Meng v Havacom Pty Ltd Trading as Quest Mandurah
[2020] FCCA 3034
•12 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENG v HAVACOM PTY LTD TRADING AS QUEST MANDURAH | [2020] FCCA 3034 |
| Catchwords: INDUSTRIAL LAW – Claimed underpayments pursuant to the Hospitality Industry (General) Award 2010 (Cth) – whether the respondent is a “hotel” or a “resort” – whether the applicant was only entitled to an overnight stay allowance – whether evidence of contractual obligations – respondent is not a hotel or resort – applicant did not work an “overnight shift” – no evidence of contractual terms as per the applicant’s submissions – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), Pt.2-2, ss.45, 535, 570 Public Health Act 2016 (WA), s.202G |
| Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27 Davies v Punthill Apartment Hotels Pty Ltd [2014] FCCA 1158 |
| Applicant: | YIQIN MENG |
| Respondent: | HAVACOM PTY LTD TRADING AS QUEST MANDURAH |
| File Number: | PEG 501 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 September 2020 – 2 October 2020 and 19 October 2020 |
| Date of Last Submission: | 19 October 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Petherick |
| Solicitors for the Applicant: | Petherick Cottrell Lawyers |
| Counsel for the Respondent: | Mr R Millar |
| Solicitors for the Respondent: | HMB Employment Lawyers Pty Ltd |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 501 of 2018
| YIQIN MENG |
Applicant
And
| HAVACOM PTY LTD TRADING AS QUEST MANDURAH |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 September 2018, the applicant, Yiqin Meng, filed an application in this Court alleging that the respondent, Havacom Pty Ltd., had breached ss.45 and 535 of the Fair Work Act 2009 (Cth) (the “Act”). The respondent denies that it has contravened the Act and states that the applicant has been paid any entitlements owed to her.
Background
The respondent company is a “management rights business” located in Mandurah. It offers accommodation services to the general public. At the relevant time, the respondent was a franchisee of Quest Apartment Hotels operating as “Quest Mandurah” in Mandurah, Western Australia (“Quest”).
Quest is situated within a larger complex which contains other privately owned apartments (the “Complex”). Those apartments are individually owned and are managed by the owners of Apollo Quay Strata Plan 38186 Company (the “Strata”). Owners may live in their apartment, rent the apartment themselves privately or use the respondent’s services. If the latter occurs, the respondent manages the apartments (and rents them) pursuant to a Letting Services Agreement.
David and Deanna Rushworth (the “Rushworths”) co-owned and managed Quest from 2002 until 2019. They are also directors of the respondent.
The applicant started working with the respondent as a casual housekeeper in 2013.
In December 2013, the applicant was offered and accepted the position of “onsite caretaker”.
The applicant was given a document which she says outlined the “Package” she would receive from the respondent for working as the onsite caretaker. That document, in evidence before the Court, provides:
Onsite care taker
• Free rent, power & phone in apartment 73
$500.00 per fortnight.
• Responsibilities would Involve the security of the complex (noise etc)
• Any afterhours requests from guests (locked out of room or toilet)
• Late check In’s or departures before reception opens (collect keys or night safe)
Package value : Rent $15,600.00
Pay $13,000.00
Power $2800.00
Phone $1200.00
Total $45,600.00
(Without alteration)
The applicant’s duties are the subject of some debate, as is the effect of the “Package” outlined above.
It is agreed between the parties that the applicant’s duties included “checking in guests”, “resolving enquiries”, “responding to complaints” (eg. noise or smoking) and “checking the Complex at least once during the evening”.
So that the applicant could respond to complaints or enquiries and communicate after-hours, her mobile telephone number was given to guests. After reception closed, the applicant was the only onsite staff member until the reception reopened the following morning.
On 13 February 2018, the applicant resigned.
Shortly after tendering her resignation, the applicant advised the respondent that she believed she had been underpaid. Following an audit, the applicant was paid an additional $8,685.36. This payment was included in the applicant’s final pay on 9 March 2018.
Issues
It is not in dispute that the applicant’s employment was covered by the Hospitality Industry (General) Award 2010 (Cth) (the “Award”).
The applicant claims that she was underpaid. She claims that during the course of her employment she was employed in one of the following capacities:
a)as a full-time hotel manager; or
b)as a part-time hotel manager.
The applicant also claims that her pay fell below what these classifications require. She was paid only the overnight stay allowance. She says she ought to have been paid for overnight shifts.
Alternatively, although not entirely clear (a concern that will be addressed further below), the applicant seems to claim that she has been underpaid pursuant to a partly written and partly oral employment contract. She says that her contract contains implied terms consistent with the (then current) National Employment Standards set out in Part 2-2 of the Act and that entitlements arising from these implied terms have not been paid.
The respondent, in turn, argues that the applicant was paid all that was owed to her during the course of her employment. Importantly, the respondent says, the applicant received an “overnight stay allowance” as per the Award. The respondent argues that the applicant is now claiming that she worked extra hours (hours which were not claimed when she was employed) and that this claim should be rejected.
Hearing
Digital Hearing
This matter was heard over three days. The parties agreed to proceeding via Microsoft Teams. The Court is satisfied that this did not hinder the provision of a fair hearing.
Adjournment Request
The evening prior to the hearing of this matter, the applicant’s solicitor sent an email to the Court (Exhibit 1) which provided:
We refer to the above matter and the submissions filed and served on behalf of the Respondent on 23 September 2020, signed by their counsel, Mr Rohan Millar (Submissions).
In particular, we refer to paragraphs 9 through to 12 of the Submissions, wherein the Respondent raises a new defence for the first time; namely that the Respondent’s complex was not a “Hotel” for the purposes of the Hospitality Industry (General) Award 2010 (“the Award”). This defence has never been pleaded.
The Respondent requires the leave of the Court to amend its pleadings (Federal Circuit Rules 2001 (Cth), Rule 7.01(1)). The Applicant notes that there is has no such application and the trial is scheduled to begin tomorrow. If the Respondent is allowed to amend its pleadings, the effect of its argument if successful, is that the Applicant if found to be a manager as pleaded is not covered by the Award. This would necessitate the Applicant amending its pleadings. Moreover, the Applicant has not had a fair or adequate opportunity to consider and respond to the further defence now advanced.
The Respondent has accepted that the Applicant is covered by the Award. However, the Submissions now argue effectively that the complex is not a Hotel. This should have been pleaded earlier as the Applicant’s entire case is that she is a Hotel Manager under the Award. This pleaded from the outset in both the Applicant’s Statement of Claim filed on 25 September 2018, and Amended Statement of Claim and Particulars of Claim file 7 May 2020. We note the Submissions were filed within 7 days of the trial in this matter, inclusive of the public holiday in Western Australia on 28 September 2020.
It is inappropriate of the Respondent to raise a novel defence now some two years after it was first alerted to the Applicant’s claim and on the eve of the trial of this matter. The appropriate course would have been for the Respondent to raise this defence at the very latest in its Amended Defence filed 27 May 2020.
To lead a defence at this time embedded in Submissions is in our view inconsistent with the fair administration of justice and is an attempt to circumvent the correct processes of the Court. If the Respondent intended to lead this defence it should have sought leave of the Court to do so. We note again that the Respondent has had ample time to do so.
