United Voice v Pambula Merimbula Golf Club Limited

[2019] FWC 7186

[2019] FWC 7186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

United Voice
v
Pambula Merimbula Golf Club Limited
(C2019/3084)

DEPUTY PRESIDENT SAMS SYDNEY, 23 OCTOBER 2019

Alleged dispute about a matter arising under an enterprise agreement – small regional golf club – major restructure due to difficult financial circumstances – outsourcing of bar and bistro services – single Club employee on night and weekend shifts – dispute over classification levels under the Agreement –role and duties of Level 3 employee – whether role and duties consistent with Level 5 – employees should be paid at Level 4 for all shifts where they are the only Club employee on the premises – dispute determined.

BACKGROUND

[1] Like many small licensed and recreational sporting clubs in country and regional locations in New South Wales, Pambula Merimbula Golf Club Limited (the ‘Club’), situated on the idyllic far south coast of NSW, has in recent years been faced with significant financial difficulties. The Club has 300 golfing members and around 500 social members. In some respects, this dispute, lodged by United Voice (the ‘Union’) on behalf of two of its members employed at the Club, is a manifestation of the Club’s difficult financial circumstances.

[2] Mr Ernest Whitby and Mr Scott Wooden have service at the Club of 27 years and 4 years respectively. At various times, they had been employed on shifts as Supervisors at Level 5 under the Pambula Merimbula Golf Club Limited Enterprise Agreement 2014-2018 (the ‘Agreement’), although their substantive classification is now at Level 3.

[3] In Mr Whitby’s case, he was made redundant as a Supervisor in 2015 and re-employed as a permanent part-time employee at Level 3, and in Mr Wooden’s case, he was a Casual Supervisor (Level 5) from May 2016 and made a permanent part-time employee in December 2018, having had his rate reduced to Level 3 two months earlier.

[4] The gravamen of this dispute is that both Mr Whitby and Mr Wooden claim that they continue to perform duties which fall within the Level 5 role in the Agreement. Despite being rostered as the only Club employee on night and weekend shifts, they only receive higher duties payment for about one to two hours when they close the Club, whereas they perform many other duties for which they should be paid at the higher rate for the entire shift. This claim arises from the Higher Duties clause in the Agreement at clause 13. It reads:

‘13. HIGHER DUTIES

13.1 From time to time Employees may be given the opportunity to relieve in alternative or higher duty positions. Where Employees are rostered and required to perform duties and tasks at a higher classification level, they shall receive payment at the higher classification level:

(a) if the work performed is two (2) hours or less, for the time actually worked; or

(b) if the work performed is more than two (2) hours, for the entire duration of the hours worked that day.

13.2 Where the Employee is required to perform duties at a lower classification level, no deduction in pay shall be made.’

[5] Schedule A of the Agreement sets out Classification definitions and provides for Level 3 and Level 5 as follows:

‘LEVEL 3

Employees at this classification level are required to perform work above the skills of Level 2 Employees.

Level 3 indicative duties include:

•  assisting in the training of Employees at a lower level by way of on the job training;

•  attending a boiler requiring the holding of a certificate;

•  operation of a range of mobile equipment requiring the holding of a certificate, including forklifts;

•  responsibility for the operation and routine maintenance of a TAB, Keno, or other like terminal;

•  the sale of tickets of any kind;

•  responsibility for payment of jackpots and correction of minor gaming device faults;

•  security work requiring the holding of an appropriate licence;

•  reception duties which may include control of a switchboard, ticket sale etc.;

•  door or car park duties where required to assume responsibility for the application of club policy in areas such as dress, age, residence and other entry requirements;

•  takes classes and/or directs activities in sporting areas, health clubs, etc;

•  cellar duties;

•  change box duties where required to balance a float;

•  general clerical or office duties such as typing, word processing, data entry, maintaining records, switchboard operation, etc.;

•  responsible for routine building and/or grounds maintenance but not possessing the appropriate trade qualification nor being employed as green-keeping personnel;

•  driving a motor vehicle requiring the holding of a New South Wales Class 1A licence.

LEVEL 5

Employees at this level are required to perform work above and beyond the skills of Level 4 Employees.

Level 5 indicative duties include:

•  general or specialised cooking, baking, pastry cooking or butchering requiring a trade certificate;

•  supervision, training and coordination of large numbers of subordinate Employees, including level 4 supervisors, in 1 or more sections, departments or areas of the Club;

•  trade work appropriate to an Employee’s trade including technical level maintenance of gaming devices;

•  preparation and maintenance of Employee rosters;

•  responsibility and accountability for the whole operation of a safe or counting room from which change is issued to bars and poker machine change areas, rather than the mere physical movement of monies only, and including the responsibility and accountability for the safe balance and for checking the balances reported by operators of tills, change cages, TAB, Keno operations, etc

•  responsibility for locking and securing the Club.

The dispute

[6] On 15 May 2019, the Union lodged an application, pursuant to s 739 of the Fair Work Act 2009 (Cth) (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the dispute settlement procedure (‘DSP’) in the Agreement. The DSP in the Agreement is found at clause 45 and relevantly provides for arbitration by the Commission and the making of a determination binding on the parties (clause 45.4(b)). I do not apprehend there is any jurisdictional challenge to the Commission proceeding on this basis as contemplated by the terms of the DSP, noting that the steps of the DSP have been followed.

