T9506
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tammy Lynette Howard and Stencilled Duck Country Crafts and Furniture
Industrial dispute - alleged unfair termination of employment - alleged breach of award - application for reinstatement an/or compensation rejected - found underpayment of wages - parties directed to confer re appropriate settlement to remedy underpayment REASONS FOR DECISION On 20 April 2001, Tammy Lynette Howard (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Stencilled Duck Country Crafts and Furniture arising out of the alleged unfair termination of her employment and alleged breach of an award. On 28 May 2001 the President convened a hearing before myself at Ulverstone to commence at 10.30am on Tuesday 3 July 2001. When this matter came on for hearing Mr D Bearman, a solicitor, sought and was granted leave to appear for the applicant. The employer was not represented. Following telephone contact the employer indicated that they had not received advice of the hearing. The efforts of the Commission staff in attempting to notify the parties is recorded on the transcript and I am quite satisfied that every reasonable avenue had been pursued. Given the delays that had already attached to this matter [at the requests of the parties] and the difficulties associated with geographic location of the parties, counsel and the Commission, the following procedure was agreed. Mr Bearman would proceed with his case immediately. The hearing would then be adjourned and the transcript forwarded to the employer with the opportunity to provide a written response within 14 days. Mr Bearman would then be afforded a final right of reply. Ms Howard was employed on 2 September 2000. The nature of the employer's business, as described by Ms Howard, is the manufacture of country furniture, bookshelves and little "knick nacks". The product is sold through a combination of "party plan" and direct sales through a showroom attached to the factory. Ms Howard was paid as a casual employee at the rate of $10.27 for the first nine weeks of her employment. Following representations from Ms Howard and contact with Workplace Standards Tasmania, the rate was increased to $12.64 per hour. On or about 30 January 2001, Mr Jamie Sutcliffe [the employer] advised Ms Howard that due to a slow down in sales, there was insufficient work to maintain her employment. The evidence of Ms Howard on this point was as follows:1
Mr Sutcliffe, in his written submission, denied that there was a promise of further work. The fact that Ms Howard had asked that a "separation certificate" be completed [a form the employer was unfamiliar with], coupled with an inquiry from a prospective employer, led the employer to believe "that Tammy was actively looking for work". During the first week of April Ms Howard discovered that someone else had been employed in the business. Ms Howard approached Workplace Standards Tasmania in relation to appropriate rates of pay and subsequently she lodged a dispute notification with the Commission. Mr Bearman submitted that there were two issues for the Commission's determination, namely, Ms Howard's contention that she had been unfairly dismissed and, secondly, the alleged underpayment of wages. Alleged Unfair Termination It is common ground that Ms Howard was employed on a casual basis. Her contract of employment terminated in late January due to down turn in orders. There was no suggestion by either party that this was not reason for the termination. It is not clear from the evidence as to whether Ms Howard could reasonably have had an expectation of re-employment if and when orders picked up, although I do accept that some level of expectation on Ms Howard's was justified and her disappointment when this did not materialise is understandable. The scheme of Sections 29, 30 and 31 of the Act empowers the Commission to consider applications alleging that a termination is unfair and in appropriate circumstances may order reinstatement, re-employment or compensation. In the instant case Ms Howard was employed on a casual basis and her contract of employment was terminated on the grounds that there was insufficient work. Whilst Ms Howard would understandably be disappointed with this outcome, I am unable to conclude that there was any element of unfairness in respect of this termination. This, of course, brought the contract of employment to an end. As to the future, there may well have been an indication that work may be available in the future if things picked up. However on the available evidence this indication fell a long way short of unequivocal commitment of future employment. Having concluded that there was no element of unfairness in the January termination I very much doubt that the Commission would have jurisdiction to interfere with what amounts to a decision not to employ Ms Howard some two months later. In the circumstances I find it unnecessary to address the matter of the application being substantially out of time. The application for reinstatement and/or compensation is rejected and I so order. Alleged Underpayment of Wages The first question