Further, the Submissions propose a defence central to the Applicant’s claim and at complete variance from the Respondent’s filed pleadings. Per Aon Risk Services Australia Ltd v National University [2009] HCA 27, [113] parties have choices as to what claims are to be made and how they are to be framed. As parties have sufficient opportunities to therefore identify the issues they seek to agitate, limits will be placed upon a party’s ability to effect changes to pleadings particularly where litigation is advanced.
The Applicant faces substantial prejudice as the period of time that has lapsed since their Amended Defence and their Submissions is considerable, further costs have been incurred in having to deal with these amendments less than a week before trial and as the Applicant has already filed an outline of submissions dealing with the grounds already established. This would amount to an injustice ‘which could not be compensated for’ if the Submissions are allowed to stand in place of amended pleadings by the Respondent and if a right of reply is not granted by the Court to the Applicant (noting matters set out by Lucev J at [23] and [25] in CEJ15 v Minister for Immigration & Anor [2019] FCCA 1038 in relation to the Court permitting late amendments of pleadings; Medich v Bentley-Smythe Pty Ltd [2010] FCA 484, [8]).
The lateness of the Respondent in promulgating this defence is unexplained and on face value is not made in good faith.
Respectfully, in our view the appropriate course is:
1. that the trial to be adjourned and relisted as soon as practicable;
2. the Respondent apply for leave to amend its pleadings; and
3. the Applicant to be granted leave to respond if required;
4. Costs in favour of the Applicant are awarded;
…
The respondent then sent Chambers an email in response (Exhibit 2), which provided:
…
There is no substance in the matters relied upon in seeking the adjournment. We note:
(a)It is not in dispute that the Respondent is and was at all times within the coverage of the Award. Clause 4.2 of the Award specifically refers to ‘serviced apartments’ being within the ‘hospitality industry’ and therefore within the coverage of the Award. The Respondent has been clear that the Applicant has been paid in accordance with the Award – as a housekeeper receiving the overnight stay allowance. The Respondent has followed the Award in its payment arrangements for the Applicant.
(b)The Amended Statement of Claim does not allege that the Respondent was operating a ‘hotel’ within the meaning of clause D.2.9 of the Award. The claim is made that the Applicant was working in the capacity of ‘Onsite caretaking/night manager’ (para 1) and as a ‘Permanent caretaker/night manager’, and the Respondent has denied that the Applicant was performing any managerial duties (Amended Defence paragraphs 14(b), 44(a), 46(a), 53(d)).
(c)The references later in the Statement of Claim to ‘managerial staff-hotel’ are not, properly construed, as asserting a claim to be within that classification, but to a form of reverse arithmetic with the starting point of there being ‘no hourly pay rate in the relevant Guide of $50.01 per hour’ (see paragraph 41), and an annualised salary arrangement calculation (see paragraph 44) which is manifestly irrelevant to the claim. In any event, the Respondent’s Defence is clear in stating, at paragraph 41:
…the Applicant was not paid the rate for ‘Managerial staff-hotel’, and had no such entitlement, but was entitled to receive, and did receive, payment of the Overnight Stay Allowance.
(d)If the Applicant sought to challenge that defence she needed to establish her entitlement, including that she was working within a ‘hotel’.
(e)It is only in paragraph 2 of the written submissions of the Applicant that the contention has been clearly advanced that the Applicant was a ‘hotel manager’. The Respondent has countered by stating that the Applicant fulfils neither limb of that term. It is an unsurprising submission, brought into focus by the recent decision of this Court in Kramer v Punthill Apartment Hotels Pty Ltd [2020] FCCA 1617, but is not one which required amendment of the pleadings to facilitate. In any event, even if amendment were required, then it is for the Applicant to plead a contention that the Respondent operates a ‘hotel’, rather than suggesting it is incumbent upon the Respondent to plead to a previously unarticulated contention.
(f)The point is, ultimately, only a subsidiary issue in the proceeding. Irrespective of whether the Respondent operates a ‘hotel’ (which is denied), the Respondent maintains that the Applicant has been paid her due entitlements both as a housekeeper and to the overnight stay allowance, and that is the end of the matter. The Applicant would still have been paid correctly even if the Respondent operated a five-star hotel. Ultimately, she was paid for an overnight ‘stay’ rather than an overnight ‘shift’. If that contention is accepted then it is simply not necessary to deal with any contention that the Applicant was a ‘hotel manager’.
(g)Even if there were substance in any of the concerns voiced by the Applicant, there is no basis for an adjournment. The Applicant’s lawyers have had the Respondent’s submissions for almost a week, and if objection had been taken prior to the night before trial, then the issue could have been addressed in a more orderly manner. In fact, despite regular communications between the parties in preparation for trial (including a conferral between the parties’ respective Counsel after the Respondent’s submissions were filed) this point has never been addressed with the Respondent’s lawyers or Counsel prior to this approach being made directly to the Court. In any event, it is simply a part of conducting trials that issues emerge and evolve – seeking an adjournment causes costs and inconvenience and such an application ought not be lightly granted.
(h)If the Applicant seeks an opportunity to file reply submissions, present further argument, or even requires leave to adduce further evidence on this point, then such an application may be accommodated within the current timetable for the trial, rather than necessitating the adjournment the Applicant now seeks.
It is respectfully submitted that there is no impediment to the trial proceeding tomorrow, and the parties should proceed to hearing in accordance with the current directions.
At the commencement of the hearing, the Court indicated that it would not grant an adjournment. Nor did the Court accept that an amendment of the pleadings was necessary.
The Court’s reasons for these decisions are as follows.
The Court notes the following factors that must be assessed when determining whether an adjournment request should be granted:
a)the evidence in support of the adjournment and the explanation for the adjournment;
b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
c)any prejudice that cannot be mitigated by costs or other indulgences; and
d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27).
The reason the applicant sought an adjournment are set out in Exhibit 1. In effect, the applicant believed the respondent raised a defence not previously pleaded. This, it is said, “caught the applicant off guard” such that “more time” to prepare was required.
The respondent’s defence has not changed. The respondent, has at all times, denied that the applicant was covered by item D.2.9 of the Award – that is, the respondent has at all times denied that the applicant was a “hotel manager”. The fact that the respondent never pleaded that the respondent was not a hotel can be attributed to the fact that the applicant never pleaded that the respondent was a hotel.
The respondent’s case has always been that the applicant was entitled to an overnight stay allowance as per the Award and that she was paid accordingly. As Counsel for the respondent confirmed at the hearing, this is the respondent’s primary defence. The respondent has always expressly denied that the applicant met the classification in item D.2.9 and the respondent maintains that position.
Further, the case that the respondent’s rely upon, Kramer v Punthill Apartment Hotels Pty Ltd [2020] FCCA 1617 (“Kramer”) (which appears to be the case that “caught the applicant off guard”) does not reflect a jurisprudential shift.
While Kramer is factually similar to the circumstances in this case, the definition of “hotel” as it appears in item D.2.9 of the Award has been the subject of judicial consideration previously. This case law dates as far back as Johnson v Monti-Haitsma Enterprises Pty Ltd [2014] FCCA 259 (“Johnson”) (albeit in a different context).
Pleading that the respondent was a “hotel” was, in line with Johnson, a material fact which the applicant did not plead. Placing that aside, the respondent denied that the applicant met the classification pleaded and it fell to the applicant to then satisfy all aspects of that classification.
Even if the Court had been of the view that the pleadings needed to be amended, it would have granted leave for the respondent to do so in any event. The nature of the amendment (to argue that the respondent is not a “hotel”) is not futile. While the law has not changed, Kramer makes it clear that the term “hotel” does not apply to serviced apartments – something that is entirely relevant here. For the Court to ignore this issue would, in effect, run contrary to the administration of justice.