[7] In accordance with my usual practice, and given the distances involved, I listed the dispute for a telephone conference on 29 May 2019. No settlement of the matter was able to be achieved. Although the parties continued to discuss the matter, the Commission was ultimately advised by the Union that directions for a hearing should be made and dates set for the arbitration. At the hearing on 6 August 2019, Mr C Acev appeared for the Union and Ms L Pike from Clubs NSW appeared for the Club.

[8] The Union seeks the following relief in resolution of the dispute:

‘The Applicant seeks a determination by the Fair Work Commission as to the operation and application of Clause 13 – Higher Duties, of the Agreement, as it relates to employees rostered as described in Part 2.1 above.’

THE EVIDENCE

[9] The following persons provided statement and oral evidence in the proceeding:

•  Mr Whitby;

•  Mr Wooden;

•  Mr Kyle Shook – Finance Manager; and

•  Mr David Boag – Director and Honorary Secretary of the Club.

Ernest Whitby

[10] Mr Whitby predominantly works night shifts and weekends. Formally, as Supervisor, he was in charge of the bar, gaming and bistro staff. His main duties as a Supervisor were:

•  Full control of the Club safe, including doing a count on shift changeover, reconciliation of all monies/floats returned to the safe at shift end, and then overall safe balance at end of shift.

•  Supervision and coordination of all club employees on shift.

•  Decision making as to trading times (close early/trade late).

•  Decision making regarding staff shift end times.

•  Handling of any and all customer complaints that arose during a shift.

[11] In 2015, when Mr Whitby was made redundant and re-employed at Level 3, it was agreed that when he performed supervisory duties he would be paid at Level 5.

[12] In September/October 2018, the Club contracted out its Bistro and Bar services to a private contractor. The Bar Manager, who worked mainly on day shifts Monday to Friday, was made redundant at the time. Mr Whitby claimed that he was still required to perform higher duties and responsibilities, which include the following:

‘On weekend shifts

•  Day shift – count / verify safe balance from previous shift. Make up days floats, for cash box;

•  Enter data into System 7000 – involves daily record of monies being taken out of safe for trading;

•  Prepare TAB & Keno Floats; and

•  Prepare and Issue floats to main bar.

Night Shift

•  Reconcile all floats back into the safe;

•  Enter data back into System 7000 – involves daily record of monies returned back to safe from trading;

•  Decide whether the Club closes early or stays open later;

•  Confirm to contract bar staff decision re trading close time decided;

•  Decide when the casual bus driver would end his shift; and

•  Dealing with customer complaints / issues.

Weekends

•  My shift pattern is night shifts during the week due to a job with Australia Post.

•  As the office staff are no longer at work after 4.30pm, I am the most senior Club employee on the premises for that shift.

•  My duties are as per night shift on weekends above, that is:

•  Reconcile all floats back into the safe;

•  Enter data back into System 7000 – involves daily record of monies returned back to safe from trading;

•  Decide whether the Club closes early or stays open later;

•  Confirm to contract bar staff decision re trading close time decided;

•  Decide when the casual bus driver would end his shift;

•  Dealing with customer complaints / issues; and

•  Locking and securing Club premises’.

[13] Mr Whitby said that in late May 2019, Mr Boag advised him that he was not responsible for locking any of the Club’s access doors, other than the main doors. The contractor would lock the access doors.

[14] Mr Whitby described a number of meetings he had with Mr Wooden, Mr Shook and Mr Boag. He denied there was any agreement about his reduced pay level.

Mr Wooden

[15] Mr Wooden’s evidence was similar to Mr Whitby. He described his former duties as a Supervisor as follows:

•  ‘Supervised and directed other Club staff (bar, changebox and bus driver) on duty;

•  Decided whether to send Club staff home early if it was quite, or keep staff on if trade was busy.

•  Decide whether to close before the Club’s posted close time;

•  Dealt with customer complaints (mainly regarding bistro service). This included deciding whether to refund customer monies;

•  Locked and secured Club premises;

•  Decide the finish time/ last run of the casual bus driver; and

•  Verify and balance reported till monies and securer same in Club safe.’

[16] Mr Wooden had autonomy to make decisions about any issue arising on shift. When the Bistro and Bar contractors were engaged, Mr Wooden was still responsible for preparing and issuing the Bar and Bistro floats and counting the takings.

[17] Mr Wooden said that when his status changed from casual to permanent part-time and his rate reduced to Level 3, there was no discussion with the Club about any change in his duties and responsibilities and he continued to perform the following functions:

Despite this change in hourly rate by the Club, in addition to change box duties on shift, I was still required and continued to do the following:

•  Decided whether to close the Club before posted close, or extend the trade beyond posted close. and advice patrons;

•  Instruct contract bar staff when Club would be closing;

•  Decide how long the casual bus driver worked or was knocked off early;

•  Dealing with customer complaints / issues during shift;

•  Responsibility accessing safe keys and activating Club security system; and

•  Receiving and reconciling floats from the contract bar and bistro staff.’

[18] Mr Wooden also set out the details of meetings he has had with Management. However, the dispute remains unresolved.

Mr David Boag

[19] Mr Boag has been a Director of the Club since 2011. As the Club no longer employs a General Manager, Mr Boag oversees and participates in all management processes, including all aspects of staffing. He does this on a voluntary basis.

