Kelly v McKnight
[2021] FedCFamC2G 242
•22 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kelly v McKnight [2021] FedCFamC2G 242
File number(s): MLG 917 of 2021 Judgment of: JUDGE FORBES Date of judgment: 22 November 2021 Catchwords: INDUSTRIAL LAW – FAIR WORK – Small Claim – Hair and Beauty Industry Award - underpayment of wages - more than 38 ordinary hours worked – overtime payable. Legislation: Fair Work Act 2009 (Cth) ss 548, 557C Division: Division 2 General Federal Law Number of paragraphs: 110 Date of hearing: 19 October 2021 Place: Melbourne Applicant: In Person Respondent: In Person ORDERS
MLG 917 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMIE LOUISE KELLY
Applicant
AND: HAYLEIGH MCKNIGHT
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
22 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Respondent pay the Applicant a gross amount of $5,736.00 in respect of unpaid wages.
2.The Applicant’s claim is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical
or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant
to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This matter concerns a claim by Ms Amie Louise Kelly in respect of alleged non-payment
of wages and overtime by her former employer, Ms Hayleigh McKnight.
The respondent Ms McKnight is the former proprietor of a salon known as H’s Place Hair Skin and Beauty, a business located in Melton (“the salon”).
Ms Kelly is a beauty therapist and was employed by Ms McKnight at the salon on a full-time basis between 10 July 2018 and 24 December 2019.
Ms Kelly alleges that at all material times during the course of her employment with
Ms McKnight, she was covered by the Hair and Beauty Industry Award 2010 (“the Award”). She alleges that in breach of that Award she was not paid for all the hours she worked in the salon, in particular was not paid overtime for hours in excess of 38 hours per week.
Ms McKnight denies the allegations.
Ms Kelly initiated proceedings against Ms McKnight in the Fair Work Division of this Court and elected to have her Application dealt with as a Small Claim pursuant to s 548 of the
Fair Work Act 2009(Cth) (“FW Act”).
The proceeding was initially referred to Registrar Stone who made various procedural orders on 23 July 2021 requiring the parties to file affidavits and other documents in support of their respective cases. A telephone hearing of the claim was then conducted by the Registrar
on 20 August 2021, at the conclusion of which the following orders were made:
1.The respondent pay the applicant the sum of $1,338.56 on account of underpaid wages for the periods 10 July 2018 to 28 September 2018 and 27 September 2019 to 24 December 2019.
2.The applicant’s claim is otherwise dismissed.
On 26 August 2021, Ms Kelly filed an Application for Review of the Registrar’s orders.
The matter was listed before me for directions on 15 September 2021. On that occasion I made orders affording both Ms Kelly and Ms McKnight an opportunity to file any further affidavits
and other documents upon which they intended to rely and I listed the matter for final hearing.
The final hearing of the application took place before me on 19 October 2021. Both Ms Kelly and Ms McKnight were self-represented and, in accordance with s 548(3) of the Act, the matter proceeded in an informal manner.
BACKGROUND
There are a number of matters which are not in dispute.
Ms McKnight confirmed that she was the proprietor of the salon and that she was Ms Kelly’s employer all material times.
Ms Kelly commenced full-time employment on 10 July 2018 as a beauty therapist.
At that time she was unqualified and was studying for a Diploma of Beauty Therapy.
On 25 September 2018, Ms Kelly completed her online course through Ivy College and attained her Diploma of Beauty Therapy.
Ms Kelly continued to be employed at the salon on a full-time ongoing basis until
she was made redundant effective 24 December 2019.
At all material times during the course of her employment with Ms McKnight, Ms Kelly
was covered by the Hair and Beauty Industry Award 2010.
The parties agree that the opening hours for the salon were 44 hours per week arranged
as follows:
Tuesday 10.00 am to 6.00 pm
Wednesday 10.00 am to 6.00 pm
Thursday 10.00 am to 9.00 pm
Friday 10.00 am to 7.00 pm
Saturday 8.00 am to 4.00 pmAlthough Ms McKnight was the proprietor of the salon she was not always in attendance.
The salon was managed by Ms Kristy Halliwell. An apprentice hairdresser, Ms Mikayla Danielson, also worked at the salon during the period of Ms Kelly’s employment.
Ms Kelly worked Tuesday to Saturday and was required to be present at the salon at all times during opening hours, save for the times she was on authorised breaks or was permitted by her manager to leave early.