As noted further below, an adjournment was, in any event, unnecessary as the Court granted additional time after the hearing for this argument to be addressed by both parties in detail – something both parties did without difficulty.
The Court determined that the applicant could adequately present her case without an adjournment. The Court advised Counsel for both parties that closing submissions could be made in writing and that, to the extent that the applicant felt that further evidence was necessary, this could be addressed in due course. Any concerns the applicant had about inadequate preparation time could be (and was) addressed by the provision of additional time at the end of the hearing.
The Court also bears in mind the principles of case management. The applicant asked for the matter to be re-listed on “the next available date” but “as soon as practicable”. The “next available date” for a three day hearing would have been August 2021. A delay of almost one year is entirely unsatisfactory. Witness recollection might be affected. Proceedings would have been on foot for nearly three years. In a Court whose statutory objective is to act “efficiently” this is completely inappropriate.
In light of the above, the Court refused the adjournment. Even if the applicant was “caught off guard” (a suggestion which the Court rejects), by allowing written submissions to be filed after the hearing the Court ensured that any outstanding issues were well and truly addressed.
Evidence and Credit
The parties presented evidence in chief by way of affidavit. The affidavit evidence comprised of:
a)the applicant’s affidavit affirmed 19 June 2020;
b)the affidavit of Emma Jane Biggs affirmed 24 June 2020;
c)the affidavit of Penelope Daphne Ann Curtis affirmed 22 July 2020;
d)the affidavit of Michaela Jayde Murby affirmed 22 July 2020;
e)the affidavit of Kodie Lee O’Driscoll affirmed 22 July 2020;
f)the affidavit of Desmond Godfrey Michaud sworn 22 July 2020
g)the affidavit of Michael Max Bevilaqua affirmed 31 July 2020;
h)the affidavit of Deanna Raynor Rushworth affirmed 23 July 2020; and
i)the affidavit of David John Rushworth affirmed 22 July 2020.
All witnesses (except Ms Curtis) were cross-examined.
The applicant was cross-examined at length. She was assisted by an interpreter in the Mandarin language. The Court thanks the interpreter for her extraordinary assistance. The interpretation of complex legal documents and witness testimony is difficult at the best of times. Doing so via Microsoft Teams with witnesses who appear remotely and who are “problematic”, however, makes that task even more complex. The patience and expertise shown here by this interpreter was very much appreciated.
The Court has concerns about the reliability of the evidence the applicant gave during the course of cross-examination. The applicant was, at times, “difficult”, bordering on obstructionist. She tended to avoid answering questions or provided extraordinarily lengthy explanations that did little more than obfuscate or confuse issues.
For example, when it was put to the applicant that she had provided her telephone number to Strata residents, she indicated “not from my own initiative”. She then stated that reception and Mrs Rushworth had provided her number. She then stated that she was asked for her number by Strata residents and provided it. She then stated that there was “nothing in her contract” and she was never told she could not provide her number. In effect, the answer was “yes” – even though the applicant maintained that it was not – but getting to “yes” was deliberately difficult and unnecessarily complex.
The Court should not be seen as suggesting that the applicant was “untruthful”. However, the Court is of the view that she intentionally embellished her evidence or avoided responding when she could and should have done so. The Court treats the evidence provided by her with a considerable degree of caution.
Ms Biggs, who appeared as a witness for the applicant, struck the Court as entirely credible. At times, her evidence did not support the applicant’s case. She presented as candid and truthful.
In relation to the respondent’s witnesses, the applicant provided written submissions which sought to discredit a number of the respondent’s witnesses. Those submissions referred to inconsistencies between the witnesses’ evidence (for example, as that evidence related to the number of guests who checked in or in relation to who prepared “a contract” for the applicant).
It is noted that these submissions were made without reference to the Court transcript. This is not ideal as it risks errors. Some of the submissions advanced are misguided. Indeed, on review of the transcript, the inconsistencies referenced do not actually arise. For example, the applicant submits that Mr Rushworth’s oral evidence contradicted his written evidence as Mr Rushworth “admitted” in cross-examination that he never provided the applicant written instructions to fill in a timesheet. This is inaccurate. Mr Rushworth did not state in his affidavit that he had provided written instructions. Another example relates to the preparation of “a contract” for the applicant. The applicant says that Mrs Rushworth said that Mr Rushworth prepared a contract but that Mr Rushworth’s evidence denies this. This too is inaccurate. Mr Rushworth did not deny that he prepared a contract of sorts. He maintained that there were other agreements and information that the applicant would have been provided. He could not “categorically remember” what was provided but he maintained that the applicant had received a “welcome pack”.
To the extent that reference is made in closing submissions to the respondent’s witnesses being “coached”, the Court emphatically disagrees. All of the respondent’s witnesses were asked whether Mrs Rushworth had “told them what to say”. All indicated, without hesitation, that this was not the case. Mrs Rushworth was asked if she had consulted with her employees. She denied this and said that her lawyers had worked with the witnesses. The Court has no doubt that this is what occurred. Indeed, it is clear that when Mrs Rushworth (who struck the Court as entirely credible) was referred to other witnesses’ affidavits, she was clearly unfamiliar with their content.
If the applicant is suggesting that the respondent’s legal representatives “coached” the witnesses, this is a quite serious and entirely unfounded allegation. It is rejected and does not warrant further consideration.
The Court found all of the respondent’s witnesses to be entirely reliable and credible. They answered questions directly and did not, in any way, avoid answering questions (even when Counsel for the applicant suggested that they were doing so).
The parties also prepared a Court Book comprising 1115 pages and seven volumes. The first three volumes contained the pleadings and affidavit evidence. Volumes 4, 5, 6 and 7 of the Court Book were marked as Exhibit 3.
During Mr Rushworth’s evidence, a further exhibit was tendered and marked as Exhibit 4. This was the applicant’s timesheet from
5 April 2015. While the disclosure of this document was late (being the third and final day of the hearing), for reasons explained below it has limited weight in relation to the resolution of the issues in this case.
Consideration
The applicant’s pleadings in this matter were, with respect, unclear and very confusing. Indeed, it is difficult to identify what, exactly, the applicant purports to be claiming. At hearing, Counsel for the applicant was asked if the “alternative claims” as pleaded were being pressed (noting that no submissions addressing these issues had been made). Counsel indicated that “they were, depending on the way the Court resolves the matter”. This is less than ideal.
Despite the lack of clarity, the Court has proceeded on the basis that the issue for the Court to resolve is: what was the applicant entitled to be paid during the course of her employment with the respondent?
The applicant argues that she was entitled to be paid as a full time, or alternatively a part time, hotel manager.
The respondent argues that the applicant was entitled to an overnight stay allowance and that she was paid an overnight stay allowance. Nothing else is owed.
Was the applicant a hotel manager on an “overnight shift”?
The applicant claims that she was a “hotel manager”. This is defined in the Award as follows:
D.2.9 Managerial staff (Hotels)
For the purpose of this additional classification, hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.
In this additional classification, hotel manager means an employee (however designated) who:
•under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
•directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
•implements policies, procedures and operating systems for the hotel;
but excludes an employee who is employed to undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:
•Company secretary;
•Chief accountant;
•Personnel or human resources manager;
•Financial controller;
•Industrial relations manager;
•Venue manager;
•General/hotel manager;
•Executive assistant manager;
•Regional manager; or
•a Manager to whom any of those positions report or are responsible.
