IN THE INDUSTRIAL MAGISTRATE'S

COURT OF WESTERN AUSTRALIA

HELD AT PERTH

 Claims Nos M 169 and M 170 of 2001

Dates Heard: 6 September 2001;

 18 October 2001; and

  19 October 2001

Date Delivered: 20 December 2001

BEFORE:  WG.Tarr I.M.

B E T W E E N :

Tara Jane Zeid

Department of Productivity and Labour Relations

Claimant

and

New Wave Nominees Pty Ltd trading as New Wave Hair Care Unisex

Respondent

Appearances:

Mr J Lukey appeared as agent for the Claimant.

Mr M Segler appeared as Counsel for the Respondent.

REASONS FOR DECISION

The actions herein were commenced by way of claims in relation to the employment of Parise Phatouros (M 169 of 2001) and Luisa Filipponi (M 170 of 2001) as hairdressers by the respondent company.

The claims allege that: -

1. In the period between 6 July 1996 and 4 January 1997 and; in the period between 20 July 1997 and 30 June 2000, the Defendant (sic) failed to maintain a time and wages record pertaining to the employment of Parise Phatouros, in accordance with Clause 17(1) Time and Wages Record of Award No A 32 of 1988.

and

2.  In the period between 2 July 1996 and 31 May 1998 and; in the period between 8 August 1999 and 30 June 2000, the Defendant (sic) failed to maintain a time and wages record pertaining to the employment of Luisa Filipponi, in accordance with Clause 17(1) Time and Wages Record of Award No A 32 of 1988.

There is no issue taken with the evidence that both employees completed their apprenticeships with the Respondent and, in the case of Ms Phatouros, continued on as a senior hairdresser.  Ms Phatouros was employed from some time in 1985 until she resigned in August 2000 and Ms Filipponi from 2 July 1996 until 8 July 2000.

Both were employed and subject to the Hairdressers Award No A 32 of 1988, as amended.

Clause 17 of the award provides for the keeping of a time and wages record.  Subclause (1) of that clause reads as follows: -

(1) Each employer bound by this award shall maintain a record containing the following information relating to each employee.

 (a) the name and address given by the employee,

 (b) the age of apprentices,

 (c) the classification of the employee and whether the employee is full-time, part-time or casual,

 (d) the commencing and finishing times of each period of work each day,

 (e) the number of ordinary hours and the number of overtime hours worked each day and the totals for each pay period,

 (f) the wages and any allowances paid to the employee each pay period and any deductions made therefrom.

Clause 13(3)(d) provides for the record to be available for inspection by a duly authorized official of the union during the normal hours of business of the employer, subject to certain conditions.

The award also provides for hours of work in clause 6 as follows: -

(1) Ordinary Hours

The ordinary hours of work shall be 38 per week or 76 hours every two consecutive weeks, to be worked between 8.00am and 6.00pm Monday to Friday and 8.00am to 5.00pm on Saturdays and between 6.00pm and 9.00pm for the purpose of late night trading, with not more than ten work commencements in each roster period of two weeks.

Clause 8 provides for the payment of overtime where more than 38 ordinary hours are worked in any week.

Clause 15 makes provision for meal times and break periods as follows: -

(1)   Meal Breaks shall be of a duration of not more than one hour and not less than half an hour and shall be granted and taken in one continuous period.

(2)   …

(3)   …

(4) From Monday to Saturday inclusive the lunch period may be taken between the hours of 11.00am and 3.00pm.

There is an obligation on an employer to pay wages to an employee based on the hourly rate provided in the award depending on the employee’s level and classification for the ordinary hours worked each week or fortnight and for hours worked in excess of their ordinary hours at the overtime rate provided.

It must follow therefore that the keeping of time and wages records is a fundamental requirement of any employer, not only to ensure that an employee is paid his or her entitlements but to demonstrate to anyone inspecting the records that it has been done.

It must also follow that the records kept must contain the information set out in clause 17(1) of the award and, more importantly, that information must be a true and accurate record of that information.

It is my view that the issues in the cases before me are not complex.  The allegation is that time and wages records for a number of periods were not kept and normally it should not be a difficult matter to establish that they were or were not kept.

Unfortunately in this case the waters have been muddied and, as I pored my way through the transcript, and in hindsight, it became obvious that a lot of time was wasted on matters which were irrelevant.

In all matters brought in the general jurisdiction of the Industrial Magistrates Court the Claimant has the onus of proof to satisfy the Court, on the balance of probabilities, that the claims should succeed.  That is best done by firstly clearly identifying the elements of the alleged breaches, then by adducing clear, concise and credible evidence in an orderly and structured manner to prove those elements to satisfy the evidentiary onus.