It is common ground that the salon had to be in a state of readiness to take its first client
at 10.00 am or 8.00 am on Saturdays. That required staff to do some preparatory work, either at the end of the previous day or before opening or both.
It is also common ground that the timing of lunch breaks and other breaks was to some degree flexible and that the times for breaks sometimes shifted around to accommodate the salon’s clientele.
Ms Kelly had a key to the premises and on occasions she was the first to attend. It was agreed that there were times during the employment when Ms Kelly would use the facilities of the salon for her own benefit outside normal trading hours.
Other key factual matters were contested.
Ms Kelly’s evidence
Ms Kelly claims that Ms McKnight has miscalculated her hours of work and rates of pay,
as a consequence of which she has been underpaid. In this Application she seeks recovery
of the underpayment.
Ms Kelly relied upon a number of documents she had filed with the Court including her original Application dated 20 April 2021, her Application for Review of the Registrar’s decision dated 24 August 2021 and affidavits dated 24 August 2021 and 20 September 2021. Her Applications and each of the affidavits annexed various spreadsheets containing calculations prepared
by Ms Kelly setting out the hours worked, rates of pay and claims in respect of overtime.
Her affidavits also annexed various items of correspondence and emails.
Notably, Ms Kelly also sought to rely upon various documents which had been filed
by Ms McKnight, including two statutory declarations which had been annexed to one
of Ms McKnight’s affidavits. One statutory declaration, dated 11 July 2020, was prepared
by Ms Kristy Halliwell, the salon manager. The other, also dated 11 July 2020, was prepared by Ms Mikayla Danielson, the salon’s apprentice hairdresser.
Ms Kelly also gave evidence and made submissions in the hearing before me on 19 October 2021. I permitted Ms McKnight to cross-examine Ms Kelly.
Prior to and during the course of these proceedings the quantum of Ms Kelly’s underpayment claim shifted around, initially being in excess of $14,600 and at another time as low
as $5,700. Ms McKnight was critical of these shifting sands and said it was a matter that
I should take into account in assessing the veracity of the claim.
When I heard the matter on 19 October 2021, Ms Kelly relied upon the calculations annexed to her affidavit dated 20 September 2021. Based on those calculations, she claims
an underpayment of $12,448.94. She says that the respondent Ms McKnight should be given credit for the sum of $1,338.56 which was awarded by Registrar Stone on 20 August 2021. She seeks an order that Ms McKnight pay the difference, namely $11,110.38.
Ms Kelly explained the basis for her claim as follows.
She says that she initially commenced working for Ms McKnight on a voluntary basis
in September 2017. At the time she was undertaking an online course pursuing a diploma qualification in beauty therapy. Ms McKnight agreed to give Ms Kelly work experience and Ms Kelly attended the salon on Thursdays and Saturdays.
On 10 July 2018 Ms Kelly commenced full-time employment. She says that in the weeks prior to commencing employment she had a discussion with Ms McKnight during which
Ms McKnight told her that she was required to be at the salon 30 minutes before opening
in order to set up. She says that the requirement to come into the salon 30 minutes before opening was a direction from Ms McKnight and that it was given to her when they discussed her contract of employment in June 2018.
I note at this juncture that it was common ground that the parties had agreed to a written contract in June 2018, however that contract was not produced by either party as part of their evidence in this case. Ms McKnight said the contract referred to an agreement that Ms Kelly would work a 38 hour week, but it otherwise did not deal with starting and finishing times.
Ms Kelly says that from the commencement of her employment she always came in at least
30 minutes prior to opening to set up the salon. She said that she performed a range
of preparatory duties including turning on the coffee machine, folding towels, setting
up workstations, turning on various equipment, printing off the daily run sheet and other activities. She said, for example, that the wax pot took at least 15 to 20 minutes to warm
up and it had to be ready by 10.00 am for the first client.
