WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES ANN MORRIS

CLAIMANT

-v-

Fleetwood/Durabuilt

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Monday, 16 January 2006, Thursday, 13 April 2006

DELIVERED Wednesday, 19 April 2006

CLAIM NO. M 138 OF 2005

CITATION NO. 2006 WAIRC 04214

CatchWords Enforcement of Clerks (Commercial, Social and Professional Services) Award No 14 of 1972, Claim pursuant to Award and Minimum Conditions of Employment Act 1993 for payment for public holiday and time worked, Alleged failure to allow meal breaks, Principle in Donovan's case, Proof of Industry, Proof of Classification.

Legislation  Industrial Relations Act 1979.

Minimum Conditions of Employment Act 1993.

Clerks (Commercial, Social and Professional Services) Award No 14 of 1972.

Cases referred to

in decision R J Donovan and Associates Pty Ltd v Federated Clerks Union of Australia, WA Branch (1977) 57 WAIG 1317.

Result Claim dismissed

Representation 

Claimant The Claimant appeared in person

Respondent Mr M Richards of the Respondent appeared for the Respondent

REASONS FOR DECISION

Background

1         In May 2005 the Respondent required the services of an Admin Maintenance Coordinator.  The position, which was a newly created position, was advertised through an employment agency.  The advertisement stated inter alia:

 “New

Busy maintenance department for manufacturer of demountable homes requires a competent customer service, admin clerk, maintenance scheduler.  Solid experience with customer service, good skills computer (word excel), mature outlook and good communications are required.  This position is permanent, PART time after trial period.  Neg wages around $16/HR to start.  Call Rhett ………

This position is Temporary, Part-Time (hours:  ).                           ”

2         The advertisement came to the attention of the Claimant who expressed an interest in the advertised position.  Consequently through her job provider it was arranged that she be interviewed by the Respondent’s manager.  The interview took place on Wednesday, 1 June 2005.  The Claimant was interviewed by Mr Paul Evett, the Respondent’s Production Planning Manager and one other.  During the interview the Claimant was told that her prospective employer was a large and expanding company which meant that the part-time position could well develop into a permanent full-time position.  The Claimant was told that her role would be to coordinate maintenance to be carried out on homes built by the Respondent.  The Claimant testified that she was informed that she would be required to work three days a week for about five to five and a half hours per day.  The Claimant was told that she would be paid at the rate of $16.00 per hour.

3         On Friday, 3 June 2005 the Claimant was notified that she had been successful in her job application and that she was to start work at 8.30 am commencing on Monday, 6 June 2005.  On Saturday, 4 June 2005 the Claimant attended the Respondent’s office to enquire whether it was the Respondent’s intention that she start work on the Monday stipulated because that Monday was a public holiday.  It suffices to say that the Respondent’s receptionist, after enquiring with the manager, informed the Claimant that she was not required on the Monday.  The Claimant was instructed to commence work on the following day, being Tuesday, 7 June 2005.

4         The Claimant commenced work on Tuesday, 7 June 2005 and became almost immediately concerned about the fact that there appeared to be an insufficient amount of work available for her.  She complained about the situation but the problem did not resolve.  The Claimant asserts that she brought to the position a vast amount of skill, knowledge and experience which was in the main not appropriately utilized by the employer.  The Respondent through Mr Evett, on the other hand says that the Claimant did not meet the expectations raised by her résumé and that she was incompetent in her computer skills.

5         In the end result the parties agreed that the employment relationship should come to an end and the Claimant ceased working for the Respondent on 24 June 2005.

6         The Claimant is aggrieved at what occurred.

The Claim

7         On 18 November 2005 the Claimant lodged her Originating Claim in this Court claiming that the Respondent had failed to comply with the “Commercial Social Clerks Award” and had “failed to comply with Minimum Wage Conditions”.  The Claimant indicated therein that her claim is brought pursuant to the Minimum Conditions of Employment Act 1993 (the MCE Act) and that she seeks the payment of monies due in the sum of “$72 whatever is due plus tax”.  Voluminous copies of correspondence passing between the Claimant and the Department of Consumer and Employment Protection, together with other documents, were attached to the Originating Claim Form.

