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T1823 and T1824

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision T1824 Appealed - See T1929

Industrial Relations Act 1984

 

T.1823 of 1989

IN THE MATTER OF NOTIFICATION BY THE SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION, TASMANIAN BRANCH, OF A DISPUTE WITH THE BLACK ROSE, LAUNCESTON

RE: PAYMENT OF WAGES

AND
T.1824 of 1989 IN THE MATTER OF AN APPLICATION BY THE SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION FOR INTERPRETATION OF THE RETAIL TRADES AWARD

RE: "SHOP OR BRANCH MANAGER OR MANAGERESS"

PRESIDENT 14 APRIL 1989
INTERPRETATION
APPEARANCES:
For the Shop Distributive and Allied
Employees' Association,
Tasmanian Branch
- Mr P Fenton
  with
- Mr P Griffin
For the Tasmanian Confederation
of Industries
- Mr T Abey
For the Department of Labour
and Industry
- Mr G Pettman
DATE AND DATE OF HEARING:
9.3.89                   Launceston

These matters relate to a dispute that arose between Mrs G and her employer, the Black Rose Pty Ltd.

The Commission first became aware of this dispute when the Shop Distributive and Allied Employees' Association, on behalf of Mrs G notified the Commission pursuant to Section 29 of the Act.

That matter was subsequently withdrawn. In lieu of the earlier notification, the union then opted to proceed by way of an application for interpretation. If successful it was said that the intention would then be to proceed for recovery of unpaid money through the appropriate channels.

This decision deals with the request for an interpretation.

Consistent with the Commission's guidelines relating to interpretations being given only in relation to specific facts, the applicant led evidence from Mrs G to the effect that:-

Mrs G was employed to take charge of the Launceston Black Rose establishment. She was given a 4 weeks trial in that capacity. This consisted of 2 weeks under the direct supervision of the Director, and for a short while thereafter there was further supervision. But this was only for a few hours on average one day per week. Thereafter she was on her won. No other persons were employed.

However, from time to time the Director, who was then stationed at the Devonport Black Rose premises which included the warehouse, would periodically deliver stock if he was, at the time, in the process of travelling between Devonport and Hobart. Other premises of a similar nature were situated in Hobart.

Her daily duties were described by Mrs G as follows:

"The duties were to be there at 9.30 of a morning to do the banking before 10 o'clock; open the shop at 10 o'clock and work through until 6 p.m. The duties then were selling the products that we had in the shop. They all went on computer. Then there was at the end [of the day] you had to tally up the float and the banking; that all had to be put away in the safe. Then there was locking up of both doors before I left at 6.p.m. or a little bit after."

She worked 5.1/2 days per week and was paid for her services a flat rate of $250 per week net.

The Commission is asked to decide if the duties are those of an Assistant first year of service (as defined), or a Shop or Branch Manager/Manageress (as defined). Her employer, through his legal representative, claimed that she was classified as an Assistant, first year of service.

The award definition of Assistant is stated as:

"Assistant means any employee who devotes any portion of his or her time to the sale of goods, including take away food, parcelling, key cutting, goods or assembling orders and/or messenger."

By contrast, the definition of "Shop or branch manager or manageress" is stated as:

"i.e. an employee (whether adult or otherwise) who is in charge of a shop or branch shop, with or without the duty of buying notwithstanding that such employee may be under the orders of a superior who does not devote the whole or any part of his time to the management of the said shop or branch shop."

By comparison therefore and on the balance of probabilities it would be stretching the long bow too far to interpret the duties of Assistant to include a person who works 5.1/2 days per week; who is required to on duty 8.1/2 hours per day (it was said no lunch hour relief was provided); who receives, sells and re-orders stock; balances and banks daily takings; reconciles the day's take against a pre-programmed computerised record; enters each sale in a computer; holds the keys to and is responsible for the opening and closing of the shop; holds and is responsible for the combination to the safe; and in addition is responsible for cleaning and security.

Having rejected the definition of "Assistant", I find also that the award definition of "Senior sales Assistant", "Section manager/manageress", and "Employee handling money", are individually and collectively inappropriate to the duties performed by Mrs G.

Even on a cursory reading of the definition of "Shop or branch manager/manageress" it becomes clear that the award-maker envisaged that in order to qualify for such a classification it is not essential that the employee concerned necessarily be an adult. The essential requirement seems to be that the person be in charge of a shop or branch. The words that follow that requirement do not necessarily disqualify the person from being so classified so long as the basic requirement of being in charge is met.

Mr Abey argued that it would be an incorrect interpretation of the award to hold that Mrs G was a branch manageress, having regard for the fact that there were at least two other classifications above "Assistant" to which one might ordinarily expect to aspire before attracting the senior status of manageress.

He may well be right in this regard. And this may be the case in a large store or store complex. But in matters of interpretation the Commission cannot concern itself with the merits. Having already decided that "Senior sales assistant" and "Section manager" could hardly apply to Mrs G's situation, I can only conclude that having clearly satisfied the basic requirements of being entrusted with the day-to-day responsibilities of receiving, storing, selling, recording, balancing cash, banking cash, opening and closing the premises, and being in sole charge of the shop, the keys to the shop and shop security, Mrs G, prima facie, satisfies the definition of "Manageress".

She did not buy in stock, but is not disqualified because of that.

If one were to ignore the evidence regarding her version of what constituted a Shop Manager, and at the same time ignore the evidence that the Director had in fact suggested to her that she was so designated, one is left with the inescapable conclusion that at the very least she was in charge of the shop or branch. And that by any reasonable test she was not under "the orders of a superior who did not devote the whole or part of his time to the management of that branch".

Of course in a remote sense it might be said that any manager or owner of a business comprising one or more branches, if actively engaged in the enterprise is a manager. But if that was to be the acid test in this case it would be difficult to understand why in such circumstances reference to a person other than an adult has been included in the definition of those who might otherwise satisfy the award requirement for classification as manageress.

Looked at as a whole I believe that on any reasonable interpretation of the award the totality of Mrs G's employment after her initial training was such that she assumed responsibility for the Launceston Black Rose establishment. I can only find therefore that on the language used by the award-maker, the definition of "Shop or branch manager/manageress" was more appropriate to the circumstances of her employment than that of "Assistant".

In coming to this conclusion I must emphasize that each case may differ according to the circumstances of the individual. For that reason the foregoing should not be understood to be, per se, a declaratory interpretation of the definitions of "Assistant" and "Shop or branch manager/manageress".

Bearing in mind the multitude of circumstances that could, and no doubt do occur, when looked at overall one can only conclude that before a declaratory statement capable of general application to the whole retail industry could be made in relation to the two classifications, both definitions would need some fairly significant drafting repair if confusion was to be avoided.

Nevertheless in the case of Mrs G. I find that she was incorrectly classified as "Assistant, first year of service" after she assumed sole charge of the shop.

On balance the definition of "Shop or branch manageress" however suspect or deficient in drafting, might nevertheless be considered more appropriate to the duties and responsibilities assumed after the early stages of her employment and until she was eventually dismissed.

 

L A Koerbin
PRESIDENT