WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KATHERINE SAMPSON;

 KATHERINE SAMPSON

CLAIMANT

-v-

Spring 99 Pty Ltd, ABN: 14086 935 104;

Spring 2002 Pty Ltd, ABN: 20 097 097 455

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 2 August 2006, Thursday, 13 July 2006, Wednesday, 15 February 2006, Thursday, 1 June 2006

DELIVERED Wednesday, 2 August 2006

CLAIM NO. M 152 OF 2005, M 153 OF 2005

CITATION NO. 2006 WAIRC 05237

CatchWords Cessation of workplace agreement; casual employee;  successive engagements; Food and Beverage Attendant; supervisor; appropriate level of training; higher duties.

Legislation Workplace Agreements Act 1993.

Minimum Conditions of Employment Act 1993

Public and Bank Holidays Act 1972

Labour Relations Reform Act 1972

Restaurant, Tearooms and Catering Workers’ Award 1979

Cases referred

to in decision Fowler v Anthony & Sons Pty Ltd T/As Oceanic Cruises (2004) 84 WAIG 3855

Cases also cited Anthony and Sons Pty Ltd T/A Oceanic Cruises v Fowler (2005) 85 WAIG 1899

 Doyle v Anthony & Sons Pty Ltd T/A Oceanic Cruises (2006) 86 WAIG 123

Result Claims made out in principle

Representation 

Claimant Mr G McCorry of Labourline – Industrial and Workplace Relations Consulting appeared as agent for the Claimant

Respondent Mr D Johnson of Workplace Relations and Management Consultants appeared as agent for the Respondent

REASONS FOR DECISION

Background

1         In about August of 2002 the Respondent, Spring 99 Pty Ltd trading as Terrazza Applecross, advertised for casual waitpersons to be employed at its restaurant.  The Claimant responded to the advertisement and was interviewed for the position.  There is a dispute between the relevant parties as to who interviewed the Claimant.  The Claimant asserts she was interviewed by the Respondent’s Manager, Bradley Treasure but he denies having interviewed her.   In any event the Claimant was successful in her application for employment and on or about 19 August 2002, she, in accordance with the provisions of the Workplace Agreements Act 1993 (the WPAA), entered into a Workplace Agreement (the Agreement) with Spring 99 Pty Ltd.   The Agreement was duly registered on 22 August 2002.  It was a term of the Agreement that it would apply for two years from the date of the signing of the same.

The Claimant’s Evidence

2         In August 2002 the Claimant commenced working at Terrazza Applecross, a café/restaurant situated at the corner of Canning Highway and Kearns Crescent in Applecross.  She worked thereat three times a week in accordance with a roster published two weeks in advance, however, she did not work regular hours or times.  Despite having previous experience as a waitperson she was initially required to work under supervision but later that changed.  She was required to wear a uniform when working as a waitperson.  The uniform distinguished the wait staff from the managers and supervisors who were not required to wear a uniform.  It was part of her duties to take orders, serve food and drinks and to attend to the needs of patrons.  On occasions she received money for payment of accounts which she then took to the till.  The Claimant described the café/restaurant as being busy.  Indeed it was particularly busy on Friday and Saturday nights when double sittings facilitated the high demand.

3         The applicant asserts that about six months after she commenced working at Terrazza Applecross she was given a manager’s code which permitted her to give discounts, to void the till and do other things more in keeping with a senior or management employee.  That evidenced her manager’s trust in her.  The Claimant, as a senior waitperson, took bookings, greeted patrons, attended to the walk-in customers, allocated customers to their tables, assisted other staff and was responsible for waiting upon customers for large section of the restaurant.  Her responsibilities also included the training of new staff.

4         When the Claimant first started working at Terrazza Applecross she recorded her start and finish times using a manual time clock system, however, not long after she started, a new system was introduced whereby the clocking on and off of staff was recorded by use of a computerised touch screen, which was also used to record orders and charges made for the provision of food and beverages.