An employee appointed as a Manager will have completed an appropriate level of training in business management or have relevant industry experience including the supervision of staff in one or more areas of an hotel. In a General Hotel, this classification is commonly known as an Assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: Duty manager; Assistant food and beverage manager; Assistant rooms division manager; Assistant front office manager or equivalent position.
This additional classification does not apply to:
•Any hotel manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) where the Hotel Manager holds sufficient number of shares to entitle the Hotel Manager to voting control at general meetings of the company; or
•Any hotel manager who is the senior partner of a partnership or has at least 49% of that partnership; or
•A parent, spouse or de facto partner, son or daughter of a hotel manager excluded from the additional classification by this paragraph.
The applicant argues that the respondent is a “hotel” or, alternatively, a “resort”. She argues that the following services are provided by the respondent and that all are of a sort that one expects from a “hotel” or a “resort”:
a)hotel like services including an afterhours onsite caretaker, afterhours check-in and check-out, onsite security and secure car parking, valet dry-cleaning and housekeeping on request;
b)bottled water and tea and coffee beverages in rooms, pantry shopping and chargeback facilities with local restaurants; and
c)access to recreation facilities for guests at the Complex including pool and spa, gymnasium, serviced barbecues, jetty access to canals, Wi-Fi and Foxtel.
In Kramer, Judge Mercuri explains that the relevant questions for the Court in circumstances such as these are:
a) what business does the first respondent carry out?; and
b)does that properly fall within the term ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award?
What business does the respondent carry out?
Mr Rushworth refers to the respondent as a “serviced apartment-style hotel” (CB 274 at [3]). The respondent’s guest information also contains information on “Hotel policies” (CB 406).
The Rushworth’s email signature also refers to the respondent as a “Resort” (Court Book (“CB”) 363 and 406-407).
The question is: is this conclusive?
There is also evidence in the Letting Services Agreement which provides:
Letting service
6.1 The Agent [the respondent] must:
(a) offer the Premises for rent as residential rental accommodation or holiday accommodation on its own behalf;
The respondent’s website also contains the following information (CB 628-645):
WHY SERVICED APARTMENTS?
What is a serviced apartment?
When you’re on holiday, your accommodation should be a safe, comfortable place where you can relax and rejuvenate between your busy daytime activities. That’s the experience that staying at a Quest serviced apartment provides - a home away from home.
At Quest, all properties offer a variety of apartment configurations to suit singles, couples, families and large groups, from studios to four-bedroom apartments. Most two and three-bedroom apartments contain a second bathroom, and adjoining apartments can also be reserved on request.
Most apartments offer separate living, dining, and sleeping areas, as well as fully-equipped kitchens and laundry facilities. Our open floor plans are ideal for families and groups of friends travelling on holiday, allowing everyone enough space to spread out while conveniently staying under the one roof.
The majority of Quest properties have an on-site reception, with an on-site manager to ensure the security of guests and attend to urgent after hours enquiries.
Quest standard services include:
• On-site reception
• 24 hour on-site management
• Broadband internet access*
• Breakfast options* - breakfast packs, on-site restaurant or local cafe
• Local restaurant chargeback* - have your meal charged back to your accommodation account from selected local restaurants
• Pantry shopping service* - place your grocery order and let us do the shopping for you
• Valet dry cleaning*
• Housekeeping - daily or weekly as required, excludes Sundays and Public Holidays
• Business administration services
Property features:
The majority of Quest properties offer a range of on-site facilities including:
•Swimming pool, spa and/or sauna*
• Gymnasium*
• On-site car parking*
• BBQ facilities*
* Costs and availability may apply and vary.
Apartment features:
Quest apartments typically feature fully-equipped kitchen and laundry facilities, as well as dining and entertaining areas that are separate from bedrooms. Studio apartments feature kitchenettes, along with a lounge/dining area. Most properties offer the following features:
• A range of apartment configurations from studios, to one, two, three or four bedroom apartments
• Two and three bedroom apartments may contain a second bathroom
• Reverse cycle air conditioning/apartment controlled air conditioning
• DVD players
• In-house movies - DVD hire, Movie-link*
• FOXTEL/Austar
•Direct dial telephone with voicemail
• Fax and modem lines
• iPod docking stations
• In-room safes
• Apartments with private balconies
• Broadband internet access* - wireless and cable connections vary. Please confirm the connection with your Quest property of choice at the lime of booking
Why are serviced apartments better for leisure travel?
Anyone who has travelled for an extended period alone or with a group will tell you that the confines of a standard hotel room are not ideal. Going on holiday with friends or family can be highly enjoyable, but also overwhelming. It’s important that everyone has enough space to kick back and unwind after long, tiring days of sight-seeing and exploring new places.
This is why Quest is the perfect accommodation option for leisure travellers. Serviced apartments typically offer more space than hotels or motels, with separate living, dining and sleeping areas, fully-equipped kitchens, and laundry facilities. These features, unique to serviced apartments, allow you to spread out, settle in and feel right at home. Our holiday guests can cook their own meals, do their own laundry, and relax with plenty of space.
We also offer regular housekeeping, valet laundry and dry cleaning services, local restaurant chargeback arrangements, a pantry shopping service, and babysitting booking service. This way, you can concentrate on making the most of your holiday while we take care of the rest.
In the materials before the Court, the respondent is referred to as a “serviced apartment”, a “hotel”, a “resort” or “holiday flats or units”.
Descriptives, in and of themselves, are not, however, conclusive. A consideration of the services offered by the respondent is also required.
As noted, “hotel” is not defined in the Award.
During the applicant’s oral evidence, she confirmed that in her role as a housekeeper she was not required to stock any minibars. She also explained that all units had a kitchen. Two and three bedroom apartments have their own laundry facilities and one bedroom and studio apartments share a laundry. The respondent offers dry-cleaning services. The respondent also offers a “chargeback” service but does not offer room service. Finally, the applicant notes that coffee and tea supplies are stocked in each apartment by housekeeping.
Mrs Rushworth’s oral evidence confirmed the applicant’s evidence. She also gave evidence that the respondent does not have a liquor licence.
The respondent’s “fact sheet” provides as follows:
PROPERTY FEATURES
• Gymnasium
• Outdoor swimming pool
• BBQ area
• Wheelchair access
• On-site secure car parking
PROPERTY SERVICES
• On-site reception
• Pantry shopping
• Valet dry cleaning
• On-site Property Manager
• Housekeeping service Monday-Saturday (excluding public holidays)
APARTMENT FACILITIES & FEATURES
• Separate living and dining area (excluding Studios)
• Fully equipped kitchens and laundry facilities
• Kitchenettes in Studios
• Apartment controlled air conditioning
• Flatscreen TV with Foxtel
• Great natural light
• iPod docking station
• WiFi internet access
In Kramer, Judge Mercuri states:
88. …. I find that each of these establishments, which all refer to themselves as ‘serviced apartments’ or ‘apartment hotels’, market themselves as offering features which distinguish them from ‘hotel’ rooms, principally in the self-contained nature of the accommodation. That is, they offer fully equipped kitchens, dining facilities and in room laundry facilities.
89. The applicants have not led any evidence to suggest that ‘hotels’ offer similar facilities or that these are not features which distinguish ‘serviced apartments’ or ‘apartment hotels’ from ‘hotels’.
