up glasses;
(e) assisting employees who are cooking;
(f) general cleaning duties;
(g) providing general assistance to employees of a higher grade not including cooking or direct service to customers;
(h) laundry and/or linen duties which may include minor repairs to linen or clothing such as buttons, zips, seams, and working with flat materials;
(i) the collection and/or delivery of guests personal dry-cleaning and laundry, linen and associated material to and from accommodation areas;
(j) parking guests cars;
Clause 2.6.2 relevantly defines “hospitality services grade 2” to mean an employee who is primarily engaged in one or more of the following:
(a) receiving, storing and distributing goods;
(b) servicing accommodation areas and cleaning thereof;
(c) tray service to guests' rooms;
(d) transferring guests' baggage and/or property;
(e) driving a passenger vehicle or courtesy bus;
(f) providing butler service, basic food and beverage services with personalised guest services;
(g) assisting in dry-cleaning process;
(h) cleaning duties using specialised equipment and chemicals;
(i) handyperson, which means a person who is not a tradesperson and whose duties include the performance of routine repair work and maintenance in and about the employer's premises and other general duties such as pool, garden, etc.;
(j) security officer;
(k) preparing and/or cooking a limited range of basic food items such as breakfasts, grills and snacks and a cook employed alone;
(l) undertaking general waiting duties in a restaurant of food and/or beverages, including cleaning of restaurant equipment, preparing tables and sideboards, taking customer orders, serving food and/or beverages and clearing tables;
(m) supplying, dispensing or mixing of liquor, including cleaning of bar area and equipment, preparing the bar for service, taking orders and serving drinks;
(n) taking reservations, greeting and seating guests, taking telephone orders;
(o) assisting in the cellar;
(p) receipt of monies;
(q) attending a snack bar, buffet or meal counter;
(r) attending in a coffee shop or espresso bar;
(s) attending in a shop.
While Ms Johnson performed some functions descriptive of a hospitality services employee, she devolved most of those responsibilities to others whom she employed with authority from Monti-Haitsma. It is not suggested that Ms Johnson should be classified at a higher grade of hospitality services than grade 2. Having perused the definition of “hospitality services grade 3” in clause 2.6.3 of the Award, I would not have considered that classification an apt one for the circumstances of Ms Johnson. Hospitality services grade 4, grade 5 and grade 6 are even more inapt.
Ms Johnson also performed some duties of an administration front office employee. Clause 2.7.1 of the Award relevantly defines “hospitality administration and front office grade 1” to mean an employee who has primarily engaged in one or more of the following:
(a) front office duties such as receptionist, telephonist, cashier or reservations;
(b) performs basic clerical and routine office duties such as collating, filing, photocopying and delivering messages;
(c) general clerical duties such as typing, basic data entry and calculation functions;
(d) accounts;
(e) night auditing in addition to any of the above duties such employee may also be required to perform any of the duties of Hospitality services grade 2 or below;
(f) guest relations officer.
While Ms Johnson performed elements of those functions, the definition is no more applicable to her position than that of a hospitality services employee. There is nothing in the Award that covers the circumstances of an employee with general oversight and managerial functions as a live in manager. In my view, the Award did not apply to the employment of Ms Johnson.
I note that this finding is consistent with the decision of the Industrial Relations Court of Australia in Kerr v Jaroma Pty Ltd trading as Treasury Motor Lodge[3] where Marshall J said:
In my view the evidence does not disclose that the applicants were primarily engaged in any of the duties of the “hospitality administration and front office grade 1” classification. Rather, it reveals that they were primarily engaged in a supervisory function which involved them performing from time to time one or more of those duties referred to in the classification in which they allege they were employed. In my opinion, the scope of the Award does not include persons employed as live in managers of motels. The relatively low level nature, and the context of the entire classification structure, of allegedly applicable classification tells against it being applied to the most senior employees working in the motel, ie the managers.[4]
The Hospitality Industry (General) Award 2010
[3] [1996] IRCA 539
[4] see also Staples v Omnibell Pty Ltd [2005] AIRC 983
This Modern Award commenced on 1 January 2010[5]. It establishes minimum wages for the employment covered by the Award. Clause 4 of the Award contains the coverage provision. The Award covers employers throughout Australia in the hospitality industry and their employees with reference to the classifications set out in schedule D to the Award. Clause 4.2 specifies that the hospitality industry includes motor inns and motels. Clause 19 sets the minimum wages for the various classifications covered in schedule D. Clause 20.2 deals specifically with managerial staff but is restricted to hotels. Clause 39.1 provides that when an employer provides their employees with accommodation, meals or both, then the employer may deduct an amount of money from the employee’s wages in accordance with that clause. The clause specifies the deductions that may be made. It makes no provision for more than a single room accommodation.
[5] see clause 2.1
Schedule D to the Award contains the classification definitions. The provisions deal with employees in the “food and beverage stream”, the “kitchen stream”, the “guest services stream”, the “administration stream” and others. As is the case with the State Award, the difficulty is that the functions performed by Ms Johnson covered all of those specified streams in part. Item D.2.9 of schedule D deals with managerial staff at hotels. It provides relevantly that “hotels” means a range of establishments but, significantly, does not include motels or motor inns. It follows that the Award makes no provision for onsite managerial staff at motels or motor inns.