5         Terrazza Nedlands is a café/ restaurant owned and operated by Spring 2002 Pty Ltd.  Spring 99 Pty Ltd and Spring 2002 Pty Ltd have common directors.  Bradley Treasure, it seems, works for both companies.  The companies have a common administration operating out of the same building.   In May 2004 the Claimant attended 

6         Terrazza Nedlands and saw Bradley Treasure sitting at a table with Oscar and Jonathon Lazuardi whom she described as being the owners of the business.  She proceeded to sit with them and enter into discussion.  During the discussion she was offered the position of supervisor at Terrazza Nedlands which she accepted.  The Claimant understood that her appointment as supervisor also related to Terrazza Applecross because she was instructed to continue working thereat as required.  She thereafter worked as a supervisor at both places. Given that her work for Spring 2002 Pty Ltd was for a different legal entity, the Claimant declared her Terrazza Nedlands job as a second job and accordingly paid a higher rate of tax on earnings from that job.  She received a small wage increase for being a supervisor.  The position also attracted certain privileges including the provision of a meal during long shifts and the use of a reserved parking bay for employees in supervisory or management positions. Further as a supervisor she was not required to wear a uniform. That distinguished her from other staff.

7         Terrazza Nedlands was larger and newer than Terrazza Applecross but was not as busy.  Her duties as supervisor thereat included the responsibility of opening up which necessitated disarming the alarm and inputting the safe access codes.  She prepared the till for the day’s takings.  She took bookings, including any function bookings, and allocated the staff their jobs.  If she had the time she would also set up tables and attend to other aspects of preparation.  Her role involved the delegation of functions and the supervision of staff.  Whilst working at Terrazza Nedlands her start and finish times were recorded electronically.

8         The Claimant asserts that she was well regarded by her employers.  Indeed at the 2004 Christmas function for the Morley, Applecross and Nedlands Terrazza café/restaurants, special mention was made during an awards presentation, at which she received an award, as to how well she had performed in her supervisor’s role in the preceding six months. 

9         In March 2005 the Claimant was late to work at Nedlands after being stuck in traffic.  She was spoken to in that regard.  That led to disagreement between her and Mr Treasure resulting in her being invited to leave her job, which she did.  The documentary evidence indicates that her last completed shift for Terrazza Nedlands was worked on 16 March 2005.  The Claimant subsequently worked out her rostered shifts at Terrazza Applecross.  Her last day of work at that place occurred on 19 March 2005.

10      On or about 4 April 2005, the Claimant was given an electronic copy of a reference prepared by Chris Pond, Terrazza Applecross’ then manager.  A hard copy of the reference has been produced to the Court.  It suffices to say that the reference remains unsigned.  The significance of it to these proceedings is that it confirms that the Claimant was employed as a supervisor at Terrazza Applecross.

11      The Claimant asserts that the shift summary records (exhibits 3 and 4) reflect the shifts that she worked for both employers during the material period.

12      When cross-examined, the Claimant denied that she was interviewed by Mark Jones regarding the advertised position.  She said that Mr Jones was at the material time a supervisor and not an assistant manager. She maintained that Mr Treasure interviewed her.  Further she acknowledged that during the course of her employment with the Respondents that she was asked to sign an Australian Workplace Agreement, but refused to do so.  The Claimant also conceded that she took breaks during her shifts and that such would be electronically recorded.

13      The Claimant, when cross-examined, also confirmed that following her appointment to Terrazza Nedlands she was told that she was to continue to work at Terrazza Applecross albeit to a limited extent.  She said that she was told, when appointed a supervisor, that she would not have to wear a uniform. She testified that when she subsequently discussed the issue of her status with Chris Pond he confirmed that she was a supervisor.  That was consistent with her being paid, as from May 2004, at the same rate for her work irrespective of where she worked.

14      The Claimant testified that she made it clear to Mr Treasure during the course of her employment that she was of the view that she was not being appropriately paid but conceded nevertheless that at no time during the course of her employment did she assert that the Respondents had failed to comply with the Restaurant, Tearoom and Catering Workers Award 1979 (the Award).

15      Finally the Claimant conceded during cross-examination that she had not received any formal training as a supervisor, nor had she been formally assessed by a qualified skills assessor as having the necessary skills of a supervisor.

Evidence of Christopher Jeffrey Bergin

16      Christopher Bergin works for the Respondents.  He is a waiter and bartender.  He has worked both at Terrazza Applecross and Terrazza Nedlands.  He worked at those places whilst the Claimant was also employed at each place.  He said that the Claimant was, at the relevant times, both a co-worker and supervisor.

