SURACE v Peoplesmove Pty Ltd (Trading as Carhood)
[2018] FCCA 601
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SURACE v PEOPLESMOVE PTY LTD (TRADING AS CARHOOD) | [2018] FCCA 601 |
| Catchwords: INDUSTRIAL LAW – Small claims – applicant claims he was covered by the Clerks – Private Sector Award 2010 and classified as a Clerical Employee Level 4 – applicant claims underpayment of wages and accrued annual leave – respondent argues applicant was covered by Miscellaneous Award 2010 and excluded as a managerial employee – respondent submits applicant was overpaid under employment agreement and seeks order that overpayment be paid by applicant to respondent – held applicant a Retail Employee Level 4 under the General Retail Industry Award 2010 – orders made for parties to calculate applicant’s entitlements and any outstanding monetary amount. |
| Legislation: Fair Work Act 2009 (Cth), pt.4-1 div.3 Clerks – Private Sector Award 2010, cls.3.1, 4.1, 4.2, 4.6, sch.B |
| Cases cited: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 Joyce v Christofferson (1990) 26 FCR 261 Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 |
| Applicant: | PAUL SURACE |
| Respondent: | PEOPLESMOVE PTY LTD (TRADING AS CARHOOD) |
| File Number: | MLG 1816 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 1 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Mr Johnson, Executive Director of the Respondent, appeared in person on behalf of the Respondent. |
DECLARATIONS
During the period of the Applicant’s employment with the Respondent from 21 September 2016 to 26 October 2016:
(a)the Applicant was covered by the General Retail Industry Award 2010 (“the Retail Award”); and
(b)the Applicant was employed as a Retail Employee Level 4 in accordance with sch.B to the Retail Award.
ORDERS
On or before 16 April 2018, the Applicant and the Respondent are to use the Fair Work Ombudsman’s online Pay and Conditions Tool (“PACT”) to calculate:
(a)the monetary amounts that the Applicant was entitled to during the period of his employment with the Respondent;
(b)the difference, if any, between the amounts actually paid by the Respondent and the amounts that the Applicant was entitled to during the period of his employment with the Respondent.
Within 14 days of these Orders, the Applicant and the Respondent exchange the PACT calculations made in accordance with Order 2 herein.
In the event that the PACT calculations by the Applicant and the Respondent are the same:
(a)
if the monetary amount calculated in accordance with Order 2(a) herein exceeds the monetary amount the Applicant was paid, the Respondent pay to the Applicant that amount on or before
20 April 2018; or
(b)if the monetary amount calculated in accordance with Order 2(a) herein does not exceed the monetary amount the Applicant was paid, no payment shall be due by either the Applicant or the Respondent.
In the event that the PACT calculations by the Applicant and the Respondent are not the same, the matter is listed for hearing on
18 April 2018 at 10.00amfor the determination of any monetary amount to be paid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1816 of 2017
| PAUL SURACE |
Applicant
And
| PEOPLESMOVE PTY LTD (TRADING AS CARHOOD) |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns a claim made by the Applicant under the small claims procedure pursuant to pt.4-1 div.3 of the Fair Work Act 2009 (Cth) (“the Act”).
The Applicant claims that during the period of his employment with the Respondent, from 21 September 2015 to 26 October 2016, he worked full-time, and his employment was covered by the Clerks – Private Sector Award 2010 (“the Clerks Award”). The Applicant claims that he ought to have been classified as a Level 4 Clerical Employee under sch.B to the Clerks Award. The Applicant claims that he worked varying hours, including weekends, public holidays, and overtime. The Applicant claims that he accrued annual leave during period of his employment which was not paid to him on termination of his employment. The Applicant claims that he was paid a flat rate of $24.00 per hour plus superannuation contributions, and that the difference between the amount he was paid and his entitlement under the Clerks Award is equivalent to $16,464.20. The relief sought by the Applicant is the payment of this amount.
