WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES SPRING 2002 PTY LTD

APPELLANT

-and-

Katherine Sampson

RESPONDENT

CORAM FULL BENCH

The Honourable M T Ritter, Acting President

Chief Commissioner A R Beech

Commissioner P E Scott

HEARD Tuesday, 5 December 2006

DELIVERED WEDNESDAY, 20 DECEMBER 2006

FILE NO. FBA 30 OF 2006

CITATION NO. 2006 WAIRC 05864

CatchWords Industrial Law (WA) - Appeal against decision of Industrial Magistrate's Court - Application pursuant to s83 of the Industrial Relations Act 1979 (WA) (as amended) for enforcement of the Restaurant, Tearoom and Catering Workers' Award, 1979 - Alleged failure to comply with award by appellant in non-payment to respondent of correct wages and allowances prescribed by award - Whether award classification applied to the employment of the respondent - Consideration of the substantial nature of the respondent's employment and purpose of it - Whether the higher duties clause of the award applied - Appeal upheld – Industrial Relations Act 1979 (WA) (as amended), s7, s37, s83, s84 - Restaurant, Tearoom and Catering Workers’ Award, 1979, cl 4, cl 6, cl 11, cl 21, cl 25

Decision Orders and directions as to submissions to be made as to appropriate orders

Appearances

Appellant Mr D Johnston, as agent

Respondent Mr G McCorry, as agent

Reasons for Decision

THE ACTING PRESIDENT:

The Appeal

1         This is an appeal instituted under s84 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  It is an appeal against a decision of the Industrial Magistrate's Court made on 31 August 2006.

2         The decision made by the Industrial Magistrate's Court was the determination of the respondent’s application under s83 of the Act for the enforcement of the Restaurant, Tearoom and Catering Workers’ Award, 1979 (the award).  (This application was No M 153 of 2005).  The respondent alleged the appellant had failed to comply with the award in that it had failed to pay the respondent the correct wages and allowances prescribed by the award.  The respondent sought the payment of the amount she was underpaid, “pre-judgment interest”, a penalty for the breach of the award and disbursement costs.

3         The application was opposed by the appellant, whose primary position at the hearing at first instance was that there had been no breach of the award because the respondent’s employment with the appellant was not covered by the award.

4         The application was heard together with application No M 152 of 2005.  This was also an application by the respondent, seeking similar orders for similar contraventions of the award.  The respondent in application No M 152 of 2005 was Spring 99 Pty Ltd (Spring 99).  Spring 99 and the appellant had common directors and some common employees.  The appellant operated a restaurant known as Terrazza Nedlands.  Spring 99 operated a restaurant known as Terrazza Applecross.  The respondent had been employed by both the appellant and Spring 99 at Terrazza Nedlands and Terrazza Applecross respectively.  The appeal is only concerned with the orders made in favour of the respondent in application No M 153 of 2005 involving her employment at Terrazza Nedlands.

5         The order appealed against was in the following terms:-

“1. The Respondent shall pay to the Claimant the sum of $4571.18 plus interest thereon fixed at $309.75.

2. A penalty of $750.00 is imposed upon the Respondent for its breach of the award which shall be paid to the Claimant.

3. The Respondent shall pay to the Claimant the sum of $72.00 being the disbursements incurred by the Claimant in the matter but the Claimant’s claim for costs is otherwise dismissed.”

6         The reasons for decision of the Industrial Magistrate had been published on 2 August 2006.

The Hearing

7         The hearing of applications M 152 and M 153 of 2005 took place on 1 June 2006 and 13 July 2006.  On the first day of the hearing the evidence was completed and the appellant’s agent made his closing submissions.  On the second day the respondent’s agent made his closing submissions.  The respondent gave evidence in support of her applications and evidence was given on her behalf by Mr Christopher Bergin and Mr Adam Pearce.  Both Mr Bergin and Mr Pearce had been employees of the appellant at Terrazza Nedlands during the period in which the respondent was employed.  The only witness who gave evidence for the appellant was Mr Bradley Treasure who described himself as being the corporate manager of the “Terrazza Group”.

Factual Background

8         The respondent’s employment with the appellant commenced in May 2004 and ceased in March 2005.  Her employment with Spring 99 at Terrazza Applecross commenced in August 2002 and also ceased in March 2005.

9         The respondent’s employment with Spring 99 at Terrazza Applecross was initially as a casual waitperson.  About six months after her commencement at Terrazza Applecross the respondent was given more responsibility.  This included her being given a manager’s code which permitted her to give discounts and void the till.  She also then took table bookings, greeted patrons, attended to walk in customers, allocated customers to their tables, assisted other staff and waited upon customers in a busy section of the restaurant.

10      The respondent’s employment at Terrazza Nedlands followed a discussion with Mr Treasure, Mr Oscar Lazuardi and Mr Jonathon Lazuardi at Terrazza Nedlands.  The Lazaurdis were described as being the owners of the business.  During this discussion the respondent was offered the position of supervisor at Terrazza Nedlands which was accepted.  The respondent commenced working in this position in May 2004.  The respondent’s evidence, which was accepted by the Industrial Magistrate, was that she was in May 2004 also appointed and commenced working as the supervisor in Terrazza Applecross.