17      He happened to be working at Terrazza Nedlands in May of 2004 when he overheard a conversation between the Claimant, Bradley Treasure, Jonathon Lazuardi and Oscar Lazuardi in which the Claimant was offered the position of supervisor.  He testified that following the Claimant’s appointment as supervisor in May 2004 she no longer performed wait duties but rather attended to duties of a supervisor in allocating sections, instructing and directing staff as to what to do and manning the till.  Further, she did not wear a uniform which was consistent with her supervisor’s position.  He observed her to work for both Terrazza Applecross and Terrazza Nedlands in her capacity as supervisor. 

18      Mr Bergin recalled also the 2004 Christmas party at which the Claimant received an award and commendation for her efforts.

19      Mr Bergin, confirmed when cross-examined that Mr Treasure left Terrazza Applecross at the time that Terrazza Nedlands opened, at which time Mark Jones took over as Manager of Terrazza Applecross.  Further with respect to the conversation that he overheard, he confirmed that he only heard the Claimant being offered a position of supervisor at Terrazza Nedlands.  Terrazza Applecross was not mentioned.  Notwithstanding that, it was the case that the Claimant, from May 2004, worked as a supervisor at Terrazza Applecross on weekends.

Evidence of Adam Raymond Pearce

20      Mr Pearce is currently a waiter and bartender working at Black Tom’s, West Perth.  He formerly worked at Terrazza Nedlands during which time the Claimant was his supervisor.  Other than establish the fact that the Claimant was, at the relevant time, his supervisor his testimony does not take the matter further.

Evidence of Bradley Philip Treasure

21      Mr Treasure testified that he is the “Terrazza Group Manager”.  He has the day to day responsibility of managing company developments and attending to the management of company activities.  He oversees all managers and assistant managers at each of the Terrazza establishments.

22      He said that he worked at Terrazza Applecross in 2002 but relocated to Nedlands on

23      1 November 2002 to set up what was formerly known as Minsky’s Tavern as Terrazza Nedlands.  When he left to do that, Mark Jones took over his position at Applecross.  He said he had little to do with Terrazza Applecross subsequent to his move.  He says that it was Mr Jones who interviewed the Claimant and not him.  He said that his only involvement with respect to the Claimant’s initial engagement was to sign the Agreement.

24      He testified that each café/restaurant manager looked after staff issues.  Competent senior staff were given extra responsibilities to reflect their level of experience.  Some staff were regarded as a “senior” whilst others took on a supervisory role.  Supervisors were not required to have any particular qualification, nor were they formally assessed to achieve such a position.

25      Mr Treasure said that in about February 2003, the forty to sixty staff members then working for the group were offered Australian Workplace Agreements (AWAs).  All of the staff signed their respective AWAs except for the Claimant who “slipped through”.  Sometime after May 2004 the Claimant was offered an AWA and discussions were held concerning the same but in the end the Claimant did not enter into one.

26      Mr Treasure testified that in May 2004 when he together with Mr Jonathon Lazuardi and Oscar Lazuardi met with the Claimant that the Claimant was offered the position of supervisor of Terrazza Nedlands only.  He said that there was no discussion about her role at Terrazza Applecross except that her continued employment thereat was to be secondary to the requirements of Terrazza Nedlands.  Her focus was to be on Terrazza Nedlands.  She was not appointed as a supervisor at Terrazza Applecross as there was no need for another supervisor at that place.  It had not come to his attention that the Claimant had been working as a supervisor at Terrazza Applecross and he had never been advised of such by Mr Pond.  Neither had there been any suggestion that Mr Pond had promoted the Claimant to the position of supervisor.  Notwithstanding that, Mr Treasure acknowledged that the Claimant was receiving the same rate of pay for her work at Terrazza Applecross as was the case for Terrazza Nedlands.  He said that occurred for administrative convenience to lessen complexity and confusion.

27      Mr Treasure was shown the reference purportedly prepared by Mr Pond and said that the format of the letter is not in keeping with Terrazza letterhead.  His evidence is suggestive of the fact that the letter was manufactured to assist the Claimant in this matter.  Further, and in any event, even if the same was prepared by Mr Pond it was prepared contrary to “Terrazza policy” and without the necessary approval, he said.

