T8867 and T8869
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Darren John Wyatt and John Dunnicliff, Grassy Pastoral Co.
Industrial dispute - alleged breach Farming and Fruit Growing Award - whether farmhands or managers - whether award applies - arbitrated - employees engaged as managers - nature of work performed - no relevant award classification - employees not subject to award - application dismissed REASONS FOR DECISION On 29 February 2000, Darren John Wyatt and Jackie Ann Wyatt (the applicants), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with John Dunnicliff, Grassy Pastoral Co (the respondent) arising out of the alleged breach of the Farming and Fruit Growing Award. On 27 April 2000, the then President convened a hearing, via audio link, at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania before himself to commence on Monday, 15 May 2000 at 10.00 am. The applicants were represented by Ms Maryann West, and the respondent was represented by a legal practitioner, Mr Sean McElwaine. At the conclusion of the audio link the hearing was adjourned with no further date being set. On 28 July 2000, the Acting President convened a hearing, at the Magistrates Court, 31 King Street, Ulverstone, Tasmania, before myself, to commence on Monday, 28 August 2000 at 2.00 pm. The applicants were again represented by Ms West. Mr McElwaine sought and was granted leave to appear for the respondent. The two matters were heard together, without objection, although Mr McElwaine said that if Mr Wyatt, the applicant in T8867, failed to give evidence in support of his claim, then he would be submitting that Mr Wyatt's case should be struck out. Background Mr Darren John Wyatt and Mrs Jackie Ann Wyatt, husband and wife, were employed by Mr John Dunnicliff, Grassy Pastoral Company, to work at his dairy property "Boongara", on King Island. Prior to commencing work with the respondent, Mr and Mrs Wyatt had each been employed as managers with Dornauf Dairies. An interview was conducted by Mr Dunnicliff, some time in November 1998, attended by Mr and Mrs Wyatt. As a result of this interview the Wyatts were employed by the respondent. There is a dispute as to whether they were engaged to perform work as farm hands or as farm managers. The applicants commenced working for Mr Dunnicliff on 19 November 1998. They continued in that employment until 7 December 1999. Mr and Mrs Wyatt each received an amount of $31,200 per annum ($31,500 according to their applications), payable monthly. In addition, the employer provided the Wyatts with free accommodation and a vehicle for private as well as farm use, with fuel paid for by the employer. This "package" was negotiated at the time of the interview. The dispute is in relation to a claim for alleged underpayment of wages, based on the classification of Farm and/or Orchard Hand Level 4, of the Farming and Fruit Growing Award, plus alleged breach of a number of other award entitlements. The total claim for each employee amounted to $62,807.16. It was common ground that the Wyatts were employees and that the award applied to the employer, by virtue of Clause 2 - Scope, of the award:
The Questions to be Decided 1. Were the applicants engaged as farm managers or as farm hands? 2. What was the work actually performed by the applicants? 3. Was the work performed by the applicants work for which there is a classification in the Farming and Fruit Growing Award? THE EVIDENCE 1. Were the applicants engaged as Farm Managers or as Farm Hands? Interestingly, whilst this was a question in dispute during the hearing, in the applications made to the Commission, Ms West, on behalf of the applicants, described the work classification or job title of both applicants as being joint managers, and, in her opening submissions said:
Nonetheless, in her evidence Mrs Wyatt strongly denied that this was the case. The evidence of Mrs Wyatt Mrs Wyatt testified that, at the time she and her husband were employed, they were told by Mr Dunnicliff that they were to be "Indians", not "chiefs".