It is my view that both parties could have done more to keep the evidence given in these matters on track and reduce the time the hearing has taken by more than one half.

It appears from what was said during the hearing that the matters before me have been pursued in an attempt to obtain some payments for the two employees by way of penalties to compensate them for underpayments of wages, overtime, annual leave and other allowances.

As I have said the issues are clear.  Did the respondent maintain time and wages records for the employee Parise Phatouros for the periods 6 July 1996 to 4 January 1997 and 20 July 1997 to 30 June 2000 and for Luisa Filipponi for the periods 2 July 1996 to 31 May 1998 and 8 August 1999 to 30 June 2000?

It is the evidence of Ms Phatouros that she was employed by the Respondent company starting as an apprentice hairdresser in 1985 and resigned in 2000.

She gave evidence that time and wages records were maintained by her completing the time and wages records in a printed book provided by her employer until her last entry for the week ending 6 July 1996.  That evidence was supported by Exhibit G1 being the 7 Day Time and Wage Book.  The reason she gave for her decision to cease making entries was: -

“Because the times that I did work was always overtime.  We were told to write 9.00 to 5.00, never to add a lunch break.  We never proved at the end of the week when we did get our pay how many hours we did so I just thought that was incorrect so I stopped signing the time book, because the hours that I wrote down wasn’t the hours that I worked.”

       (Transcript page 22)

She resumed completing the time and wages records the week ending 11 January 1997 and continued until the week ending 19 July 1999.  That was the last week she made entries in the time and wages record.  Her reason for not completing the records the second time was similar to the first: -

“Because we never received payment for not having a lunch hour and that we had to write down that we did have a lunch hour, and I just found that if we worked overtime it never was written down correctly.  I worked very long hours and just finding out – getting paid at the end of the week and not showing how many hours I did work for the correct pay, so I refused to write something which is not right and sign for it.”

       (Transcript page 28)

Mario Pratico, the director of the Respondent, gave evidence that he provided a time and wages book for the periods in issue.  He did say in evidence that the time book had no effect on the earnings of his employees as the wages were calculated on his computer at home.

The evidence generally before the Court is that both employees were paid an amount each and every week based on their entitlement under the award for a 38 hour week.  The amounts paid each week did not vary, however, there is evidence supporting the claims that commissions or bonuses were paid from time to time.

The foregoing supports the evidence that the time and wages records were not relied on.

Mr Pratico could not deny the evidence of Ms Phatouros that she did not complete the records for the periods in the claim and that evidence is supported by the documentary evidence.

He also suggests in his evidence that he relied on his employees to complete the records.  The obligation is clearly on the Respondent to ensure the records are maintained, and with the ultimate authority an employer has over his employees, if the records are not kept he is in breach of the award.

I find, in relation to Ms Phatouros, that the records were not kept for the periods in the claim.

In relation to Ms Filipponi, I have no difficulty in finding that the records were not maintained for the period 8 August 1999 to 30 June 2000.  Mr Pratico, in evidence, said he knew she was not completing the records for the last 12 months of her employment and that he “reminded her of that consistently”.

My earlier criticism of the way the evidence was presented was mainly in relation to Ms Filipponi’s evidence.  I am left with some confusion as to whether or not records were maintained from her commencement in 1996.  Exhibit G6 is evidence that she completed the time and wages records from the week ending 10 October 1998 until the week ending 7 August 1999.  The information for that period was transcribed into a time and wages book she kept at home and which she maintained until she went on holidays on 8 July 2000, after which her employment was terminated.  That record, of course, was not maintained by her employer and it cannot be used to satisfy that obligation.

Ms Filipponi, in cross examination, admitted that she completed time and wages records in an exercise book at the North Perth salon and that those records were correct.

When she commenced at the Morley salon in June 1998 she completed the book in that store as evidenced by exhibit G2.  The last entries in that book were made on Tuesday of the week ending 5 September 1998.

Her evidence regarding the first period was confusing and conflicting.  Whether she understood what was being put to her in cross examination I cannot be certain, however, the doubts raised were not clarified in re-examination.

I have already stated that the onus of proof lies with the Claimant and although there is no documentary evidence supporting her claim for the first period I cannot be satisfied on the balance of probabilities that records were not maintained.

The claim for the first period therefore fails, however, as I have mentioned, I find the Respondent did not maintain records for the period from 8 August 1999 to 30 June 2000.

WG Tarr

Industrial Magistrate