Ms Kelly was insistent that arrival at the salon 30 minutes prior to the commencement of work was a mandatory requirement of her employment. To corroborate this submission, Ms Kelly sought to rely on the statutory declarations of the salon’s two other employees, Ms Halliwell and Ms Danielson. For example, the first paragraph of Ms Halliwell’s statutory declaration reads:
Amie Kelly was asked to be at the salon 30 min prior to opening hours to have
her beauty room set up ready for her first client at 10am, as of the rest of the staff. There were many times on her own behalf she would come in much earlier without being asked to.In a similar vein, although less specific, Ms Danielson commences her statutory declaration
as follows:
Amie Kelly was required to come into the salon earlier than 10am as we all are,
to make sure our areas are set up for the day and before our first clients.Ms Kelly gave evidence that she worked every day the salon was open, from Tuesday
to Saturday each week. She said that each day, other than Thursdays, she was permitted to take a 30 minute lunch break. On Thursdays, because of extended opening hours, she was allowed to have a one-hour lunch and two 15 minute breaks during the day. She said that Thursday was the day Ms McKnight was normally in attendance.
Ms Kelly’s evidence was that the length of the staff meal breaks was also directive
of Ms McKnight. She said that Ms McKnight “made it part of our work that we have a half-hour break”. She also said that the client booking system on the salon’s computer, known
as “Shortcuts”, made provision for staff breaks, although she was not specific about the length of the scheduled breaks. She did concede, however, that the actual time for taking the breaks may have shifted around on a day-to-day basis to accommodate client bookings.
The statutory declarations of Ms Halliwell and Ms Danielson do not address the normal length of meal breaks taken by staff.
Ms Kelly gave evidence that she also remained at the salon for at least half an hour after closing each day in order to clean up and prepare for the following day. She said that on occasion
she would also use the facilities of the salon, including the sauna, outside normal trading hours. Ms Kelly does not make any claim in respect of work performed after normal closing time.
It is common ground that from 10 July 2018 until 25 September 2018, Ms Kelly performed work as an unqualified beauty therapist. It is also agreed that from 25 September 2018 until she was made redundant on 24 December 2019, she held a Diploma of Beauty Therapy
and performed work as a qualified beauty therapist.
The circumstances of Ms Kelly’s redundancy are not in issue in these proceedings.
Indeed, Ms McKnight openly conceded that Ms Kelly was a good and loyal employee.
Ms Kelly’s underpayment claim comes down to this. She says that taking into account
Ms McKnight’s direction that she commence work 30 minutes prior to opening each day
and that she take only a half-hour lunch break each day (other than Thursday) she worked
43 hours per week. However, she says that she was only paid for 38 hours per week.
Ms Kelly contends that from the commencement of her employment on 10 July 2018
until 25 September 2018, she was entitled to be paid as an unqualified Level 2 employee under the Award. She says that from 25 September 2018 until 24 September 2019, as a first year qualified beautician, she was entitled to be paid 92.5% of the Level 3 rate under the Award. She then says that from 25 September 2019 until the date of termination, she was entitled
to be paid as a Level 6 qualified beautician.
To her affidavit dated 20 September 2021 Ms Kelly annexed a spreadsheet, based on the above parameters, which sets out the hours she claims to have worked and the rates she claims
she should have been paid for ordinary hours and for overtime. Ms Kelly arrives at an overall underpayment figure of $12,448.95.
Ms Kelly concedes that during certain pay cycles she was actually paid at a higher rate than that prescribed in the Award, but she says that she has taken that into account in calculating her overall claim.
Ms Kelly was briefly cross-examined by Ms McKnight. Ms Kelly was asked why it had taken her more than 12 months to make a claim, to which she responded that it had taken a long period to gather up relevant documentation and to have those documents lodged. She was also asked why she had claimed different amounts over the period the parties had been in dispute. Ms Kelly conceded that her claim had shifted over time but said it was in part the result of her having to recalculate the claim after receiving advice from the Fair Work Ombudsman that for the first year after qualifying as a beauty therapist she was only entitled to be paid 92.5%
of the Level 3 rate, not 92.5% of the Level 6 rate as she had believed.Ms McKnight’s evidence
Ms McKnight denies any liability in respect of Ms Kelly’s claim.
In contesting the claim, Ms McKnight relied upon the documents she had filed with the Court including affidavits dated 16 July 2021, 13 August 2021, 10 September 2021 and 27 September 2021. Some of those affidavits also annexed various documents including payroll printouts prepared by her bookkeeper and the statutory declarations of Ms Kristy Halliwell, the salon manager and Ms Mikayla Danielson, the salon’s apprentice hairdresser. Ms McKnight
also annexed correspondence between her and the office of the Fair Work Ombudsman relating to Ms Kelly’s underpayment claim.Ms McKnight contends that the underpayment claim is misconceived. She says that Ms Kelly was engaged to perform 38 hours of work per week and that she did not exceed those hours unless she was specifically requested to perform overtime. Ms McKnight argues that Ms Kelly was properly paid, if not slightly overpaid, for the work she performed.