to be decided is that of Award coverage. In deciding a question of this nature it would normally be desirable for the Commission to physically inspect the employer's business premises. However in this case both parties have indicated that they are content to allow the Commission to determine the matter on the basis of the material provided. Mr Sutcliffe contends that the appropriate Award is the Furnishing Trades Award whereas Mr Bearman's submission is that the Retail Trades Award should apply. The employer's business is that of the manufacture, in a workshop, of country furniture, bookshelves and "little knick nacks". The primary means of selling the product is through the party plan concept. As a consequence of business expansion a street front showroom was added adjoining the workshop. Customers are able to make orders from the showroom stock or album. Ms Howard described her main duties in the following terms:2
Ms Howard said she was not a tradesperson, apprentice or administrative/clerical employee. Mr Sutcliffe said, in his written submission, that Ms Howard was "employed in the dispatch area of the workshop which represented the final stage of manufacturing of our product, this included the assembly of some of our small items, wrapping and packing of our products ready for dispatch. If my wife, Sharon, or myself were not available to assist in our showroom then one of the staff were expected to assist prospective clients when able". It is common ground that Ms Howard performed this latter task from time to time. The Scope of the Furnishing Trades Award is defined in Clause 2 as follows:
The Scope clause in the Retail Trades Award reads as follows:
Very largely, Awards of this Commission are based on the industry of the employer rather than the occupation of the employee. The question to be answered is, which Award more comfortably embraces the industry of Stencilled Duck Country Crafts and Furniture? It is beyond argument that the manufacturing part of the business is subject to the Furnishing Trades Award. It is also significant that the Retail Trades Award scope uses the expression "... selling goods by retail in shops" [my emphasis]. Selling product through the party plan concept does not in my view fall within the ambit of this expression. On the available evidence Ms Howard was employed within the physical precinct of the manufacturing operation and would assist customers in the adjacent showroom when available on a needs basis. This is quite different from a stand alone retail outlet whereby the staff are dedicated, or predominantly dedicated, to retail operations. I have formed the view that the totality of Mr and Mrs Sutcliffe's business sits far more comfortably within the scope of the Furnishing Trades Award than it does within the Retail Trades Award. It follows that, subject to an analysis of the classification structure, Ms Howard is covered by the Furnishing Trades Award. It is well established that the proper approach in determining classification issues is to look to the primary purpose of the engagement. The performance of duties of a relatively minor and ancillary nature outside this core function will not necessarily render a classification inappropriate notwithstanding the fact that a different classification, or even a different Award, might apply if such ancillary tasks formed the primary purpose of an employee's engagement. The classification structure is defined in Clause 7 of the Award. The definition of Production Employee Level 2 contains the following descriptors in the Duties section which are relevant to the work of Ms Howard.
In my view this classification best describes the primary purpose of Ms Howard's engagement. The relevant wage rate at the time was $417.10 per week or $13.17 per hour for casual employees. There is however the classification of Production Employee Level 1. This is designed to be the entry level classification for up to the first three months of employment. The relevant hourly rate for a casual employee is $12.64 per hour. I am satisfied that duties such as telephone answering and attending to customers in the showroom can be considered as ancillary to the primary purpose and therefore are able to be contemplated within the above classifications. I am not however satisfied that extensive delivery trips which involve driving the van to, say, Queenstown can be considered in the same light. Driving a vehicle is not something that is normally associated as being part and parcel of a production employee. The relevant hourly rate for a casual driver is $13.88 per hour. My finding as to the appropriate classification/s for Ms Howard is as follows:
Based on the evidence before me there has clearly been some level of underpayment of wages. The parties are directed to confer as to an appropriate settlement to remedy this underpayment. In the event that an agreed settlement is not reached the applicant is at liberty to refer the matter back to the Commission. The applicant shall advise the Commission as to progress on this application not later than 1 October 2001.
Tim Abey Appearances: Date and Place of Hearing: |