T12074 - 26 July
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Marian ("Murray") Wojcik and "Foamland" Registered Proprietor Ms Sandra Helen Wallis
Industrial dispute - unfair termination of employment - breach of award or registered agreement - threshold matter - matter to be set down for hearing REASONS FOR DECISION [1] On 9 May 2005, Marian ("Murray") Wojcik (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with "Foamland" Registered Proprietor Ms Sandra Helen Wallis (the respondent) arising out of his alleged unfair termination of employment; and alleged breach of award or registered agreement. [2] The matter was listed for hearing on 11 May 2005 (Conciliation Conference) 29 June 2005 and 13 July 2005 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] After successfully applying to an advertisement in the newspaper for an Assistant Manager (Retail), the applicant was engaged by the respondent on 22 November 2004 He was to be employed at the Foamland facility in Argyle Street, Hobart. This facility featured a retail outlet as well as storage areas, product measuring and cutting areas and a product manufacturing and assembly area. [4] The applicant asserted he was engaged on an annual salary of $30,000. On or around 15 February 2005 he asserted he was given a pay increase of $5200 per annum. [5] The applicant asserts his employment was unfairly terminated on 22 April 2005. [6] The respondent raised a threshold matter with regard to the jurisdiction of this commission to hear the instant application. The employer is a named respondent to the Furnishing Industry National Award 2003, a federal award and, as such, the employer asserted the former employee should fall under that award. [7] Mr G Lynch, for the applicant, argued the functions the former employee performed were more appropriately aligned with the Retail Trades Award, a state award. [8] I will only address the jurisdictional issue at this juncture. [9] List of those who gave evidence: Marian (Murray) Mitchell John Wojcik BACKGROUND Details of the case put by the Applicant: [10] The applicant asserted he was engaged by the respondent as a sales person to work at the Foamland Argyle Street store in Hobart. He cited the advertisement to which he responded (Exhibit A1) as the basis for his employment. The advertisement is headed "Assistant Manager (Retail)". It refers to the respondent as "...a leading retailer of foam and rubber products." It refers also to "...outstanding levels of customer service..." as being a requirement of the role. [11] There is no job description or documented duty statement for the role. The applicant conceded, apart from selling he did measure and cut foam as required and to "help out". [12] In January 2005, Mr Higgins took over as Manager of the business. It is not contested he required the applicant to spend more time out of the facility in an endeavour to attract more business. To this end the applicant was given access to a company vehicle. [13] Some time in February 2005 the applicant was given a letter (Exhibit A5) that praised his contribution to the business in terms such as "...successful efforts to generate and improve sales figures and customer satisfaction...."; and "...With your ability in sales and commitment to customer service....". [14] The applicant asserted he was not aware of his employment being linked to an award. However, his pay packets for three of the last four pay periods show a hand written reference to awards. One depicts "Federal Furniture Industry National Award", while the other two show "Federal Upholsterers" and "Federal Upholsterers Award". There is no other evidence on previous pay packets indicating award coverage. Details of the case put by the Respondent: [15] The respondent asserted the applicant was subject to the Furnishing Industry National Award 2003, by dint of the employer being a respondent to that award. [16] The argument was put that under the federal Workplace Relations Act 1996, s.170CD(3) the applicant is covered by the award, viz;
[17] The respondent asserted the applicant was aware that the federal award covered the employees of the business. He asserted it had been discussed several times with the applicant with respect to issues concerning other employees. The respondent also cited the handwritten notation on three of the applicant's wage packets as proof of his awareness of coverage by the federal award. [18] The quantum of the applicant's time spent in "manufacturing" product as opposed to "selling" product was alluded to. Percentages of time the applicant spent selling were bandied around, but no definitive evidence was presented in support or rebuttal of the numbers, only unqualified opinions. [19] Mr T Levis, for the respondent, argued that there had been no evidence presented in support of the applicant falling under the Retail Trades Award. [20] Mr Higgins, also for the respondent, asserted as the Manager, the Furnishing Industry National Award 2003, applied to him. He suggested he would be classed as a Production Employee level 4 (P4). AUTHORITIES T30 of 1985; Hospital Employees Federation of Australia, Tasmanian Branch No.2, for interpretation of the GENERAL CONDITIONS OF SERVICE PRINCIPAL AWARD. [21] I acknowledge the interpretation criteria in this authority. T9506 of 2001; Howard v Stencilled Duck, Alleged Unfair Termination, Alleged Breach of Award. [22] In this authority the duties of the applicant were much better defined than is the situation in the instant application. Although helpful as a guide, I have not relied on it. FINDINGS [23] The federal Workplace Relations Act 1996, is clear in s.170CD(3) in that:
[24] The question which must be answered is, "if both wages and conditions of employment" were regulated by the award "that binds the employer"? [25] There is no job description or statement of duties. It has been clearly demonstrated that the applicant was initially employed in a retail capacity (Exhibit A1). The single piece of evidence containing any comment regarding the applicant's function (Exhibit A5) only refers to his performance in sales and customer service. No evidence was presented which confirmed or evaluated his performance as a "production" employee. [26] There was no evidence presented that showed a relationship between the applicant's remuneration nor his conditions of employment and an award framework. Timesheets were not kept, therefore hours worked and overtime worked were not recorded for the applicant. Indeed, Mr Higgins was emphatic that the sizable pay increase given to the applicant was not in recompense for overtime worked. Indeed, Mr Higgins in his preliminary submission asserted:
[27] The Furnishing Industry National Award 2003, states that Production Employee duties embrace, but were not limited to receiving structured training, operate production machinery, machining and sewing, maintenance of equipment, hand finishing soft furnishings, setting up machinery, inventory control, applying and understanding quality control techniques. It was not shown the applicant did any of these tasks. It was acknowledged the applicant did measure and cut foam as required. However, the assertion by the respondent that the applicant was engaged in "design" and "planning" as described in Clause 6.1.28 of the award is not credible. There has been no evidence presented which would lead me to accept that his duties embraced the requirements of a Production Employee other than incidental measuring and cutting foam. [28] I acknowledge Clause 7.1 - Parties Bound of the award, however, it must be read in conjunction with s.170CD(3) of the federal Workplace Relations Act 1996 [29] The respondent has failed to show that the applicant was engaged as a Production Employee, according to the Furnishing Industry National Award 2003. The respondent has also failed to show why the overtime provisions in the award were not afforded to the applicant if, as he asserts, the award covered the applicant. Therefore it follows, the conditions in s.170CD(3) of the federal Workplace Relations Act 1996 have not been satisfied. [30] The applicant, on the other hand, has failed to show a definite linkage between his duties and the Retail Trades Award. This failure is particularly stark with regards to the applicant's amended role in developing business by travelling to and engage with potential customers. [31] Factual evidence of either the applicant's original role or the amended role is scant. Linkage to the influence on the applicant's remuneration or conditions of employment for either the Furnishing Industry National Award 2003 or Retail Trades Award has not been established. [32] I find the applicant is award free and, as such, his application T12074 of 2005 falls under the jurisdiction of this Commission. [33] The Commission will proceed with the hearing to enable the parties to complete their submissions on all aspects of the application, and I so Order. [34] The Notice of Hearing is attached; advising the date of hearing is Wednesday, 10 August 2005 at 9.30 am. James P McAlpine Appearances: Date and place of hearing: 1 Transcript, para 30
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