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T12640

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Kimberley Jane Batchelor
(T12640 of 2006)

and

Flynns Pet Shop Pty Ltd
trading as Chardonnay Pooches

 

COMMISSIONER T J ABEY

HOBART, 11 July 2006

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:

· Kimberly Jane Batchelor, the applicant;
· Jodie May Jones-Carew, business owner;
· Roxanne Darlene Bernadette Jackson, dog and cat groomer;
· Darren Leviston Carew, business owner.

[12] In addition, Statutory Declarations/Affidavits from the following were tendered into evidence:

· Jenny Bradley
· Rebecca Launa
· Nadine Robinson
· Jaleesa Dawn Davis
· Jessica Davis

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

"So 95 per cent then was proceeds from dog and cat grooming?---Yes, but also with that we have all the books, because we keep a record - a carbon copy of all our sales, grooming, everything, like our daily records which nearly all of it is written in Kim's writing will actually show that the sales that taken which, like very minimal, like one or two products on one day, maybe a week before something else, I suppose."

[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

"The correct test is an assessment of the character of the employer's business. The work performed by employees only becomes relevant if the nature of the employer's business fits within the Scope clause."

[33] Clause 2 Scope reads:

"This award is established in respect of the industry of selling goods by retail in shops other than those within the jurisdiction of Automotive Industries, Bakers, Chemists, and Meat Trades Awards but including the selling by retail of cooked or other prepared food which is not to be consumed on the sellers' premises, where those premises are principally used for the retailing of other goods."

[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. Extension of awards by regulation

(1) Subject to this section, regulations under this Act made for the purposes of this section may extend the operation of an award or any provisions of an award to any work not otherwise subject to the award, and any such regulations may provide for the extension of that operation for a period specified in the regulations."

[40] Regulation 12 reads:

"12. General application of certain awards

(1) For the purposes of section 40 of the Act, any award specified in column 1 of Schedule 2 extends to operate to a class of work specified opposite that award in column 2 of that Schedule.

(2) For the purposes of subregulation (1) -

"class of work" means a class of work to which a classification in the award specified in the Schedule applies or which is defined, or otherwise described, in that award."

[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

(3) Except as provided in subsection (2), where an employee is, during any part of a day, employed by an employer in work for which a wages rate is fixed by an award or a registered agreement, he is entitled to be paid at that rate for any other work done by him in the employment of that employer during any other part of that day."

[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:

"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."

[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
COMMISSIONER

Appearances:
Mr T Murray for and with Ms K J Batchelor
Mr J O'Neill, of Searson Buck, with Mr D Carew and Mrs J Jones-Carew for Flynns Pet Shop Pty Ltd trading as Chardonnay Pooches

Date and Place of Hearing:
2006
May 1
June 7
Hobart

1 Exhibit R4
2 Exhibit R2
3 Transcript PN 499
4 Transcript PN 182
5 Transcript PN 229
6 Transcript PN 670
7 T10317 of 2002, p. 8
8 T10855 of 2003
9 [1995] SAIRC 40 2/3/1995
10 No. T18 of 1993 FED No. 137/94
11 T10785 of 2003
12 [1999] SAIRC 2 3/2/1999
13 T1681 of 1988
14 T10487 of 2002
15 T8867 2000