11      Relevant to the appeal, the respondent contended that she was entitled to be paid under the award at the rate applicable to a Food and Beverage Supervisor.  This was because she was either engaged in this classification in the award, or alternatively, although she did not have the appropriate level of training to be classified as a Food and Beverage Supervisor, she performed the duties of a supervisor and was therefore entitled to be paid as such in accordance with the higher duties clause 25 of the award.

The Award

12      For the purposes of determining the appeal, the following clauses of the award are relevant.  The area clause 3 provides that the award shall have effect throughout the State of Western Australia.

13      Clause 4, the scope clause provides that:-

“4. - SCOPE

This Award shall apply to all workers employed in the callings described in Clause 21 of this award, in Restaurants and/or Tearooms and/or Catering Establishments and/or by Catering Contractors, as defined in Clause 6 of this Award.”

14      Clause 6 of the award contains a number of definitions.  It contains a definition of “Restaurant and/or Tearoom”.  It was not in dispute on the appeal that Terrazza Nedlands came within the definition of a restaurant and/or tearoom. 

15      Clause 6(3)-(7) provides definitions of Food and Beverage Attendants Grades 1-4 and also a Food and Beverage Supervisor in the following terms:-

“(3) Food and Beverage Attendant Grade 1 means an employee who is engaged in any of the following:

(a) picking up glasses;

(b) emptying ashtrays;

(c) general assistance to food and beverage attendants of a higher grade not including service to customers;

(d) removing food plates;

(e) setting and/or wiping down tables;

(f) cleaning and tidying of associated areas.

(4) Food and Beverage Attendant Grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

(b) assisting in the cellar or bottle department;

(c) undertaking general waiting duties of both food and/or beverage including cleaning of tables;

(d) receipt of monies;

(e) attending a snack bar;

(f) engaged on delivery duties.

(5) Food and Beverage Attendant Grade 3 means an employee who has the appropriate level of training and is engaged in any of the following:

(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

(b) assisting in the cellar or bottle department, where duties could include working up to four hours per day (averaged over the relevant work cycle) in the cellar without supervision;

(c) undertaking general waiting duties of both food and liquor including cleaning of tables;

(d) receipt and dispensing of monies;

(e) engaged on delivery duties; or

(f) in addition to the tasks performed by a food and beverage attendant grade 2 the employee is also involved in:

(i) the operation of a mechanical lifting device; or

(ii) attending a wagering (e.g.  TAB) terminal, electronic gaming terminal or similar terminal.

(g) and/or means an employee who is engaged in any of the following:

(i) full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

(ii) mixing a range of sophisticated drinks;

(iii) supervising food and beverage attendants of a lower grade;

(iv) taking reservations, greeting and seating guests;

(v) training food and beverage attendants of a lower grade.

(6) Food and Beverage Attendant (Tradesperson) Grade 4 means an employee who has completed an apprenticeship in waiting or who has passed the appropriate trade test and as such carries out specialised skilled duties in a fine dining room or restaurant.

(7) Food and Beverage Supervisor means an employee who has the appropriate level of training including a supervisory course and who has the responsibility for supervision, training and co-ordination of food and beverage staff, or stock control for a bar or series of bars.”

16      As can be seen the definition of a Food and Beverage Attendant Grade 3 and Food and Beverage Supervisor refers to an employee who has the “appropriate level of training”.  This expression is defined in clause 6(21) of the award in the following terms:-

“(21) Appropriate Level of Training means -

(a) completion of a training course and the employee qualifying for an appropriate certificate relevant to the employee’s particular classification; or

(b) that the employee’s skills have been assessed to be at least the equivalent of those attained through the suitable course described in paragraph (a) of this sub-clause assessment to be undertaken by a qualified skills assessor.”

17      It was found as a fact by the Industrial Magistrate that the respondent did not have the appropriate level of training for a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor.  That finding has not been challenged by the respondent on appeal. 

18      Clause 11 of the award is about casual employees.  Clause 11(1) provides a definition of a casual employee.  The Industrial Magistrate found that the respondent was a casual employee at both Terrazza Applecross and Terrazza Nedlands.  This finding has not been challenged on appeal.  Clause 11(3) of the award provides that a casual employee “shall be paid only an hourly base rate of pay that is an amount not less than 1/76th of the fortnightly rate prescribed in Clause 21. – Wage Rates for the relevant classification for any work performed”.  Clause 11(4) of the award provides that in addition to the hourly base rate of pay prescribed in subclause (3), a casual employee shall also be paid loading as set out in a table which then followed.

19      Clause 21 of the award is the wages clause.  It set out the “minimum fortnightly rates of wage payable to full-time employees covered by this award”.  There is then set out a table which has a level, classification and wage rates.  Level 2 includes a Food and Beverage Attendant Grade 2.  Level 3 includes a Food and Beverage Attendant Grade 3.  Level 5 includes a Food and Beverage Supervisor.  As is to be expected the wage rate of a Level 5 is greater than that of a Level 3 which in turn is greater than that of a Level 2.