In answer to a question as to whether they had been employed as farm managers Mrs Wyatt responded with an emphatic "No".2 The couple were not given any anything in writing to indicate what their position was, except, Mrs Wyatt said, a note to say that they were "share farmers". During cross-examination Mrs Wyatt said she and her husband had been told that they would be working on an "incentive basis". Mrs Wyatt agreed that Mr Dunnicliff had classified herself and Mr Wyatt as managers but said: "we don't think we were".3 She said that she could not remember being told at the interview that they were to be joint managers. In relation to the fact that the application to the Commission had described Mr and Mrs Wyatt as managers, Mrs Wyatt said that she could not remember having told Ms West that she was a manager. Mrs Wyatt agreed that there had been no discussion at the interview which indicated that they were to be employed as farm hands. She said that they were going to "Boongara" to be people with more knowledge than others, but that they were to be on the same level as everybody else. She said again:
However, Mrs Wyatt said that she had no idea who the other chiefs were. Mr and Mrs Wyatt had accepted the package that was offered, she said, and she agreed that there had been no discussion at the time of the interview, or at any time subsequently, regarding employment under the terms of the award. She agreed that it was not until after the employment was ended that she had decided that the award applied.5 During Mrs Wyatt's evidence it was established that the package she and her husband agreed to included $31,200 per annum each, 17.5% leave loading, a rent-free house, a vehicle for which there was no restriction on private use, and half of the removal costs to King Island. The evidence of Mr Dunnicliff Mr Dunnicliff said that he was the person who had interviewed Mr and Mrs Wyatt. He could not remember whether the advertisement he had placed had been for general farm hands or for farm managers, but, he said, he was looking for managers. At the time of the interview Mr and Mrs Wyatt were employed as managers at Dornauf Dairies. Mr Wyatt was managing one dairy and Mrs Wyatt was managing another. The interview had taken place at the Wyatt's home on the Dornauf property. The position that was offered to the Wyatts was made clear at the time of the interview, which was that they were to manage the dairy. Mr Dunncliff said, in answer to a question as to whether that had been discussed in detail at the interview, that he believed that it had been. The Wyatts had contacted him with an acceptance of the offer shortly afterwards, he said. There had been no exchange of letters or written contract of employment. Mr Dunnicliff testified that there had never been any discussion regarding the applicability of the award, either before or during the employment of the Wyatts. During cross-examination Mr Dunniclff said, in relation to the comment that he was alleged to have made regarding "chiefs" and "Indians":
There was no doubt that the Wyatts understood that they were to manage the property, he said. 2. What was the work performed by the applicants? The evidence of Mrs Wyatt Mrs Wyatt testified that she and her husband performed the following tasks and had the following responsibilities:
During cross examination it was established that Mr Dunnicliff was absent from King Island for extended periods, perhaps 50 per cent of the time, whilst he was running his cattle property in the Kimberleys, and that Mr and Mrs Wyatt were responsible for running "Boongara" on a day to day basis. Further, the Wyatts were responsible for:
Mrs Wyatt said that:
Mrs Wyatt agreed that she and her husband were far more than general farm hands.8 The evidence of Mr Dunnicliff Mr Dunnicliff said that, whilst he was "at the top", Mrs and Mrs Wyatt jointly managed the property and had responsibility for supervising three other staff. It was their responsibility to hire and fire more junior staff. Who they hired and the terms of that employment, were decisions made by the Wyatts. The Wyatts had unsupervised control of the operations of the property, which basically covered all facets of operating a dairy, he said. According to Mr Dunnicliff, on a day to day basis, the Wyatts:
Mr Dunnicliff said that when he was in the Kimberleys Mr and Mrs Wyatt were responsible for the dairy, and that when he was on King Island the Wyatts were also responsible. He said that he lived about 30 kilometres from "Boongara", on another beef property. When on King Island he would be at "Boongara" approximately one day a week, perhaps for a few hours, and that his role was really a consultative one. He said he would go around the farm and look at various aspects and if there were problems those would be discussed, but that he did not have any role to play on a day to day basis. Meetings took place approximately once a month where important issues would be discussed, and other staff who wanted to be were included in those meetings. The Wyatts were responsible for meeting required standards in relation to hygiene and milk quality, he said. During cross examination Mr Dunniclff agreed that the Wyatts had limits placed on the expenses they incurred related to the running of the dairy, but, he said, there were no limits in terms of expenditure within the budget. He said that if it was an expensive item, such as a pump breakdown, then the Wyatts would usually confer with him. He said that the reason he went to "Boongara" for the two hours a week, or so, was to "keep some eye on it and keep my knowledge of what was going on up there ..."10 SUBMISSIONS Ms West, for the applicants Ms West submitted that Mr and Mrs Wyatt came within the classification of farm hand under the Farming and Fruit Growing Award, and that, even if they were farm managers, the award still applied. There was some ambiguity in her opening submissions, but I think that the preceding comments fairly reflect the position she was attempting to put, when considered in conjunction with the written applications made to the Commission. According to the evidence, Ms West said, the applicants were not accorded authority to make independent decisions. She contended that the relevant classification within the award was that of Farm Hand Level 4. Ms West did not refer the Commission to any authorities in support of her submissions. Mr McElwaine, for the respondent Mr McElwaine referred to section 38 of the Industrial Relations Act 1984, which deals with the effect of awards, and which says:
He said that whilst there was no doubt that the award applies to the dairy industry, the real issue was whether the applicants were employed in classifications contained within the award. Mr McElwaine contended that they were not. The issues, he said, were what the employees did and what they were engaged to do. The employees were not engaged, and did not undertake, as the primary function of their duties, the duties of a farm hand. He said that Mrs Wyatt was employed jointly with her husband to be manager of the property and to have day-to-day responsibility for the property's operation, subject only to reporting to Mr Dunnicliff. Mr McElwaine referred to a number of authorities which considered award classification issues: The first decision was Stanley Holt v Musketts Timber Sales, 1994, Unreported.11 This was a decision of Northrop J, in the Federal Court of Australia, in which he considered the question of whether the manager of a timber mill was subject to the classifications under the Timber Industry Consolidated Award of 1990. Mr McElwaine said that the employee in that case did perform work that involved shifting logs, but that did not make him subject to the award classifications. Justice Northrop said that whilst the employee did perform work for which there were classifications within the award, he was never engaged specifically for any of those classifications. That work was only incidental to his job as site manager. At paragraph 18, Northrop J said:
It is the same in the instant case, Mr McElwaine said, the engagement was to act as the joint manager of the dairy and to do a whole range of management and supervisory tasks, it was not to be a farm hand. Mr McElwaine contended that the flavour and context of the award showed that the farm hand positions were quite junior positions, clearly not directed at the higher level of supervisory and management functions. The second authority referred to by Mr McElwaine was a decision of the South Australian Industrial Relations Court, Kingmill (Australia) (t/a Thrifty Car Rental) v Marshall.13 In that case, the court said, an employee was outside of the scope of the Clerks (South Australian) Award because, on a proper analysis of the classifications of the award, the employee may have done some of the tasks referred to, but she was not engaged to and did not perform the tasks referred to on a day-to-day basis. At page 428, the court said, referring to the evidence:
The submission of Mr McElwaine was that, whilst it may be possible to pick out some things in Farm Hand Levels 1 to 4 that were performed by the applicants, that was not the test. Those tasks were merely incidental, he said. There were significant other duties performed that had nothing to do with the award classifications, including: discretionary expenditure within budgets, hiring and firing of employees, ensuring the milk contract was met, ensuring standards were met, organising the repair of plant and equipment, liaising with contractors, and more. None of these, he said, were within the classifications of farm hands. The third case referred to was a decision of the Industrial Relations Court of Australia, in Kerr and Jaroma,15 an unreported decision of Marshall J, dated 7 October 1996. This case concerned the manager of a motel and the issue in dispute was whether the award applied. Justice Marshall found that:
Mr McElwaine said that Mrs Wyatt, jointly with her husband, were the most senior employees working in the dairy and had the responsibility for the day to day operations. The award, he submitted, was directed to a lower level, whereas the applicants were at a much higher level. They were employed as, and acted as, much more than farm hands. FINDINGS Mr Wyatt's application As indicated on the day of the hearing, I reject Mr McElwaine's submission that Mr Wyatt's application should be dismissed because of his failure to give evidence. Mr McElwaine submitted that this would amount to a fundamental denial of natural justice to the employer. I reiterate the reasons given at the time: the applications were in identical terms and concerned identical circumstances; the evidence given by the witnesses related to both applicants; both major witnesses referred to the Wyatts collectively. I believe that the failure of Mr Wyatt to appear has done no damage to the respondent's case. I also add that it is open to the applicants to call such witnesses as they choose. The absence of a potential witness and the resultant inability of a party to cross-examine that witness is something that I would take into account when reaching my conclusions and writing my decision. In the circumstances of this case, nothing was put to me that would