Ms McKnight vehemently denies that she ever told Ms Kelly that she was required
to commence work 30 minutes prior to salon opening. She agrees that Ms Kelly would sometimes come in early, but maintains that it was Ms Kelly’s choice and as often as not
Ms Kelly chose to do so in order to use the salon facilities for herself.Ms McKnight contends that Ms Kelly’s hours of work were 38 hours per week during
the salon’s 43 trading hours. She said that Ms Kelly was entitled to an unpaid lunch break
of one hour each day, with an additional break on Thursdays due to longer trading hours.
She says that Ms Kelly was paid for 38 hours per week at an hourly rate which exceeded
the relevant Award rate of pay.As to the 38 hour working week, Ms McKnight said that there was a contract of employment signed by the parties prior to the commencement date which prescribed those hours. However, as I observed earlier, this contract was not in evidence in the proceedings before me and
Ms McKnight did concede that it made no reference to starting or finishing times.In her submissions at trial, Ms McKnight said that all staff had their own key and came
into the salon when they were ready. She said that the girls often came in early to do their own hair and makeup, but they were never directed to be at the salon 30 minutes early or to perform work before opening.Ms McKnight did concede that Ms Kelly did have to do set up tasks in order to be ready
for her first client each morning. However, she said that the set up tasks were shared among all employees and that it was not necessary to come in early if proper preparations had been made the evening before. Ms McKnight said that the only direction she gave about starting times was “to be ready for your first client”.Ms McKnight conceded that Ms Kelly was required to be on the premises at all times during salon opening hours, other than when she was taking her lunch break, or other approved breaks or was allowed to go home early. Ms McKnight emphasised that she operated a small business, and that there was “give-and-take” regarding hours of work. For example, she said that there were occasions where Ms Kelly was allowed to undertake training during normal hours
and there were other times where she was allowed to finish early for the day.As for breaks during the working day, Ms McKnight said that each employee was allowed
a one hour unpaid break each day, except Thursday where there were two additional 15 minute breaks. She said there was no work roster as such but that the client booking system “Shortcuts” had a one hour meal/rest break coded into the day’s schedule for each employee.According to Ms McKnight, employees were entitled to take a one hour unpaid break
but whether they did so or chose to break it up into smaller breaks was really a matter for them. She said that employees could move the scheduled break from one timeslot to another in order to accommodate their client bookings, but the one hour remained a fixed feature of the system.The client booking system was not put into evidence by either party.
She said that as a small business, “it was really up to the individual employee to control their own time”. To illustrate this point, Ms McKnight relied upon the statutory declarations
of Ms Halliwell and Ms Danielson, who each depose that while Ms Kelly was entitled to lunch breaks, she occasionally would choose to take a shorter break or work through the break.
In particular, each of them referred to instances where Ms Kelly chose not to take a full break on days when she was “fasting”.Ms McKnight submitted that Ms Kelly had been paid everything to which she was entitled and said that the payroll activity details prepared by her bookkeeper (annexed to her affidavit dated 13 August 2021) were a correct and accurate record of the hours worked by and payments made to Ms Kelly.
Ms McKnight also sought to place some weight on the fact that she had engaged with the
Fair Work Ombudsman when enquiries were made by the regulator on behalf of Ms Kelly
and that the Ombudsman had chosen not to proceed “due to insufficient evidence”.[1]
Ms McKnight said that I should take notice of that evidence in assessing the veracityof Ms Kelly’s claim.[1] email from customer services, Fair Work Ombudsman dated 2 July 2021 annexed to Ms McKnight's affidavit dated 16 July 2021
Ms Kelly was given the opportunity to cross-examine Ms McKnight. In the course of that
cross examination, Ms McKnight conceded that Ms Kelly was only entitled to a 30 minute lunch break each Saturday because it was the salon’s busiest day.Ms McKnight says that I should dismiss the claim.
Ms Kelly’s reply
In a very brief reply, Ms Kelly reiterated that she had never received or been allowed
a one-hour lunch break. She denied that the client booking system was set up to allow
a one-hour lunch break for each employee and said the booking system only allocated
half an hour per employee.
