T12556
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy, Tasmanian Branch and Crossroads Civil Contracting Pty Ltd
Appeal against a decision handed down by Commissioner T J Abey arising out of T12268 of 2005 - Appeal dismissed - original decision confirmed REASONS FOR DECISION [1] This is an appeal against a decision of Commissioner Abey in Matter T12268 of 2005. In that matter the Commissioner found that the work performed by the applicant in that matter, Mr Johns who was represented by the Construction, Forestry, Mining and Energy Union (CFMEU), was not subject to the provisions of the Building and Construction Industry Award, an award of the Tasmanian Industrial Commission (TIC). Mr Johns was, at the relevant time, employed by Crossroads Civil Contracting Pty Ltd (the company). [2] The appeal was filed by the CFMEU and cited the following grounds:
[3] The CFMEU was requested, pursuant to s.71(2A) of the Industrial Relations Act 1984 (the Act), to provide further and better particulars of the grounds of appeal. [4] The following was provided:
Particulars:
Particulars:
Particulars:
[5] The CFMEU provided a submission dealing with the implementation of the WorkChoices amendments to the Workplace Relations Act, 1966 (WRA) concluding that the TIC was able to deal with the present appeal notwithstanding the WRA amendments. [6] The respondent did not challenge that submission and we agree that the appeal can be heard and determined by the TIC. The CFMEU noted that "the entire period of employment in relation to which the proceedings are brought and therefore all the relevant acts or omissions, have occurred prior to reform commencement." [7] The appeal was a part heard matter prior to the enactment of the WorkChoices amendments. [8] Both the appellant and the respondent addressed the principles the Commission should consider in respect to the appeal. The principles enunciated in House v King are as follows:
[9] Section 70(1A) of the Act provides:
[10] In general terms the appellant claims that the Commissioner used the wrong "test" to determine whether Mr Johns was covered by the terms of the award. [11] The grounds of appeal were all addressed by the appellant in a single submission. [12] Appeal ground 1
[13] It was argued that the only, or primary or predominant test the Commissioner applied to ascertain whether Mr Johns was subject to the award was to consider the principal purpose for which he was employed. The appellant submitted that whether Mr John's employment was covered by the award or not was ascertainable from the plain, ordinary meaning of the words used in the award and that by relying only or predominantly on the principal purpose test the Commissioner erred. [14] Further the appellant questioned how Mr Johns could have been employed as a manager when such position did not exist. We note that the Commissioner found that:
[15] In discussing award interpretation the appellant relied on the principles authoritatively stated by the NSWIRC in Court Session in Bryce v Apperley (1998) where it was said:
[16] The Commissioner examined at some length the various provisions of the award and has looked at a number of classification descriptors to determine whether the work performed by Mr Johns satisfied any of those descriptions. He found that Mr Johns "spent some significant amount of time on the tools" and said that the question "to be determined is whether Mr Johns could properly be described as a foreperson."2 He also found that the business of the respondent fell within the scope of the award. [17] The respondent submitted that the Commissioner looked at the words of the award and has correctly considered the actual words in their plain, ordinary English meaning and decided that none of the individual classification definitions applied to Mr Johns. He found that certain functions, including the role of the foreperson, could be applied to his work but he performed functions over and above those definitions. There was no single classification which the Commissioner found would apply even by considering the "major and substantial employment" test to Mr John's employment. [18] The Award provides the following definition:
[19] The evidence suggests that the respondent gave Mr Johns more than the "responsibility for supervising the programming of work." He was given the role of setting up the asphalt business and doing whatever he considered necessary. Mr Stacey said "he had full control." [20] We are of the view that the Commissioner considered a number of matters before making his determination, he did not rely solely or even predominantly on the principle purpose test, it was but one of the tests he applied and considered. [21] We therefore disagree with the submissions of the appellant that the Commission only applied the principal purpose test. [22] We reject appeal ground 1. [23] Appeal ground 2
[24] It is claimed by the appellant that the Commissioner gave weight to a number of irrelevant matters and gave insufficient weight to relevant matters as a result of applying the principle purpose test. It was submitted that appeal ground 2 will only succeed if it is accepted that the principle purpose test was the only test the Commissioner applied in coming to his decision. [25] We have already said that we do not accept that the Commissioner only applied the principle purpose test, we have however noted that he examined a number of the award classification definitions before he made his determination. He found that some of the work performed by Mr Johns, particularly when working on the tools, would fall into at least two award classifications. He also found that other aspects of the work would be that of a manager, a non award classification. [26] Further we do not accept that the Commissioner acted on a wrong principle by effectively finding that the award "does not permit Mr Johns to work in two or more capacities" within the respondent's organisation. We do not agree that such was his finding. [27] Accordingly we reject appeal ground 2 as we are of the view that the Commission did not only apply the principle purpose test. [28] Appeal ground 3