20      The higher duties clause of the award is as follows:-

“25. - HIGHER DUTIES

(1) Any worker performing work for two or more hours in any day on duties carrying a higher prescribed rate of wage than that in which he is engaged, shall be paid the higher wage for the time so employed, provided that where a worker is engaged for more than half of one day or shift on duties carrying a higher rate he shall be paid the higher rate for such day or shift.

(2) Any worker who is required to perform duties carrying a lower prescribed rate of wage, shall do so without any loss of pay.”

21      Clause 25(1) refers to the performance of work on duties carrying a higher rate of wage than that in which the employee is engaged.  The focus therefore is upon the duties performed during work.  The clause applies if those duties carry a higher prescribed wage rate than those in which the employee is engaged.  The operation of the clause therefore involves a comparison between the duties being performed and those for which the employee is engaged. 

The Reasons of the Industrial Magistrate

22      It is only necessary to refer to the reasons of the Industrial Magistrate which are relevant to the determination of the appeal. 

23      The Industrial Magistrate commenced his reasons by setting out the relevant background followed by a summary of the evidence of the respondent, Mr Bergin, Mr Pearce and Mr Treasure.  The Industrial Magistrate then made certain factual findings.  Relevant to the appeal the Industrial Magistrate found that from May 2004 the respondent “worked as a supervisor at both Terrazza Applecross and Terrazza Nedlands”.  The Industrial Magistrate found that the appellant appointed the respondent to be a supervisor notwithstanding that she did not possess any particular qualification or training, other than on the job training, to perform that function.  The Industrial Magistrate found that in March 2005 the respondent ceased working at Terrazza Nedlands and Terrazza Applecross.

24      At page 19 of his reasons the Industrial Magistrate referred to a submission of the appellant that the respondent could not be classified as a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor because those classifications predicated upon the attainment of an “appropriate level of training” as defined in clause 6(21) of the award.  The Industrial Magistrate accepted that submission (page 21).

25      The Industrial Magistrate then considered the claim as based on the higher duties clause of the award.  His Honour reasoned as followed:-

“It is noted that the higher duties clause is predicated upon the “performance of work”.  It is not limited to or contingent upon a worker possessing any particular qualification.  In this matter, the fact that the Claimant did not possess the qualification required of the relevant classifications is of no moment so far as the higher duties claim is concerned.  So long as the Claimant performed those functions for the requisite periods she was entitled to payment of the higher rate of pay. 

The Respondents argue that the Claimant cannot be entitled to the higher duties rate in the performance of her normal duties.  I reject that argument because it is quite apparent that the Claimant could not have, at the material times, been engaged as a Food and Beverage Assistant Grade 3 or a Food and Beverage Supervisor because she lacked the necessary qualification for such appointment.  Accordingly she was not, when carrying out the duties of a Food and Beverage Assistant Grade 3 or a Food and Beverage Supervisor, performing her normal duties.  She was in fact performing higher duties.

I am in agreement with the submissions made by the Claimant with respect to this issue.  I find that the Claimant is entitled to the higher duties rate of pay for each occasion that she has performed higher duties.  Given that she performed such duties for the whole of her shifts she is entitled to payment at the higher rate for each shift worked.” (pages 21/22)

26      The Industrial Magistrate then considered another issue not the subject of the appeal and concluded that the respondent’s claim had been made out in principle.  His Honour said that in accordance with what had been proposed by the parties, it would be left to them to calculate the hours worked by the respondent.  His Honour said that this might lead to agreement concerning the quantum of underpayments.  The Full Bench was informed at the hearing of the appeal that this had in fact had occurred and led to the orders made by the Industrial Magistrate. 

The Grounds of Appeal

27      The grounds of appeal are as follows:-

“1. The learned Magistrate erred in fact and in law in finding that the Restaurant, Tearoom and Catering Workers’ Award, 1979 (“Award”) applied to the employment of the Respondent with the Appellant in that the learned Magistrate had found, on the evidence, that the Respondent was not qualified to be employed in a relevant classification in the Award.

2. The learned Magistrate erred in fact and in law in finding that the provisions of clause 25 – Higher Duties of the Award applied to the work of the Respondent with the Appellant in that the learned Magistrate had found, on the evidence, that the Respondent was not qualified to be employed in the relevant classification in the Award.

3. Further, and in the alternative, the learned Magistrate erred in fact and in law in finding that the provisions of clause 25 – Higher Duties of the Award applied to the work of the Respondent with the Appellant in that there was no evidence that the Respondent was performing duties carrying a higher prescribed rate of wage than that in which the Respondent was engaged.

4. The learned Magistrate erred in finding that the respondent had performed higher duties for the whole of her shifts with the Appellant and that the Respondent was entitled to the higher duties rate of pay for such shifts.