28      Mr Treasure testified that the dispute which led to the Claimant’s termination resulted from her turning up late on repeated occasions.  He confronted her about it because it impacted on his commitments.   The Claimant took umbrage at that.  She then took the opportunity to inform him that she was not prepared to do the work for $16.00 per hour.  He then told her that if she was not happy with the situation she could leave, whereupon she made her way to the door slammed it shut behind her and left.   She did not return for her next rostered shift.

29      Mr Treasure was next taken to consider the staff summary records produced to the Court by the Claimant.  He said that they are not accurate because the staff end times shown thereon may not necessarily reflect the Claimant’s actual cessation time but rather the time that the computer system was closed down for the night.  He testified that such is apparent when a comparison is made between the Simplex Employee Time Report available and the Employee Shift Summaries for any given day.  In that regard he produced an incomplete set of manual time cards (Simplex Employee Time Report) which record the Claimant’s start and finish times for the period between 9 September 2002 and 18 May 2003 (exhibit 6) which can be utilised to make the comparison.  The comparison of the two sets of records reflects inconsistency.  In most instances the manual cards show an earlier cessation time than that recorded on the computer system.  The manual record maintained by the Claimant is said to be the most accurate record.  Difficulty arises however where there is no manual record of times worked.  In such circumstances the only available record is the Shift Summaries.

30      Finally, with respect to the issue of uniforms, Mr Treasure took issue with the Claimant’s contention that all wait staff had to wear a uniform.  He said that the requirement to wear a uniform was not strictly enforced.

31      When cross-examined, Mr Treasure conceded that the times recorded on the Shift Summaries from May 2003 and onwards could be relied upon to represent the Claimant’s start and finish times.  He explained that the negative inputs shown in the summaries reflected breaks taken during shifts.  Such breaks measured in time were deducted in order to achieve the calculation of the actual time worked by the Claimant for any given shift.  He was asked why it was that he had not previously produced the Simplex cards.  He said in that regard that he had never been asked for them.

32      Mr Treasure maintained under cross-examination that he did not interview the Claimant.  In doing so he corrected his earlier evidence that he had started working at Nedlands on 1 November 2002 by saying that he actually started at that place a year earlier in November 2001.  Although he remained responsible for the overall operation of Terrazza Applecross he did not attend to its day to day management, which included the hiring of staff.  Such rested with Mark Jones.

33      Mr Treasure conceded when cross-examined that the Claimant was at the material times a senior waitperson responsible for a large section of Terrazza Applecross.  He denied however that she performed any management type functions.  He said some staff were authorised to give discounts and that such a function was not indicative of supervisory responsibility.

34      Mr Treasure was next asked if he had made any assessment of the Claimant to determine whether she was suitable for appointment as supervisor.  He said that he had done so for his own purposes but added that he had not made any formal assessment as he was not accredited to do so.  He is not an accredited assessor.

35      The next issue with respect to which Mr Treasure was cross-examined related to the payment to the Claimant subsequent to her appointment as supervisor at Terrazza Nedlands of the same rate of pay irrespective of where she worked.  He maintained in that regard that she was paid the same rate for administrative convenience notwithstanding the fact that she worked for separate entities.  Mr Treasure pointed out that the payroll was done in the same office.

36      With respect to the Claimant’s work at Terrazza Applecross post May 2004, Mr Treasure acknowledged that he could not say whether or not the Claimant was called upon to perform supervisory duties when other supervisors may not have been available.

37      Finally, Mr Treasure conceded that the Claimant performed her function as supervisor at Terrazza Nedlands to his satisfaction.

Factual Findings

38      I find that in about August 2002 the Claimant responded to a newspaper advertisement seeking the services of a waitperson to work at Terrazza Applecross.  I find that she was interviewed for that position by Mr Treasure.  It is more probable than not that the Claimant would have a more accurate recollection thereof given that as an applicant the experience of the interview is far more unique than would be the case for someone like Mr Treasure who would be involved in the same more routinely.  Further, given the confusion in Mr Treasure’s mind as to when it was that he commenced at Terrazza Nedlands, I prefer the Claimant’s evidence on that issue.  It is the case that having made that finding little turns on it.