Ms Kelly also reiterated that it was necessary for her to attend work 30 minutes earlier
than opening time because she was required to switch on certain equipment to ensure that
it was ready to use. She said that it was not possible to comply with Ms McKnight’s direction
to be ready for her first client when the salon opened unless she also complied
with Ms McKnight’s direction to be in 30 minutes early to set up.Consideration
This matter was commenced and prosecuted as a small claim pursuant to s 548 of the FW Act. Accordingly, in dealing with this matter I am not bound by any rules of evidence and procedure and the hearing was conducted in an informal manner without regard to legal forms
and technicalities.
I have read the documents filed by the parties and in determining this claim I have given those documents the weight I think they should bear, taking into account the evidence as a whole.
I have also taken into account the evidence of the parties at trial and their oral submissions.Both Ms Kelly and Ms McKnight were courteous to the Court and endeavoured to assist
the Court. I found their evidence to be genuine, and any contested matters generally reflected
their different perspectives about salon operations and award obligations.
I now turn to Ms Kelly’s claim that she worked 43 hours per week but was only paid for 38.
Ordinary hours of work to average 38 per week
It is not contested that Ms Kelly was covered by the Hair and Beauty Industry Award 2010
at all times during her employment with Ms McKnight.
Pursuant to clause 11 of the Award a full-time employee is “an employee who is engaged
to work an average of 38 hours per week”.On the basis of the evidence before me, I accept that Ms Kelly was employed as a full-time employee and that she was engaged to perform 38 ordinary hours per week. My finding
as to the hours actually required to be worked by Ms Kelly is set out later in these reasons.Clause 28.2(a) of the Award provides that:
Ordinary hours must not exceed an average of 38 per week and may be worked within the following spread of hours:
Days
Spread of hours
Monday to Friday, inclusive
7.00 am – 9.00 pm
Saturday
7.00 am - 6.00 pm
Sunday
10.00 am – 5.00 pm
Clause 28.2(b) of the Award provides that:
Hours of work on any day will be continuous, except for rest periods and meal breaks.
As to the maximum number of ordinary hours that can be worked on any one day, clause 28.3 provides that an employee may be rostered to work up to a maximum of nine hours on any day, except that an employee may be rostered to work one 10.5 hour day per week, or, by mutual agreement, two 10.5 hour days per week.
On the evidence before me, it appears that all hours worked by Ms Kelly fell within the spread of hours set out in clause 28.2(a). It also appears that Ms Kelly was never asked to work
10.5 hours on any day. Her longest working day was Thursday when the salon was open
for 11 hours, but her evidence is that on those days she took a one-hour break and two
15 minute breaks.Clause 28.4 provides that a full-time employee is to be rostered for an average of 38 ordinary hours per week, worked in any of the following forms:
(a)38 ordinary hours in one week;
(b)76 ordinary hours in two consecutive weeks;
(c)114 ordinary hours in three consecutive weeks;
(d)152 ordinary hours in four consecutive weeks.
Clause 29 requires an employer to provide permanent employees with a written roster which sets out, among other things, the number of ordinary hours to be worked each week, the days of the week in which the work is to be performed and the times at which work is to start
and finish.
Clauses 11, 28 and 29 of the Award serve to illustrate that the ordinary hours of work
for a full-time employee are to be an average of 38 hours per week. Those ordinary hours
can be organised in a variety of ways. The ordinary hours can be 38 every week or they
can be averaged over a period of up to 4 weeks. The ordinary hours must be worked within
a certain spread of hours, depending upon the day on which the work is performed. The hours worked on any one particular day in a week may be up to but cannot exceed 10.5 hours.
Finally, employees are to be provided a roster so it is clear to them how and when the ordinary hours of work are to be performed, including relevantly, when they are to start and finish their working day.The effect of the scheme described in the previous paragraph is that any hours worked
by an employee which are in excess of 38 (on average) or which are worked outside the spread of hours or which exceed 10.5 in any one day, are not “ordinary hours”. They will generally be regarded as overtime hours and will be remunerated not at the ordinary rate of pay but
as prescribed elsewhere in the Award.I will return shortly to the question of whether Ms Kelly worked overtime hours.
Rate of pay
The remuneration to be paid to a full-time employee for performing ordinary hours of work depends upon the classification which attaches to the employee. The classification will depend upon the type of work performed by the employee and the employee’s qualifications
and experience.
