100317170

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES NYREE COLLINS, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 YULE BROOK COLLEGE PARENTS AND CITIZENS' ASSOCIATION INCORPORATED

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE OF ORDER TUESDAY, 10 JUNE 2003

CLAIM NO M 20 OF 2003

CITATION NO. 2003 WAIRC 08476

_______________________________________________________________________________

Representation

Claimant  Mr W Milward, of Counsel, for the Claimant.

Respondent  Ms Julia Doig, President of the Respondent Association, for the Respondent.

_______________________________________________________________________________

Reasons for Decision

1         The action before me is a claim made pursuant to the provisions of section 83 of the Industrial Relations Act 1979 alleging that the Respondent has failed to comply with the provisions of the Restaurant, Tearoom and Catering Workers’ Award 1979 No 48 of 1978 (the Award).

2         The parties have agreed that:

1. The Respondent is Yule Brook College Parents and Citizen’s Association Incorporated.
2. The Respondent employed Ms Kathleen Daintith on 1 February 2001.
3. Ms Daintith was employed as a part-time Canteen Co-Ordinator.
4. The Respondent attempted to employ Ms Daintith on a workplace agreement.  However, the document was never signed by Ms Daintith nor was it registered with the Office of the Commissioner for Workplace Agreements.
5. Ms Daintith was paid an hourly rate of $10.70 for all hours worked during her period of employment.
6. Ms Daintith ceased employment on 7 March 2002.

3         It is not in issue that the Respondent has the responsibility at Yule Brook College, formerly known as the Maddington Senior High School, of operating the school canteen.

4         The duties performed by Ms Daintith are contained in a duty statement headed “Canteen Co-Ordinator Duty Statement” which was tendered as exhibit F.  Those duties were acknowledged by the President of the Yule Brook College Parents and Citizens’ Association and agreed to by the Claimant on the tendered document.

5         The duties of the Canteen Co-Ordinator, in the precise terms that they are set out in exhibit F, are as follows:

• Maintains a P & C established workbook recording attendance days/times/signatures of voluntary and paid staff.
• Check cost prices, List selling price on each invoice/delivery docket assess necessary selling price goods.
• Wastage to be recorded on a daily basis listing items including Volunteer lunches.  (List to be passed on to treasurer weekly)
• Daily stock placed our for sale to be listed (to be passed on to treasurer weekly)
• Daily orders taken to be listed
• Daily sales to be passed on to the Treasurer weekly
• Establish and maintain a voluntary roster of helpers.
• Establish menus in conjunction with the canteen Committee in accordance with the Associations nutritional policy and decide method for ordering and distributing lunches.
• Order and check supplies.  Orders placed by phone to be recorded
• Organize the work force (voluntary and paid) to maintain a satisfactory work flow.
• Ensure that the canteen and equipment are hygienically kept and in good repair.
• Check, record and bank money daily.  (Daily banking records to be signed by two people when available)
• Reconcile petty cash as required
• Prepare food for sale (in conjunction with other assistants as applicable).
• Prepare reports each month or as required for the Canteen Committee and general meeting of the P & C Association.
• Stock take monthly and the end of each term (for time being as required by Caitlin).
• Undertake any other duties as may be reasonably be requested by the Association.
• Notify the P & C Association Hon President or Treasurer of any accident involving any person working in the canteen – the Hon President/Treasurer will take action required regarding Workers Compensation Insurance or Voluntary Workers Insurance.
• Keep a daily record bok/sheet to supply data for weekly and monthly information.

6         It is the Claimant’s contention that Ms Daintith and the Respondent were subject to the provisions of the Award.

7         There has been some suggestion that the Respondent intended that Ms Daintith was to be employed on a workplace agreement, however, it is agreed that a workplace agreement was never entered into by the parties.

8         The Scope clause (clause 4) of the Award provides that the Award shall apply “to all workers employed in the callings described in Clause 21 of this award, in Restaurants and/or Tearooms and/or Catering Establishments and/or by Catering Contractors, as defined in Clause 6 of this Award”.

9         Clause 6(1) defines “Restaurant and/or Tearoom” as meaning “any meal room, dining room, grill room, coffee shop, tea shop, oyster shop, fish cafe, cafeteria or hamburger shop and includes any place, building, or part thereof, stand, stall, tent, vehicle or boat in or from which food is sold or served for consumption on the premises and also includes any establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere”.

10     The evidence before me is that the canteen at the Yule Brook College is typical of a school canteen and provides food and drinks for the students and staff at morning recess and lunch time every school day.  Inside the canteen there are stoves, pie warmers, a fridge, a freezer and other items one would expect to find where food is prepared for sale including sinks, benches and kitchen type tables.  In the main, the hot food was of the type where the product only required heating and included hamburgers, chiko rolls, hot dogs and pies.  Cold meat and salad rolls and sandwiches were also available together with snacks, sweets and a variety of drinks.

11     As I understand the evidence, lunch orders were taken earlier in the day and prepared by Ms Daintith or her voluntary helpers and served during the lunch break.  Food was consumed generally in the school grounds, either on the lawns or under cover depending on the weather.

12     Clause 6(1), in my view, is very wide and the canteen at the Yule Brook College is a “place … in or from which food is sold or served for consumption…” and, as it is part of the school, it can be said, in my view, that the food sold is consumed on the premises, albeit not inside the canteen kitchen.  In any event clause 6(1) includes any “place where food is prepared and/or cooked to be sold or served for consumption elsewhere”.

13     I find therefore that the Respondent’s canteen falls within the definition of “Restaurant and/or Tearoom” and is therefore subject to the Award if it employs a worker in any of the callings described in clause 21.