The Respondent disputes that the Applicant was covered by the Clerks Award or other modern award. The Respondent asserts that the only relevant award applicable to the Applicant’s employment is the Miscellaneous Award 2010 (“the Miscellaneous Award”), and submits that cl.4.2 of the Miscellaneous Award excludes managerial employees, such as the Applicant. The Respondent asserts that the Applicant was employed pursuant to a contract of employment under which the parties agreed that his remuneration would be $24.00 an hour, including superannuation contributions. As the Applicant was paid an hourly rate of $24.00 upon which superannuation contributions were calculated, the Respondent asserts that the Applicant was overpaid, and seeks an order that the Applicant pay the Respondent an amount of $2,952.72. This amount takes into account the fact that the Applicant’s final payment was adjusted by the Respondent to account for some of the alleged overpayment.
During the hearing, the question arose as to whether in fact the Applicant was covered, during his employment, by the General Retail Industry Award 2010 (“the Retail Award”).
There are two key questions for the Court to determine:
a)which modern award covered the Applicant’s employment with the Respondent; and
b)which classification specified under the relevant modern award applied to the Applicant’s employment with the Respondent.
The Applicant was employed as an Assistant Site Manager under an Employment Agreement made on 18 September 2015 (“the Employment Agreement”). Clause 5.1 of the Employment Agreement set the remuneration of the Applicant at $24.00 per hour, to be paid fortnightly. Under cl.5.1 of the Employment Agreement, the amount of $24.00 per hour was inclusive of superannuation contributions.
There is no dispute that during the course of the Applicant’s employment, he was paid an hourly rate $24.00, with superannuation contributions calculated on that amount. Accordingly, the Applicant was paid in excess of the remuneration stipulated in the Employment Agreement. Both parties agree that under the Employment Agreement the Applicant ought to be paid $21.98 per hour, with his superannuation contributions calculated on that rate. It must be emphasised that the overpayment by reference to the Employment Agreement is only relevant once the Court determines which modern award (if any) covered the Respondent and the Applicant during his period of employment with the Respondent, and which classification level was applicable to the Applicant’s employment. This is because, having made these findings, calculations as to any underpayments must take into account the actual payments made to the Applicant.
Clause 4.6 of the Employment Agreement provides that the Applicant “will be required to work five (5) days per week with a total of 38 hours per week…”
The Applicant gave evidence that he calculated the amount of underpayment by reference to timesheets that he completed, and which were signed off by Mr Steven Johnson, the Respondent’s Executive Director, and pay slips issued by the Respondent. However, other than the pay slips setting out the final payment made to the Applicant (Exhibit A1), these documents were not produced in evidence by either the Applicant or the Respondent.
The undisputed evidence is that on the termination of the Applicant’s employment, the Respondent failed to pay him his accrued annual leave as set out in the final pay slips issued to him on 27 October 2016 (Exhibit A1) because it sought to recover a part of the overpayment it alleged had been made under the Employment Agreement.
In the schedule to the Employment Agreement, the Respondent’s business is described as follows:
About the company:
Carhood.com.au is Australia’s premier car sharing company. We offer our customers airport parking, return shuttle to and from the airport and we clean their car inside and out all for free! We do this by allowing approved travellers the opportunity to rent another persons car for a fee that is at least 25% cheaper than other car rental companies…
The Applicant’s role and responsibilities as Assistant Site Manager are described in the schedule to the Employment Agreement as follows:
About the role:
The Assistant Site Manager is responsible for providing operational support to the site manager ensuring the smooth running of day to day operations. The incumbent is an integral part of the operational structure of the business and as such is expected to be proactive in their approach to the role. The role covers four main areas of the business:
· customer service;
· administration;
· vehicle operations; and
· customer check in/check-out process.
Given the nature of the business and the 4 key areas of the role as listed above, the incumbent must be hands on in this role. The ability to effectively delegate is important but it is required that successful candidate be [sic] able to set examples for other staff to ensure that our standards are maintained.
Reporting to the Site Manager, the Assistant Site Manager is expected to contribute fully to the continued growth and development of the business.
Role responsibilities:
· Provide exceptional customer service at all times.
· Be neat, clean, fresh smelling and in Carhood uniform at all times.
· Effectively communicate relevant information to staff and customers.
· Effectively manage the customer check-in/check-out process ensuring total compliance with operational policies and procedures.
· Assist in maintaining the correct visual appearance of the shop floor, amenities and office at all times.
· Ensure compliance with operational and organisational policies and procedures at all times.
· Assist with the cleaning of vehicles.
· Assist with shuttling customers to and from the airport.
· Be available when required to attend meetings (both in person and via teleconference).