8         On 1 December 2005 the Respondent lodged its Response in this matter stating:

“Claimant did not present for work on Monday 20 June 2005.  As a casual employee, wages were not paid for this absence.  All monies owed have been paid in accordance with her working hours.  Ms Morris declared a No Tax Threshold and was taxed accordingly.”

9         At the pre-trial conference on 16 January this year the Clerk ordered inter alia that the Claimant lodge and serve further and better particulars of her claim by 6 February 2006.  In complying with the Clerk’s order the Claimant lodged her outline of claim which is best described as being prolix. The outline is also difficult to follow and somewhat confusing.  She particularized and quantified her claim therein as follows:

Unpaid public holiday on 6 June 2006 (sic) in the sum of $102.31

Payment “for non-access” to meal breaks (no amount claimed).

Payment for Monday, 20 June 2006 (sic) in the sum of $90.03.

10      Payment of the sum of $72.00 for reasons unspecified in the outline but which appears from the papers lodged with the Originating Claim Form to be a claim for underpayment for ordinary hours worked calculated in the following manner:

Hours worked (76.25) x rate of pay ($16.00 per hour) =

Total payable ($1,220.00).

Less that actually paid ($1,148.00).=.

Total underpayment ($72.00)

11      The amount specified as claimed totalled $264.61 however the same is obviously incorrect because the amounts claimed in fact total $264.34.

12      In a further document dated 30 January 2006, which was sent by the Claimant to the Court by facsimile transmission on 31 January 2006, the Claimant made the following comment:

“I have further, if necessary proof that the award Clerks (Commercial, Social & Professional) Award does NOT pertain to the level and range of skills, knowledge & expertise I was called upon to use by the abovementioned employer & specifically the additional demand for work study & Oxford University.”

13      That statement appears to run contrary to the Claimant’s contention that she was covered by a classification in the Award.

14      Given the confusing nature of the materials before the Court, the Claimant was at the commencement of the hearing asked for the benefit of the Court and the Respondent to particularize and quantify her claim.  In the quantification of her claim the Claimant advised the Court that she claims $480.00 plus her annual leave and superannuation entitlements.  It is important to note that there had not previously been any mention of a claim for annual leave or superannuation entitlements.  As I understand it the claim for $480.00 is comprised of the $261.61 particularized with the balance being for the untaken meal breaks.

Determination

15      It will be obvious from the review of the documents lodged with respect to the claim that there has been a shift in the nature and quantum of the claim, however, in essence the Claimant maintains that the Respondent has failed to comply with the Clerks (Commercial, Social and Professional Services) Award No 14 of 1972 (the Award).

16      To establish a breach of the Award the Claimant must prove the following:

1. The existence of the Award.

2. That the Respondent being her employer was bound by the Award.

3. That the Claimant was in a classification under the Award.

4. That the Claimant was an employee within the meaning of section 7 of the Industrial Relations Act 1979.

17      There is no dispute about the fact that the Respondent was at all material times a corporation which employed the Claimant.  Furthermore, despite the fact that the Claimant failed to prove or produce the Award at trial, the Respondent for the sake of expediency conceded its existence.  Notwithstanding that, the other matters requiring proof remain live and in issue between the parties.

18      One of the outstanding primary issues to be determined is whether the Respondent is bound by the Award.  In that regard the Claimant contends that the Respondent, who is not a named party to the Award, is nevertheless bound by the Award by virtue of “common rule” because it fits within the scope provision of the Award.

19      Clause 4 of the Award provides:

4. - SCOPE

This award shall apply to all workers employed in the clerical callings mentioned herein (including telephone attendants and messengers where such worker does clerical work) by those employers named and engaged in the industry set out in Schedule "A" hereto, provided that it shall not apply to workers employed in the callings of Dental Assistant and or Dental Receptionist under the Dental Technicians' and Attendant/Receptionists' Award 1982.