…
109. Rather, I find that each of these establishments, which all refer to themselves as ‘serviced apartments’ or ‘apartment hotels’, market themselves as offering features which distinguish them from ‘hotel’ rooms, principally in the self-contained nature of the accommodation. That is, they offer fully equipped kitchens, dining facilities and in room laundry facilities.
…
111. The applicants have not led any evidence to suggest that ‘hotels’ offer similar facilities or that these are not features which distinguish ‘serviced apartments’ or ‘apartment hotels’ from ‘hotels’.
Each case turns on its own facts. Applying Kramer, the Court finds that the respondent here is not a “hotel”.
The undisputed evidence is that the respondent offers fully self-contained accommodation to guests for a fee. There are fully equipped kitchens or kitchenettes and laundry facilities in the apartments or units. There are separate dining spaces. While studio rooms do not have a separate dining space and the applicant’s evidence was that laundry facilities were shared between two studios, they are nevertheless “self-contained”. The rooms have a kitchenette and ready access to laundry facilities which were not provided at an additional cost (i.e., like a laundromat or dry-cleaning service).
These features are “unique to serviced apartments”.
The evidence also confirms that there is no room service or mini-bars. There are no vending machines on the premises. The respondent does not have a liquor licence. It does not, therefore, offer “beverages”.
While reference is made to “pantry shopping”, this is not the same as room service. The fact that there is “pantry shopping” is itself distinctive in the Court’s view from a hotel or a resort. Hotels do not offer a service of this sort and, in most circumstances, there would be no facilities that would require “pantry” items. Again, it is the self-contained nature of the apartments that makes “pantry-shopping” available.
Further, the Court does not consider a “charge-back” service to be akin to room service or “offering food and beverage services”. A guest is still required to leave the Complex for these services. In a hotel, a restaurant is located on site or food is delivered to the room. Here, that is not the case. The respondent plays no part in the preparation or provision of food and beverages. That is, the respondent does not provide, and is not responsible for, the service of the food and beverages. The respondent is simply a conduit for payment.
The Court notes that in Davies v Punthill Apartment Hotels Pty Ltd [2014] FCCA 1158, the Court found that the use of a restaurant chargeback service did not mean that the respondent was a “hotel”.
Further, the mere fact that a gymnasium, pool area, barbeques and Wi-Fi exist does not detract from the self-contained nature of the apartments – which, again, is “unique” to this type of establishment. “Hotel-like services” and amenities (such as bottled water and coffee and tea) do not detract from the unique self-contained nature of the accommodation that the respondent offers.
Mrs Rushworth also gave evidence that the respondent did not offer 24 hour reception or concierge services in the manner of large hotels. The letter provided to guests indicates that the applicant could be called “for emergencies only” and that a charge would accrue for a non-emergency. The fact that the reception was advertised as being closed from 6.00pm and there is a charge for “non-emergencies” supports Mrs Rushworth’s evidence that the respondent did not offer 24 hour concierge services of a sort that would be offered in a hotel.
The applicant attempts to distinguish Kramer on the basis that it was not argued in that case that the respondent was a “resort”. Here, the applicant refers to the fact that the term “resort” was used in the email signature of the respondent, the fact that the respondent currently uses the term “resort” in its name and that the respondent is located in Mandurah a “holiday spot”.
In Mrs Rushworth’s evidence, she states that the word “resort” is used because the Complex is located in a regional location. It is not located in the city itself. She says the word is used to promote the fact that there are canals and to focus attention on the fact the Complex is not “suburban” in nature.
Here, the relevant question is whether the respondent meets the definition of “resort”, which is defined in the Award as follows:
resort means an establishment that provides hotel services, accommodation and food and beverages together with access to recreation facilities for guests and includes an offshore island resort.
For the reasons given above in relation to whether the respondent is a hotel, the Court finds that the respondent is also not a resort. The respondent does not offer hotel services.
The Court does note that the information on the quest site states:
serviced apartments typically offer more space than hotels or motels, with separate living, dining and sleeping areas, fully-equipped kitchens, and laundry facilities. These features, unique to serviced apartments…
Accepting that reference is made to a serviced apartment providing more space than “hotels or motels” (and not “resorts”), the passage continues by emphasising that there is separate living, dining and sleeping areas, fully-equipped kitchens, and laundry facilities. It is these features which are unique to serviced apartments. The applicant led no evidence that resorts also provide the same facilities.
The self-contained element of the respondent’s business is critical. It is dispositive in the Court’s view. It distinguishes the respondent from other types of establishments – in particular hotels and resorts.
Accordingly, the Court finds that the respondent is a “serviced apartment” for the purposes of the Award.
Does the respondent’s business fall within the term ‘hotel’ for the purposes of item D.2.9 of schedule D of the Award?
It is noted that the applicant made submissions in relation to s.202G of Public Health Act 2016 (WA) which defines “hotel” as including a serviced apartment.
Section 202G specifically states that “in this Division” hotel includes a serviced apartment. That definition is restricted to the particular division of that particular legislation. It has no application in the present case.
The applicant also referred the Court to a number of cases where the definition of hotel has been discussed. The Court does not consider those cases persuasive. They do not relate to the distinction between a “hotel” and a “serviced apartment”.
In Kramer, Judge Mercuri held that “serviced apartment” was not within the meaning of “hotel” for the purpose of item D.2.9. This is directly on point with the issue here.
When interpreting an Award, its history is relevant. It often resolves ambiguities. In Kramer, Judge Mercuri set out the history of the Award and, in particular, the managerial classification. The Court adopts Her Honour’s discussion, which provides:
History of the Award
31.It is common ground that the Award was made following the award modernisation process undertaken by the Australian Industrial Relations Commission, as it then was, commencing in March 2018.
32. The pre-reform awards which operated prior to the making of the Award were:
a) the Liquor and Accommodation Industry – Hotels, Resorts and Gaming (Managerial Staff) Award 2003 (Cth) (“the 2003 Managerial Award); and
b)the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (Cth).
33. It is uncontroversial that the award modernisation process occurred following an award modernisation request made pursuant to the then operative section 576C(1) of the Workplace Relations Act 1996 (Cth).
34. The respondents also referred to section 143(7) of the FW Act which relevantly provides:
(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards…;or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
35. It was submitted for the respondents that having regard to section 143(7) and the history of the Award which did not historically cover managerial employees such as the applicants, the modern award ought not be interpreted in a way which would extend coverage to management employees who historically were not covered by an award.
36. On the question of the historical coverage of managers in hotels and the different treatment of managers in other types of establishments, the respondents referred to the Industrial Relations Commission’s reasoning at the point at which the 2003 Managerial Award was made. That decision related to a review of the Hotel Managerial Staff (Federal) Award 1974 (Cth) as part of the award simplification process then underway. The Motor Inn and Hotel Association of Australia (“MIMA”) sought to intervene in those proceedings.
37. In that decision, SDP Lacy relevantly said:
MIMA sought leave to intervene in the proceedings for the purpose of being heard in relation to the definition of hotel in the award. Mr McDonald, appearing on behalf of MIMA, submitted that if the definition of hotel in the 1974 Award was changed then the coverage of the award could possibly extend to members of MIMA. The 1974 Award contains a definition of hotel by reference to the various licenses issued in the State in which the hotel is situated… I refused [MIMA’s application for leave to intervene] on the basis of the undertaken given… on behalf of the CMAA, that the definition of hotel in the new award was not intended to operate differently from the definition in the 1974 Award. It is not intended to cover MIMA members not licensed as a hotel (emphasis added).