· Assist the Operations team with promoting the business in a positive light.
· Effectively manage any customer complaints within company expectations.
Principles in determining the applicable award classification
The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:
…it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.
The Clerks Award
The determination of whether the Applicant’s employment with the Respondent was covered by the Clerks Award must commence by reference to the coverage provisions of the Clerks Award.
Clauses 4.1 and 4.2 of the Clerks Award provide:
4.1 This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work,including administrative duties of a clerical nature,and to those employees. However,the award does not cover:
(a) an employer bound by a modern award that contains clerical classifications;or
(b) an employee excluded from award coverage by the Act.
4.2 The award does not cover employees who are covered by a modern enterprise award,or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009(Cth)),or employers in relation to those employees.
(Emphasis in original)
Clause 3.1 of the Clerks Award provides that:
clericalwork includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk.
Clause 4.6 of the Clerks Award provides:
4.6 Without limiting the generality of the foregoing this award does not cover employers covered by the following industry awards with respect to employees covered by the awards:
…
● the General Retail Industry Award 2010;
Schedule B to the Clerks Award sets out the classifications under that award. The Applicant claims that he was appropriately classified at Level 4 of the classification structure. The Level 4 Clerical Employee classification is as follows (B.5 of sch.B to the Clerks Award):
B.5 Level 4
B.5.1 Characteristics
Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems.
They exercise initiative, discretion and judgment at times in the performance of their duties.
They are able to train employees in Levels 1–3 by personal instruction and demonstration.
B.5.2 Typical duties/skills
Indicative typical duties and skills at this level may include:
(i) Secretarial/executive support services which may include the following: maintaining executive diary; attending executive/organisational meetings and taking minutes; establishing and/or maintaining current working and personal filing systems for executive; answering executive correspondence from verbal or handwritten instructions.
(ii) Able to prepare financial/tax schedules, calculating costings and/or wage and salary requirements; completing personnel/payroll data for authorisation; reconciliation of accounts to balance.
(iii) Advising on/providing information on one or more of the following:
● employment conditions;
● workers compensation procedures and regulations; and
● superannuation entitlements, procedures and regulations.
(iv) Applying one or more computer software packages, developed for a micro personal computer or a central computer resource to either:
● creating new files and records;
● maintaining computer based management systems;
● identifying and extract information from internal and external sources; or
● using of advanced word processing/keyboard functions.
…
* Note: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular level.
The Retail Award
The coverage clauses of the Retail Award are cls.4.1-4.3:
4.1 This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16 – Classifications to the exclusion of any other modern award. The award does not cover employers covered by the following awards:
● the Fast Food Industry Award 2010;
● the Meat Industry Award 2010;
● the Hair and Beauty Industry Award 2010;or
● the Pharmacy Industry Award 2010.
4.2 The award does not cover an employee excluded from award coverage by the Act.
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)),or employers in relation to those employees.
Clause 3.1 of the Retail Award sets the definition of “general retail industry” under that award, as follows:
general retail industry means the sale or hire of goods or services to final consumers for personal, household or business consumption including:
● food retailing, supermarkets, grocery stores;
● department stores, clothing and soft goods retailing;
● furniture, houseware and appliance retailing;
● recreational goods retailing;
● personal and household goods retailing;
● household equipment repair services;
● bakery shops, where the predominant activity is baking products for sale on the premises;
and includes:
● customer information and assistance provided by shopping centres or retail complexes;
● labour hire employees engaged to perform work otherwise covered by this award; and
● newspaper delivery drivers employed by a newsagent,
but does not include:
● community pharmacies;
● pharmacies in hospitals and institutions providing an in-patient service;
● hair and beauty establishments;
● hair and beauty work undertaken in the theatrical, amusement and entertainment industries;
● stand-alone butcher shops;
● stand-alone nurseries;
● retail activities conducted from a manufacturing or processing establishment other than seafood processing establishment;
● clerical functions performed away from the retail establishment;
● warehousing and distribution;
● motor vehicle retailing and motor vehicle fuel and parts retailing;
● fast food operations;
● restaurants, cafes, hotels and motels; or
● building, construction, installation, repair and maintenance contractors engaged to perform work at a retail establishment.