20      The industries referred to in SCHEDULE “A” RESPONDENTS to the Award include inter alia

Architects and Draftsmen and/or Technical Consultants.

Builders and/or Contractors.

Business Consultants and/or Industrial and/or Management.

Calculating Services and/or Contractors.

Contractors (Earthmoving and/or Clearing).

Contractors (Administration).

Contractors (Paving and/or Road Making and/or Surfacing).

Electrical Contractors and/or Installers.

Engineers and/or Designing.

Engineers Civil and/or Consulting and/or Construction.

Hotel, Business Brokers and/or Agents.

Painters, Decorators and/or Contractors.

Secretarial Services and/or Contractors.

21      It is the case that the “Scope” clause of the Award referred to above is of the type referred to in RJDonovan and Associates Pty Ltd v Federated Clerks Union of Australia, WA Branch (1977) 57 WAIG 1317.  Applying Donovan (supra), an employer who is not named as a respondent to the Award will nevertheless be bound by it if his business can properly be held to answer to the description of an industry specified in the Schedule “A”.

22      The Claimant asserts that the Respondent could be said to operate within any one of the abovementioned industries.  However the reality is that I do not have any evidence of the industry within which the Respondent operates.  Indeed I was not told, with any degree of clarity or objectivity, precisely what it is that the Respondent does.  I know from the job advertisement (exhibit 1) and from the evidence given by Mr Evett and the Claimant that the Respondent manufactures demountable homes but whether such brings the Claimant within the “Builders and/or Contactors” industry or any other industry mentioned in the Schedule to the Award is not self evident.  The closest industry mentioned within the Schedule which in my mind could be said to apply is that of “Builders and/or Contractors”.   Having said that I do not know what the process of “manufacturing” demountable homes entails and whether such involves the same or similar methods used by builders and/ or contractors.  It is important to note that a builder may construct any structure not limited to homes.  Whether the “manufacture” of demountable homes can be said to come within the “Builders and/or Contractors” is unclear in my mind.  One thing is for certain however and that is this; that the Respondent cannot be said to operate in all the industries that the Claimant cited.  Some of the industries cited are not even remotely connected with the manufacture of demountable housing.

23      The Claimant has failed to prove on the balance of probabilities that the Respondent operates within an industry set out in Schedule A of the Award.

24      Furthermore, and in any event even if the Claimant could be said to have proved that the Award binds the Respondent, she has failed to establish that she comes within one of the classifications within the Award.  Her evidence concerning her duties was so imprecise and so difficult to follow as to be incapable of establishing on the balance of probabilities that she was employed within the “Grade 4 - Clerical Officer” classification contained in the Award as she asserted at trial.  Indeed her assertion at trial stands in stark contrast to what she said in her own document dated 30 January 2006 (previously referred to) sent to this Court in which she denies being within a classification in the Award.

25      It follows for the reasons stated that the Claimant’s claim, in so far as it is based on the Award, cannot succeed.   Her claim based on the MCE Act cannot succeed either.  She has not established that the Respondent has failed to pay her the appropriate minimum wage rate.  In so far as her claim relates to payment for 20 June 2005, on which day the Claimant asserts she worked but was not paid, it suffices to say that I accept the evidence of Ms Michelle Markovic, who testified that the Claimant did not work on that day.  Ms Markovic was a credible and reliable witness who was able to explain with a degree of particularity why it is that she recalls the particular day. Indeed her evidence is consistent with Mr Evett relating to his absence on that day. Accepting her evidence I reject the Claimant’s evidence that she worked on 20 June 2005 and given that her absence remains otherwise unexplained, she cannot succeed in her claim for payment for that day.

26      Finally the Claimant cannot succeed in her claim for payment for the public holiday on 6 June 2005.  In reality there had been a variation in the commencement date of employment which she accepted.  Accordingly the Claimant was not entitled to payment for the Monday holiday.

Conclusion

27      The Claimant has failed to discharge the onus resting upon her to prove her claim on the balance of probabilities.  Accordingly the claim is dismissed.

G Cicchini

Industrial Magistrate