38. The Commission then made the Liquor and Accommodation Industry – Hotels Resorts and Gaming – (Managerial Staff) – Award 2003 (Cth), one of the pre-reform awards which led to the making of the Award subject to these proceedings. That award contained the following definition:
Hotel means an establishment in respect of which a license has been issued under the law of any State or Territory or the Commonwealth of Australia that enables the licensee to conduct the business of an hotel.
39. The Award does not include a similar definition of ‘hotel’ to an establishment which is licenced to operate as a hotel.
40. The applicants submitted that in not including the same definition of ‘hotel’, an inference should be drawn that the framers of the Award intended to:
expand the definition of the kinds of establishments where management staff would be covered to be much broader and all-encompassing then (sic) previously prescribed.
41.Whilst I accept that the framers included a different definition of the term ‘hotel’ in the Award to that in the 2003 Managerial Staff Award, I do not accept that they intended to extend the application of the Award to managers covered by the Award generally. If that was the case, item D.2.9 of schedule D of the Award would not be limited in the way that it is.
42. It is clear that the Award limits the managerial classification to staff employed in ‘hotels’ as defined. The question here is the extent of that limitation.
43. The applicants make no reference to the Motels, Accommodation and Resorts Award 1998 (Cth) (“the Motels Award”). Clause 6.1.1 of the Motels Award relevantly provides:
This award relates to the industry of persons employed in any capacity whether permanent or casual in or in connection with motor inns or motels, unlicensed private hotels, serviced apartments, resorts, time share facilities, health or recreation farms, guest houses, ski lodges, holiday flats/units, holiday ranches or farms, condominiums and establishments of a like nature together with restaurants, function areas, convention centres or like facilities, ancillary to or part of any of the above, together with… whether such establishments are licensed to serve alcoholic drinks or not and in or in connection with preparing and serving food, cleaning and attending to the premises and all other services associated therewith (emphasis added).
44. The Motels Award did not contain a classification for managers. This adds weight to the respondents’ argument that there is no proper basis upon which to draw an inference that the framers intended to expand the employees who would be covered by the management classification.
45. The respondents’ submissions are consistent with the analysis in Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935. In that decision, the court rejected the argument that item D.2.9 of schedule D of the Award applied to ‘motels’ for reasons similar to those advanced by the respondents in this case.
46. In that case, the court said:
[160]… Clause 20.2 deals specifically with managerial staff but is restricted to hotels (not motels).
[161 Item D.2.9 of schedule D of the Modern Award deals with managerial staff at hotels. It provides relevantly that ‘hotels’ means a range of establishments but, significantly, does not include motels (which was the Business here) or motor inns.
(Emphasis in original)
Judge Mercuri ultimately concluded that the respondent was a “serviced apartment” and that a “serviced apartment” was not a “hotel” within the meaning of item D.2.9.
The applicant did not submit that Kramer was plainly wrong or should not be followed. The Court accepts Her Honour’s reasoning. Kramer is plainly correct.
The applicant did, however, seek to distinguish Kramer on the basis that Her Honour did not consider whether the respondent in that matter was a “resort”. The respondent is not a resort for the reasons given above. The Court need not address this issue further.
The respondent is a “serviced apartment”. A serviced apartment does not fall within item D.2.9.
Was the applicant working an “Overnight Shift”?
In light of the Court’s finding that the respondent was a serviced apartment, the applicant’s claim that she was entitled to be paid as a “hotel” manager must fail.
Nevertheless, the Court will address the applicant’s claim that she worked an “overnight shift”. This is relevant because, if she was working an overnight shift, she was entitled to full pay.
There is no doubt that the respondent’s witnesses refer to the applicant as providing “shift” work. Nonetheless, “logos” are apt to mislead.
The applicant’s evidence is that the hours that she worked each night varied. She claims that she could work 3 to 8 hours per night. In her oral evidence she stated that night time “was time for duty” and not for “sleep”. She claimed that she was a full time, or alternatively a part time, employee.
In support of the argument that she was working an “overnight shift”, the applicant refers to the decisions in Warramunda Village Inc v Pryde [2002] FCAFC 58 (“Warramunda”) and Fair Work Ombudsman v Kensington Management Services Pty Ltd [2012] FMCA 225 (“Kensington Management”).
In Warramunda (which, the Court notes, was relied on in Kensington Management), two employees worked “sleepover shifts” at a residential aged care hostel. On these shifts they were required to be present in a flat at the hostel and to be “on-call” between 10pm and 7.30am the following morning. If the employees were not called on to assist residents, they could sleep or engage in non-work related activities – so long as they remained at the hostel.
A majority of the Full Court found that the employees were engaged in work and were not on call. It was held that the employees were at work and entitled to pay for the entire period – even though they could have been sleeping. Justice Lee explained:
18…An employee who attends at the place of employment pursuant to the employer’s direction to be at the employer’s premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at “work” for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).
19.In directing an employee to perform a “sleep-over shift”, an employer required an employee to attend the employer’s place of work for a nominated period to render service as required by the employer…
The applicant’s reference to these cases is misplaced.
Neither case concerned the Award in question here. Nor did the awards and agreements in those cases contain a clause that is equivalent to the overnight stay allowance in cl.21.3 of the Award here.
The first instance decision in Pryde v Warramunda Village [2000] FCA 1374 (“Pryde”) is instructive.
In Pryde, Justice Marshall states:
17. There is no evidence in this proceeding that the applicants agreed as part of their contracts of employment and separately from the relevant awards to work on a sleepover shift pursuant to an arrangement outside those awards. They simply performed the shift and received the payment for that work in a sum which Warramunda was offering to pay them. The duties performed on that shift constituted work. The applicants did not perform the sleepover shift for their own personal gratification or as volunteers. They were engaged at work on their employer’s premises on immediate stand-by to attend for immediate duty. They were not paid to simply go to sleep. As the duty performed was work, in the absence of a specific award provision dealing with that shift, the employees performing that work were entitled to be paid for the shift as time worked. Consequently, by not paying the applicants their full entitlements for working on these shifts, Warramunda acted in breach of the 1993 Award and the 1995 Award.
…
23. Employees on the sleepover shift were on duty when engaged on the shift. In no real sense can they be said to have been off duty whilst so employed. They remained at work ready to be called to assist the stand-up shift occupant at extremely short notice. They were in no sense off-duty but on-duty for the purpose of a swift response to a call for assistance. They were not at home in a position to do what they might otherwise have been doing at home. They were away from their families in the service of their employer. If the “on – call” clause of the 1995 Award had been intended to cover a sleepover situation it would have referred to a requirement to “live in”. Included in material put in evidence by Warramunda was a draft document which purported to be a Hostel Supervisors Agreement dated 1988. Interestingly, it included an on – call allowance clause which contained a reference to “live – in”. No such reference is made in the State Award or the 1995 Award.
What is apparent from the above is that Justice Marshall considered it significant that there was no specific award provision addressing the “work” that would be completed on the “overnight shift”. Here, there was. Clause 21.3(b) is a specific provision which does address the “work” that is covered on an “overnight stay” (which is akin to a “live in” arrangement).
Justice Finkelstein in Warramunda also touched upon this issue when discussing the history of the award and the absence of a provision which conformed to what was called an “industry practice” (which was similar to what the overnight stay allowance in this matter provides).
Accordingly, there is no basis for the Court to find that the applicant was working an “overnight shift” from the time reception closed until it reopened.