It is appropriate to set out the classification descriptions of Levels 3, 4 and 5 Retail Employees, as contained in sch.B to the Retail Award:
B.3 Retail Employee Level 3
B.3.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 2.
B.3.2 Indicative of the tasks which might be required at this level are the following:
● Supervisory assistance to a designated section manager or team leader,
● Opening and closing of premises and associated security,
● Security of cash, or
● Fitting of surgical corset.
B.3.3 Indicative job titles which are usually within the definition of a Retail Employee 3 include:
● Machine operators,
● 2IC to Dept Manager,
● Senior Salesperson,
● Corsetiere,
● Driver Selling Stock,
● Cook (Not Qualified) in a cafeteria,
● Senior LPO, including an armed LPO,
● LPO Supervisor,
● Designated second-in-charge of a section (i.e. senior sales assistant),
● Designated second-in-charge to a service supervisor, or
● Person employed alone, with responsibilities for the security and general running of a shop.
B.4 Retail Employee Level 4
B.4.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 3.
B.4.2 Indicative of the tasks which might be required at this level are the following:
● Management of a defined section/department,
● Supervision of up to 4 sales staff (including self),
● Stock control,
● Buying/ordering requiring the exercise of discretion as to price, quantity, quality etc.,
● An employee who is required to utilise the skills of a trades qualification for the majority of the time in a week, or
● Clerical functions Level 2.
B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4 include:
● An Assistant, Deputy, or 2IC Shop Manager of a shop without Departments,
● An employee who is required to utilise the skills of a trades qualified person for the majority of the time in a week. This includes: Butcher, Baker, Pastry Cook, Florist,
● An employee who has completed an appropriate trades course or holds an appropriate Certificate III and is required to use their qualifications in the course of their work,
● A Qualified Auto Parts and Accessories Salesperson,
● A Window Dresser (Cert III or equivalent experience),
● A Boot/Shoe Repairer (Cert III),
● A Shiftwork Supervisor,
● Section/Department manager with up to 2 employees (including self),
● Service Supervisor of up to 15 employees,
● Nightfill Supervisor/Leader,
B.4.4 Clerical Officer Level 2 characteristics:
● This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
● Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
● The work of these employees may be subject to final checking and as required progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level.
B.4.5 Indicative typical duties and skills at this level may include:
● Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position.
● Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter.
● Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents.
● Stenographer/person solely employed to take shorthand and to transcribe by means of appropriate keyboard equipment.
● Copy typing and audio typing.
● Maintenance of records and/or journals including initial processing and recording relating to the following:
(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
● Computer application involving use of a software package which may include one or more of the following functions:
(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
● Arrange routine travel bookings and itineraries, make appointments.
● Provide general advice and information on the organisation’s products and services, e.g. front counter/telephone.
B.5 Retail Employee Level 5
B.5.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 4.
B.5.2 Indicative job titles which are usually within the definition of a Retail Employee 5 include:
● A tradesperson in charge of other tradespersons within a section or department,
● Service Supervisor (more than 15 employees).
The Miscellaneous Award
Clauses 4.1 and 4.2 of the Miscellaneous Award relevantly provide:
4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14-Minimum wages who are not covered by any other modern award.
4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
Evidence
I asked the Applicant to explain to the Court, by reference to the characteristics, and typical duties and skills of his position, why he believed that the appropriate classification was Level 4 of the Clerks Award.
The Applicant gave evidence that as the company was a “start-up”, there was a period of time during which he did not perform the full range of his usual duties. The Applicant’s evidence was that he took the minutes of the Respondent’s site managers’ meetings. He said that the operational meetings were generally held each Monday morning, for period of one to two hours. The Applicant conceded that he did not perform the duties/skills listed for a Level 4 Clerical Employee at B.5.2(ii), (iii) or (iv) of sch.B to the Clerks Award. The Applicant said that he would take customer service enquiries on the phone, and that he supervised the operational staff. The Applicant said that the operational staff’s duties were primarily the washing the cars, and transporting customers to and from the airport. He said that the supervision involved delegating duties to the operational staff, such as washing cars, transporting customers to and from the airport, and dealing with customer service and customer enquiries. The Applicant said that he also assisted the staff to wash cars, and to transport clients to the airport. He said that he prepared the rosters for staff at the Melbourne site. The Applicant said that when Mr Myers and Mr Johnson were not on site, he was the most senior person there.