5. The learned Magistrate erred in law in finding that the Appellant had breached the Award.”

The Submissions of the Parties

28      The grounds of appeal were not argued sequentially.  The primary position of the appellant was that the Industrial Magistrate had erred in deciding the award applied to the employment of the respondent by the appellant.  This was because the respondent was not employed by the appellant in any of the callings described in clause 21 of the award.  It was then submitted that as the award had no application, axiomatically, clause 25 of the award did not apply. 

29      The appellant’s alternative position was that if the award did have application, it was because the respondent’s employment was within the classification of a Food and Beverage Attendant Grade 3.  It was then submitted that all of the duties performed by the respondent were within the duties engaged in as a Food and Beverage Attendant Grade 3 and accordingly the higher duties clause 25 did not apply to her employment.

30      The respondent first submitted that the appellant could not on appeal argue that the Industrial Magistrate erred in finding that the award applied to the employment of the respondent when the appellant in its Amended Outline of Case in Defence of Claim filed on 25 May 2006 (the defence) had made admissions that the respondent’s employment by the appellant was covered by the award. 

31      The same argument was made by the respondent to the Industrial Magistrate at the commencement of the hearing.  In response to a submission that judgment should be given to the respondent on the basis of admissions contained in the defence, the appellant’s agent said that the intent of the document was that with respect to application No M 152 of 2005, the appropriate classification pursuant to the award was as a Food and Beverage Attendant Grade 2 and to the extent that the respondent claimed a classification other than as a Food and Beverage Attendant Grade 2, the appellant submitted the award did not apply.  The appellant’s agent then submitted that the defence maintained the same position with respect to application No M 153 of 2005.  In response, the Industrial Magistrate said that judgment could follow given the admissions made in the defence.  His Honour said however that he declined to enter judgment.  In doing so his Honour pointed out that the documents filed were not pleadings and that the “structure of the judgment may well depend upon the outcome in respect of other matters, and therefore it would not be appropriate to annunciate the judgment in specific terms at this point in time”.  I find this sentence, with respect, a little unclear.

32      In his reasons however, the Industrial Magistrate did not determine the applications on the basis of any admissions made in the defence.  There was no appeal by the respondent against the failure by the Industrial Magistrate to do so and in my opinion it is not therefore appropriate to determine the appeal on the basis of the defence filed at the Industrial Magistrate’s Court.  In this regard I also point out that the appellant’s case on appeal is not different from that which was presented at trial and upon which there was a determination made by the Industrial Magistrate.  Accordingly, there are no issues of the type discussed by the High Court in Coulton v Holcombe (1986) 162 CLR 1 to consider.

33      The respondent then submitted that on the evidence, the respondent was engaged as a Food and Beverage Attendant Grade 2 at Terrazza Nedlands.  It was submitted that the Industrial Magistrate had not erred because if the respondent performed the duties of a supervisor for two or more hours on any day or for more than half a shift, the respondent was entitled by clause 25 of the award, to be paid for the entire shift at the supervisor’s rate of pay. 

34      The respondent submitted that in the alternative the Industrial Magistrate may have erred in determining that the respondent could not be employed as a Food and Beverage Attendant Grade 3 because she did not have the appropriate level of training.  Even if this was the appropriate classification of employment, the respondent submitted that she was still entitled to the higher duties payment in performing the duties of a supervisor during the course of her employment.

Applicability of the Award

35      The first issue to determine is whether the Industrial Magistrate was in error in determining that the award applied to the employment of the respondent.  This issue depends upon a determination of the meaning of the award and an assessment of the employment of the respondent by the appellant.

36      Section 37 of the Act sets out the effect, area and scope of awards of the Commission in the following terms:-

“37. Effect, area and scope of awards

(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section — 

(a) extend to and bind — 

(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and

(ii) all employers employing those employees;

  and

(b) operate throughout the State, other than in the areas to which section 3(1) applies.

 [(2), (3) repealed]

(4) An award, and any provision of an award, whether or not it has been made for a specified term, shall, subject to any variation made under this Act, remain in force until cancelled, suspended, or replaced under this Act unless, in the case of an award or a provision made for a specified term, it is expressly provided that the award or the provision, as the case may be, shall cease to operate upon the expiration of that term.

(5) Subsection (4) does not prevent the cancellation, suspension, or replacement of an award in part.”

37      I have earlier quoted from clause 4, the scope clause of the award.  Relevantly it provides that the award applies to all “workers employed in the callings described in Clause 21” of the award.  I have referred to clause 21 earlier.  As stated it includes a table setting out levels, classifications and wage rates.  The clause does not in terms refer to “callings”.  It is plain however that the classifications in the table in clause 21 are the callings which are referred to in clause 4.  This is consistent with the definition of a “calling” in s7 of the Act which means “any trade, craft, occupation, or classification of an employee”. 

38      The classifications or callings set out in clause 21 of the award use terms which are defined in clause 6 of the award.  This includes, relevantly, a Food and Beverage Attendant Grades 1-3 and also a Food and Beverage Supervisor.  Therefore the award applies to those workers employed in the classifications/callings, set out in clause 21, which are defined in clause 6 of the award.

