T9759
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Minister for Infrastructure, Energy and Resources and Helen Mary Kotcharian
Industrial dispute - Hairdressers Award - Tasmanian Training Agreement - tea and tidy person - full-time first year apprentice - order REASONS FOR DECISION [1] This was an application for a dispute hearing made under Section 29(1C) of the Industrial Relations Act 1984 (the Act) by the Minister for Infrastructure, Energy and Resources (the Minister). [2] The Minister's application related to a dispute between Sarah Schupp of Lenah Valley (the employee) and Helen Mary Kotcharian, said to be trading as Casino Hairdressing of Sandy Bay (the employer). The dispute concerned alleged breaches of the Hairdressers Award (the award). [3] The Minister sought payment of $1,426.27, being arrears of wages due to the employee who was employed allegedly as a full-time first year apprentice under the award. The period of employment in question was from 24 April 2000 to 22 September 2000. [4] The employee came forward as a witness and said that she and the employer had signed a Tasmanian Training Agreement1 on 24 May 2000, whereby she was to be an apprentice hairdresser with the employer, operative from 23 April 2000. [5] On 20 July 2000, in a letter2 to the employer, the employee's mother, on behalf of the employee, requested that she be paid the relevant award rate of pay plus double time for Saturday work. [6] The employee also explained how she had kept a personal record on a calendar at home of the days and times she had worked and the amounts of pay she had received. The calendar3 recorded work from 5 June 2000 to 25 September 2000. [7] The employee confirmed that she had been ready and willing to work full-time hours, but, at times she was told the salon was not busy and she went home. She also said that there had been no agreement for her to have time off during the week to offset work done on a Saturday. [8] Mr Robert Millhouse of the Department of Infrastructure, Energy and Resources (Workplace Standards) also gave evidence of his investigations and report on the circumstances of this dispute. [9] Mr Millhouse said he conducted a business name search and found that two names associated with the employer's business, "Frey of Switzerland" and "Casino Hairdressing" were not registered as business names. He also said that prior to the week ending 16 August 2000, the employer had not kept proper time and wages records as required under Section 75 of the Act. [10] Mr Millhouse said he had been informed by an official of the Tasmanian Training Authority that the employee's apprenticeship had commenced on 23 April 2000. [11] In submissions, the Minister confirmed with evidence that the training course undertaken by the employee, Certificate III in Hairdressing, under the Vocational Education and Training Act 1994, was a full-time employment matter. [12] The Minister also pointed out that, under the award, a full-time employee must be paid for 38 hours work, Monday to Friday, and any work done on a Saturday should be paid at double time. [13] In support of his submission, the Minister also reminded the Commission of certain provisions of Section 49 of the Act:
[14] The employer submitted that the evidence in this matter was far from clear in that there were a number of confusing dates in the documentation put forward. Also, as the employer's records were "business" records, they should prevail over those produced by the employee. [15] The employer said the employee had been a full-time apprentice only from 1 July to 22 September 2000. Prior to 1 July 2000, the employee was said to be working in accordance with the trial period specified in Clause 8 of the award. The employer said the employee had been employed as a "tea and tidy" person for the period prior to 1 July 2000. [16] As to the Saturday work performed by the employee, the employer submitted it was covered by Clause 16(h) of the award, Make Up Time. The employer said the employee had been given time off in lieu in accordance with Clause 16(h). [17] The employer submitted that the employee was not convincing as a witness. Findings [18] On the evidence before me, I am satisfied that a binding agreement for training existed between the employer and the employee. There was some confusion as to dates and the name of the employer, but, it is clear that Helen Mary Kotcharian was the employer (other so-called business names being irrelevant and of no legal standing), and the agreement was operative from 23 April 2000, which happened to be Easter Sunday that year. Even though the Monday following was Easter Monday, the employee gave evidence that she had worked that day and hence the Minister was correct in commencing pay calculations from that date - 24 April 2000. [19] Again, even though the training agreement was mutually signed on 24 May 2000, it is clear that it was to take effect from 23 April 2000. The fact that it was not approved formally until August 2000 does not change the date of effect. [20] The employer disputed some of the work days and times claimed by the employee. I am satisfied, on the evidence, that the employee did work as she claimed. For example, I accept that on the day she was alleged to have worked for the nearby florist she did so after working in the salon and after she was given permission to leave and work for the florist, there being no further work for her in the salon that day. I also accept that similar circumstances applied when the employee went to Bruny Island one Saturday (15 July 2000) after working at the salon. [20] In the absence of proper time and wages records kept by the employer, I accept the evidence of the employee (based on her private calendar) as to the days and times she worked in the period from 3 May 2000 to 22 September 2000. In any case, because of the nature of the employee's employment, a full-time apprentice hairdresser under the award, I accept the Minister's submission that the employee must be credited with 38 hours' work, Monday to Friday, and that any Saturday work must be considered as overtime and paid at double time. In this context I am satisfied on the evidence that the employee did not agree to time off in lieu in accordance with Clause 28(2)(f) of the award as claimed by the employer. [21] As for the period between 24 April 2000 and 3 May 2000, I accept the evidence of the employee as to the hours and days worked in that period, but in the same way as before, because of the nature of the employee's employment (full-time apprentice), she will be taken as having worked 38 hours each Monday to Friday in any case for that period. Order In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order Helen Mary Kotcharian care of Wrest Point Hotel Casino, 410 Sandy Bay Road, Sandy Bay, Tasmania 7005, to pay to Sarah Schupp of 192 Lenah Valley Road, Lenah Valley, Tasmania 7008, within 21 days of the date hereof, the sum of one thousand, four hundred and twenty-six dollars and twenty-seven cents ($1,426.27), being arrears of wages due.
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