[20] Mr Boag said that Mr Wooden was first paid as a casual at Level 2. He claimed Mr Wooden approached him in December 2018 requesting to be made permanent part-time at Level 3 and this change was approved. He understood Mr Wooden supervises the Gaming section, TAB and Change Box area. Mr Boag believed Mr Whitby also performs those functions. He said that up to the restructure in 2018, Mr Whitby and Mr Wooden were required to serve patrons in the Gaming and Main Bar areas, as part of their regular duties.

[21] Mr Boag further described the 2018 restructure in which some employees were made redundant as a result of the contracting out of the Bar and Bistro functions. Mr Boag said that in late September 2018, he had consulted the staff, discussed the new roles and duties and encouraged questions and feedback. He believed the changes for employees who remained were small, and Mr Wooden and Mr Whitby continued to serve patrons in the gaming area, the Gaming Bar and TAB area. In addition, Mr Whitby and Mr Wooden are required to complete the end-of shift closing procedures, including balancing the till, securing the safe, locking and securing the Club’s premises.

[22] Mr Boag said that as Mr Whitby and Mr Wooden work weekend and end of night shifts, they have been performing these duties for a number of years. When performing opening or closing tasks they are paid the Level 5 rate for around 1-1.5 hours. Mr Boag said that during discussions with them in May 2019, they both claimed that the closing shift procedures can take longer. Mr Boag told them to document the tasks and times taken and they would be paid accordingly.

[23] Mr Boag said he and Mr Shook attended two meetings with Mr Whitby and Mr Wooden on 23 May 2019 and on 11 July 2019, in which they were informed that they were being paid correctly. Mr Boag said that in the later meeting he made the following points:

‘a. Scott Wooden is employed in a Level 2 position.

b. The Club has not had Supervisor positions since 25 June 2015 when these roles were made redundant;

c. Mr Wooden is paidHigher Duties allowance when on appropriate shifts;

d. In October 2018 Mr Wooden was given a Level 3 position with allowances for Level 5 as required;

e. Mr Wooden was never employed at or promised a level 5 rate of pay; he was only employed at Level 3 with Higher Duties allowance when required; and

f. In answering the question of what should happen if there is an incident and Mr Wooden or Mr Whitby are the only Club staff member on duty, I advised that Club staff and contract staff should work together to resolve the issue. There are other staff in the Club when the Club is open.

g. Ernest Whitby from 1 July 2015 was employed at a level 3 rate of pay, but would be paid a level 5 rate of pay when in an ‘In Charge’ position.

h. Level 5 rates are paid only when in the ‘In Charge’ position or when the employee is entitled to the payment for higher duties allowance.

i. Employees will be paid at the level 5 rates of pay for the time recorded when duties exceed level 3 duties but less than 2 hours per shift.’

[24] Both employees asked for time to consider their position and advise the Club by 15 July 2019. No response was received.

Mr Kyle Shook

[25] Mr Shook manages all aspects of the Club’s finance and office staff and assists Mr Boag with tasks normally performed by a General Manager. Mr Shook set out his understanding of Mr Whitby and Mr Wooden’s employment history and present duties. He said that when they were originally required to perform Change Box shifts and In Charge (‘IC’) Shifts, they are paid at Level 5. They now both perform regular Change Box shifts.

[26] Mr Shook was involved in the restructure in 2018. At the time, the Club was experiencing significant financial losses and if changes had not been made, he believed the Club would have been insolvent within 12 months. Mr Shook took issue with Mr Wooden as to an alleged lack of consultation about the restructure. There were numerous discussions with staff, resulting in the resignation of the General Manager, with the position not being filled and the redundancy of Bistro and Bar staff when these functions were contracted out. Staff members were reduced from around 32 to 19. In addition, his own hours were reduced to part-time. Change Box shifts are still required. These shifts are performed by Mr Whitby and Mr Wooden at Level 3 - as they always had been. Mr Shook estimated that all these changes resulted in overall savings in administration of $100,000 per annum.

[27] Mr Shook set out the numbers and roles of the staff that remained. They were:

•  ‘8-9 golf course grounds staff who undertake various roles involving maintaining the Club’s golf course.

•  4 permanent part-time and casual Change Box staff - overseeing the gaming area with multiple shifts covering 10am to close on weekdays and 9.00am to close on weekends.

•  2 casual Bus Drivers who drive the courtesy bus and attend to the front desk after normal business hours.

•  3 permanent part-time office staff who perform administration, marketing, payroll and bookkeeping tasks in addition to handling phone calls, emails and enquiries to the Clubhouse office/front desk. Typically, there are two staff (occasionally only one staff member) at the office from 9am to 4:30pm.

•  1 permanent part-time (3 days a week) Finance Manager, which is my role. I oversee the financial management of the club including monthly reporting to the Board, managing the annual audit, taking care of all relevant insurances, undertaking ad hoc projects and assisting the Club Secretary with the overall management of the Clubhouse.’

[28] Mr Shook described the duties involved in the Change Box tasks as:

•  issuing poker machine payouts;

•  assisting patrons and reporting issues with poker machines;

•  facilitating TAB/Keno bets and payouts;

•  bar services from the bar at the Change Box;

•  taking bus bookings;

•  keeping the Gaming area neat and tidy; and

•  balancing floats at shift changes.