In cross-examination, the Applicant said that he estimated that he spent 75% of his time at work performing clerical work. When asked what clerical work he performed, the Applicant identified customer service enquiries when the customer service team was not present, data entry and maintenance of records in customer files, induction and training of staff, and updating and maintaining occupational health & safety records which had been established by Mr Myers.
The Applicant estimated that he would usually wash four cars during each eight hour shift, although he said that number might increase during the busier periods. The Applicant said that his principal focus was on “getting customers in”, and offering customer service
Mr Myers, the Respondent’s National Operations Manager, gave evidence on behalf the Respondent. Mr Myers was asked to describe the Applicant’s day-to-day duties. He said that it was typical of every other manager in the business. Mr Meyers said that being a small “start-up” company, they did not have designated roles for anyone. Rather, employees “pitched in” and assisted as needed. Mr Myers said that as operations are the key focus of the business, the Applicant’s primary role was washing cars and ensuring that they are up to standard for rental. He said that this took up approximately 30% of the Applicant’s time during the working week. Mr Myers said that another 30% of the Applicant’s time was spent taking customers to and from the airport. He said that about 30% of the Applicant’s working week would have involved condition reporting, and taking photos of vehicles to record any pre-existing damage on vehicles.
Mr Myers estimated that about 5% of the Applicant’s time involved administrative duties, which included creating the roster for the operations team, taking minutes at the weekly operations meetings, and responding to any email enquiries. Mr Myers estimated that another 5% of the Applicant’s time would have been spent performing general cleaning duties with Mr Myers and maintaining the visual appearance of the warehouse and the office.
Mr Myers said that the purpose of recruiting an assistant site manager was to assist with the management functions of the business, whether that be supervision of staff, or making decisions when he was unavailable. Mr Myers said that his role as the National Operations Manager took him away from head office in Melbourne for around seven months during the period that the Applicant was employed by the Respondent. Mr Myers said that whilst he was away, it was the Applicant’s role to fill a more senior management role.
I queried why, given the length of time that the Applicant filled a more senior role, Mr Myers had just given evidence that the Applicant spent 30% of his time washing cars. Mr Myers responded that it was the nature of the business, and that he would also wash cars, regardless of the site. Mr Myers identified other duties that the Applicant performed while Mr Myers was away from the Melbourne site, including leading the training of new staff and monitoring their progress, making decisions on minor customer complaint escalations, maintaining a filing system, condition reports and rental contracts, and listing contracts and entering data in an Excel spreadsheet.
Mr Myers said that at various times, the Applicant would supervise around two to three operations assistants. In addition to their principal duties of washing cars and transporting cars, these operations assistants also performed clerical work on the front counter, which involved confirming the identity of customers, charging bonds and refunding bonds, and completing rental contract paperwork.
Mr Myers gave evidence that customer calls were “funnelled”; that is, customers called a 1300 phone number as the main point of contact. Customers were then required to select one of four options. Mr Myers said that only when option one would transfer customers to the operations office, and the Applicant would be required to answer general enquiry calls when the customer service team was not rostered to work.
In cross-examination, Mr Myers said that his evidence about the proportion of time that the Applicant spent on various duties was based on his own observations, and when Mr Myers was away, from feedback given by the Applicant.
Consideration
There is no dispute that the Respondent’s business was a “start-up”. Although not expressly said in evidence, the Respondent’s business was involved in a niche market, in which consumers provided a car to the business, which would subsequently be rented by other consumers travelling to and from airports. The consumer sharing their car with the business would be reimbursed, and those consumers utilising the car share business would benefit by way of discounted car rentals compared to standard car rental agencies.
The staff employed at the Respondent’s Melbourne site comprised operational staff, whose primary tasks were to ensure that the rental cars were cleaned, and to deliver and collect the vehicles utilised by consumers. They also performed some administrative work associated with renting consumers’ vehicles in a car share arrangement. Mr Myers’ evidence that there were around two to three operational staff was not disputed by the Applicant. In addition, there appears to have been a call centre service. It is not clear on the evidence how much of that service was provided remotely, and whether there was any call centre staff located in the Melbourne site. In addition to the operational staff, the Applicant and Mr Myers were located at the Melbourne site. However, it is clear that Mr Myers was absent for large portion of the time while he was attending to establishing the business in other capital cities.