Clause 16 of the Award requires that all employees must be classified according to the structure set out in Schedule B of the Award. Schedule B sets out a six level classification structure. There is a further requirement that employers advise employees in writing of their classification and of any changes to their classification.
There is no evidence before me which allows me to conclude that Ms Kelly was ever advised in writing of her classification from time to time. Nonetheless, it is not contested that from the commencement of her employment in July 2018 until 25 September 2019, Ms Kelly
was an unqualified beautician (classification Level B2). Nor is it contested that from
25 September 2019, Ms Kelly held a Diploma in Beauty Therapy. If Ms Kelly held such
a Diploma, it would appear that she then met the definition of classification Level B6,
namely “a beauty therapist who holds a Diploma in Beauty Therapy (or equivalent).”Clause 17 of the Award sets out the minimum weekly wages payable to full-time employees
at each classification level for 38 ordinary hours of work. Those rates of pay are periodically adjusted by the Fair Work Commission. For the period over which Ms Kelly was an employee of Ms McKnight, the relevant weekly full-time rates for Award covered employees were
as follows:
Classification
1 July 2018 – 30 June 2019
1 July 2019 – 30 June 2020
Level B1
789.90
813.60
Level B2
808.70
833.00
Level B3
837.40
862.50
Level B4
852.90
878.50
Level B5
878.40
904.80
Level B6
909.70
937.00
To ascertain an employees’ entitlement, certain adjustments may need to be made to the classification minimum rate of pay depending on the employee’s age, qualifications and experience. For example, employees under the age of 18 years are only entitled to a percentage of the adult minimum rate. Similarly, employees who are undergoing an apprenticeship
or other training may only be entitled to a percentage of the full adult minimum rate.In the context of the present claim, it will be noted that Ms Kelly only graduated with
her Diploma of Beauty Therapy in September 2018. Although qualified and prima facie meeting the Level 6 definition, clause 19.7 of the Award states as follows:The minimum rate of pay for a full-time beauty therapy graduate for the first 12 months is:
Year of study
% of standard rate
Beauty Therapy Graduate (first 12 months)
92.5
I note that the “standard rate” referenced in clause 19.7 is defined as the minimum weekly wage for a Hair and Beauty Employee Level 3.
In the claim filed with the Court on 5 May 2021, Ms Kelly contends that for the pay period
13 July 2018 to 28 September 2018, she was properly classified as a Level 2 unqualified beautician. She says that for the pay periods 5 October 2018 to 27 September 2019, she was entitled to be paid 92.5% of the Level 3 classification rate. She also claims that for the pay period commencing 28 September 2019 to the date of her termination, she was entitled
to be paid as a Level 6 beauty therapist.Assuming the correctness of those asserted classifications as I do, Ms Kelly’s claim is that she was entitled to be paid the following hourly rates for ordinary hours:
Date of employment
Classification
Weekly min rate for ordinary hours
Min hourly rate for ordinary hours
Saturday rate for ordinary hours
18/7/18-25/9/18
Level B2 – unqualified beautician
789.90
20.79
27.65
25/9/18-30/6/19
Level B3 – a beautician who holds a Cert III
in beauty services
(or equivalent)837.40 x 92.5% = 774.60
20.38
27.11
1/7/19– 24/9/19
862.50 x 92.5% = 797.81
20.73
27.57
25/9/19- – 24/12/19
Level B6 – beauty therapist who holds
a Diploma in Beauty Therapy937.00
24.66
32.80
Where ordinary hours of work are worked on a Saturday within the spread of hours specified in clause 28.2(a), a full-time employee is to be paid at 133% of the ordinary hourly rate
for each hour so worked.What hours did Ms Kelly actually work?
Based on the available evidence, I am satisfied that Ms Kelly was required to commence work 30 minutes prior to the salon opening time.
I note the conflict in the evidence on this point, but I am persuaded on the balance
of probabilities that Ms Kelly was required to attend work 30 minutes early and to undertake the various preparations so that the salon was ready to receive clients when the doors opened.The statutory declarations of Ms Halliwell and Ms Danielson reinforce Ms Kelly’s evidence. In particular, Ms Halliwell who was the manager of the salon and effectively in charge when Ms McKnight was not present, deposes that Ms Kelly was asked to be at the salon 30 minutes prior to opening hours. I infer that it was Ms McKnight who gave that direction or Ms Halliwell on Ms McKnight’s behalf. In my opinion, it was not plausible for Ms Kelly to turn up for work
at 10.00 am particularly in circumstances where equipment such as the wax pot had to be turned on much earlier.I also consider that Ms Kelly is entitled to the benefit of s 557C of the Act which imposes an obligation on an employer, in proceedings of this kind, to disprove the allegation where there is an absence of appropriate records.