[29] We disagree with the submissions of the appellant that the decision of the Commissioner was unreasonable or unjust. The Commissioner has examined in some detail the sworn testimony of both Mr Johns and Mr Stacey and the work performed by Mr Johns and the classification definitions in the award. It was his finding that Mr Johns performed a myriad of functions but did not act under direction of Mr Stacey and made his own arrangements and those of his crew. Mr Johns was of the view that one day he would own the hot mix business, in fact he said "It was one of the main reasons I started there." Further he said that "...we had agreed, not in any formal sort of writing but we had agreed that one day it was going to be mine. It was always going to be mine."3 It was his evidence that he had even approached some of the other employees to see "...if they would come with me." He said that he was "...employed by Dale [Mr Stacey] to do hot mix right from the start."4 [30] It was Mr John's evidence that he had unrestricted use of a company vehicle, although he said he always checked with Mr Stacey first; the company, after some time, took over payment for his mobile phone; he travelled to Brisbane for the company to purchase equipment; he organized and priced many jobs sometimes with the assistance of, or assisting Mr Stacey; arranged accommodation for himself and his team when and where necessary; he "set out jobs" in his own time after work and at weekends; he engaged employees (although we note that his evidence in respect to employing of staff was contradictory) but on the balance of probabilities he did engage employees but perhaps with approval from Dale Stacey5; he arranged and terminated contractors from Skilled Engineering and was responsible for, or required to, prepare pay sheets for the employees. If taking sick leave there was no requirement for him to produce medical certificates and he was paid as if at work. He also received bonus payments and interest free loans from the company. Mr Johns also said that Mr Stacey would attend some of the work sites but not those "up the coast" and "Dale actually even worked on jobs..."6 [31] Mr Johns received emails at home in respect to jobs for the company. It was his evidence that "The deal was, although he has - I've got nothing in writing so it's not going to mean anything, the deal was that Dale purchased all the equipment and I helped him set it up and get it going and that would be what it was all about, and he would write the equipment down over four years. At the end of the four years the equipment wouldn't be worth as much. I would buy it at that price and I would work on the side of him." He said that "work on the side" meant "Like a franchise. It would still be Crossroads, it would still be - only it would be mine." Mr Johns said that there was no goodwill as "it is not a saleable item. And besides, a lot of the goodwill I would have built up myself, which is why I worked the hours."7 [32] It was also his evidence that he did not expect to be paid overtime. This changed when he and Dale had an argument in June 2004, about the sale of the business and he said "Well, it's going to be mine anyway, so that's that and then Dale changed his mind and said, Well, I'd be a fool to sell, I'm not going to sell it, that's it. So I've said, Righto then, well, I want my overtime. I mean I'm not putting all these hours into something for nothing back. Why would I do that? I was already earning the same money where I was, why would I go - why would I go and do 70 hours a week for half the pay that the people who are working with me are on? Because I'm an idiot?" In re-examination Mr Johns said that the disagreement with the company was about his claim for annual leave and leave loading.8 [33] Mr Stacey denied there had been any agreement to sell the business in the terms suggested by Mr Johns. [34] Mr Johns said that around that time he approached one of the company's customers and asked "....if I put a price to them, right, if I put a price to them as me and not Crossroads, would they look at it......" and he had approached some of the employees to go with him.9 [35] It was the evidence of Mr Stacey that Mr Johns approached him saying "You need an asphalt division, this is what I want, I want $500 a week, I'll get you an asphalt division, an asphalt crew up and running..." Further Mr Stacey testified that Mr Johns had said "I don't care what hours I do, I want $500 and I'll do anything it takes to get it up and going."10 [36] Mr Stacey testified that Mr Johns in fact ran the asphalt side of the business, he did the quotes for work, engaged employees on the same terms as paid at Tarmak (his previous employer) and he "did the dealings and he did the working out with them." It was Mr Stacey's evidence that he never received time sheets for Mr Johns. He said "At the end of the day he - it was his baby and I mean I put all my trust and faith into his knowledge of what we needed to do and I still to this day don't know how competitive we are...."11 "He had full control. If he needed more men he only had to do it. If he wanted to do little, and not build it up that was his choice."12 [37] Mr Stacey said "Colin was his own animal. He could do what he liked and he often did. There was no problem about that. He's the sort of guy you can't harness so I've bent over backwards along the way to give him what he wanted to do, what we needed to do to build the business up and Colin, because he had that old package (sic) he run it how he liked and what he seen necessary to do he did."13 [38] The examination of both Mr Johns and Mr Stacey was lengthy and covered a number of topics and whilst in part contradictory and unclear, it would seem to us that Mr Johns was not engaged as an employee subject to the terms of the award, but was engaged to set up a new part of the business and was given free reign to do that. Mr Stacey said that Mr Johns had full control of the asphalt side of the business and that was how he performed. Mr Johns brought to the proposed asphalt side of the business his lengthy experience and skill in asphalt work along with his business contacts and some employees. [39] We reject appeal ground 3 as we are of the view that the findings of the Commissioner were reasonably open to him taking into account the submissions and evidence before him. The authorities [40] The principal purpose test is referred to by a Full Bench of the Australian Industrial Relations Commission (AIRC) in Carpenter v Corona Manufacturing Pty Ltd [Print PR925731] in December 2002. The principle purpose test says that:
