T392
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
DATE AND PLACE OF HEARING: 4.06.86 Hobart
This application by the Shop Distributive and Allied Employees' Association (SDAEA) seeks an interpretation of item 3 (i) of Section `A' (a) of Clause 2 (Margins) in Part I (Wage Rates) of the Retail Trades Award, together with Clause 25 (Definitions) of Part II of the same award. The relevant facts giving rise to the application are as follows: Mrs G is employed by the food chain, Purity. It was claimed that she is in charge of the delicatessen. In that capacity she exercises direct supervision over a number of staff. She stated that her duties are:
Other duties were discussed during proceedings, including the need to assume responsibility for permanent and casual staff. During cross-examination it emerged that Mrs G does not in fact buy stock. That is, she does not negotiate with suppliers regarding price. However she has a wide discretion regarding ordering or re-ordering from a variety of supply sources. Her "in house" classification is "Service Delicatessen Stockkeeper". Mrs G is paid the rate prescribed for the award classification of Senior Sales Assistant plus an over-award payment. The award definition of Senior Sales Assistant is: " ... the adult sales assistant who is second in charge of a department controlled by a department manager/owner and such an employee shall be classed as second in charge only if so appointed by the employer or his representative." She is responsible to the Assistant Store Manager and through him to the Store Manager. Somewhere in the overall hierarchy sits the Divisional Manager-Supervisor, or Retail Manager, to whom specialized departmental supervisors (such as Delicatessen Supervisors) also report. Mr Targett, who presented the case for the applicant, argued that Mrs G, because of the nature of her duties, met the definition of Section Manageress or Buyer/Orderer. This claim was disputed by Mr Edwards, who claimed she was neither a section manageress nor a buyer/orderer. It was stated in evidence by the Retail Manager that Mrs G does not buy stock at all; she re-orders it. Furthermore, she does not have the right to negotiate a price. The Store Manager, as opposed to Mrs G, is responsible for profitability of the "Deli". Mr Skinner asserted that the ordering function carried out by Mrs G is simply replenishing of stocks. He acknowledged that she has some discretion to order from a predetermined range of suppliers. But even this is a delegated function from the Store Manager. Mrs G is regarded as second in charge, or the manager's nominee, in that area. A good deal of debate also centred around the issue, or unofficial issue, of a document identified as "Woolworths Service Delicatessen Manual". The applicant claimed this could be regarded as a duty statement or job description. The respondent, on the other hand, argued that the document was no more than a training manual and did not apply to Purity in any case, as Purity was a self-controlled profit centre running within the Woolworths group. Purity is a food supermarket, not a department store. It bulk-buys. In many cases this is done nationally. Buying is not the responsibility of a Senior Sales Assistant. In the absence of any formal instrument of appointment, duty statement or job description, I am unable to derive any substantial assistance from the training manual. Against this background I turn to consider the award provisions around which the case was argued. Of the adult sales staff and allied classifications set out in the award, only two are relevant to this exercise. They are: Classification No. Classification
The foregoing classifications are defined thus:
In attempting to test the circumstances of Mrs G's employment against the classification structure of the award - but more particularly against the definitions set out in Clause 25 of Part II - I have discovered something of an imbroglio. It does not seem to be in question that Mrs G exercises general supervision over full-time and part-time staff. The actual numbers do not matter as she supervises more than one other employee. Moreover the award is silent regarding the class of employee or the nature of any supervised employee's employment (i.e. permanent, full-time, part-time or casual). In that regard therefore Mrs G meets part of the definition test relating to manageress and/or buyer/orderer. The next care is to ascertain whether Mrs G is either a section manageress or a buyer/orderer. Either criterion, if answered in the affirmative, could satisfy the onus of proof put upon the applicant to prove his case. To meet the definition of section manageress Mrs G would need to be able to demonstrate that she is in charge of a section. But what constitutes a section? The award does not define that most important aspect of the general definition. One useful meaning attributed to the word "section" by the Concise Oxford Dictionary is "... one of the parts into which something is divided arbitrarily". The Macquarie Dictionary, on the other hand, defines `section' to mean, inter alia "... one of a number of parts that fit together to make a whole". If it could be established that in Mrs G's case the delicatessen is an identifiable section, and not a department, (which is generally understood to be a distinct division of a complex whole) she might, I think, fit the definition of manageress in charge of a number of persons. But there is no evidence to suggest that the delicatessen is regarded as a sub-section, a section, a department or a division of any Purity Store. Only management can determine that question in the absence of award definition. Obviously large stores may be divided into sub-sections, sections and departments at will. On the other hand small businesses may only have departments. Nevertheless a department in a small business could be smaller than a sub-section or a section in a large store. Therefore, without evidence of the official store configuration, it is impossible to answer whether Mrs G is in charge of an actual section of the Purity Store. The remaining test to be applied is that going to the alternative of whether Mrs G is a buyer (as claimed) or an orderer. (It was admitted that she re-orders on a regular basis). It is here that I am compelled to observe that the award-maker has apparently taken a measure of common drafting licence. I refer of course to the apparent mis-use of the solidus, /, between the designations `buyer' and `orderer'. A solidus is capable of many uses. Apart from the obvious use to which it is put to separate day, month and year, viz. 1/1/86, and to denote an abbreviation, such as in C/o, when used to separate words it may only be used as a conjunction to provide an alternative. For example, `buyer/orderer' can mean buyer or orderer. It does not mean buyer and orderer. Curiously the award-maker appears to have "got it right" in the first part of the definition, when he expressed it thus: `Section manager' and/or (being the correct usage). The definition also includes an incorrect usage of the solidus by expressing buyer and orderer as `buyer/orderer'. Prima facie however it might have been possible to find in favour of Mr Targett's assertion that Mrs G is an orderer (or re-orderer) and for that reason satisfy the award requirement. But the imbroglio is again found in the definition. It explains, in unambiguous terms, that a buyer/orderer must buy or supervise the buying or selection of stock of the section. There is no mention of ordering at all. The only conclusion to be drawn from this is that a buyer/orderer, whether a buyer or orderer, or a buyer and orderer, must buy or supervise the buying or selection of stock as well as actually being employed in that section, and in direct contact with customers - whether or not under supervision - in order to satisfy fully the definition. It follows from the foregoing therefore that there is an obvious contradiction between Classification 3, which is expressed as Section manager/manageress and/or buyer/orderer (as defined), and part of the definition of section manager and/or (not in classification) buyer/orderer; or section manageress or buyer/orderer set out in Clause 2 of Part I and Clause 25 of Part II of the award respectively. The clear contradiction here is that the use of the solidus between buyer/orderer, on its face means buyer or orderer. If that is so the definition means that an orderer must also be a buyer. However, if the award-maker actually intended that buyer-orderer be a combined function, the obvious award deficiency should be repaired. While I suspect the latter was probably the intention, having regard for the words actually used in the definition, I will decline to alter the award. That task, I believe, should be left to the parties to address as soon as possible. Accordingly I declare that on the present construction of Classification 3 - Section manager/manageress and/or buyer/orderer (as defined) - an employee who is not a section manager or section manageress, in addition to being in charge of at least one staff member, in order to satisfy the remainder of the definition (buyer/orderer) must buy or supervise the buying and selection of stock, and be responsible for keeping of the stock of the section as well as being employed in the section, and in direct contact with customers. Those criteria must be met notwithstanding that the person concerned may or may not be under the orders of a supervisor who does not devote the whole of his or her time to the management of the section.
L A Koerbin 18 August 1986 |