T10890
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Department of Infrastructure, Energy and Resources, and Powercrank Batteries Pty Ltd
Industrial dispute - underpayment of wages - whether Saturdays worked - whether Saturday work was authorised - order issued REASONS FOR DECISION [1] On 4 June 2003, the Minister for Infrastructure (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Powercrank Batteries Pty Ltd ("the employer") arising out of the alleged underpayment of wages to Alan John Burton in accordance with the Automotive Industries Award. [2] On 6 June 2003, the President convened a hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, before myself, to commence on Thursday 10 July 2003 at 10.30 am. Mr R Millhouse, together with Ms K Robertson, appeared for the Minister for Infrastructure, and Mr F Ireland appeared for Powercrank Batteries Pty Ltd. The hearing was adjourned into conference, in an unsuccessful attempt to settle the matter by conciliation. The matter was brought on for a further hearing at 3.00 pm. Wednesday 30 July 2003. BACKGROUND [3] This application concerns the alleged failure of the employer to pay to Mr Allan Burton his entitlements under the Automotive Industries Award. [4] Mr Burton was employed from August 2001 to November 2002 as Manager at the Hobart branch of Powercrank Batteries Pty Ltd, a Melbourne-based operation. [5] Mr Burton sought the assistance of the Helpline at Workplace Standards Tasmania regarding his entitlements in respect of sick leave and the payment of annual leave on the termination of his employment. [6] Following an investigation and the examination of records, it was found that there were underpayments of wages due for work performed Monday to Friday for hours worked in excess of 38 hours per week and for time worked on Saturday mornings, in addition to annual leave, which had not been taken during the eighteen months Mr Burton was employed by the employer. [7] It was agreed between the parties that the Automotives Industries Award applied and that the correct classification is Level 4. It was also agreed that the calculations within the claim for annual leave and hours in excess of 38 for Monday to Friday work were correct. [8] What was contested was the claim that Mr Burton worked for four hours every Saturday morning for the duration of his employment. [9] The award stipulates that if a business regularly operates on a Saturday morning, then double time applies. If it does not open regularly, then time and a half for the first two hours applies, and double time thereafter. [10] The total amount claimed is $8693.58, which includes a claim for all Saturdays, excepting for three, which the applicant concedes that he did not work. THE EVIDENCE [11] Mr Millhouse, for the applicant, tendered, as evidence, an email signed by Mr David Martin which said:
[12] Mr Martin was not present at the hearing so was unable to be cross-examined, but, Mr Millhouse said, he was available to take a telephone call from the Commission, if necessary. [13] Mr Ireland, for the respondent, challenged two aspects of the email. Firstly, was the statement that all Powercrank depots are open for business on a Saturday. Mr Ireland said that is not the case for the Albury/Wodonga depots. [14] Secondly, Mr Ireland challenged that part of Mr Martin's statement which said:
[15] Mr Ireland said that he had evidence to indicate that for a period of 12 weeks, from 1 July to September, only seven batteries were sold on Saturdays. Mr Ireland did not, however, tender that evidence. Witnesses [16] The following witnesses appeared for the applicant:
[17] There were no witnesses for the respondent. Mr Darren Pregnell [18] Mr Pregnell's evidence was that he was employed by Powercrank Batteries for twelve months in Victoria, and also in Tasmania for the period from February 2002 to the end of September 2002. His position had been as sales representative. For the entire period of his employment in Tasmania Mr Burton had also been employed. They both worked at premises at Derwent Park in Hobart. The main customer base in Hobart was retail, not wholesale. [19] He said that the business premises had been open from 8 am until 5 pm Monday to Friday and until 12 noon every Saturday. For a period of six weeks he had worked on Saturday mornings, alternating with Mr Burton. He had refused to work any more Saturdays, because he was not being paid for them. He worked three Saturdays, on the instructions of Mr Tas Samilidis, the owner of Powercrank Batteries. The premises were open on a Saturday because of the retail part of the business. [20] Following Mr Pregnell's refusal to continue working on Saturday mornings, Mr Burton had worked all the Saturdays. Mr Burton continued to work every Saturday until his employment ceased, he said. [21] When cross-examined, Mr Pregnell said that his employment was terminated at the initiative of the employer, and agreed that