39      As set out earlier, the Industrial Magistrate found that the respondent was not engaged as Food and Beverage Supervisor because she did not have the appropriate level of training as defined in clause 6(21) of the award.  I have also mentioned that there is no appeal against the finding that the respondent did not have the appropriate level of training.

40      If the respondent was employed in a calling/classification described in clause 21 of the award, it was as a Food and Beverage Attendant Grade 2 or Grade 3.  The Industrial Magistrate did not make a clear finding on what calling/classification the respondent was employed in at Terrazza Nedlands.  He did however make the finding, quoted earlier, that the respondent did not fit the classification of a Food and Beverage Assistant Grade 3 because she lacked the appropriate level of training.

41      The appellant submitted on appeal that the classification of Food and Beverage Attendant Grade 2 did not apply to the respondent’s employment at Terrazza Nedlands.  The appellant submitted this despite accepting that some of her duties did involve “general waiting” and the “receipt of monies” as referred to in the definition of a Food and Beverage Attendant Grade 2, in clause 6(4)(c) and (d) of the award.  It was submitted however that these aspects of her employment were not the primary responsibilities she was engaged in.  It was submitted that it was not appropriate to consider occasional duties or those which were performed on a subsidiary basis to determine whether a classification applied to employment. 

42      In support of this submission the appellant referred to Litis v Pantelis [1958] 60 WALR 17.  There, Jackson J, with whom Virtue J agreed, said that in considering the question of whether an award was binding upon an employment relationship it was necessary to consider the provisions of the award and the work actually performed.  His Honour said one then had to determine whether the work fairly and properly brought the employee within any of the named categories of workers under the award.  His Honour said to do this it was necessary to get a comprehensive picture of the employee’s whole employment (page 24).  His Honour decided that the award did not apply to the employee as although he did some work appertaining to one of a number of classifications covered by the award, “his essential and primary employment was as a manager of the business”, which was not covered by the award (page 24). 

43      This process of determining whether an employee is covered by a classification in an award has been followed in decisions of the Full Bench.  For example in Doropolous and Others trading as Swan Dry Cleaners v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1989) 69 WAIG 1290, the Full Bench at page 1292 referred to the “test of major and substantial employment” and cited Litis v Pantelis.  As set out by the Full Bench, including by quotations from other authorities, this involves a qualitative assessment of the work done by the employee, and the purpose to be achieved by the employment.  The Full Bench reiterated, after quoting from the reasons of Burt J in FCU v Cary (1977) 57 WAIG 585 at 586, that one needs to consider the “substantial nature of the employment, the substance of it, and the purpose to be achieved by it.” (page 1293).  The Full Bench also said it was necessary to get a “comprehensive picture” of the whole of the employment.

44      The Full Bench referred to and followed Doropolous in Kellerberrin Care of the Aged Committee Inc t/a Dryandra Frail Aged Hostel v Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, WA Branch (1997) 77 WAIG 2195.  Another application of these principles, which in my respectful opinion represent the correct approach to the issue, is in the reasons of Kenner C in Montuolo v Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia (1999) 79 WAIG 2647 at 2651.

45      It is therefore necessary to consider the evidence about the work which the respondent was engaged to do and in fact did at Terrazza Nedlands. 

46      In her examination-in-chief the respondent was asked what her duties were as a supervisor.  She answered as follows:-

“It's effectively like a duty manager a lot of the time, so I'd go in, open the store, have access to the - - I was given the gate code and the alarm code.  Go in.  Access to the safe. I'll just run you through what I would normally do there.  Go into the office. Access the safe.  Get the till money out.  Put it into the tills.  Check any function bookings.  Set up tables that we do have bookings for.  Then I would do an allocation for the staff that I had on that day.  Then at opening time there would be - - the first staff member would come in.  There'd sometimes be minor prep to do, and - - yeah, from then on I would be delegating tasks to staff and supervising the restaurant throughout the shift.”  (T26)

47      The respondent was not cross-examined on this issue. 

48      Mr Bergin, when asked about the duties the respondent performed at Terrazza Nedlands said that “she would allocate our sections, tell us what tables we had to look after.  If there was someone at the door and she couldn’t get there she would tell us to go to the door.  If a table needed clearing that was not cleared, or someone needed coffees, she would go tell us to go and serve them.  If we weren’t capable, or if we couldn’t see it ourself, she would point it out to us”.  (T44).  Mr Bergin said that the respondent gave him directions.  Mr Bergin said the respondent did not perform waiting duties, “serving food and drinks”, “unless she absolutely had to”.  (T44).  Mr Bergin was not cross-examined on this issue. 

49      Mr Pearce said that he observed the respondent performing the duties of a supervisor at Terrazza Nedlands.  He elaborated that the respondent was opening and closing the restaurant, would count the money and had access to the safe, codes and the till “in the point of sale systems that normal waitstaff couldn’t access”.  Mr Pearce said the respondent gave directions to Mr Pearce when the other supervisor was not present.  Mr Pearce was not cross-examined. 

