T11077
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union and Classic Video Pty Ltd trading as Video City
Industrial dispute - alleged incorrect classification under the award - order issued REASONS FOR DECISION [1] On 25 September 2003, the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch ("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 Classic Video Pty Ltd t/a Video City ("Classic Video"), arising out of the alleged failure by the employer to correctly classify Tanya Thorpe under the Miscellaneous Workers Award. [2] A hearing commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart on Thursday 27 November 2003 at 10.30 am. Mr P Tullgren appeared on behalf of the applicant union and Mr T Ewing appeared for the respondent employer. Final submissions were received on 18 December 2003. BACKGROUND [3] Ms Tanya Thorpe was employed by Classic Video as a Library Attendant under the terms of the Miscellaneous Workers Award ("the award") from May 1998 until May 2003. For the first four weeks of employment she was classified as a Library Attendant Level 1, thereafter she was classified as Library Attendant Level 2. [4] Clause 7 - Definitions - of the award sets out a classification structure and the criteria for progression through the classification levels. At each level the entry requirements are set out, as are lists of the indicative tasks, duties and responsibilities. [5] The union contends that Ms Thorpe, apart from the first four weeks of her employment, performed the duties of a Library Attendant Level 3, and is claiming the difference between the wage rate for Level 2 and Level 3 Library Attendant for the relevant period. [6] The award requirements relevant to this dispute for classification at Level 2 and 3 are:
EVIDENCE [7] Ms Tanya Thorpe gave verbal evidence. [8] At the hearing, no evidence was presented by the respondent, Classic Video. [9] At the commencement of the hearing Mr Ewing, for the respondent, said:
[10] The following exchange took place:
[11] Following Mr Ewing's exit from the hearing room I indicated to Mr Tullgren, for the union, that:
[12] Mr Tullgren said that by doing so the Commission may potentially:
[13] A letter was subsequently sent to Mr Ewing in the following terms:
[14] In the event, Mr Ewing did provide material to the Commission, with the following covering comments, dated 13 December 2003:
Witness Evidence [15] Ms Thorpe gave detailed evidence in relation to the work she performed. She said that she worked at a number of different sites, and was regularly moved between libraries. Each library did not have a supervisor on site and the library attendants were responsible for the day-to-day operations of the libraries, working without supervision. Her evidence was that she and the other library attendants learned on the job, and that existing staff trained new starters. At the end of four weeks, new employees were required to satisfactorily complete a "test". [16] She said that there was a manual which set out tasks and responsibilities, which differed according to which shift an employee was on. There were three shifts, which were rotated on a fortnightly basis. On the early or late shifts there was only one employee rostered on for a part of the time, unless they were training someone new.
[17] There were two assistant managers, based at the Moonah library, who would visit the other outlets weekly distributing stock, and spend 15 minutes to half an hour doing so. Their role included the provision of advice if there were difficulties, and they were able to be contacted by telephone. [18] Ms Thorpe prepared a document which, she said, set out the requirements for classification as a Level 3 Library Attendant.6
[19] Detailed verbal evidence was given in relation to each of the requirements. Ms Thorpe's evidence was that the work she performed was the same as that performed by all other library attendants.
[20] In relation to the requirement for the completion of a training module for progression to Level 3, Ms Thorpe said that there was no formal training provided.