As previously mentioned, clause 29 of the Award requires an employer to provide permanent employees with a written roster which sets out, among other things, the number of ordinary hours to be worked each week, the days of the week in which the work is performed and the times at which work is to start and finish. No records have been produced to the Court which meet those requirements.
It does not appear on the evidence before me that Ms McKnight ever provided Ms Kelly
with a written roster which met the requirements prescribed by the Award. I am not persuaded that the “Shortcuts” booking system meets the necessary requirements as it is framed by salon opening hours rather than employee working hours. The Shortcuts system was not in evidence and I can only go on the parties’ description of it. But based on the evidence, I do not accept that the Shortcuts electronic booking system would be determinative as to the hours actually worked by Ms Kelly.Moreover, the payroll printouts prepared by Ms McKnight’s bookkeeper do not record
Ms Kelly’s starting or finishing times or the hours actually worked on each day. The printouts simply record that Ms Kelly was paid for 38 hours per week.The allegation by Ms Kelly that she was required to commence work 30 minutes prior to salon opening each day has not been disproven by the employer and Ms Kelly is entitled to a finding in her favour on this point.
In any event, even if I am incorrect about the application of s 557C in this case, I am satisfied on the evidence before me that Ms Kelly was required to and did start work 30 minutes before the salon commenced trading.
However, I am not persuaded, subject to one exception, that Ms Kelly was only allowed
a 30 minute lunch break each day. It may be that Ms Kelly chose not to take more than
30 minutes or decided to work for part of that lunch break. But I am unable to find to the necessary level of proof that she was directed to work and that she was not entitled to take
any more than 30 minutes. I prefer Ms McKnight’s evidence that employees were allowed
a one-hour break each day.The one exception to which I refer is Saturday. Based on Ms Kelly’s cross-examination
of Ms McKnight, I took Ms McKnight to concede that on Saturdays staff were only entitled
to take a 30 minute lunch break because the salon was so busy.The practical effect of my findings is that Ms Kelly worked 41 hours per week, not 38 ordinary hours. The additional hours in excess of the 38 ordinary hours comprised the 30 minutes prior to salon opening on Tuesday, Wednesday, Thursday and Friday. On Saturdays Ms Kelly started 30 minutes prior to salon opening and during Saturday opening hours she only took
30 minutes for lunch.In respect of each of those 3 hours over and above the ordinary hours, Ms Kelly was entitled to be paid 150% of the ordinary hourly rate of pay.
CONCLUSION
I have concluded that Ms Kelly was required to work 41 hours per week. She has been remunerated for 38 hours in each of those weeks. Accordingly, she should be paid 3 hours
at overtime rates for each week she worked during the period of employment.There does not appear to be any contest about the days and weeks on which Ms Kelly performed work at the salon. Accordingly, in calculating Ms Kelly’s entitlement to overtime, I have assumed that the pay periods (but not the total hours of work) set out in the bookkeeper’s payroll data accurately identify the weeks during which Ms Kelly performed work
and the weeks she took leave.Doing the best I can, based on the imperfect evidence available to me, I calculate
that entitlement as follows:
Employment dates Number of full pay periods (excl leave) Overtime rate per hour Overtime payable per week (3hrs) Underpayment for period 18/7/18-25/9/18
10 $31.19 $93.57 $935.70 25/9/18-30/6/19
39 $30.57 $91.71 $3,576.69 1/7/19 – 24/9/19
12 $31.10 $93.30 $1,119.60 25/9/19 – 24/12/19
13 $36.99 $110.97 $1,442.61 Total $7,074.60
The respondent’s liability should be reduced to account for the amount paid pursuant
to the order of Registrar Stone made on 20 August 2021, namely $1,338.56.Taking the Registrar’s order into account, I will order that Ms McKnight pay Ms Kelly a gross amount of $5,736.00 in respect of unpaid wages.
Ms Kelly’s claim will be otherwise dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 21 November 2021
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