[41] It has since been considered and adopted in a number of decisions of the AIRC. [42] Mr Bodkin, representing the CFMEU, relied on a number of authorities which he said addressed the principles to be adopted for the interpretation of awards. In J Fenwick and Company Limited v The Merchant Service Guild of Australia and others [(1973)150 CAR 99] (Fenwick) a Full Bench of the Commonwealth Conciliation and Arbitration Commission (CC&AC) was hearing an appeal about whether the duties of the employees in question were "so diversified that it could not be said that they were seamen...." and it was argued that if they were not seamen there could neither be an industrial dispute nor an industrial matter and the CC&AC lacked jurisdiction to hear and determine the matter. The Full Bench said in that matter:
[43] And further:
[44] The Full Bench found that the employees in Fenwick were seamen and therefore subject to the jurisdiction of the Commission. They said:
[45] In Darren John Wyatt and Jackie Ann Wyatt v John Dunnicliff, Grassy Pastoral Co [T8867 and 8869 of 2000] Shelley found that the applicants had been engaged as managers and no relevant award classification applied and therefore they were not subject to the provisions of the relevant award. [46] In Stanley Lea Holt v Muskets Timber Sales Pty Ltd [T18 of 1993 FED No. 137/94 Industrial], a decision considered by the Commissioner below, Northrop J found that the employee had been engaged as a site manager and general supervisor and was not engaged in any of the classifications or occupations found in the relevant award. The claim that the applicant was award respondent was dismissed. The appellant said that there was a clear distinction between that decision and Mr Johns inasmuch as "Mr Johns was not engaged as a manager because there was no such position of manager."14 The appellant is correct that there was no position of manager as Mr Johns was engaged to set up a new section of the Company's business. [47] In Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [ 106 IR 217] (Kingmill) a Full Bench of the Industrial Relations Commission of New South Wales found that the employees, the subject of that matter, were award respondent as the relevant award applied "...to any person employed in any clerical capacity whatsoever. So expressed, its scope is directed to a wider class of employee than persons engaged as `clerk' per se..." That decision relies on the actual words found in the award whereby it would have application to any person employed in a clerical capacity. [48] The appellant said that the Commissioner referred to a decision in Kingmill (Australia) Pty Ltd t/a Thrifty Car Rentals v Marshall [(1999) 89 IR 424] where the Full Court of the Industrial Relations Court of South Australia determined that a Rental Sales Officer was not covered by the Clerks (South Australia) Award. When considering comity the appellant noted that the Full Court of the IRC of NSW declined to follow the South Australian decision saying "It is apparent to us that the Full Court did not address the same issue which is before us in this appeal. Their Honours were required to consider whether Ms Marshall was employed `as a clerk or other clerical or office worker'. The question in this case is whether the employees are engaged `in any clerical capacity whatsoever'." [49] A decision of the Full Bench of the Commonwealth Industrial Court in Horne v Trencherman Pty Limited [6 FLR 176] determined that the applicant was covered by the award; that decision relied on the specific words in the definition of bar attendant which required, regardless of any agreement made at the time of engagement, that "any person usually employed for more than two hours in any one day or night in supplying or dispensing or mixing of liquor in any portion of the licensed premises including sale of liquor from the bottle department." In that matter there was no challenge that the employee did in fact perform the function so described. [50] In a decision of Toohey J of the Federal Court re Municipal Officers Association of Australia v The Shire of Waneroo [No.WA25 of 1984 Industrial Law] the particular definitions in the award were the determining factor for the decision in favour of the applicant. [51] The appellant submitted that this Commission should apply the principle of beneficial construction to its awards and legislation, we agree with that submission. Reference was made to the following decisions where such an approach was adopted; San Remo v Farrell, another decision before the Commissioner below; a decision of the Tasmanian Supreme Court in respect to the Workers' Rehabilitation Compensation Act 1988 in Parsons v State of Tasmania and a decision of a Full Bench of the NSWIRC in State Rail Authority Firefighters Award 2001, Re [2002] NSWIR Comm 159 (20 December 2002) where the Bench referred the decision in Nestle Australia Limited v Patitoo. [52] It was the submission of the appellant that the outcome of the decision of the Commissioner below indicated that he did not apply the principle of beneficial construction. We disagree; the Commissioner has looked at the actual words found in the award; the award definitions and job classifications; he has considered the various functions of work performed by Mr Johns and compared those functions with the job classifications and definitions in the award. He has relied upon, as far as is possible, the sworn testimony of both Mr Johns and Mr Stacey. In so doing he has considered whether Mr Johns is able to receive the benefits of the award provisions. The Commissioner found that some of Mr Johns work functions fell into classifications found in the award but that his position was not that of a foreperson. Having taken into account all of those things he found that a proper construction of the evidence resulted in Mr Johns not being award responsive. We agree that the evidence, particularly that of Mr Johns and Mr Stacey, would support such a finding. [53] We reject the appeal and confirm the decision of the Commissioner. P L Leary Appearances: Date and place of hearing: 1 Decision T12268 of 2005 paras 105, 106
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