The Overnight Stay Allowance
The respondent argues that the applicant was entitled to, and was paid, the “Overnight Stay Allowance” as per cl.21.3 of the Award.
Clause 21.3 of the Award provides as follows:
…
(b)Overnight stay allowance
Where an employee is requested to stay on the employer’s premises for the purpose of providing prompt assistance to guests outside of ordinary business operating hours, the following arrangements will apply:
(i)The employee will be paid an amount equal to 6% of the standard weekly rate per overnight stay period;
(ii)This payment will be deemed to provide compensation for the overnight stay and also includes compensation for all work necessarily undertaken by an employee up to an hour’s duration;
(iii)Any work necessarily performed during an overnight stay period by an employee in excess of a total of one hour’s duration must be paid for at the rate of 150%; and
(iv)Time worked in accordance with this provision will not be taken into account for the purposes of hours of work, overtime, leave accruals and the like.
There is no dispute that the applicant was paid the overnight stay allowance. While the initial rate the applicant was paid for her overnight stays was not in line with the Award, this was rectified in 2016. Accordingly, the Court accepts that at all times it was intended, and assumed, that the respondent was paying the applicant the overnight stay allowance and that this was sufficient.
Two issues arise in relation to the application of the overnight stay allowance to the applicant’s employment:
a)whether the applicant was at all times an “employee”; and
b)whether the applicant’s role was to provide “prompt assistance to guests”.
Was the applicant an employee?
The applicant commenced her employment with the respondent in 2013 as a casual housekeeper. The applicant does not dispute the casual nature of this work.
The applicant became the onsite manager on 7 December 2013.
Mr Rushworth’s evidence is that the applicant advised that she wished to stop housekeeping around late 2017 but that she wanted to continue in the onsite manager role. Mrs Rushworth’s evidence was largely consistent, save that Mrs Rushworth stated that the applicant no longer wanted to continue housekeeping because of her studies.
The applicant’s evidence is that she “cut back” on her daily housekeeping work on the advice of her doctor sometime after January 2017. In cross-examination, the applicant confirmed that she continued with housekeeping (on shortened hours) after January 2017. When asked if she was available to do casual housekeeping shifts until the time that she resigned, the applicant stated that she could do only “very little”.
The payroll evidence before the Court records that the applicant’s last payment for housekeeping occurred in the fortnight of 15 July 2017-29 July 2017.
The respondent argues that there is no requirement for the applicant to be employed on a basis separate to the overnight stay allowance. That is, the applicant is not required to have another role with the respondent in order to obtain the allowance. The respondent submits that the applicant can be employed specifically for the purpose of providing “prompt assistance to guests outside of ordinary working hours”. Alternatively, the respondent argues that the applicant did not cease her casual employment as a housekeeper. While she did not undertake any work as a casual housekeeper after July 2017, she said she was able to do so (albeit, “very little”) until her resignation in March 2018.
The Court has some reservations accepting the respondent’s submission that there is no need for a separate basis of employment for the allowance to be received. The fact that the overnight stay is an “allowance” (being an additional entitlement to ordinary wages) does not sit well with the respondent’s construction.
Nevertheless, it is not necessary for the Court to determine this issue. The applicant was, in any event, and at all times, a casual housekeeping employee of the respondent. Accordingly, she was, on any construction (either on an independent basis or as attached to her housekeeping employment) entitled to and eligible for the allowance.
While the evidence shows that the applicant last performed a housekeeping role in late July, this does not mean that the applicant “ceased” her casual employment. It is noted that nowhere in the applicant’s evidence does she state that she had stopped housekeeping. Indeed, in cross-examination she only said that she could do “very little”.
The applicant had had irregular hours of casual housekeeping throughout her employment. Notably, from 11 February 2017 until 1 July 2017, the applicant did not perform any housekeeping work. Then, in the month that followed, she worked various hours – until her last housekeeping shift in the week ending 29 July 2017.
The applicant maintains that she was available to undertake housekeeping until her departure in 2018 (albeit “very little”). Absent from her evidence is any acknowledgment that she had “ceased” housekeeping work (rather, she only “cut back”). There had previously been at least one lengthy period when the applicant did not undertake housekeeping work and then returned to do so.
In these circumstances and on the evidence, the Court finds that the applicant was a casual employee until she handed in her “resignation” to the respondent.
The absence of a firm commitment to provide or perform work is the essence of casual employment: WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [153]. Here, the applicant did not provide a firm commitment to perform work. On her own admission, however she remained available to work (albeit on a limited basis).
On the basis of the above, the Court finds that applicant was at all times an employee of the respondent.
What was the applicant’s role and how much did she work?
The applicant was, during the course of her employment, paid an overnight stay allowance – which compensated her for up to one hour of work. She says that she worked anywhere between 3 to 8 hours per night and should have been paid accordingly.
Much evidence was provided concerning the applicant’s duties and the time that it took her to complete those duties.
The applicant says that her duties included checking guests in who arrived after 6pm, responding to complaints or enquiries (such as noise complaints and lockouts), cleaning barbeques, putting out the bins, “patrolling” the Complex (including chasing away thieves) and enforcing the “rules” (such as “no smoking” and “pool closing times”).
Ms O’Driscoll and Ms Curtis (who provided relief for the applicant on occasions) stated that during their overnight stays they might do a few overnight check-ins, undertake a property walk of no more than 10 minutes and respond to any queries (but that all of this took less than an hour).
In cross-examination, the applicant stated that those who provided relief for her (Ms O’Driscoll and Ms Curtis) were not “formal caretakers” and did not do what she did. She had “additional roles” that took her 3 to 8 hours per night.
The applicant has provided no evidence to corroborate her claims that she worked between 3 to 8 hours per night. In contrast, the respondent’s evidence is consistent that the role, generally, required no more than one hour a night.
Even if the applicant’s role differed from what was provided by those who relieved her (which the Court has difficulty accepting), the evidence of those who carried out the role before (Mr Michaud) and after (Ms Murby) the applicant was employed was the same evidence as the evidence provided by Ms Curtis and Ms O’Driscoll – i.e., that the duties required of the relevant role (as an onsite manager) usually took no longer than one hour and included checking-in guests, responding to complaints and queries and completing a property walk.
The applicant made no submissions as to why Ms Murby’s role differed from her role. Ms Murby stated that she completed her role within one hour on most nights. Ms Murby was clear and unequivocal about what she did and did not do. She says she would check guests in if necessary, would do a walk around the property and would talk to guests if she felt it necessary to do so.
Ms Murby’s evidence was entirely credible. Her evidence was not challenged. She was not asked whether she cleaned barbeques (as the applicant says she did) or whether she was regularly contacted by Strata residents. Her evidence was that the duties which she is employed to do take no more than an hour.
The applicant attempts to distinguish the role undertaken by Mr Michaud during his time with the respondent on the basis that, during his time as onsite manager, a security company would perform patrols. However, shortly after the applicant commenced, these patrols ceased. The applicant says that she was then required to undertake the patrols.
There is no evidence before the Court that, after the patrols ceased, the respondent asked the applicant to do anything different to what Mr Michaud had done during his time as onsite caretaker. She was not asked to undertake “security patrols”. Further, Ms Murby was clear that security could be called at any time to assist and that it is not her role to deal with “drunk guests”. The applicant’s evidence that she was discouraged to call security is implausible given Mrs Rushworth’s evidence that the respondent never incurred any charge for security call outs.