These tasks, together with the hour of closing and the 1.5 hours of opening the Club, have not changed since the restructure. Mr Wooden and Mr Whitby open and close on weekends only and are paid for the time involved at Level 5, as if the person opening and closing on weekdays. The Club has never paid Level 5 for the full duration of the shift, but only for the hour and 1.5 hours described above.

[29] Mr Shook rejected Mr Wooden’s statement (paragraph 16) that his rate of pay was arbitrarily reduced from Level 5 to Level 3. Mr Wooden was originally engaged as a Level 2. He worked Level 3 shifts and was occasionally paid at Level 5. Mr Wooden was never engaged as a Level 5 employee and his rate of pay was not arbitrarily reduced. As there was no longer a need for an IC Shift, staff were not rostered as ‘in charge’. This change was communicated to staff at the time. Mr Shook said Mr Wooden’s list of duties were those he performed as a Supervisor. No Supervisors are employed and Mr Whitby and Mr Wooden now fulfil Change Box shifts. This does not involve control of the safe or the Club’s financials.

[30] Mr Shook said five of the six duties Mr Wooden listed as ones he performs during Charge Box shifts are carried out during closing. He is paid at Level 5 for this time. The sixth duty, dealing with customer complaints/issues, would be occasional and all employees would be required to address customer issues, with more serious matters being reported to appropriate authorities. Addressing minor customer complaints does not mean the Change Box role is a Level 5 position.

[31] Mr Shook made notes of his and Mr Boag’s meeting with Mr Whitby and Mr Wooden on 23 May 2019, and addressed the Union’s letter of 24 April 2019 in the same notes:

‘Assessing the trade level and determining the clubs close time (i.e. earlier than the posted close time)

Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the Enterprise Agreement for level 5, however it shouldn’t need to occur outside the last hour of work.

Advising the contracted bar staff of such decisions and instructing them to prepare to cease service

You should not be advising the contracted bar staff of when to close. It should only be communicated to each other.

Formally announcing the impending close time to club patrons

Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the Enterprise Agreement for level 5, however it shouldn’t need to occur outside the last hour of work.

Assessing the demand for patron conveyance

Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the Enterprise Agreement for level 5, however it shouldn’t need to occur outside the last hour of work.

...and determining when the casual courtesy bus driver is to end their shift

No, you should not determine when the bus driver’s shift ends. The bus driver should communicate with staff that they are finishing up when there are no more bus bookings and the bus drivers have asked patrons if they will require a lift.

Responsibility for accessing safe keys (personalised access codes) and activation of club security system (individual access code )

Level 5 specifically states that the mere movement of cash from the safe is

not a level 5 duty, so accessing the safe keys to get more cash {which could be outside of the last hour of work) is not a level 5 duty. Activating club security is level 5 under closing the club duty but only occurs in the last hour of the shift.

Responsibility for addressing patron complaints

Nothing specifically stated in level 3 or level 5 of the Enterprise Agreement regarding addressing patron complaints. Staff should make a note of the complaint and give it to either David Boag or myself. It is reasonable to assume a level 3 staff can address small complaints when they arise.

Responsibility for dealing with uncooperative or unruly patrons

All staff have a duty under their Responsible Service of Alcohol to deal with unruly patrons. This should be documented in the incident book and the police should be rung if any situation escalates. This is not solely a level 5 duty.’

[32] Mr Shook claimed that during the meeting, both Mr Wooden and Mr Whitby agreed that opening and closing the Club does not take more than two hours, and that they are no longer managing staff in multiple areas of the Club. Mr Shook had asked the employees to get back to him and Mr Boag as to any duties they considered are at Level 5, but nothing was received. He believed their meeting had cleared up any confusion.

Reply statements

[33] Mr Wooden insisted he performs duties which are consistent with Level 5 work. He gave an example of being contacted at 3am by the Club’s security service in order to give authorisation for a patrol car to be sent to investigate an activated alarm at the Club. In addition, when he performs Change Box shifts in the evenings or on weekends, he is the only direct Club employee on the premises. This involves dealing with any customer issues which arise on shift and liaising with the local Police when they visit the Club. Mr Clark had never been told to contact Management or a Board member in these situations. As the sole Club representative on site at these times, he is required to assess the seriousness of any issue to decide what action is to be taken. He recalled another occasion where the contract Bar staff tried to eject an intoxicated customer and he dealt with the matter, and the customer left without incident.

[34] Mr Wooden did not accept that the Club has had no Supervisor positions since 25 June 2015. He claimed that up until the contracting out of the Bar and Bistro in September/October 2018, he, Mr Whitby, Ms Amber Bray and Ms Christine Libbis had been rostered as Supervisors. The roster reflected the Supervisor shift and the time sheets were marked IC. Mr Clark, the General Manager, was also in that position until July 2018. Mr Clark had made a sign which read ‘Manager on Duty’, with a space to slide a name plate in. Mr Wooden denied not responding to the Club’s request to get back to Management after their meeting in July 2018; rather, he had told Mr Boag that they were pursuing the dispute through the Union.

[35] Mr Whitby also referred to incidents when he was contacted by the Club’s security company (Primus) late at night and where the Licensing Police may call into the Club when he is the only Club employee on the premises. Mr Whitby corroborated Mr Wooden’s evidence as to:

•  the four persons regularly rostered as Supervisors until September 2018, who were all paid at Level 5 for such shifts;

•  the ‘Manager on Duty’ sign placed on the Bar; and

•  there was no agreement as to a timeframe for he and Mr Wooden to get back to Management. A few days after the meeting on 11 July 2019, he told Mr Boag they were going ahead with the dispute.