have me conclude that Mr Wyatt's evidence would have added or subtracted anything of substance from the evidence given by Mrs Wyatt and Mr Dunnicliff. Above award payments During the hearing much was made of the fact that the applicants allegedly received higher rates of pay and received benefits in excess of those specified in the award. Whilst this may or may not be the case, (and the claim was, in fact, that the applicants had been paid significantly less than they would have been paid under the terms of the award), a higher rate of pay and additional benefits would not, of themselves, indicate that an employee was not subject to an award. I do not intend to consider this point any further. Protective clothing purchases Evidence was presented concerning the alleged failure to provide protective clothing to the applicants. In view of the decision which follows, it is not necessary to take this issue any further. I now turn to the major questions to be decided: 1. Were the applicants engaged as farm managers or as farm hands? Having considered the evidence and the circumstances, I have concluded that Mr and Mrs Wyatt were engaged as managers of Mr Dunnicliff's property, "Boongara". I base this conclusion on the following reasons: The only evidence in support of Mrs Wyatt's contention that she and her husband were employed as farm hands, not managers, is her stated view that they were not managers, and Mr Dunnicliff's alleged comment that they were to be employed as chiefs, not Indians. Against this is the evidence that at the time of the interview the Wyatts were already employed as farm managers. I think it unlikely that they would have accepted positions as farm hands. It is more likely that they would have been looking to continue their career as farm managers. Mr and Mrs Wyatt's advocate described them as joint farm managers in the applications to the Commission, and said, in her opening statements, that Mr and Mrs Wyatt had always contended that they were farm managers. During the hearing Mrs Wyatt contended quite the opposite. I do not accept Mrs Wyatt's evidence in this respect. I think it probable that Mrs Wyatt adopted this stance because she felt that it might damage her and her husband's claim to award entitlements if she admitted they had been engaged as farm managers. In view of the "package" offered and agreed to, together with the applicants' past experience as farm managers and the discussions which took place regarding responsibilities and duties, it is, in my opinion, most unlikely that that any of the parties would have believed that they were entering into an arrangement other than that as described by Mr Dunnicliff, ie, an arrangement for the management of his property. I think that the reference to chiefs and Indians, as described by Mrs Wyatt, was probably made. Mr Dunnicliff did not deny the possibility, but I find his explanation - that the comment was meant to illustrate that the work to be performed was to be "hands on" work - to be a plausible explanation, given the nature of the dairy industry. There were no documents as to the agreed terms of employment. The evidence of both parties was the same regarding the general terms and conditions that were agreed to. The witnesses also agreed that there was no discussion at any time about award entitlements. This fact tells against the engagement of farm hands, whose employment conditions are governed by the Farming and Fruit Growing Award. In this case, the evidence showed that there had been no entering into a contract of employment to perform the occupations or activities enunciated in the award, as was also the case in the precedent referred to by Mr McElwaine, Stanley Holt v Musketts Timber Sales.17 In the case of Holt, Northrop J found at paragraph 24 that the employee had neither been engaged to perform the duties for which classifications were enumerated in the award, "nor was he performing any of the activities within those classifications." (apart from helping out from time to time). (my emphasis). In the instant case, it is clear from the evidence that, despite Mrs Wyatt's assertions to the contrary, the applicants were engaged as farm managers. They may, however, still have engaged in the sorts of activities enunciated in a classification within the award. The evidence was that they regularly performed "hands on" duties, more than just from "time to time", as in the case of Holt. 2. What was the nature of the work actually performed by the applicants? It is necessary to examine the nature of the work actually performed by the applicants, in order to determine whether or not there is a classification within the award which applies to that work. The primary role of the applicants, as shown by the evidence, was to manage the farm. Whilst there were significant "hands on" aspects of their work similar in nature to that performed by farm hands, in my opinion those aspects of their work were subsidiary to their essential and primary role which was farm management. In this respect the situation was similar to that of the employee in the case cited by Mr McElwaine, Kingmill v Marshall.18 The approach adopted in that case was to examine the work performed in order to determine what was the primary role of the employee, and what tasks were subsidiary to that essential function. I think that is an appropriate test to be applied in the present case. It is clear from the evidence that primary task of Mr and Mrs Wyatt was the day to day management of the farm. They reported to their employer, Mr Dunnicliff, who had no direct role in the daily operations of the establishment, but who