he had received a warning letter prior to his dismissal. He also agreed that he had sent a series of abusive text messages to Mr Samilidis, although he disputes the exact wording of the messages. He agreed that he sent one that said: "Make 10,000 cheque payable Mr Alan Burton. Ha ha ha"2. [22] But he disputed that he had said: "Get fucked you fat short bald wog cunt. Dave's still rooting Christine is he?"3 [23] Mr Pregnell said that he was replying to messages, which had begun as a result of a dispute over the payment of his superannuation entitlements, resulting in an argument. He said that he had also received abusive messages from Mr Samilidis regarding his mother and his nan, which were of such a nature that he could not repeat them. [24] The evidence of Mr Pregnell was that he knew Mr Burton was at work on a Saturday because he lived in the same street as him, and also because there were a number of times when he had called into the work premises to see Mr Burton. He said that had happened "a lot of times"4. The reason that he knew that Mr Pregnell was there every Saturday was because they were both in a punters' club and they would ring each other every Saturday, both on Mr Burton's mobile `phone and at Powercrank, but mostly at Powercrank. When he telephoned Mr Burton at Powercrank he was always there. Similarly, Mr Burton had always been at work when Mr Pregnell had called in. Ms Kellie Robertson [25] Ms Robertson testified that she was an authorised officer under the Act and had been asked to investigate a dispute referred to Workplace Standards Tasmania by Mr Burton. A copy of the complaint was tendered as evidence.5 [26] She had sent a notice to the employer to produce records of employment. In response a Ms Fay Samilidis had telephoned her to ask why the records were required. The records were received and were tendered as evidence.6 [27] Ms Robertson contacted Ms Samilidis again to obtain further information regarding the working hours of Mr Burton because the records did not show that information. [28] Ms Robertson said that Ms Samilidis had told her that Mr Burton's hours of work were from 8.30 am to 5.00 pm Monday to Friday and 8 am until 12 noon on Saturdays. [29] In answer to a question from the Commission, Ms Robertson said that she had kept notes of her conversations with Ms Samilidis, these were recorded as file notes, kept chronologically on her computer, and added to as more information was received. The Commission and the respondent were shown the file containing the notes. Mr Ireland, for the respondent, said that he was not challenging that evidence. Mr Alan Burton [30] Mr Burton's evidence was that he was employed as Manager by Powercrank Batteries from August 2001 until November 2002. He said that he worked from Monday to Friday from 8.30 am until 5.00 pm and from 8 am until 12 [noon] on Saturday. The business opened every Saturday for four hours, as was the case in Sydney and Melbourne. [31] Mr Burton said that he had been instructed to work on Saturdays by Mr Tas Samilidis, the Managing Director. He had worked on Saturdays for the entire period of his employment, apart from "three to four weeks"7 when Darren [Pregnell] worked. [32] Mr Samilidis was aware that he worked on Saturdays because for the first three weeks Mr Burton faxed his hours of work, which included Saturdays. Mr Samilidis used to ring every Saturday "without fail"8 at 11.50 am. Mr Burton thought that the reason Mr Samilidis did this was to check to see whether he was still at work. [33] Mr Burton said that Mr Samilidis had been the person who had employed him. His understanding, based on what Mr Samilidis had told him, was that he was to be paid overtime for working on Saturdays, but he had never been paid for doing so. SUBMISSIONS For the Applicant [34] Mr Millhouse, for the Minister for Infrastructure, submitted that Powercrank Batteries had not paid Mr Burton the correct rate of remuneration during his employment. Three witnesses, including Mr Burton had testified that he worked every Saturday, apart from three, during the period of his employment. That might have been three or four, based on the fact that for a period of six weeks the work on Saturdays alternated between Mr Burton and Mr Pregnell. The respondent would concede that there were possibly four Saturdays not worked. [35] The bookkeeper for the business had told the investigating officer that Mr Burton worked on Saturday mornings. Mr Pregnell, who had worked with Mr Burton for nine months gave evidence that Mr Burton worked every Saturday. Mr David Martin, the former National Sales and Marketing Manager has also given information in relation to that. [36] Mr Millhouse that it would not be unreasonable for the Commission to grant the order sought on the Minister's part, pursuant to s.31(1) of the Act, consistent with the wage arrears calculation that had been presented to the Commission, as amended.9 For the Respondent [37] Mr Ireland, for the employer, said that it was the employer's belief that Mr Burton was employed based on a contract and a salary package. The employer had not been aware that the Automotive Industries Award was the appropriate award. They were paying what they thought was a fair salary for the job. That did not, however, relieve the employer of the responsibility of complying with the appropriate award. [38] The employer no longer operates in Tasmania and that has made it difficult to clarify a number of facts. Mr Ireland said that the employer would not have required Mr Burton to work every Saturday morning on a commercial basis, because the business primarily involved wholesale sales and distribution of batteries and that work was predominantly done Mondays to Fridays. The business records show that very, very few batteries were sold [on a Saturday]. [39] Mr Ireland said that the employee was not directed by the employer to work on a Saturday and had no idea that that the business was operating on a Saturday morning. [40] The National Sales Manager, who had employed Mr Burton, has subsequently opened a business in competition with the employer, and the employer was now unable to obtain information as to what directions regarding Saturday work were given. [41] The employer was prepared to accept that some Saturdays had been worked, but in the absence of time sheets it is difficult to know [which Saturdays were worked]. [42] Mr Ireland submitted that Mr Pregnell was not a credible witness, because there was hostility between himself and the employer, as the result of circumstances surrounding the termination of Mr Pregnell's employment. [43] The question of whether Mr Burton did work on Saturdays, and was authorised to do so, comes down to the employer's word and those of Mr Burton and Mr Pregnell, he said. The reason that the employer was not present to give evidence was because there was bad blood in the battery industry, and Tasmania was not a comfortable environment for Mr Samilidis to be in. Mr Martin had set up in operation in front of where Powercrank operated. There are a number of issues being pursued in another jurisdiction and there is a fair degree of bad blood, Mr Ireland said. [44] Mr Ireland conceded that on the weight of the evidence put before the Commission, Mr Burton did work on Saturdays, but submitted that four Saturdays ought not to be included in the final calculation. FINDINGS [45] The applicant's contention that Mr Burton worked on Saturday mornings at the direction of the employer is supported by Mr Burton's evidence, Mr Pregnell's evidence, Ms Robertson's evidence and Mr Martin's statement. [46] Even if I were inclined to give little weight to the statement of Mr Martin, on the basis that he was not available for cross examination, his statement is, nonetheless, supported by the evidence given by the other witnesses. [47] Mr Ireland suggested that Mr Pregnell was not a credible witness because of the "bad blood" that existed between Mr Pregnell and Mr Samilidis, but Mr Pregnell's evidence was not seriously challenged during cross-examination. It does not automatically follow that because there was hostility between Mr Pregnell and Mr Samilidis his evidence is not reliable. Mr Pregnell's evidence that Saturday telephone calls regarding tips for the punters' club were made to Mr Burton at work was corroborated by Mr Martin's statement, in that Mr Martin made similar telephone calls to Mr Burton at work for the same reason. [48] There was no evidence put in support of the respondent's arguments. There were no witnesses, no statements provided and no documentary evidence, excepting for a written warning issued to Mr Pregnell, which went to credibility only. The assertion made from the bar table that very few batteries were sold on a Saturday was not supported by any evidence, even it had been, that would have shown that work was performed on Saturdays and that the employer would have or should have known that. [49] Even though Mr Samilidis preferred not to be in the "uncomfortable" environment of Tasmania, it was open to the respondent to present evidence by way of a statutory declaration. No such evidence was presented. [50] I accept that there is some doubt as to whether three or four Saturdays were not worked by Mr Burton, and I therefore find that Mr Burton, acting according to the directions of his employer, worked Saturday mornings for the entire period of his employment with Powercrank Batteries, excepting for on four occasions. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T10890 of 2003 that Powercrank Batteries Pty Ltd of 715 Sydney Road, Coburg, Victoria 3058 pay to Mr Alan John Burton of Unit 8, 6 Katoomba Crescent, Rosetta, Tas 7010 the sum of Eight Thousand Five Hundred and Ninety Three Dollars and Ninety Cents by close of business on Friday 12 September 2003.
P C Shelley Appearances: Date and place of hearing: 1 WSA4 |