Oral evidence

[36] In cross examination, Mr Wooden was asked about each of the duties he claimed as Level 5 tasks were performed throughout the shift or at the end of the shift. These include managing the times of the bus driver, and accessing the safe to top up the float. He agreed that dealing with customer issues or complaints does not happen on every shift - but it is common.

[37] Mr Wooden did not accept that Mr Shook’s recollection of their discussion on 24 May 2019 about the Union’s letter was wholly accurate. He disagreed with some of Mr Shook’s observations. However, he did agree that some of the tasks relate to the last hour of a shift. He did not agree with Mr Shook’s view that all employees can deal with customer issues; this is a Management task. He rejected the proposition that five of the seven duties in the Union’s letter are performed in the last hour of a shift. Mr Wooden agreed the alarm incident involving Primus had only occurred once, but it could arise again. Mr Wooden accepted he is paid Level 5 for one hour on close shifts only.

[38] In re-examination, Mr Wooden said there are many things which happen during a shift, not just in the last hour, which are unpredictable (for example, unruly patron/s). Mr Whitby agreed that the tasks involved in counting the takings, preparing the daily floats for the TAB, Keno and Main Bar are performed in the first 90 minutes of an opening shift and he is paid for that period at Level 5. However, all of the other duties are performed during the remainder of the day shift; see [5] above. As to the night shift, he agreed that five of the duties in his list are performed in the last hour after shift. He accepted that dealing with customer complaints is not a common occurrence and does not happen on every shift. He claimed that the casual bus driver reports to him.

[39] In cross examination, Mr Whitby was asked about the Union’s list of his duties contained in its letter to the Club, dated 24 April 2019. He agreed this list was discussed with Mr Shook and Mr Boag on 24 May 2019. In dealing with each of Mr Shook’s responses, Mr Whitby did not agree that the following duties are performed in the last hour:

•  assessing the demand for patron conveyance (by the bus);

•  determining when the bus driver is to end their shift;

•  communicating with the bus driver; and

•  dealing with patrons’ complaints:

He has to handle these matters whenever they occur on shifts, when he is the sole Club employee on the premises. Mr Whitby acknowledged that since 24 May 2019, no customer complaint issue had been raised with him. Nevertheless, there has been no instruction as to how he is to handle customer questions or complaints. He also accepted that all staff have a duty under RSA to deal with unruly patrons.

[40] In summing up, Mr Whitby acknowledged that of the seven Union identified duties, the first five are performed in the last hour of the shift. As to the incident of the contact from the Club’s security company, Mr Whitby agreed he was asleep at the time and did not respond. He said this was the only occasion he had been contacted by the security company since October 2018. Nevertheless, Mr Whitby did not accept that Level 3 was the best classification for the duties he performed.

[41] In Mr Boag’s cross examination, he reiterated that there were no specific Supervisor positions from June 2015. However, persons were rostered up to September 2018 into IC positions on an ‘as needs’ basis. He agreed that no Management person has been rostered on after 5pm, since September/October 2018. Directors are never rostered on to make decisions, and there has been no instruction to staff to contact a Director in relation to any issue/s arising on a shift.

[42] Mr Boag said that since the contracting out of the Bar and Bistro services, there is only a requirement to have one Club employee as a Gaming or Cash Box attendant. Mr Boag said that the contractor person in charge works in parallel with the Club’s employee as to Cash Box attendant duties. A good example might be where an intoxicated person moves to different areas of the Club. He claimed the Bar staff could also remove an unruly or intoxicated patron from the Club. Nevertheless, Mr Boag accepted there are clear lines of direct responsibility in different areas of the Club.

[43] Mr Boag agreed that prior to October last year, exceptional circumstances would have been handled by the IC Supervisor. However, if he or she were unavailable, the responsibility moved back to the employee. Mr Boag agreed that the Police sometimes make unannounced visits to check on licensing issues. If it related to Bar service, the Police would talk to the contractor employee in charge. He denied that responsibility rested with the sole Club employee on the premises.

[44] From his knowledge, Mr Boag could not say whether the sole Club employee had ever extended the Club’s trading hours. Mr Boag agreed that dealing with patron complaints and issues are different matters. There is a complaints book which the person on duty is required to complete. The complaint is then handled when a more senior person is on duty.

[45] It was Mr Boag’s evidence that he was not in a position to know the details of the job descriptions in the Agreement. He said Mr Shook would be the best person to answer that question. However, when shown the Level 3 description, he agreed the duties set out were indicative duties and not exhaustive, and that the duty of dealing with exceptional circumstances, is not mentioned. However, he did not agree that these duties warranted a higher grade than Level 3. Finally, Mr Boag agreed that exceptional circumstances could occur at any time in the shift. Mr Boag said that in respect to the ‘Manager on Duty’ sign, the sign is still there, but not used.

[46] In answer to questions from me, Mr Boag said that he had not been called by any Club or contract employee about an issue occurring on shift. The only calls he receives out of hours are from Primus, if the Club’s alarms are triggered. Prior to the restructure, the order for calling in these circumstances was:

•  the General Manager;

•  the Bar Manager;

•  the President; then

•  the Secretary of the Club.