would be consulted when major decisions needed to be made. In addition to the "hands on" work, the Wyatts supervised the activities of subordinate staff, made purchases, had responsibility for overseeing milk quality, and performed a whole range of tasks consistent with a management function. The role of Mr and Mrs Wyatt in relation to the other staff is indicative of a management role: they prepared rosters, they supervised staff, and they had the responsibility for hiring and firing staff. The evidence of Mr Dunnicliff was that the "hands on" approach to the work by farm managers was standard practice in the dairy industry, and there was nothing in the evidence to persuade me otherwise. I accept that the "hands on" work, which is similar to the work peformed by farm hands, was subsidiary to the primary role of the applicants, which was the day to day management of the farm. I find that the nature of the work performed by the applicants was that of farm management. However, that finding alone may not be sufficient to put the applicants outside of the terms of the Farming and Fruit Growing Award. It is necessary to examine whether or not that work falls within a classification contained within that award. 3. Was the work performed by the applicants work for which there is a classification in the Farming and Fruit Growing Award? The Act The Act, at section 38, states that an award applies where an employee is employed in a classification mentioned in the award. It follows that where there is not a classification, the award does not apply. The Award There was no dispute that the scope of the award had applicability to the employer, by virtue of clause 2 - Scope - which "captures" the industry of dairy farming. The evidence was, and it was agreed, that the employer was involved in the industry of dairy farming. Under Clause 6 - Parties and Persons Bound, all employees who are engaged in the industry (of dairy farming) and for who classifications appear, are bound by the award. Award Classifications - Clause 7 - Definitions In Kerr and Jeroma,19 the relevant award classifications were limited by the term "primarily engaged in". The Farming and Fruit Growing Award classifications are not qualified in such a manner. However, I think that it is implicit that the tasks outlined in an award classification, if that classification is to apply, must be the tasks that the employee is primarily engaged in. Level 1 Clause 7 - Definitions - establishes that Farm and/or Orchard Hand Level 1 applies to people with less than six months in the industry. The evidence was that the applicants had considerably more than six months experience in the industry. I find therefore that this classification does not apply. Level 2 Farm and/or Orchard Hand Level 2 applies to employees capable of performing tasks under limited supervision. The evidence in this case was that the applicants performed their role completely without supervision for at least 50% of the time, and were generally unsupervised the remainder of the time, apart from reporting to Mr Dunnicliff. In my view, this classification suggests an employee who is supervised to a greater extent than the applicants were, therefore I find that Level 2 does not apply. Level 3 Farm and/or Orchard Hand Level 3, relevantly includes the following tasks, able to be performed efficiently without supervision:
Level 4 Farm and/or Orchard Hand Level 4 does not apply unless an employee has completed an apprenticeship in a relevant trade, or unless classified as Level 4 by the employer. Mrs Wyatt's evidence was that she had completed only 14 months of an apprenticeship. There was no evidence to show that Mr Wyatt had completed an apprenticeship. I infer from the absence of any evidence to show that he had done so, that Mr Wyatt had not completed a relevant apprenticeship. Had he done so it is likely that Ms West would have presented evidence to that effect. The evidence was that the employer had not classified the applicants as Level 4 Farm Hands. For these reasons I find that Level 4 does not apply to the applicants. Conclusion There is no doubt that the applicants performed the relevant tasks specified at Farm and/or Orchard Hand Level 3. However, in addition they performed a significant number of additional tasks which were of a higher level than those described within the award. This is perhaps best described in the words of Mrs Wyatt:
There is nothing in the award classification Level 3 Farm and/or Orchard Hand which indicates that the tasks to be performed include the very significant task of "running the farm properly". I am satisfied that the work performed and the responsibilities of the applicants went far beyond that described for that classification level. In my view, the applicants were not primarily engaged in the duties as outlined for Farm and/or Orchard Hand Level 3 - they were engaged in a management function which for some of the time involved performing tasks associated with the award classification. Having considered all of the classifications within the award and the work performed by the applicants, I find that the major and substantial role and duties of the applicants were those of farm management, and that the Farming and Fruit Growing Award does not have a classification level that encompasses the breadth and depth of that role and those duties. For all of the reasons I have cited, I find that the applicants were not subject to a classification contained within the Farming and Fruit Growing Award. Accordingly, the applications are dismissed.
P C Shelley Appearances: Date and place of hearing: 1 Transcript 28/8/00 p.7. |