50      In his examination-in-chief, Mr Treasure described the role of the supervisors at Terrazza Nedlands in the following way:-

“General waiting duties, of course, because that's background, plus with the added responsibility of opening the restaurant, taking out the cash from the till, making sure the restaurant's set ready for open, dealing with customers, taking orders, taking food to the tables, and supervision of staff - - of waitstaff.”  (T55)

51      When asked what the supervision of waitstaff entailed, Mr Treasure said that this involved ensuring that standards were looked after.  He gave the example of making sure that customer’s tables were cleared, coffee orders taken, and that the customer was being looked after.  He also confirmed that the supervisor and the waitstaff greeted customers.  (T56).

52      In cross-examination, Mr Treasure agreed that the duties of a supervisor included general waiting duties, opening the restaurant, cash dealing, making the place ready for customers, dealing with customers throughout the evening, the supervision of waitstaff and the meeting and greeting of customers which was also done by waitstaff.  (T82).

53      This was the extent of the evidence about the nature of the respondent’s employment at Terrazza Nedlands.

54      The Industrial Magistrate decided that the respondent was not a Food and Beverage Attendant Grade 3 because the training requirement applied to all of the duties set out within this classification.  In my opinion, with respect, the Industrial Magistrate was in error in so deciding.  This is because in my opinion the description of duties in clause 6(5)(g) of the definition of a Food and Beverage Attendant Grade 3 is disjunctive from subclauses 6(5)(a)-(f).  In using the word “disjunctive” I intend it to mean that the requirement for an appropriate level of training applies to subclauses (a)-(f) but not subclause (g).  This is so, in my opinion, despite the way in which the clause is set out in that the reference to an appropriate level of training is in what is set out as a preamble to all of subclauses (a)-(g).  Despite this however, at the end of each of subclauses (a)-(e) there is a semicolon and following the final semicolon there is the word “or”.  There is then subclause (f) which is concluded by a full stop.  Subclause (g) then commences “and/or”.  The use of the word “or” at this point is consistent with the commencement of a disjunctive criterion.  Overall the grammatical arrangement of clause 6(5) is consistent with subclause (g) being disjunctive from subclauses (a)-(f).  This view is reinforced by the preamble to subclause (g).  This preamble would be unnecessary if subclause (g) was not to be construed as disjunctive from subclauses (a)-(f).

55      In my opinion, the employment of the respondent by the appellant at Terrazza Nedlands was covered by clause 6(5)(g)(iii) and (iv).  This is consistent with the totality of the evidence about the respondent’s employment and what she was “engaged in”.  In my opinion, the major and substantial employment of the respondent, and the purpose of that employment at Terrazza Nedlands was in “supervising food and beverage attendants of a lower grade”.

56      Accordingly, I do not accept the appellant’s primary position which is that the award did not apply to the employment of the respondent by the appellant.  In my opinion therefore ground 1 of the notice of appeal cannot be upheld.  I accept the appellant’s alternative position which is that the respondent was employed as a Food and Beverage Attendant Grade 3 and therefore her employment was covered by the award.

The Higher Duties Clause

57      The next issue is whether the Industrial Magistrate erred in deciding the higher duties clause of the award applied.  In my opinion and with respect, he did. 

58      As set out earlier clause 25 applies when an employee performs work on duties carrying a higher prescribed rate of wage.  The Industrial Magistrate found that the appellant had worked as a supervisor and therefore the higher duties clause applied so as to require the payment of the respondent as a Food and Beverage Supervisor. 

59      In so deciding however the Industrial Magistrate did not consider the duties of a Food and Beverage Supervisor under the award and analyse how the work performed by the respondent fitted within these duties.  I have earlier quoted the definition of a Food and Beverage Supervisor.  Relevantly, this means an appropriately trained employee “who has the responsibility for supervision, training and co-ordination of food and beverage staff, or stock control for a bar or series of bars”.  The latter part of this definition, with respect to bars, clearly did not apply to the respondent.  The “supervision, training and co-ordination of food and beverage staff”, is in my opinion a compendious description.  That is, to fit within this description the employee has to have the responsibility for each of the supervision, training and co-ordination of food and beverage staff.  This is because of the use of the word “and” in the duties description.  There was no evidence that the respondent was involved in the training of food and beverage staff.  Accordingly, the compendious description did not apply to the work of the respondent.  Therefore, she did not perform work on duties carrying the higher prescribed rate of wage of that of a Food and Beverage Supervisor, and clause 25 did not apply. 

60      Additionally, the work which the respondent performed, at all times at Terrazza Nedlands, was in the duties for which she was engaged.  She did not perform work in any different duties as contemplated by clause 25 of the award.  She performed her ordinary duties which as stated earlier were within the classification of a Food and Beverage Attendant Grade 3.  For this reason also, the higher duties clause did not in my opinion apply.