In my opinion, the Applicant’s position title in the Employment Agreement of “Assistant Manager” distracts somewhat from the true nature of his responsibilities and duties, in the context of the operations of the Respondent’s business. In my opinion, a better descriptor for the Applicant’s position with the Respondent may have been “Supervisor”, or “Team Leader”. Having regard to the evidence of Mr Myers, it is likely the use of the word “Manager” was because the Respondent created the position to enable the business’ operations in Melbourne to be supervised while Mr Myers was involved in establishing operations in other capital cities.
Mr Myers’ evidence was that, as the business was a small “start-up”, the managers were actively involved in operational activities.
In his written submissions, the Applicant said:[1]
[1] The Applicant’s Submissions filed on 17 November 2017 at [3].
3. My day-to-day duties included:
a) Induction and training of new staff – 10%
b) Customer service and dealing with complaints – 10%
c) Establishing and managing the roster of the Melbourne site - 5%
d) Transporting customers to the airport – 10%
e) OHS responsibilities – 5%
f) Liaising with key stakeholders – 2%
g) Washing cars – 8%
h) Administration and data entry – 25%
i) Managing the site when more senior managers were not present – 25%
I am not satisfied that the Applicant’s analysis of the time spent on day-to-day duties is supported by the evidence. I cannot accept, given the small number of operational staff at the Melbourne site, that the Applicant spent 10% of his day involved in the induction and training of new staff members. In my opinion, given the Applicant’s evidence that on average he washed four cars per shift, his estimate of the time that he spent washing cars is unacceptably low. Furthermore, given the business was in its early stage of development, and the multitasking involved, the Applicant’s estimate of his time spent transporting customers to the airport is also low.
It is not clear what the Applicant means by “administration”, as well as data entry. It appears that “administration” overlaps with other tasks identified as rostering of staff and occupational health and safety responsibilities. I cannot accept that for 25% of the day, the Applicant was involved in “administration and data entry” in addition to these other administrative tasks. Furthermore, it is not clear what the Applicant means by the phrase “Managing the [Melbourne] site” when Mr Myers was away. Mr Myers’ evidence is that managing the site involved engaging in operational tasks, and that the duties the Applicant performed whilst he was away were those involved in data entry, administering the businesses’ filing system and dealing with the escalation of customer complaints. In other words, there appears to be a considerable overlap between the day-to-day duties as described under subparagraphs h) and i) of the Applicant’s written submissions,[2] which together, according to him, totalled 50% of his time.
[2] Ibid.
I am not satisfied that the Applicant was engaged “wholly or principally in clerical work, including administrative duties of a clerical nature”: cl.4.1 of the Clerks Award. Therefore, it could not be said that the Respondent fell within the coverage of the Clerks Award. In my opinion, the evidence discloses that the Applicant engaged in operational and clerical duties, including administrative tasks. The evidence does not support the Applicant’s claim that his clerical duties, including administrative tasks, amount to 70% of his total duties. In my opinion, the balance between the operational and clerical duties performed by the Applicant was approximately equal.
When regard is had to the major substantial employment of the Applicant, or the principal purpose for which he was employed, I am not satisfied that the Applicant was employed as a Level 4 Clerical Employee under sch.B to the Clerks Award.
The Applicant’s own evidence is that, other than secretarial/executive support assistance (in the form of taking minutes at management meetings), he did not perform duties or exercise the skills identified at B.5.2 of sch.B to the Clerks Award.
The Applicant relied on the fact that he was required to supervise operational staff. However, the wording of B.5.1 of sch.B to the Clerks Award makes it clear that the reference to supervision is a reference to supervision of employees in “lower levels” of the classification structure; that is, supervision of clerical employees. The Applicant’s evidence was that the operational staff did not perform clerical work. Mr Myers’ evidence was that, although these employees performed duties of a clerical nature, they were not engaged wholly or principally in clerical work, including administrative work. Consequently, I am not satisfied that the Applicant engaged in supervision as contemplated by B.5.1 of sch.B to the Clerks Award.
Accordingly, I find that the Clerks Award did not apply to the Respondent, nor did it apply to the Applicant’s employment during the period that he was employed by the Respondent.