39      I find that the Claimant commenced employment as a casual waitperson with Terrazza Applecross on 12 August 2002 and that she entered into the Agreement on 19 August 2002 which was duly registered on 22 August 2002.  The Agreement was for two years.  From the commencement of her employment until May 2003, the Claimant’s start and finish times were recorded manually by use of the Simplex time cards.  Thereafter her start and finish times were recorded electronically and can only be ascertained from the shift summaries produced by the Respondents.

40      I find that the Claimant worked as a waitperson at Terrazza Applecross for the first six months before taking on increased responsibilities and becoming a senior employee.  Her role for the first six months was consistent with that of a Food and Beverage Attendant, Grade 2 as defined in subclause 6(4) of the Award and thereafter until May 2004 her duties were consistent with a Food and Beverage Attendant Grade 3, as defined in subclause 6(5) of the Award.  I am satisfied on the balance of probabilities that such was the case because of the evidence given by the Claimant as supported by Mr Bergin.

41      I find that from May 2004 the Claimant worked as a supervisor at both Terrazza Applecross and Terrazza Nedlands.  The Claimant’s evidence in that regard is supported by Mr Bergin.  Furthermore the payment to the Claimant of the same rate of pay irrespective of where she worked is also demonstrative of the fact that she worked as a supervisor at Terrazza Applecross as well as Terrazza Nedlands.  The Respondents appointed the Claimant 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.

42      I find that in March 2005 the Claimant ceased working for Terrazza Nedlands and Terrazza Applecross. 

Issues

43      The Respondent in claim M 153 of 2005 (Terrazza Nedlands) does not admit that it employed the Claimant and puts her to proof in that regard.  Further the Respondent says that if a finding is made that the Respondent, Spring 2002 Pty Ltd, employed the Claimant that the Award did not apply to her employment in any event in which case the Claimant was correctly paid in accordance with her contract of employment.  The Respondent says that in the event that the Court finds that the Award did apply then the total amount of underpayments amounts to $1625.00 and not the $4703.68 claimed.

44      The Respondent in claim M 152 of 2005 (Terrazza Applecross) asserts that the Agreement entered into between the Claimant and the Respondent continued in operation until terminated by force of section 4C of the WPAA on 15 March 2003.  The Respondent says that on termination of the Agreement, the terms of the Agreement continued to apply as a condition of employment pursuant to section 4H of the WPAA and that the Award bound the employer and employee to the extent provided in that section.  The Claimant on the other hand asserts that by operation of subsections 14(1) and 14(2) of the WPAA, the Agreement could in fact and in law only apply to the engagement of the Claimant until the cessation of the first engagement as a casual employee, and that thereafter each successive engagement was subject to the provisions of the Award.  The Claimant asserts that the Award had application from 1 September 2002 and that she worked for Terrazza Applecross variously as a Food and Beverage Attendant Grade 2, Food and Beverage Attendant Grade 3 and a Food and Beverage Supervisor being classifications within the Award.  The Claimant asserts that the Respondent failed to pay her the correct entitlement and was accordingly underpaid $4827.06.

45      The Respondent denies that the Claimant was engaged as a Food and Beverage Attendant Grade 3 and further denies that the Claimant was a Food and Beverage Supervisor.  The Respondent contends that the Claimant does not fall within those classifications because she did not have the “appropriate level of training” as defined in the Award to bring her within the terms of the classification in each instance.  Notwithstanding that, the Respondent concedes that the Claimant was underpaid $1847.78 during the period of her employment

46      The parties have asked that I do not, at this stage, determine the number of hours worked by the Claimant, but rather decide the pivotal issues of whether or not the Award applied and if so, the extent to which it applied and further, whether the Claimant falls within the classifications contained within the Award for all or any part of her employment.

Respondents’ Submissions

47      The Respondents contend that section 14 of the WPAA does not have application to this matter because the provision is predicated on the contract of employment coming to an end.  It provides:

Termination of contract of employment

14.  (1) Where a contract of employment of an employee comes to an end a workplace agreement that governs that contract no longer applies to that person except where an agreement under subsection (2) provides otherwise.