SUBMISSIONS For the applicant [21] Mr Tullgren, for the applicant, submitted that the test for classification at Level 3 is whether Ms Thorpe has performed work at the level described in the award. The document tendered in evidence showed that Ms Thorpe performed all of the duties at Level 3. The evidence shows that she worked unsupervised, apart from the occasional visit of an assistant manager, which is not supervision. A comparison of the tasks she performed against the award shows that she did perform all of the tasks and duties and responsibilities. [22] Mr Tullgren said that the evidence of Ms Thorpe was that she was never offered or required to undertake a training module. Her evidence was that she never knew one existed. If it had been offered to her she would have undertaken it. [23] In the union's submission, the Commission should reject any argument that would result in giving the employer the power to withhold, ration or manipulate the provision of the module so as to deny employees access to Level 3. There is a positive onus on the employer to develop and provide the module as part of his requirement to comply with the award. [24] It was submitted that the Commission should read the provision to mean that if any employer fails to provide training in the module but the employee performs all, or a substantial number of the tasks, then the employee meets the requirements of the Level 3 definition. To do otherwise would be to construe the definition in a manner which is contrary to the intent of the award. [25] Mr Tullgren said that the evidence was that all employees were classified as Level 2, save for two assistant managers, but that people were doing the work of a Level 3 library attendant. [26] The employer has called no evidence, he said, to rebut any of the matters that the union has put. The rule established in Jones v Dunkel10 is that inferences are to be drawn as a result of a party failing to call evidence. Mr Tullgren said that the fact that the employer had not sought to call evidence would justify the Commission in confidently drawing the inference that the applicant's evidence is to be believed. [27] The union submitted that the award is to be interpreted in the same manner as the rules applying to statutory interpretation. Authority for this is found in Australian Coach Employees Federation v Waring Brothers11 and Norwest Beef Industrial and Anor v the AMIEU.12 Further, an award is to be given a beneficial construction in order to preserve the operation of awards rather than against their operation. Authority for this is found at San Remo Southland Pty Ltd v Farrell.13 [28] Mr Tullgren submitted that, if the award is a document that is beneficial and if an employer deliberately chooses not to offer a particular part of the [award] requirement, that would defeat the beneficial operation of the award. [29] In seeking to discern the intention of the award, it should be read as it stands on the assumption that it contains no difficulties and that it represents what the writer wanted it to represent. The intention is clear that a person performing the indicative tasks, duties and responsibilities at Level 3 will be classified at Level 3. [30] According to the applicant, a fair reading of the award does not discern any ambiguity. Where general words are used they must be given their ordinary meaning unless the contrary is shown, and authority for that is found in a decision of the High Court in Cody v J H Nelson Pty Ltd.14 [31] Mr Tullgren said that the Commission should adopt a business-like approach when looking at the award, and cited as authority the Judicial Committee of the Privy Council in the matter of Associated Minerals Consolidated Limited and Anor v Wyong Shire Council.15 He said that the Commission should not adopt a construction that artificially narrows/and or applies limitations or restrictions which would prevent employees being correctly classified, and by doing so militate against the beneficial operation of the award. [32] The union contended that the evidence, taken as a whole, showed that Ms Thorpe performed a diverse range of duties, all of which are as set out for a Level 3 Library Attendant. She should therefore be classified as Level 3. For the Respondent [33] A significant amount of the material provided by the respondent in response to the invitation to provide written submissions was not, in fact, in the form of a submission. The bulk of the material took the form of exhibits and statements rebutting evidence given at the hearing. [34] Following is a summary of those parts of the written material provided by the respondent, subsequent to the hearing, which take the form of submissions. [35] The respondent submitted that the evidence reveals that Ms Thorpe received training during the first four weeks of employment and that it was noteworthy that Ms Thorpe never requested further training for promotion. [36] Ms Thorpe claimed that there was no formal training and she was never made aware that there was a training module and that, if asked, she would have completed a training module. There is no evidence that she ever requested to be considered for promotion to Level 3. To suggest that she would have considered sitting the required tests is not sufficient to satisfy the required conduct of an employee wanting to be promoted to Level 3. [37] The employee's evidence constantly referred to no written documents being available for carrying out procedures, tasks, duties or responsibilities, yet she admits that there is in existence a manual and has successfully passed a test directly related to knowledge [derived from] the manual. [38] The claim is that the employee carried out the tasks, duties and responsibilities of a Level 3 Library Attendant when in fact most of her duties were Level 2, therefore she does not have access to Level 3 pay. The tasks statement submitted clearly demonstrates that she did not carry out duties higher than Level 2. [39] The answers given by Ms Thorpe to many questions cast doubt upon her integrity and reliability as a witness. The Commission cannot make the order sought by the union, based on the evidence submitted, according to the respondent. [40] Mr Ewing did not address any of the authorities relied upon by the applicant. Applicant's Response [41] By letter, dated 18 December, the applicant responded to the materials provided by the respondent, in the following terms:
FINDINGS [42] I do not propose to address the statements made by the respondent in which he said that he would not get a fair hearing. No reasons were advanced in support of the statement. There is nothing for me to address. [43] The written comments and materials provided by the respondent subsequent to the hearing were mainly statements refuting evidence already presented, or evidence that the respondent elected not to present at the time of the hearing. I am not prepared to take into account anything from the respondent other than submissions, for the reason that the appropriate time for the presentation and testing of evidence was at the hearing, and the respondent declined that opportunity. [44] No arguments were put by Mr Ewing in his submissions in relation to the authorities relied upon by the applicant. I have accepted the authorities as being appropriate and have considered them and taken them into account when reaching my decision. I reject the submission of Mr Tullgren that the application of the rule in Jones and Dunkel should lead me to draw the inference that Ms Thorpe's evidence should be believed as a result of the failure of the respondent to present any evidence. In more usual circumstances, such an inference might justifiably be drawn. In Jones v Dunkel it was said by Kitto J:
[45] In this case there was an explanation for the absence of any witnesses on the part of the respondent, however unusual such an explanation might be. It was that, for reasons unexplained, the respondent expressed a belief that he would not get a fair hearing, and declined to participate in the proceedings beyond making an appearance. [46] Whilst I do not draw the inference that any evidence given by the respondent would not have assisted their case, I make the point, as was made to the respondent at the outset of the hearing, that the fact of failing to present any evidence at all has not assisted their case. The absence of contradictory evidence means that the evidence can be more readily accepted. [47] However, the failure of the respondent to call evidence does not mean that the applicant does not have to prove their case. [48] In relation to the credibility of the witness, Ms Thorpe, there was nothing in her demeanour or the manner in which she presented her evidence to lead me to believe that she was not a credible witness. [49] The respondent submitted that there are inconsistencies in her evidence, in that she "constantly refers to" no written documents in relation to procedures, tasks, duties and responsibilities, yet she acknowledged the existence of a manual. [50] An examination of the evidence shows that Ms Thorpe did indeed acknowledge the existence of the manual. She said that her work and daily routine were:
[51] Her evidence was that any training was on the job, based on reading the manual. She said that the manual was "briefly" gone through with Mr Ewing before she started the job, possibly "only one quarter of it"17 and that during this session Mr Ewing did not go through and explain her responsibilities in working in the libraries. [52] Ms Thorpe's evidence was that she was never shown any company documents which set out what training she was to give to new employees; nor, she said, was she given any documents describing the levels of keyboard skills required; or in relation to dealing with customer enquiries; or about general maintenance and repairs; or concerning company expectations regarding security procedures when opening and closing libraries; and many more such examples, all of which formed part of her duties. [53] The manual was not tendered in evidence; it is not possible, therefore, to know what the contents of the manual were, apart from as described by Ms Thorpe. In the absence of any evidence to the contrary, I accept that there were no written materials provided in respect of much of the work she was required to perform, and I am unable to conclude that the evidence given by Ms Thorpe was unreliable. [54] The respondent submitted that most of Ms Thorpe's duties were those of a Level 2 Library Attendant and that therefore she should not receive Level 3 wages. Ms Thorpe gave clear and detailed evidence in relation to her duties and specifically addressed the indicative tasks/duties and responsibilities of the Level 3 classification. I can detect no inconsistencies or any other reason to doubt the veracity of her evidence. In the absence of any evidence to the contrary, I accept that her duties, tasks and responsibilities were as described by her and as set out in Exhibit A1, which refers to the tasks/duties/responsibilities for the classification of Level 3 Library Attendant. I find therefore that Ms Thorpe performed the duties of a Library Attendant Level 3, as described in the award: [55] The classification description for Library Attendant Level 2 includes the following:
[56] The classification description for Library Attendant Level 3 includes the following:
[57] The respondent submitted that the suggestion that Ms Thorpe would have considered "sitting the required tests" is not sufficient to satisfy the "required conduct" of an employee wanting to be promoted to Level 3. I am not sure what is meant by "required conduct". I consider it to be self-evident that if an employee is performing the duties required of a particular classification level, then that is the level that they are required to work at. I have no difficulty in concluding that Ms Thorpe meets the criterion of "being required to perform within the criteria of the next level". [58] "Assessment or appropriate certification" are not defined in the award, nor is there a definition of "required training module". [59] It would defy common sense to assume that there was no assessment of Ms Thorpe's performance. If she were not performing at the required level, then it is likely that she would have been counselled or disciplined, if not dismissed. Ms Thorpe's evidence was that she had never, at any stage, been told that she was not performing to required standards. I have already found that the duties performed were those for a Level 3 Library Attendant. [60] The only training actually described in the award, rather than just referred to, is that described at Level 1. [61] The "Promotional Criteria" at Level 1 says:
[62] The award goes on to say that satisfactory completion of four weeks training and employment is required before progression to Level 2. [63] Ms Thorpe's evidence refers to this training:
[64] Her evidence was that she was not aware of any other training module in existence, or of anyone else ever completing any other training module. [65] In the absence of any evidence of any other training program in existence in the workplace or of any clear definitions of what the training module is, it is possible that the "required training module" referred to at Level 3 is the structured training provided within the first four weeks of employment. That training is required before an employee can progress beyond Level 1 and it is the only structured training that is referred to within the award. If that is the case, then Ms Thorpe had completed the required training module. Even if it were not so, the failure to do so would not in itself, necessarily preclude Ms Thorpe from being classified at Level 3, for the reasons given below. [66] The evidence was that Ms Thorpe was never offered access to a training module, other than the training offered at entry level. There is no evidence that any other training module existed. There is merit in the applicant's submission that employees should not be denied access to Level 3 through the withholding, rationing or manipulation of the provision of training modules and that there is a positive onus on the employer to provide the necessary training, so as not to frustrate the operation of the award. [67] The award contemplates that an employee progresses when able to effectively perform tasks required at specified levels. I agree with the applicant's submissions that if an employee performs all, or a substantial number of the tasks at a particular level, then that employee meets the requirements for that level. An employee should be paid for the work that they perform. Ms Thorpe performed the duties as set out for the Level 3 classification and she should have been paid as such. I accept that an award should be given a beneficial interpretation in order to preserve the operation of the award (San Remo v Southland). I further accept that the award should not be construed so as to artificially narrow its application or apply limitations or restrictions that would prevent employees from being correctly classified (Associated Minerals Consolidated Limited and Anor v Wyong Shire Council). I find that, apart from the first four weeks of employment, Ms Tanya Thorpe was incorrectly classified as Level 2 Library Attendant. The correct classification was Level 3 Library Attendant. [68] In the circumstances of this case, the relevance of the classification of Level 2 Library Attendant is called into question. It appears that, as far as the respondent and Ms Thorpe are concerned, it has no relevance. From the evidence, the way in which the employment arrangements were structured was that after the initial four weeks' training, Ms Thorpe was responsible for the day-to-day operations of video rental outlets, with only minimal supervision. Two assistant managers could be called upon if difficulties arose, but they were not on site with Ms Thorpe. For a large part of the working day she was on her own, depending upon which shift was being worked. The shifts rotated between all the library attendants, who worked at a variety of stores. Ms Thorpe, once she had completed the initial four weeks' training, was required to train other new staff through a "buddy system". The work that she then performed was that of a Level 3 Library Attendant. She continued to work at this level for five years. [69] I note that this finding applies only to the circumstances of this employer and this employee. The award has industry-wide application. In other circumstances it may be that an employee would appropriately be classified at Level 2 Library Attendant after completing the requisite length of service and training as specified for Level 1 Library Attendant. [70] Having found that Ms Thorpe performed the duties required of a Level 3 Library Attendant it follows that she should be paid as such. Ms Thorpe should be paid the difference in wages between Level 2 and Level 3 for the relevant period. In the absence of any contrary evidence or argument, I accept the calculations provided by the union. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that, in full and final settlement of the matter referred to in T11077 of 2003, Classic Video Pty Ltd trading as Video City, Level One, 40 Melville Street, Hobart, 7000 pay to Ms Tanya Thorpe of 8 Oak Street, Primrose Sands, Tasmania, 7173 the sum of Five Thousand One Hundred and Eighty Three Dollars and Sixty Three Cents by close of business on Friday 20 February 2004.
P C Shelley Appearances: Date and place of hearing: 1 Transcript PN6 |