The incident Mr Whitby referred to was a mistake from an old list. This has now been rectified with about eight names on the list to be contacted.

[47] In re-examination, Mr Boag clarified that prior to June 2015 there were two dedicated full-time Supervisors paid at Level 5. They were made redundant and from then the existing employees who acted up in IC shifts were paid at Level 5, but their substantive role was Level 3. Mr Boag further explained that the duties Mr Acev contended for, were not in the Level 3 job description (dealing with exceptional circumstances) and are not found in Level 4 or Level 5 either.

[48] In cross examination, Mr Shook agreed he did not spend much time in the Club after 5pm on a work day or on weekends. He had commenced working 3 to 4 days a week in November 2018. He learns of issues arising at these times when they are reported up the line to him in the office. He agreed he does not have direct knowledge of what happens on evening and weekend shifts. The only Club employee on those shifts is the Change Box Attendant. He accepted there was no written direction for an employee to contact Management or a Director, if any exceptional circumstance arises. However, he understood this instruction was conveyed initially. He has occasionally been contacted on weekends for assistance.

[49] Mr Shook accepted that it is the Change Box Attendant’s responsibility to exercise discretion in assessing a particular circumstance and how to deal with it. He did not agree that this constituted a level greater than Level 3. An emergency can be handled by emergency services and most other inquiries can wait to be cleared up on weekdays.

[50] As to the example of a disruptive patron, the Change Box Attendant would deal with the issue if it was not serious, but if a patron was identified as violent or physically threatening, the Police would be called. He agreed these situations can happen at any time on shift. Where issues arise at the Bar and Bistro, there is an expectation of the Club employee to work with the contractor on any issue. Mr Shook did not accept that the Change Box Attendant is responsible for the entire Club. While that employee’s tasks related to the Gaming area, the employee is expected to work in partnership with the contractor.

[51] As to Police visits, Mr Shook agreed that these visits are random, and the Club employee is required to engage and deal with licensing issues, in conjunction with the contractors. However, he accepted the contractor and its employees may not be there at the end of the shift.

[52] Mr Shook conceded that neither Mr Wooden nor Mr Whitby had agreed they were correctly classified at Level 3. Mr Shook said that he understood Mr Boag had communicated to all staff about their duties, tasks and responsibilities after the restructure. He had seen a document about this communication, but only briefly. When shown Annexure A to Mr Boag’s statement, he could not say when it was prepared, or when and how it was distributed to staff. He accepted that there is nothing in this document dealing with the Change Box Attendants’ responsibilities in the event of exceptional circumstances.

[53] Mr Shook said that the Club did not reduce Mr Whitby’s rate of pay from Level 5 to Level 3 following the 2018 restructure. He was paid at Level 3 prior to this and paid Level 5 when performing IC duties; this is evidenced by his payslips. It would be expected that a Level 5 IC Supervisor would deal with difficult patrons, but that would also be expected of a Level 3 employee.

[54] In answer to questions from me, Mr Shook said that he had a few calls from the contractor early in their contract, mainly concerned with the point of sale system they were getting used to. He has not had any calls in the last few months.

[55] Mr Shook confirmed that the savings in administration of $100,000 per annum did not include the changes in respect to the Bar and Bistro contracts. When put together, Mr Shook believed the Club lost $900,000 in the financial year ending June 2018 and in 2019 it was reduced to $300,000. A similar loss is expected in the next financial year. In addition, there has been a strategic decision to ensure the golf course is in very good condition, with a new irrigation system and an increase in green fees.

SUBMISSIONS

For the Union

[56] The Union set out the Commission’s arbitral jurisdiction to deal with this dispute, the background to the dispute and the relevant terms of the Agreement. I need not repeat these self-evident submissions.

[57] The Union contended that there are four outstanding questions that the Commission should consider when attempting to resolve the dispute, being:

‘a. What are the duties and responsibilities of the affected employees?

b. Are these duties and responsibilities correctly classified and correctly remunerated as Level 3 under the agreement?

c. Are the duties and responsibilities of the affected employees correctly classified as being higher than those of a Level 3 employee under the Agreement?

d. If the duties and responsibilities of the affected employees are correctly classified as higher than Level 3, at what level under the Agreement should they be remunerated?’

[58] In answering these questions, the Union relies on the ‘Berri Principles’ in interpreting agreements; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union v Berri Pty Ltd[2017] FWCFB 3005. It also cited the Full Bench’s decision in Fonterra Brands (Australia) Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[2015] FWCFB 3912, in which it was said at [16]:

‘The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement.’

[59] In interpreting the Higher Duties clause; see: [4] above, the Union submitted that higher duties is based on the premise that employees possess the relevant skills to perform such functions, which in this case, the relevant employees have. It was further submitted that it is incorrect for the Club to maintain that the classification levels represent an exhaustive list of all duties and responsibilities performed by employees under the Agreement. The list in Schedule A of the Agreement lists ‘indicative’ functions, where the ‘complexity and degree of responsibility’ of the functions increases at each level.

[60] The Union submitted that if the Commission is satisfied that the work performed exceeds that of the Level 3 indicative functions, it is a simple task to align the work with the requisite levels above Level 3 in the Agreement. The Union concluded by affirming that the work required by the relevant Club employees exceeds Level 3. They should be remunerated at a higher, more appropriate classification level, reflecting the higher duties performed.