(2) An employer and a person who is employed by the employer may agree in writing that a specified workplace agreement is to apply to that person as an employee of that employer during a specified period, not exceeding 12 months, regardless of the number of separate contracts of employment between them that come into existence during that period.

(3) Subsection (1) does not affect rights or obligations under a workplace agreement that are to take effect after termination of employment.

48      The Respondent, Spring 99 Pty Ltd, says that the Claimant was engaged in an on-going contract of employment notwithstanding the casual nature of her employment.  She had continuing employment which could not come to an end other than by the giving of notice as provided for in the Agreement.  This Respondent says that it was possible for there to have been an ongoing contract of employment governing the Claimant’s casual employment and that such is consistent with the decision of Smith C of the Western Australian Industrial Relations Commission in Fowler v Anthony & Sons Pty Ltd. T/As Oceanic Cruises (2004) 84 WAIG 3855 (Fowler).  It follows therefore that the Agreement only came to an end on 15 March 2003 by force of the Labour Relations Reform Act 2002 No 20 of 2002.

49      Moving to the issue of the claim for payment of a loading for working on public holidays the Respondents say that the Claimant cannot succeed.  It submits that clause 17 (public holidays) of the Award does not apply to casual employees by virtue of subclause 17(4).  The Respondents argues that the provisions of the Minimum Conditions of Employment Act 1993 (the MCEA) apply where the Award fails to make provision for casual employees working on public holidays.  In that regard the MCEA provides for the observance of specified public holidays.  Its provisions, unlike the Award, do not allow for the substitution of public holidays nor do they enable public holidays to be observed on days other than the actual day upon which they fall.  Accordingly, the Respondents contend that where the Claimant has worked on a day observed in lieu of the public holiday, that the same is not to be treated as a public holiday.  In this instance the Respondents say that the Claimant is not entitled to be paid at penalty rates for the Mondays worked when such were observed as holidays in lieu of New Years Day and Australia Day.

50      Another issue addressed by the Respondents in submissions is that of classification.  The Respondents submit that the Claimant could never be classed as a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor because such classifications are predicated upon the Claimant having the “appropriate level of training”.

51      “Appropriate level of training” is defined in subclause 6(21) of the Award in the following way:

 (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 subclause assessment to be undertaken by a qualified skills assessor.

52      Given that the Claimant has no formal training and given also that she has not been assessed by a qualified skills assessor, she is said to fall outside the classifications in the Award for all the work she undertook following the first six months of employment.  Furthermore the Respondents contend that the higher duties clause of the Award does not assist her in her attempt to be paid as a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor.  Relevantly it provides

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.

53      In essence, the Respondents argue in that regard that the Claimant cannot be said to have been carrying out higher duties because she was in reality, only performing the work that she was employed to do.  In other words she was not carrying out higher duties at all.  Furthermore the Respondents contend that the Claimant could not have, in the performance of her duties, attracted the higher duties provision absent the qualifications which were necessary to enable her to perform the duties of a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor as defined.  The argument is that the Claimant cannot be paid for performing higher duties for a position she is not qualified to hold.

54      The Respondents argue that where the Claimant’s functions and duties fell outside the Award classification that the Award could not apply.  They argue that most of the work carried out by the Claimant for the Respondents was not covered by the Award.

Claimant’s Submissions

The Claimant submits that the Court is only called upon to resolve the following issues:

55       The status of the Workplace Agreement between the end of September 2002 and March 2003;

56       The Claimant’s employment classification at Terrazza Nedlands between May 2004 and March 2005; and

57       The Claimant’s duties and classification at Terrazza Applecross between May 2003 and March 2005.

58      She also says that the other issue raised by the Respondents relating to substituted public holidays is not relevant because none of the public holidays worked by the Claimant fall into the category of substituted public holidays.