Finally, the applicant conceded that she had provided her mobile phone number to enable the Strata guests to contact her. The applicant by her own actions enabled the Strata residents to contact her and she responded to those requests. She did not have to. She was not “directed” to respond to Strata complaints or requests for assistance. It is noted that Mrs Rushworth was not challenged on her affidavit evidence that the applicant should not have responded to concerns about bicycles being stolen from a Strata unit and it was inappropriate for the Strata owner to contact the applicant. In circumstances where it was inappropriate for the Strata to contact the applicant directly, it is evident that the applicant had no responsibilities in relation to the Strata (including under the Caretakers Agreement or the Letting Services Agreement).
The fact that the applicant (because she gave out her telephone number) allowed the Strata to contact her for assistance was a matter for the applicant. It is not something the respondent required or should be liable for.
Conclusion – The overnight stay allowance
The Court is satisfied, on the balance of probabilities, that the applicant was employed by the respondent and that the role she undertook at night was to be compensated by way of the overnight stay allowance.
Accordingly, the applicant’s claim must fail. She was covered by the Award and has been paid all her entitlements.
Alternative Contract Claim
Although not entirely clear, the applicant seems to raise an “alternative claim” – i.e., that there was a partly written and partly oral contract and that she was not paid as per the terms of that contract.
This argument was not advanced in any coherent way in the applicant’s submissions or, indeed, at hearing – where little was done to clarify the exact nature of this “contract claim”.
The contract claim appears to be based on the “Package” that Mr Rushworth gave the applicant.
The “Package” provided:
Rent $15,600.00
Pay $13,000.00
Power $2800.00
Phone $1200.00
Total $45,600.00
The applicant claims that she never received this amount and should now be paid any monies outstanding. Those monies would include the balance of what she received less than $45,600 per year and (implicitly) the National Employment Standard entitlements that are owed to her (for example, as they relate to annual leave and public holidays).
The respondent maintains that the “Package” does not constitute an employment contract. Rather, there was a separate contract that was signed by the applicant. That contract has, however, gone missing – as have other documents from the applicant’s file.
While the applicant may have referred to the Package as a “contract” during these proceedings, what is before the Court is nothing more than a skeletal document that outlines the requirements of the relevant role and the incentives that arguably came with it (i.e., free rent, power and phone and a $500 pay per fortnight).
While the applicant maintains that she did not sign any other documents, the Court prefers the evidence given by the Rushworths in this regard – i.e., that there was a separate and independent employment contact which, unfortunately, has gone missing.
Mrs Rushworth’s affidavit (at [38]) details the content of the applicant’s staff file. The documents that Mrs Rushworth refers to as being kept in the staff file include a contract and executed copies of “their signed Occ Health & safety, Code of Conduct and personal contact information”. This evidence corroborates what Mr Rushworth stated in cross-examination – where he stated that employees are provided with a “Welcome Pack” that included “things like confidentiality agreements, emergency contacts, bank/pay details and her tax file number… information of starting and working, how to engage with guests”.
A file note that Mrs Rushworth made on 22 February 2018 (which Mrs Rushworth says was incorrectly dated 22 February 2017 – and which the applicant did not challenge) provides:
File Note
RE· Missing Contract & Missing Written warning
Ongoing through the staff file, it has been noted that Gina’s Appointment Agreement Outlining the terms of work being
• Onsite Caretaker
• Written Warning Letter Relating to misconduct between herself & another staff member (Kath Arachcige)
Are missing from Gina’s file as at this date.
Gina’s onsite agreement outlines:
• Her nightly rate in keeping above the Quest Rate of daily pay for such duties
• Her requirement to give 4 weeks written notice which Gina has recently done In line with her resignation after 4+ years of this role
• The offering of the managers Residence being a 2 Bedroom Apartment free of charge
• The offering of utilities and the landline phone as well as the use of the hotel services such as Foxtel etc
• Gina’s role involved attending to any afterhours check-Ins
• Responding to noise/resident complaints from the Night phone where practicable or contacted & to utilize or refer the services of MIG or police if appropriate & when needed
The detail as to the terms of the “onsite agreement” (as explained in Mrs Rushworth’s file note) is clearly more extensive than the “detail” provided in the Package.
Oddly, counsel for the applicant did not cross examine Mrs Rushworth in detail on the content of this file note and questions asked about her claim that there was a separate employment contract did nothing to discredit her evidence. Mrs Rushworth’s evidence in cross-examination was palpably honest. She was clearly frustrated that the employment contract was missing but was adamant that it existed. The Court does not doubt her in this regard and accepts that the contract as detailed does not assist the applicant’s position/contract claim.
It is noteworthy that, at the time the file note was written, no legal proceedings had been commenced. The respondent’s had no possible reason to document a missing contract at the time unless it had actually gone missing.
On the basis of the above, the Court is not satisfied that the Package was a contract of employment. No enforceable entitlements arise from it. The alternative claim is, accordingly, dismissed.
Record Keeping Requirements
In her Statement of Claim, the applicant pleads:
24. The Applicant submits that on every night she worked, she was not asked nor required to keep a time record by the Respondents. At the beginning of her employment, the Applicant asked whether she was to keep a record of when she worked, however, the Respondent said no.
25. The Applicant was informed by the Respondent that she was not required to time record.
…
47. The Respondent has contravened section 535 of the Fair Work Act 2009 by not keeping or requiring the Applicant to maintain a time sheet containing the hours she worked.
Neither party advanced any submissions on this issue.
On one view, the Court considers this claim to have been abandoned.
In the event that the claim is pursued, the Court is nonetheless satisfied that no breach has occurred.
Mr Rushworth says he told the applicant to fill out a timesheet for any time that she worked over one hour. He confirmed that he did not put that instruction in an email. The applicant has confirmed this, although she says that this related to “housekeeping” that she did during the overnight stay.
There is evidence before the Court that the applicant did “put down hours” she worked during the overnight stay (CB 343, 345 and 346).
Mrs Rushworth’s affidavit evidence is that she encouraged the applicant to put additional time on her timesheet for any work over one hour. She references one occasion when the applicant had responded to a smoke alarm in a unit (CB 324 at [21]). When this was put to the applicant she became oddly defensive and accused Mrs Rushworth of lying. Counsel for the applicant never sought to challenge Mrs Rushworth’s evidence.
In light of the clarity and specificity of Mrs Rushworth’s evidence, the Court finds that Mrs Rushworth’s evidence that she encouraged the applicant to put down any additional hours worked overnight is credible and preferred.
The Court is satisfied that the Rushworths told the applicant to record any additional hours above the one hour provided for in her allowance. While the applicant may have misunderstood this to mean that she only needed to record additional housekeeping hours, she nonetheless recorded those hours in a timesheet and was paid for them.
Accordingly, contrary to the applicant’s pleading, the respondent did require the applicant to maintain employee records (i.e., timesheets for the applicant’s casual employment and a record of any hours claimed in excess of one hour).
Conclusion
The applicant has failed to establish that there have been any breaches of the Award or Act as pleaded. The applicant was paid all of her entitlements.
The applicant’s alternative claim (that she was owed compensation and entitlements arising from the Package and terms arising implicitly from the Act) is likewise dismissed.
Accordingly, the application is dismissed.
The parties made brief submissions on costs in their respective submissions. Noting that this is a Fair Work matter and that the discretion to award costs is subject to s.570 of the Act, any application for costs will need to be made by way of application in a case with supporting affidavit.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 November 2020
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