61      Thirdly, I also have doubts as to whether the higher duties clause could apply in the way in which the respondent asserted.  The respondent’s case, in effect, was that she could be paid for all of the time that she worked, as if a Food and Beverage Supervisor, if she performed the duties of such a position, despite not having the training qualification necessary to be classified as such.  In my opinion if this was correct it could undermine the wage structure of the award.  The intent of the award with respect to food and beverage attendants is to provide a classification structure, the advancement through which is in part dependent upon a training qualification.  If an employee could be paid the same as a Food and Beverage Supervisor without having the training qualification necessary for that position, it would make the training requirement redundant.  It would remove from the award any purpose in obtaining the training qualification.  It may be therefore that to retain the wage structure of the award, the reference in clause 25 to performing work on duties carrying a higher prescribed rate of wage, includes, by necessary implication, a requirement that the employee possesses any training qualification necessary to be paid the higher prescribed rate.  That is, the duties do not carry a higher prescribed rate of wage for the purpose of clause 25, unless the employee has the training qualification.  It is however not necessary to finally determine this issue.  This is because, as stated earlier, in my opinion, the higher duties clause of the award did not apply on the facts. 

62      It follows that I accept the appellant’s alternative position that the respondent was engaged as a Food and Beverage Attendant Grade 3 and that the higher duties clause did not apply to her employment.  I therefore would uphold grounds 2-4 of the notice of appeal.

63      The respondent put forward an alternative submission as to the application of the higher duties clause.  It was argued that the respondent was employed as a supervisor, a calling mentioned in the award, notwithstanding that she was not qualified to be a supervisor as defined.  It was submitted that the respondent not possessing the qualification did not mean the employment was outside the scope of the award; it merely operated as a condition precedent to her claiming the supervisor’s rate of pay as a right of employment.  It was submitted the rate of pay for a supervisor as defined under the award is a higher prescribed rate of pay than that which the respondent was paid.  The respondent performed the duties of a supervisor as defined under the award for more than half of her shift each day she worked.  The respondent was therefore entitled to be paid the higher prescribed rate of pay. 

64      I do not accept this submission.  The respondent was seeking to enforce the award for an alleged underpayment.  The allegation was that the underpayment occurred because the respondent was not paid in accordance with the rate which applied to a Food and Beverage Supervisor.  The fact that the respondent did not meet the definition of a Food and Beverage Supervisor, because she lacked the relevant qualification, meant that she was not entitled to be paid as if she was a Food and Beverage Supervisor under the award.  The higher duties clause also did not apply to her employment.  As stated earlier this was for, at least, the reason that she did not have the responsibilities of a Food and Beverage Supervisor as defined in the award. 

The Disposition of the Appeal

65      It follows that in my opinion the appeal should be allowed.  The Industrial Magistrate erred in my opinion in applying the higher duties clause to the employment of the respondent so that she was required to be paid the same rate as a Food and Beverage Supervisor.  In my opinion, the Industrial Magistrate ought to have found that the respondent was a Food and Beverage Attendant Grade 3 and should have been paid in accordance with this classification in the award.

66      The appellant concedes that if the Full Bench were to come to this conclusion it would have nevertheless contravened the award by failing to pay the respondent the amount which a Food and Beverage Attendant Grade 3 was entitled to.  I would not therefore uphold ground 5 of the notice of appeal.

67      The appellant submitted that if the Full Bench reached the conclusions I have, it would be appropriate to allow the appeal and remit the matter to the Industrial Magistrate’s Court for further consideration.  The respondent submitted that this was not necessary as the appellant and the respondent should be able to agree as to the orders which should now be made by the Full Bench.  In my opinion, the latter course is preferable if it can be achieved.  Accordingly, it is appropriate to allow the parties 7 days to provide written submissions on the orders which should be made by the Full Bench.  If an agreed position can be reached then this can be conveyed in writing to the Full Bench.  I note that the appellant did not make any submissions as to whether the Full Bench should interfere with the penalty order made by the Industrial Magistrate if it reached the conclusions which I have.  This issue can also be addressed in the written submissions of the parties which I have referred to. 

68      Accordingly, in my opinion, the only order which should be made by the Full Bench at this stage is that the parties shall within 7 days make written submissions as to the orders which should be made by the Full Bench consequent upon the publication of its reasons for decision.

CHIEF COMMISSIONER A R BEECH: 

69      I have had the advantage of reading in draft form the Reasons for Decisions of His Honour the Acting President.  He has set out the relevant facts in this matter and I do not repeat them here.  I agree with the conclusions of His Honour that the definition of Food and Beverage Attendant Grade 3 is disjunctive in the way, and for the reasons, that he has described.  I also agree that in considering whether Ms Sampson’s employment was covered by the award, it is appropriate to consider the substantial nature of her employment, the substance of it and the purpose to be achieved by it. 