59      Addressing the issue relating to the Agreement, the Claimant drew the Court’s attention to subsections 14(1) and 14(2) of the WPAA.  The Claimant argues that subsection 14(1) makes it clear that when a contract of employment comes to an end, any workplace agreement that governs that contract no longer applies.  Subsection 14(2) makes specific provision for persons who are at common law casual employees.  The parties in such instances can agree in writing that a workplace agreement is to apply to multiple contracts during a specific period not exceeding twelve months.  The Claimant says that her contract of employment was not a single ongoing contract of indefinite duration but rather a casual one.  Consequently there is a manifest inconsistency in the Agreement itself because on the one hand the Agreement purports to cover the duration of her employment and on the other hand it says that the Agreement is for two years.  Given that her employment was not constituted by a single ongoing contract of employment over two years, the relevant provisions of the Agreement are repugnant.  The manifest inconsistency is apparent within subclause 4(a) of the Agreement itself which provides:

4(a)  The duration of this Agreement shall relate to the contract of employment of the employees mentioned in Schedule 1 “Parties” of this Agreement.  The term of this Agreement shall be two (2) years from the date of signing.

60      The two sentences of that subclause are repugnant because the Claimant’s contract of employment was not a single ongoing contract of indefinite duration but rather a casual one.  Her initial contract of employment ended after the first fortnight rostered period of work.  The Claimant argues that when one applies the usual rules of construction relating to repugnant provisions the first appearing provision will be operative and the latter will be of no effect.  That results in the Agreement having lasted as long as the Claimant’s first contract of employment which came to an end after the first fortnightly rostered period of work.  That is also consistent with subclause 4(c) of the Agreement which provides:

4(c)  This Agreement shall terminate with the cessation of work by the employee with the employer mentioned in this Agreement.

61      The Agreement cannot be construed as one that applies to multiple contracts of employment for a period exceeding twelve months because such does not satisfy subsection 14(2) of the WPAA.  A single contract covering a number of predetermined (rostered) shifts can quite properly be described as a casual contract of employment that comes to an end at the completion of that rostered period.

62      The Claimant contends that at the completion of her first fortnight’s work at Terrazza Applecross the Agreement ceased to apply and each successive contract of employment was regulated by the Award.

63      The Claimant asserts that she was a supervisor at both Terrazza Nedlands and Terrazza Applecross from May 2004 until her employment ceased in March 2005.  She says that the Respondents’ argument concerning her inability to fall within the Award classification is not maintainable because employees are paid for what they do and not for the skills that they possess.  It is argued in any event that the contention that the Claimant was not assessed by a qualified skills assessor is not correct.  The Claimant says that Mr Treasure satisfied the definition of “a qualified skills assessor” because he assessed her skills to be suitable for appointment as a supervisor.  Given that he has the responsibility for directing and training of staff, it cannot be said that he does not have the necessary experience or ability to assess skills.  The Award does not require the assessor to have formal qualifications.  It requires the person to be qualified.  It does not define “qualified”.  Without more “qualified” simply means “recognised as being capable of doing something; being possessed of qualities or accomplishments which fit one for some function or office”.  The owners of the restaurant have recognised Mr Treasure’s capabilities in training and directing staff.  It follows that he is, for the purpose of the Award, a qualified skills assessor.

64      Finally the Claimant asserts that clause 25 being the “Higher Duties” clause of the Award entitled her to be paid as a Food and Beverage Attendant Grade 3 and as a Supervisor notwithstanding any failure on her part to strictly meet the requirements of such classifications.  She argues that the Respondents’ contention concerning the non-applicability of the clause is not maintainable because the wording therein makes it clear that it relates to the performance of higher duties.  The work carried out by the Claimant was at the material times perfectly consistent with the duties of a Food and Beverage Attendant Grade 3 and Food and Beverage Supervisor as defined in clause 6 of the Award.  The Claimant performed those higher duties and accordingly is entitled to the benefits conferred by clause 25.

Determination

65      I refer to the findings of fact previously made and incorporate the same in my determination.

Workplace Agreement

66      There can be no doubt that the Claimant’s employment with both Respondents was casual in nature.  When the Claimant first started with Terrazza Applecross there was no guarantee or expectation of continuity of employment.  It was open to the Claimant and her employer not to re-engage in employment after the cessation of each rostered period. Their position was different to the circumstances of the parties in Fowler (supra).  In that matter there was a reasonable mutual expectation of continuity of employment, whereas in this matter there was not.  The Claimant’s employment lacked permanency.  She only had work insofar as her roster dictated.  The compilation of the rosters was driven by the needs of her employer.  Accordingly the types of considerations in Fowler simply did not apply.  I reject the Respondents’ argument in that regard.