[61] In oral submissions, Mr Acev reaffirmed that this matter comes down to the ‘simple set of questions’ posed by the Union. Its evidence should be preferred on the basis that the respondent’s evidence was largely based on recollection. It disagreed with the Club’s view that responsibilities can be delegated away through the use of contractors. The Commission should focus on the ‘inherent relationship’ between the employer and the employee when determining the appropriate level of relevant staff.

[62] In questions from me, Mr Acev clarified the Union’s proposition in answering question four; see: [57] above, in that the correct classification for the relevant employees is Level 4. He put that when interpreting the Agreement, a person performing TAB and Keno functions is not necessarily at Level 5. However, such responsibilities are beyond the scope of indicative functions of a Level 3 employee. In any event, the expectation lies on employees performing the shifts from the time they clock on, to the time they clock off, and that they will perform duties if, and when they arise. They should not be remunerated as a Level 3 employee, merely due to the unlikeliness of such issues arising. Such responsibilities are beyond the scope of a Level 3 employee.

[63] Mr Acev further clarified that the Union does not ‘shy away’ from pressing for relevant employees to be classified at Level 5, but in any event, a reclassification at Level 4 would not be an inappropriate outcome, as the duties performed by Mr Whitby and Mr Wooden exceed Level 3. The ‘essence’ of a Level 4 employee is that it reflects an intermediary position between a Level 3 (i.e. responsibilities below that which are currently being performed) and Level 5 (i.e. Supervisory functions).

[64] Finally, Mr Acev submitted that if employees are to be back paid, it should occur from October 2018 onwards.

For the Club

[65] In its written submissions, the Club also set out the relevant Agreement terms and the indicative functions of Level 3 and 5 employees (see: [5] above). The Club noted the restructure process which occurred in August and September 2018 and the consequent redundancies which occurred. It submitted that Change Box Attendant shifts occurred prior to the restructure, and were paid at Level 3 rates of pay. Staff paid at a Level 5 rate of pay prior to the restructure were performing Supervisor duties, including overseeing various departments in the Club, which are not requirements of staff only performing Change Box Attendant shifts post-restructure.

[66] The Club submitted that the average time taken for a Change Box attendant to perform higher duties is an hour, performed in the final hour of the shift. It cannot be said that Level 3 employees should be paid at a higher rate throughout the shift when dealing with patron complaints and uncooperative or unruly patrons, as these occur irregularly. Moreover, any staff member may have to deal with such issues at first instance.

[67] The Club referred to its meeting with Mr Wooden and Mr Whitby on 23 May 2019 and provided its version of the discussion, which for the most part resonate with those of the Union; see: [31] above. It submitted that Mr Wooden and Mr Whitby did not disagree with the explanations provided. The Club claimed that the dispute should be dismissed on the basis that:

(a) the work performed during a Change Box Attendant shift is appropriately classified as Level 3 under the Agreement;

(b) all duties performed either at the beginning of a Change Box Attendant shift, or at the end of a Change Box Attendant shift whereby the employee is required to open or close the premises, are appropriately classified as Level 5 under the Agreement;

(c) such opening and closing duties are performed for an average of 90 minutes and 60 minutes respectively at either the start or finish of a shift; and

(d) opening and closing duties are appropriately paid at the Level 5 rate of pay in accordance with Clause 13 of the Agreement for the time spent performing these duties where it is less than two hours.

[68] In oral submissions, Ms Pike reiterated the Club’s precarious financial position, its remote location, and the earlier restructures at the Club. Since the restructures, Ms Pike said that there is now no need for an employee to perform supervisory functions during the hours in contention. The staff were notified of such changes in August 2018. Ms Pike further submitted that that the Change Box staff are classified and paid at Level 3 in accordance with the Agreement. Where such staff may perform tasks outside of the indicative task list from time to time, they are paid in accordance with the Higher Duties clause for the ‘indicative timeframe’ which it takes to complete these duties. Five of the seven duties in contention are performed during the hour before closing, in which staff are paid the Level 5 rate of pay.

[69] In answering questions from me, Ms Pike submitted that the handling of customer complaints is not a task which can only be handled by a Supervisor or Manager. If this were the case, it would have ‘broader ramifications’ within the hospitality industry and beyond, particularly for small businesses. Although Supervisors previously handle complaints generally, this is not to say that other employees in certain circumstances are not equipped to handle complaints on the spot, without seeking help from their Supervisor. Ms Pike said that where a patron specifically asks to speak to a manager, for example, the Club has procedures in place to handle this, by way of escalating the matter to Management by writing the complaint down in the log book, or in more serious circumstances, calling emergency services.

[70] In response to the Union’s request for the relevant workers to be on a Level 4 rate of pay (as opposed to a Level 5), it submitted that the Union provided little to no evidence, as to how the indicative functions in question pertain to a Level 4 duties. The only levels discussed in detail were Level 3 and Level 5 – the latter already being paid to employees when performing Higher Duties. The Union had provided no evidence to the Commission that duties above Level 3 are performed regularly throughout the entirety of the shifts in question.

