T12640
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Kimberley Jane Batchelor and Flynns Pet Shop Pty Ltd
Industrial dispute - termination of employment - alleged breach of an award - scope - general application of award - primary purpose of engagement - Retail Trades Award found not to apply - application dismissed REASONS FOR DECISION [1] On 4 April 2006, Kimberley Jane Batchelor (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 Flynns Pet Shop Pty Ltd trading as Chardonnay Pooches, arising out of the termination of her employment and alleged breach of award or registered agreement. [2] This matter was listed for a hearing (conciliation conference) on 1 May 2006, and for hearing on 7 June 2006. Mr T Murray appeared for and with the applicant. Mr J O'Neill, of Searson Buck, appeared with Mr D Carew and Mrs J Jones-Carew, for the respondent. [3] That part of the application concerning alleged unfair termination of employment was held over, with the consent of the parties, pending the outcome of possible proceedings in another court. [4] In relation to the alleged award breach, Ms Batchelor claims that she should have been employed as a Retail Employee Grade 3, under the terms of the Retail Trades Award. The extent of the alleged award breach was stated to be approximately $23600. [5] The employer contends that the work undertaken by Ms Batchelor was not subject to the Retail Trades Award, or for that matter, any other award. That is, Ms Batchelor was award free. Background [6] Ms Batchelor was first employed by a business known as Chardonnay Pooches on 23 November 2003. The business is located in Main Rd, Glenorchy. It was common ground that Ms Batchelor was principally engaged to perform dog and cat grooming. At the time of engagement the business was owned by Mrs Jodie Jones-Carew, operating as a sole trader. Mrs Jones-Carew had previously operated the business in different manifestations, firstly as a mobile grooming service, and then as a grooming salon contained within her home. The motivation for the move to Main Rd, Glenorchy was to gain "visual advertising". [7] On 26 April 2004 Mrs Jones-Carew, in partnership with her husband, Mr Darren Carew, purchased a business known as Flynn's Pet Shop (Flynns) located in central Hobart. This business is unquestionably a retail outlet; albeit some pet grooming services are provided on site. Chardonnay Pooches, continued to operate as a separate and distinct business, but as a partnership of the Carews. [8] Ms Batchelor's employment ended on 17 March 2006. Throughout her period of employment, most of her time was at Chardonnay Pooches. However Ms Batchelor did on occasions work at Flynns, performing a combination of retail and grooming duties. It would seem that in the latter part of her employment, the work at Flynns was usually one day each week. Her employment at Flynns was covered by an Australian Workplace Agreement (AWA).1 Work performed at Flynns is not part of this application. [9] Ms Batchelor was paid an hourly rate for all work performed at Chardonnay Pooches. From commencement as a nineteen-year-old until 22 February 2004, the rate was $8.00 per hour. According to the evidence this rate progressively increased as birthdays occurred and experience gained. At the time of termination the rate was $13.50 per hour. [10] Both Mrs Jones-Carew and Mr Carew stated that they regularly contacted Workplace Standards Tasmania to obtain wage advice, both in relation to Ms Batchelor and other staff. According to their evidence, on each occasion they were told that dog grooming was award free. Evidence [11] Sworn evidence was taken from the following witnesses:
[12] In addition, Statutory Declarations/Affidavits from the following were tendered into evidence: · Jenny Bradley Nature of the Business/Duties Performed [13] Chardonnay Pooches operates from a street frontage in Main Rd, Glenorchy. It has signage that reads as follows: "Chardonnay Pooches Professional Dog and Cat Grooming. 62735000 Salon or Mobile Service Pickup & Delivery" [14] The Commission was informed that an adjacent sign reads: "Flynn's Pet Shop Accessories Sold at Chardonnay Pooches" [15] The front section of the building contains pet accessory items sourced from Flynns. This area occupies 25 per cent of the total floor area. This area is also where customers hand over and collect pets for grooming services. There is no cash register, just a small money tin. EFTPOS facilities are available. [16] The back area of the building (75 per cent of floor space) is dedicated to dog and cat grooming. The business also provides a pick up and delivery service for pets. [17] The proprietors describe the premises as a salon, rather than a shop. This is supported by the external signage. [18] In the Yellow Pages there is a display advertisement for Flynns under Pet Shops. This advertisement also contains the following notation: "A range of pet accessories also sold at our grooming salon in Glenorchy Chardonnay Pooches" [19] Under Dog and Cat Clipping and Grooming there is a display advertisement for Chardonnay Pooches, which also makes reference to Flynns. [20] The trading hours are driven almost solely by demand for grooming services. Typically the business would open some time between 7.00am and 11.00am, depending on when the first booking was scheduled. The business would typically close some time between 3.00pm and 6.00pm, again, depending of grooming bookings. If there were no pets booked in for grooming services, the business would close. [21] No staff were dedicated to the sale of retail products. According to the evidence of the Carews, the limited accessory stock was there to catch the eye of grooming customers when they delivered or collected their pet. It was accepted however, that from time to time customers would walk in off the street and purchase something. [22] All accessories were priced and tagged at Flynns. [23] There was a considerable amount of evidence going to the duties performed by Ms Batchelor. [24] There can be no doubt that Ms