67      The Claimant’s employment was intrinsically casual and certainly could not be described as ongoing.  It follows that the Agreement came to an end when the Claimant completed her first rostered fortnightly period of work which ended her contract of employment.  Subclause 14(1) of the WPAA operated at that stage to terminate the Agreement given that the parties had not entered into an agreement as contemplated by subsection 14(2) of the WPAA.

68      It suffices that I indicate that I am in broad agreement with the Claimant’s submissions made with respect to the issue.  The Agreement came to an end when the Claimant completed her first fortnight’s work for Spring 99 Pty Ltd.  Thereafter the Award regulated her employment.

Classification

69      The Respondents contend that the Claimant could never have been classified as a Food and Beverage Attendant Grade 3 or a Food and Beverage Supervisor because those classifications are predicated upon the attainment of an “appropriate level of training” as defined in subclause 6(21) of the Award.  To attain the “appropriate level of training”, the Claimant was required to have either completed a training course qualifying her for a certificate or, alternatively, been assessed by a qualified skills assessor to possess skills equivalent to those attained through a suitable course.

70      There is common ground that the first limb of the meaning of “appropriate level of training” referred to in subclause 6(21)(a) of the Award has no application because it is conceded that the Claimant has never completed a training course, however, the Claimant argues that she fits within the terms of the definition in subclause 6(21)(b) of the Award because she was assessed by Mr Treasure to possess skills suitable for appointment.  It is argued Mr Treasure was qualified to make such assessment.

71      I reject the Claimant’s arguments for the following reasons.

72      It is abundantly clear that employees classified as a Food and Beverage Attendant Grade 3 or as a Food and Beverage Supervisor must have the “appropriate level of training.” That is a fundamental pre-requisite for the attainment of the relevant classifications.  It is not sufficient that an employee merely engage in doing those things required of a Food and Beverage Attendant Grade 3 or of a Food and Beverage Supervisor.  Doing those things or being responsible for those things does not satisfy the definition.   Accordingly, given that the Claimant has never completed a training course qualifying her for an appropriate certificate relevant to the classifications, the only way she can satisfy the definition of “appropriate level of training” is to prove that she was assessed by a qualified skills assessor to possess at least the equivalent skills of those attained through a suitable course

73      I find however that the Claimant was never assessed by Mr Treasure to possess skills “at least the equivalent of those attained through the suitable course” (see clause 6(21) of the Award).  The assessment process necessarily imports knowledge of the training course and the skills outcomes achieved by completion of such course.  There is no evidence that Mr Treasure possessed such knowledge about any course or courses, its or their structure, or the nature of the skills required to qualify for an appropriate certificate.  A qualified skills assessor must have knowledge about those things so to enable him or her to conclude that the skills of an employee are at least the equivalent of those attained through a suitable course.  Given that the evidence does not support a finding that Mr Treasure possessed such knowledge, it follows that it has not been proved that he was a qualified skills assessor.  It could not have been sufficient for Mr Treasure, in general terms and without regard to the course of training, to have regarded the Claimant to be suitable for appointment to the position of Supervisor as defined in the Award.  That did not satisfy the requirements of the Award.

74      I accept the Respondents’ submission that the Claimant has failed to prove that she comes within the classifications of Food and Beverage Assistant Grade 3 and Food and Beverage Supervisor.

Higher Duties

75      Clause 25 of the Award provides that any worker who for two hours or more on any day performs duties carrying a higher prescribed rate of wage than that otherwise applicable is to be paid at that higher rate for the period of time worked performing those duties.  The only proviso is that if a worker is engaged for more than half a day or shift on duties carrying a higher rate of pay then the higher rate is to be paid for such day or shift.

76      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. 

77      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.

78      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.

Substituted Public Holidays

79      The only remaining issue is that raised by the Respondents relating to substituted public holidays.  I concur with the Claimant in finding that the issue is not relevant to my considerations.  It appears that none of the public holidays worked and claimed by the Claimant fall into the category of substituted public holidays.

Conclusion

80      The claims in so far as they are not conceded are made out in principle.  In accordance with what was proposed by the parties I will leave it to them to calculate the hours worked by the Claimant.  That might lead to agreement concerning the quantum of underpayment.

G. Cicchini

Industrial Magistrate