70      Applying that reasoning to the position, the evidence is that Ms Sampson would:-

1. Use the gate code and the alarm code.

2. Access the safe.

3. Get the till money out and put it into tills.

4. Check any function bookings.

5. Set up tables where there were bookings.

6. Allocate staff.

7. When the first staff member arrived, sometimes do minor preparation; then,

8. Delegate tasks to staff, and –

9. Supervise the restaurant throughout the shift.  (All at T26).

71      Ms Sampson’s evidence of these duties was not challenged.  The duties therefore are able to be accepted although it is not unhelpful to note that:-

Ms Sampson’s duties of allocating sections, telling staff what tables they had to look after, instructing staff to either go to the door, clear tables and serve customers was supported by the evidence of Mr Bergin; 

Ms Sampson’s performing the duties of a supervisor which included opening and closing the restaurant, counting the money, having access to the safe codes and the till greater than that of normal wait-staff and giving directions was corroborated by Mr Pearce; and

Mr Treasure’s evidence corroborated Ms Sampson’s evidence of opening the restaurant, taking out the cash from the till, making sure the restaurant was set ready for open, dealing with customers and supervision of wait-staff.  Mr Treasure also added general waiting duties by way of background, taking orders and taking food to the tables. 

72      It is then necessary to consider the substantial nature of Ms Sampson’s employment, the substance of it and the purpose to be achieved by it.  The substance of the employment was that Ms Sampson had added responsibilities to those of a general waitperson, namely of opening the restaurant, taking cash from the till, making sure the restaurant was set ready for opening and the supervision of staff, particularly in the context of the evidence of Mr Bergin and Mr Pearce.  I consider the substance of Ms Sampson’s employment and the purpose to be achieved by it is embraced within the description:-

Supervising Food and Beverage Attendants of a lower grade

(being the description within the classification of Food and Beverage Attendant Grade 3(g)(iii)). 

73      Moreover, that description more adequately describes the substantial nature of Ms Sampson’s employment, the substance of it, and the purpose to be achieved by it than:-

Undertaking general wait duties of both food and/or beverage including cleaning of tables and receipt of monies

(being the description within the classification of Food and Beverage Attendant Grade 2).

74      I therefore agree that Ms Sampson’s employment was as a Food and Beverage Attendant Grade 3.  Her employment was therefore covered by the award.

75      However I do not agree, with respect, with the conclusion of His Honour in relation to the applicability to Ms Sampson’s employment of Clause 25 Higher Duties.  On the contrary, I consider the interpretation of the higher duties clause by the learned Industrial Magistrate (AB67) is correct.  The clause is predicated upon the performance of work not upon the possession of any particular qualification.  Thus, provided Ms Sampson performed work for two or more hours in any day on duties carrying a higher prescribed rate of wage than that of a Food and Beverage Attendant Grade 3 she was entitled to the higher wage.  I do not consider that this conclusion undermines the wage structure of the Award.  The wage structure of the Award goes to the classification of the employee covered by it.  The performance by an employee who is, for example, classified as a Food and Beverage Attendant Grade 1 but who undertakes general waiting duties of both food and/or beverage including cleaning of tables for two or more hours (being the description within the classification of Food and Beverage Attendant Grade 2) will be entitled to a higher rate of pay pursuant to Clause 25 Higher Duties, but the employee does not thereby become reclassified as Food and Beverage Attendant Grade 2.  The employee remains a Food and Beverage Attendant Grade 1.  The intent of the award classification structure for Food and Beverage Attendants remains intact: an employee who wishes to be classified under that structure is required to come within the classification as it is defined. 

76      To be classified as a Food and Beverage Supervisor would have required Ms Sampson not only to have the appropriate level of training but to also have responsibility of supervision, training and coordination of Food and Beverage staff.  It is common ground that Ms Sampson did not have the appropriate level of training and thus she could not be classified as a Food and Beverage Supervisor.  However, if Ms Sampson performed the duties of supervision, training or coordination of food and beverage staff, the performance of any one of those duties would attract the higher payment in accordance with Clause 25.  She would still remain classified as a Food and Beverage Attendant Grade 3. 

77      This once again involves a consideration of the duties performed by Ms Sampson.  The question is to be asked whether the duties performed by Ms Sampson were at any point duties of the Food and Beverage Supervisor.  These are supervision, training and co-ordination of food and beverage staff.  As to supervision, Ms Sampson supervised the restaurant throughout the shift; however, supervision is also part of the Food and Beverage Attendant Grade 3 duties and there is no evidence to suggest that the supervision duties performed by Ms Sampson were other than supervising food and beverage attendants of a lower grade.  As to training, there is no evidence that Ms Sampson was engaged in training.  As to the co-ordination of food and beverage staff, there is some evidence which might suggest that Ms Sampson was involved in the coordination of food staff, however, that evidence is also consistent with Ms Sampson supervising the restaurant, allocating staff and telling them what work they had to do (being the description within the classification of Food and Beverage Attendant Grade 3).  The duties of opening the restaurant and of using codes similarly do not bring Ms Sampson within the duties of a Food and Beverage Supervisor in the co-ordination of food and beverage staff.

78      Therefore on the facts of this matter, Ms Sampson did not perform any duties covered by the Food and Beverage Supervisor classification and thus, and for that reason only, Clause 25 Higher Duties did not apply to the work she performed.

79      I would therefore uphold the appeal and agree with the disposition of the appeal suggested by His Honour the Acting President.

COMMISSIONER P E SCOTT: 

80       I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.