CONSIDERATION

[71] At the outset, I would say that I found all of the witnesses in this case to have given honest, helpful and straightforward evidence. Where the evidence appeared to be in conflict, it was more about subjective views and opinions of whether the duties, tasks and responsibilities of Mr Wooden and Mr Whitby was properly classified at Level 3 or Level 5. In respect to the tasks performed in the final hour of a closing shift or an opening shift, neither Mr Whitby nor Mr Wooden materially disagreed with the Club’s position. They were open and truthful, even when their answers were against their interests. This is commendable.

[72] It is uncontroversial that the essence of this dispute surrounds the nature and extent of the duties and responsibilities of the Change Box Attendants which extend outside the hour before closing and the 90 minutes after opening. There is no disagreement that the Level 5 rate is paid for those times. What is also relevant to this case is that neither Level 3, nor Level 5, expressly deals with the precise tasks and responsibilities identified as being performed by Mr Wooden and Mr Whitby. Mr Acev was correct to observe that identified duties and responsibilities are indicative - not exhaustive.

[73] For me, however, what is particularly telling is the fact that when on shift the Change Box Attendant is the only Club employee on the premises for the entire night shift or weekend shift, with all other staff being the employees of a contractor. It is important to remember, I think, as to how this rather unusual situation arose. It is common ground that prior to 2015, the Club employed designated Supervisors. Since 2015, the person in charge (of whom there were four eligible employees) was engaged as an IC person on an IC shift and paid at Level 5, but were otherwise paid at Level 3, when not working an IC shift. Presumably, some other suitably qualified person was rostered on in their place. Since the engagement of the Bar and Bistro contractor, no further IC shifts are worked. Mr Whitby or Mr Wooden work alone as the Change Box Attendant, and as the only Club employee on the premises. This history is important. The effect of this, particularly in Mr Whitby’s case, is that a longstanding senior employee, who previously worked as a Supervisor, is no longer paid at Level 5, because on the Club’s case, there is no role for a Supervisor. However, does it then follow that some of the duties and responsibilities of a former Supervisor simply no longer exist? I do not believe so.

[74] It seems to me that there must be an expectation that the only direct Club employee on the premises during a shift will encounter the same kind of circumstances which the former Supervisors encountered, and were required to attend to (albeit periodically). It is not to the point that these circumstances happen occasionally, and not on every shift. This would have been at the same degree of frequency when Supervisors were engaged. In other words, Supervisor duties may not have been worked for the entire shift, including duties at Level 3, but the Supervisors were paid at the higher level for the entire shift.

[75] On the evidence, and somewhat reluctantly accepted by the Club, these circumstances include dealing with patrons’ complaints, queries or behaviour and conduct and the random Police visits to check adherence to the licencing laws. Self-evidently, these occasions can occur at any time during the shift. Both Mr Boag and Mr Shook spoke of working collaboratively with the contractor about these issues. This evidence was aspirational and not very compelling. Working collaboratively with contractors is strictly not the legal or technical responsibility of the contractor (unless it is mentioned in the contract, which I have not seen and would doubt is the case).

[76] In my view, a contractor or its employees would be perfectly entitled to say ‘I work at the Club’, not ‘for the Club’. This is a significant distinction. For example, I cannot imagine the Club would have authority to discipline a contractor employee for poor performance (save again for any direct contractual enforceable right about which I am unaware).

[77] It is somewhat illusory to argue that because no Supervisor positions exist, and there is only one employee for an entire shift, that person does not have some supervisory, or at the very least, discretionary authority to make decisions about incidents and circumstances, where the very integrity and security of the Clubs’ safe, effective and efficient operations is in question. This is not to mention the period of time, albeit a short period, where all the contractor staff have left the premises, and the sole Club employee is locking up the Club on his/her own. There may be a serious health and safety risk in these circumstances. As the Club’s only direct employee, it will be to that person where the ultimate responsibility will fall.

[78] In addition, I found the evidence of Mr Boag and Mr Shook about what the employees were told about the effect of the changes on their tasks and responsibilities to be somewhat shaky and unclear. A document was said to have been given to employees (denied by Mr Whitby and Mr Wooden), or at least verbally discussed with them. The point is, however, the document does not expressly deal with the matters discussed in this case. Nor am I satisfied that such matters were raised at the time. In any event, it must be acknowledged that there is no express explanation or direction as to how a single Club employee is to act collaboratively with the contract staff. I do not say this to be critical, as I accept the need for drastic changes due to the Club’s difficult financial circumstances. Mr Boag is a volunteer and Mr Shook works part-time. The Management’s ranks are very thin, to say the least. However, much is expected of the Change Box Attendant, together with the trusting hope, nothing will go wrong. As the only Club employee on shift, they are the ‘go to’ person and, on one view, are the ‘face’ of the Club for that shift.

[79] While I accept the Club and the industry’s position that Level 5 is essentially a Supervisory position, it is for the above reasons that I am satisfied that the Union’s case has been substantially made out. Accordingly, I determine that where a sole Change Box Club employee is engaged on a night or weekend shift, that employee should be paid at the Level 4 rate of pay under the Agreement for the entire shift and continue to be paid the Level 5 rate for the periods of time worked at the beginning and the end of a weekend or night shift respectively where higher duties are applicable.

[80] The dispute is determined accordingly and concluded.

DEPUTY PRESIDENT

Appearances:

Mr C Acev for the Union
Ms L Pike from Clubs NSW on behalf of the respondent.

Hearing details:

2019.

Sydney:

6 August.

Printed by authority of the Commonwealth Government Printer

<PR713446>