Batchelor was primarily employed on dog and cat grooming duties. She also performed a range of other duties associated with cleaning, greeting customers, telephone inquiries and bookings, supervision of junior staff, taking payments for grooming services, pick up and delivery, and building security. [25] It was common ground that from time to time Ms Batchelor, along with other grooming staff, would be involved in the sale of accessories. This usually occurred when grooming customers collected their pet, but on occasions accessory sales were made to customers off the street. [26] Ms Batchelor was either unable or unwilling to indicate how much of her time was spent on this sales task. She did say that occasionally a sale occupied up to 30 minutes of her time. [27] Mrs Jackson maintained a diary of duties performed over a period of time.2 Her evidence was that she performed the same role as Ms Batchelor. She said that approximately 5 per cent of her work related to retail sales.3 [28] Mrs Jones-Carew said that between 80 and 95 per cent of grooming staff time was spent on grooming duties.4 [29] In respect of the number of sales, Mrs Jones-Carew said:5
[30] Mr Carew said according to the daily records, "there could have been a week or two weeks go past without any sales at all being done".6 [31] Mr Carew provided a breakdown of sales figures during the period of Ms Batchelor's employment. From this it can be established that 5.4 per cent of total revenue from the business could be attributed to the sale of accessories. From this evidence I am satisfied that such sales were spasmodic, did not occur on every day, and certainly would not support the employment of any person for whom the primary purpose of engagement was the sale of retail products. Findings [32] The Retail Trades Award is an industry award made pursuant to s.33(1)(a) of the Act. The correct approach in establishing whether an industry award has application is found in Northern Group Training v NUW, Tasmanian Branch, whereby the Full Bench said:7
[33] Clause 2 Scope reads:
[34] The question to be determined is whether Chardonnay Pooches can be characterised as being in "the industry of selling goods by retail in shops". [35] Chardonnay Pooches is a separate, stand alone business, even though it currently has the same ownership as does Flynn's Pet Shop. [36] In looking at the characterisation of the business, I have no hesitation in concluding that it is not in the retail industry. The business is first and fundamentally a salon providing grooming services for dogs and cats. The sale of pet accessories is very much an ancillary, and in financial terms, minor part of the business. The trading hours are determined solely by the demand for grooming services. This is certainly contrary to what the public would expect from a retail outlet, where regular and predictable trading hours apply, irrespective of whether there are customers. [37] Having found that Chardonnay Pooches is not in the industry described in the Scope clause, it is unnecessary to determine whether the work performed by Ms Batchelor fell within the classifications referred to in Clause 8. [38] There is however one further aspect to be considered. [39] Section 40(1) of the Act reads:
[40] Regulation 12 reads: "12. General application of certain awards
(2) For the purposes of subregulation (1) -
[41] Schedule 2 of the Regulations specifies that the Retail Trades Award has general application in respect of the work of a retail employee. [42] It follows that notwithstanding my finding that Chardonnay Pooches is not in the retail industry, the award would still have application if it were found that the duties performed by Ms Batchelor could properly be described as the work of a retail employee. [43] In this context s.49(3) of the Act is also relevant: "49. Remuneration fixed by award or registered agreement
[44] A number of authorities were relied upon by the parties in this matter. They included: Dillon v SM International Pty Ltd,8 Murphy Holdings Enterprise Bargaining Agreement,9 Holt v Musketts Timber Sales,10 Rogers v Branch and Associates,11 Kingmill (Australia) Pty Ltd v Marshall,12 Secretary For Labour re Retail Trades Award,13 Butler v Hydroponics Company,14 Wyatt v Grassy Pastoral Co.15 [45] There is a recurring theme through a number of these authorities. That is, it is not sufficient in proving award coverage to show that an employee might perform one or more duties covered in a classification. It is necessary to demonstrate that the primary purpose of engagement was to perform the role described in the classification. This approach is well summarised by Shelley C in Wyatt, where she said:
[46] In this matter I am quite satisfied that the primary purpose of Ms Batchelor's engagement was to provide dog and cat grooming services. Further, I am satisfied that not only was this the primary purpose of engagement, but overwhelmingly this was the work that she did. Any retail work was very much an ancillary role and constituted a very small proportion of her time at work, indeed probably less than 5 per cent. I am also satisfied that on some days Ms Batchelor did not perform any retail duties at all. [47] Mr Murray submitted that certain duties, associated with supervision of junior staff and the security of the building, also fell within the definition of Retail Employee Grade 3. I disagree with this submission. Such duties would only be relevant if Chardonnay Pooches was in the retail industry, which I have found it was not. [48] I conclude that the work performed by Ms Batchelor was not covered by the Retail Trades Award, and, in all probability, was award free, however unsatisfactory that may be. [49] That part of the application going to the alleged award breach is dismissed. I so order. [50] The file will remain open pending advice from the applicant as to whether the alleged unfair termination of employment aspect is to be pursued.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R4
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