In its amended defence, Monti-Haitsma purported to accept that the relevant industrial instruments are the national minimum wage for the period 13 July 2006 – 30 June 2010 and Hospitality Industry (General) Award 2010 for the period 1 July 2010 – 28 June 2012. The latter concession was surprising and, given my findings in relation to the non application of the Award, I would not have been able to accept it. Although not formally withdrawn, it was made clear during argument at the trial of this matter that the concession had been overtaken by events[6]. The concession was made on the false premise that the Modern Award applied to motel managers. Counsel for Monti-Haitsma confirmed that the Fair Work Commission had correctly decided that motel managers are not covered by the Modern Award[7]. In any event, as I have already noted, the definition of “hotel manager” does not cover employees in a managerial position in a motel or motor inn. It follows, in my view, that Ms Johnson is entitled to the national minimum wage for the entire period of her employment. Ms Westley-Smith paid redundancy benefits to Ms Johnson on that basis.
[6] See transcript 19.02.2014, page 176 at line 36 to page 178 at line 12
[7] This was apparently a reference to the decision of the Fair Work Commission in Luxury Lodges of Australia Ltd [2013] FWC 5736
I conclude that the Modern Award did not apply to the employment of Ms Johnson.
The minimum wage – hours of duty
Each year the Fair Work Commission sets a national minimum wage which is expressed as a sum for 38 hours work a week, or as an hourly rate equivalent to 1/38 of the minimum wage. Annexure B to Ms Johnson’s application sets out the relevant hourly and daily rates. Depending on the numbers of hours and days found to have been worked, there are a variety of consequences as to rates of pay and other details.
I accept Monti-Haitsma’s submission that the minimum wage does not involve any calculation of overtime.
Sub-Sections (1) and (2) of s.294 of the Fair Work Act provides:
Content of national minimum wage order--main provisions
Setting minimum wages and the casual loading
(1) A national minimum wage order:
(a) must set the national minimum wage; and
(b)must set special national minimum wages for all award/agreement free employees in the following classes:
(i) junior employees;
(ii) employees to whom training arrangements apply;
(iii) employees with a disability; and
(c) must set the casual loading for award/agreement free employees.
Note: A national minimum wage order must be made in each annual wage review (see section 285).
Requiring employers to pay minimum wages and the casual loading
(2) The order:
(a)must require employers to pay employees to whom the national minimum wage applies a base rate of pay that at least equals the national minimum wage; and
(b) must require employers to pay to employees to whom a special national minimum wage applies a base rate of pay that at least equals that special national minimum wage; and
(c) must require employers to pay, to award/agreement free employees who are casual employees, a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employees' base rates of pay).
(emphasis added)
“Base rate of pay” is relevantly defined at s.16 of the Fair Work Act as:
Meaning of base rate of pay
General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
(emphasis added)
“Ordinary hours of work” as used in s.16 above, as it applies to award/agreement free employees, is relevantly defined at s.20 of the Fair Work Act as:
Meaning of ordinary hours of work for award/agreement free employees
Agreed ordinary hours of work
(1)The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or her national system employer as the employee's ordinary hours of work.
If there is no agreement
(2)If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:
(a)for a full time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i) 38 hours; and
(ii) the employee's usual weekly hours of work.
If the agreed hours are less than usual weekly hours
(emphasis added)
The fact that Ms Johnson was not entitled to overtime payments is not a complete answer to her claim. There remains the question of what were her ordinary hours of work. The controversy between the parties at the trial of this matter centred upon the hours actually worked by Ms Johnson. It was conceded by counsel for Ms Johnson that if she could not establish that she worked more than 38 hours a week, she could not succeed in her claim. Although Ms Johnson and her legal representatives have striven mightily to establish that the working hours of Ms Johnson exceeded that figure, they have not been able to do so. The reality is that Ms Johnson fixed her own hours of work according to what the management of the Ashwood required from time to time and what suited her convenience. There are no reliable records of her hours of employment. Ms Johnson asserts that this is a breach of the employer’s duty to maintain such records. However, this overlooks the reality of the basis upon which the Ashwood operated. That reality was that the representative of the managing company lived at a considerable distance and had no involvement of the day to day running of the motel. In many respects, Ms Johnson acted as the representative and agent of the owner. It was she who maintained the business records for the day to day operations of the Ashwood and recorded the hours of employment of the staff that she engaged. It follows, in my view, that it was her responsibility to record the hours of her own employment. No such records have been produced.
The national minimum wage is based upon a 38 hour week in the absence of any agreement as to the hours of work between an employer and employee. The employment agreement between Monti-Haitsma and Ms Johnson did not specify her hours of employment. It is not disputed that Ms Johnson has received upon her termination her entitlements under the national minimum wage on the basis of a 38 hour week.
Conclusion
Ms Johnson has failed to establish that she has been underpaid during the course of her employment. As neither the State Award or the Modern Award covered her employment, there is no issue of any breach of the provisions of those industrial instruments.
I will order that the application be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 June 2014
16