I now turned to consider whether the Retail Award was the applicable award.
The Respondent submits that the Retail Award is not applicable to the Respondent’s business, because cl.3.1 of the Retail Award “defines explicitly and with limitation the establishment must be one of the below definitions”.[3] This submission misconceives the ordinary meaning of cl.3.1 of the Retail Award. The list of businesses specified in cl.3.1 of the Retail Award under the definition “general retail industry” are clearly not an exhaustive list of businesses that fall within the scope of the Retail Award. This is made clear by the opening words in the definition of general retail industry: “general retail means the sale or hire of goods or services to final consumers for personal, household or business consumption including…” (emphasis added). Clearly, by the use of the word “including”, the identified retail businesses do not exhaust the type of retail business which may fall within the meaning of “general retail industry”.
[3] The Respondent’s Written Submissions filed on 1 December 2017 at [1].
The ordinary meaning of the definition of “general retail industry” can be read as meaning “the sale or hire… of services to final consumers for personal… or business consumption”. I am satisfied that the Respondent’s business involves the hire of a service (car-sharing) to final consumers (traveling to and from the airport) for their personal or business consumption. The fact that the business of the Respondent is novel does not preclude its service from falling within the definition of “general retail industry.”
Accordingly, I find that the Respondent operates a business within the meaning of “general retail industry” of cl.3.1 of the Retail Award.
I now turn to determine whether the Applicant falls within one of the classifications listed in sch.B to the Retail Award: see cl.4.1 of the Retail Award.
I have extracted above at [23] the classifications of Retail Employee Levels 3, 4 and 5, under sch.B to the Retail Award. The Applicant clearly did not meet the requirements of Retail Employee Level 5, as he was not a service supervisor of more than 15 employees, nor was he a tradesperson.
In my opinion, the duties performed and skills exercised by the Applicant during his employment with the Respondent fell within the scope of either a Level 3 or Level 4 Retail Employee.
The Applicant performed work which falls within the indicative tasks expected of a Retail Employee Level 4. The tasks that he performed were at a higher level than that of a Retail Employee Level 3, and included the management of a defined section of the Respondent’s business, supervision of staff, and the performance of Level 2 clerical functions; namely, responding to enquiries from customers, operating computerised equipment and computer applications, word processing, and maintenance of records.
Accordingly, I find that during the Applicant’s employment with the Respondent, the Applicant was classified as a Retail Employee Level 4 under sch.B to the Retail Award.
As I have found that the Respondent and the Applicant were covered by the Retail Award, it is unnecessary to consider the Miscellaneous Award applied to the Applicant’s employment. However, as this was an argument made by the Respondent, I indicate that the evidence does not support a finding that the Applicant fell within the exclusion clause: cl.4.2 of the Miscellaneous Award. The Applicant was not a managerial employee who exercised duties and responsibilities akin to professional employees, such as accountants and finance, marketing, legal, human resources, public relations, and information technology specialists.
Conclusion
The Applicant’s calculations of underpayments were based on his claim (which I have not accepted) that he was covered by the Clerks Award, and classified at Level 4.
On the evidence before the Court, the Applicant completed timesheets and the Respondent issued pay slips. Given this documentary evidence, it should not be difficult for both the Applicant and the Respondent to utilise the Fair Work Ombudsman’s online Pay and Conditions Tool (“PACT”) to calculate what the Applicant was entitled to during his period of employment with the Respondent as a Retail Employee Level 4 under the Retail Award. This calculation should include the Applicant’s entitlement to overtime and/or penalties.
The Respondent submits that it overpaid the Applicant, having regard to the provisions of the Employment Agreement. This is true, however the overpayment may not have extinguished any monetary amounts owed to the Applicant for his entitlements under the Retail Award.
In the event that the actual payments made by the Respondent exceed the Applicant’s entitlements under the Retail Award, I would refuse to make the order sought by the Respondent that the Applicant repay the Respondent any difference. If the Respondent overpaid the Applicant his entitlements under the Retail Award, the Respondent did so by paying an hourly rate without specifying what entitlement that amount related to, other than the Applicant’s wages or salary. I would simply treat this as an over award payment made by the Respondent, which does not provide grounds for a set off.
For the reasons set out in my judgment, I make the declarations and orders set out above.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 23 March 2018
0
5
5