T10785
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Bernadette Rogers and Branch and Associates
Industrial dispute - alleged breach of the Retail Trades Award - manager - no award application - application dismissed REASONS FOR DECISION [1] On 28 March 2003, Bernadette Rogers (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 Branch and Associates, arising out of the alleged breach of the Retail Trades Award. [2] This matter was listed for conciliation conferences which were subsequently adjourned. A conciliation conference was held on 15 March 2004 and 26 April 2004, and finally listed for hearing on 7 and 8 June 2004. Mr M Daly, solicitor, represented the applicant. Mr J Avery, solicitor, represented the respondent. [3] Miss Rogers commenced employment with the respondent in August 1994 and continued until February 1998. The applicant asserts that she was employed under the terms of the Retail Trades Award. The applicant further asserts that the respondent breached the award in a number of material respects. The particulars of the claim relate to wage rates; overtime; Saturday and Sunday work; annual leave; public holidays and superannuation. In financial terms the totality of the alleged breaches over the period of employment amounted to $158497. [4] Before dealing with the merits of the separate items within the claim, it is necessary to determine whether or not the award has application to the work performed by Miss Rogers. [5] Mr Branch purchased the "Original Bothwell Store and Newsagency" [the store] some time in 1992/3. He described the purchase as "opportunistic" rather than planned. The store became the retail division within his group of operating businesses. [6] Initially the store was managed on Mr Branch's behalf by a series of [two, maybe three] husband and wife teams. Mr Branch was absent overseas for much of the time and visited the store once or twice a year. [7] Miss Rogers responded to a newspaper advertisement, which in her words sought someone for the "day to day running" of the store. [8] Whilst neither party could produce a signed copy of the original agreement, it was common ground that an unsigned draft tendered in evidence, was in all material respects, the same as the signed document. The draft contract read as follows:1 "Contract This contract is between Branch and Associates of 1153 Tasman Highway Cambridge, Tasmania and Bernadette Rogers of Alexander Street Bothwell, Tasmania. Bernadette Rogers will be referred to as the management team for the purpose of this contract. Contract Term: The following conditions are applicable. Remuneration Package: The balance of the remuneration package will comprise the following. 1. Rent: Management Team Responsibilities: Counter sales [9] There was considerable confusion as to whether Miss Rogers' sister and brother-in-law were party to the original contract. I have concluded that this question is not material. All documentation and evidence identified Miss Rogers as the "management team". [10] It is also common ground that a vehicle was not provided by the company. However a vehicle allowance was paid. [11] Miss Rogers agreed that her duties were broadly in line with those outlined in the contract. [12] Much of the evidence went to the degree of autonomy enjoyed by Miss Rogers. It is convenient to deal with this question under a number of headings. Reporting [13] Mr Branch said that his businesses were formed into a number of operating divisions of which the retail division (the Bothwell store) was one. Apart from brief visits to the store once or twice a year, Mr Branch said he "wasn't involved in the running or management of it at all, not even as a chief executive of the company". [14] Mr Branch said Miss Rogers had "total autonomy" in running the business. [15] Notwithstanding this "total autonomy", it was also clear that Miss Rogers was in regular consultation with, and arguably subject to direction from, other divisional managers within the group. The most prominent of these was a Mr Alex Vail, and towards the end, an external accountant, Mr Gerald Coombes. Miss Rogers said she would hear from head office on a "weekly basis". [16] Miss Rogers agreed that she held herself out to the community as the manager of the store. She also agreed that "broadly speaking, (she had been) given carte blanche to run this little shop as best she could". Opening Hours [17] Mr Branch said that as part of the autonomy of the position, it was up to the manager to decide the trading hours and days. [18] Miss Rogers said the shop traded seven days a week apart from Christmas Day and Good Friday. She said she had no choice as to how many days a week the store would trade. Miss Rogers said the trading hours on each day would be set in consultation with head office. Indeed the closing time was altered from 8.00pm to 5.30pm following consultation with Mr Vail. Employment of Staff [19] Miss Rogers agreed that she had the discretion to hire and fire staff, but as a matter of course, always did so in consultation with head office. The following exchange is illustrative:2 "So it was solely at your discretion as to how you ran this business, wasn't it?---Yes and no. Well, what do you mean by no, where does the no come in?---There's a lot of work that wasn't written always down on paper, it was what was discussed when people came to visit. Yes, but basically you were it, you were up there on your own at Bothwell, you could employ whoever you wanted to, and you did, I suggest?---Yes. You paid them from Bothwell?---Yes. You paid yourself from Bothwell?---Yes. So really you were running it like your own business, weren't you?---But it wasn't my own business. I know it wasn't. I am suggesting you ran it as if it was, didn't you?---Yes." [20] It would seem that the employment of extra staff was not extensive and in large measure, was for the purpose of providing relief when Miss Rogers was away from the business. The weekly expenditure on extra staff was in the order of $100. Stock Control [21] Miss Rogers agreed that she had a wide discretion as to product selection and would order stock within budget limits. She also stocked and sold produce which she had cooked herself, such as cakes and condiments. [22] In the early part of the employment contract input from head office could be characterised as limited guidance. Later this control became far more direct and decisive. [23] The following extract from a fax from Gerald Coombes to Mr Branch dated 25 June 1996 is illustrative:3 "So far as the shop is concerned, I have placed strict controls on Bernie's spending and banned spending on cards & gift lines - this seems to have worked & I am monitoring this on a weekly basis as best I can. Will let you know June results as soon as available." Remuneration [24] The components of the remuneration package were as follows:
[25] The bonus scheme was based on a formula of 30% of gross profit over and above a weekly take of $5000. [26] Miss Rogers agreed that the bonus system was results driven. Her evidence was:4 "And in fact it was your intention and the intention of Branch and Associates, I suggest, that you were to run the store and your remuneration, what you would get out of it was pretty dependent on how well you managed it?---Yes. Right, because there was a bonus structure, wasn't there?---Yes. The better you sold and you turned this old shop around the more you would get out of it, that is a fair way of putting it, isn't it?---Yes." Financial Control [27] Miss Rogers said she played no role in budget formulation for the store and no contrary evidence was adduced. [28] According to Mr Branch, Miss Rogers was responsible for operating within overdraft limits. This was accepted by Miss Rogers. [29] The following extracts from correspondence from head office dated 14 November 1994 and 6 February 1995 are to point:5 "I am extremely happy with the way you are managing this business and the feedback from the locals has been very encouraging. There are however a couple of 'housekeeping' tasks that we need to work on. The stock purchase and payment system needs to be looked at, especially with the view to the overdraft. It is imperative that you keep the overdraft below the 10K level, even if this means holding back payment to creditors. I realise that it is difficult due to the nature of this business and it does fluctuate especially near the end of the month but the regular issue of overdraft fees by the bank reflects on the whole of our operation and not just the shop." "To date the only concern we have is the fact you haven't been able to control the overdraft which seems to be an ongoing difficulty. Unfortunately, this is a major consideration because it reflects badly on other B&A operations as well as on the Newsagency. The Bank Manager has threatened to bounce cheques which could make trading with reps difficult if not impossible. Before your last banking the overdraft was above $17,000. This is unacceptable. We have had discussions in the past re the overdraft and you assured us that the limit would not be exceeded again. This has not been the case. Over draft fees to date are in excess of $300.00. Any further fees will be deducted from the bonus." [30] Miss Rogers said she would attempt to resolve disputes with suppliers, but on occasions these would be "passed through to town". The Relevant Award Classification [31] Mr Daly contended that the work performed by Miss Rogers fits within the definition of a Retail Employee Grade 3. This definition, which was not subject to change during the relevant period, reads: "RETAIL EMPLOYEE GRADE 3 Relativity 96% General Description: Employees at this level are required to operate at a higher level than that expected of a Retail Employee Grade 2. In the main, employees will have designated supervisory, security or operational responsibilities and will be required to exercise discretion. Employees are responsible and accountable for their own work. Tasks: Indicative of the tasks which might be required at this level are the following: Supervisory assistance to a designated section manager or team leader Opening and closing of premises and associated security Security of cash Fitting of surgical corsets Advanced Floristry tasks General clerical functions including intermediate keyboard skills and word processing Employment Categories: The following employment categories would normally be found at this level. Designated second-in-charge of a section (i.e. senior sales assistant) Designated second-in-charge to a service supervisor Person employed alone, with responsibilities for the security and general running of a shop Storesperson with supervisory role Floristry tradesperson General clerical officer, typist Corsetiere" Finding [32] Whilst there can be no doubt that the Bothwell store fell within the Scope of the Retail Trades Award, the question to be determined is whether there exists a classification within the award that applies to the work performed by Miss Rogers. [33] Both parties relied on the decision of Shelley C [as she then was] in Wyatt v Grassy Pastoral Co.6 as the appropriate authority to provide guidance as to the correct approach in determining this question. This decision in turn referred to Holt v Musketts Timber Sales7; King Mill (Australia) (t/a Thrifty Car Rental) v Marshall8;and Kerr v Jaroma9. [34] In this decision Shelley C observed: "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. 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." [35] In the instant case there can be no doubt that Miss Rogers was appointed and presented to the wider community as the manager of the Bothwell store. Many of the duties performed by Miss Rogers were "hands on" in nature and fit comfortably within the definition of a Retail Employee. These include counter sales, stock display, and cleaning. Likewise duties such as security of cash and premises are clearly contemplated within the classification. [36] Purchasing of stock requiring the exercise of discretion and supervision of staff is also clearly identified, albeit at a Grade 4 level. [37] There are however other important aspects of Miss Rogers' role which are on a quite different plane. They include:
[38] Taken as a whole I have formed the view that Miss Rogers was very much in charge of her own destiny and, provided profitability targets were met, the store was essentially hers to run as she saw fit. Those aspects of her work that are clearly identified in the classification definition were in my view subsidiary to her primary role of managing the business. [39] Further, I am satisfied that her management role went significantly beyond that which could be reasonably contemplated in the indicative category of: "Person employed alone, with responsibilities for the security and general running of a shop". [40] I find that the work performed by Miss Rogers was not covered by the Retail Trades Award. [41] Accordingly, the application is dismissed.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A1 |