14     Clause 21 of the Award, as it was until 20 February 2001, classified the callings for the purpose of clause 4 as follows:

(1)    (a)  Classification

(1)       Chef

(2)       Qualified Cook

(3)       Cook Employed Alone

(4)       Breakfast and/or Other Cooks

(5)       Bar Attendant –

   Category 1

(6)       Bar Attendant

   Category 2

(7)       Head Waiter/Waitress

(8)       Head Steward/Stewardess

(9)       Hostess

(10)    Waiter/Waitress

(11)    Steward/Stewardess

(12)    Cashier

(13)    Counterhand

(14)    Kitchenhand

(15)    Laundress

(16)    Cleaner

(17)    Yardman

(18)    General Hand

15     It is argued by the Claimant that the classification of Counterhand, for which there is no definition, applied to Ms Daintith initially.

16     The Award was varied with effect from 21 February 2001 and the classification of Counterhand was left out of the list of callings.  The amended Award provided for the following classifications from 21 February 2001 to 1 July 2001:

Classification

Column A Column B

N/A Introductory

Cleaner Guest Service Grade 1

Gardener Gardener

General Hand General Hand

Laundress Guest Service Grade 1

Lift Attd Guest Service Grade 1

Kitchen Hand Kitchen Attendant Grade 1

Yardman Yardman

Housemaid Guest Service Grade 2

Comm’aire Guest Service Grade 2

Night Porter Night Porter

Waiter Food & Beverage Attendant Grade 2

Steward Food & Beverage Attendant Grade 2

Snack Bar Food & Beverage Attendant Grade 2

Storeman Storeperson Grade 1

B’fast Cook Cook Grade 1

Bar Attd Food & Beverage Attendant Grade 2

Cashier Food & Beverage Attendant Grade 2

Butcher Cook Grade 1

Security Off Security Officer Grade 1

Cook Alone Cook Grade 2

Timekeeper Timekeeper/Security Officer Grade 2

Cellarman Food & Beverage Attendant Grade 3

Head Waiter Food & Beverage Attendant Grade 3

Head Steward Food & Beverage Attendant Grade 3

Hostess Food & Beverage Attendant Grade 3

Maintenance Handyperson

Housekeeper/Supervisor Guest Service Grade 3

Qual Cook Cook Grade 3

Butcher (Qual) Tradesperson Butcher

Chef Cook Grade 4

_____ Cook Grade 5

17     With effect from 1 July 2001 the classifications again changed to come within 6 levels as set out hereunder:

18     It is the Claimant’s position that following the amendments to the Award Ms Daintith was classified as a Food and Beverage Attendant Grade 3 and from 1 July 2001 as a Level 3 which includes the former classification.

19     Food and Beverage Attendant Grade 3 is defined in clause 6 of the Award as follows:

(5)  Food and Beverage Attendant Grade 3 means an employee who has the appropriate level of training and is engaged in any of the following:

 (a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

 (b) assisting in the cellar or bottle department, where duties could include working up to four hours per day (averaged over the relevant work cycle) in the cellar without supervision;

 (c) undertaking general waiting duties of both food and liquor including cleaning of tables;

 (d) receipt and dispensing of monies;

 (e) engaged on delivery duties; or

 (f) in addition to the tasks performed by a food and beverage attendant grade 2 the employee is also involved in:

  (i) the operation of a mechanical lifting device; or

  (ii) attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal.

 (g) and/or means an employee who is engaged in any of the following:

  (i) full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

  (ii) mixing a range of sophisticated drinks;

  (iii) supervising food and beverage attendants of a lower grade;

  (iv) taking reservations, greeting and seating guests;

  (v) training food and beverage attendants of a lower grade.

20     It is argued that because Ms Daintith received and dispensed monies (see clause 6(5)(d)) and supervised food and beverage attendants of a lower grade (see clause 6(5)(g)(iii)) namely, those volunteers who assisted in the canteen, she was engaged in two of the duties listed in the above definition and could, therefore, be classified as a Food and Beverage Attendant Grade 3.

21     For completeness I should include the definition of Food and Beverage Attendant Grade 2 and I do as follows:

(4) Food and Beverage Attendant Grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

 (a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

 (b) assisting in the cellar or bottle department;

 (c) undertaking general waiting duties of both food and/or beverage including cleaning of tables;

 (d) receipt of monies;

 (e) attending a snack bar;

 (f) engaged on delivery duties.

22     The Grade 2 duties are duties included in the duties of a Grade 3 as mentioned in clause 6 (5)(f) which would include attending a snack bar.

23     On the evidence before me, which has been agreed by the parties, Ms Daintith was employed as a part-time Canteen Co-Ordinator.

24     It is apparent from her duty statement that she was responsible for the day to day management of the canteen and her duties went way beyond those in the classifications relied on in the Award.

25     There is no calling in the Award of Canteen Co-Ordinator.  It is the case that Ms Daintith could be said to have been “attending a snack bar”, received and dispensed monies and had supervisory duties, however, any objective assessment of the overall duties of a Food and Beverage Attendant must conclude that the classification is more appropriate for premises licensed under the Liquor Licensing Act.  The classifications which precede the Food and Beverage Attendant classification, including waiter, steward, snack bar, bar attendant, cashier, cellarman, head waiter, head steward and hostess all support that view, I believe.

26     On Ms Daintith’s own evidence she was employed as a Canteen Co-Ordinator, a calling which is not a classification in the Award.  Her duties were those of a Canteen Co-Ordinator and there is no suggestion by her that the title was a sham.

27     To determine whether a worker is employed in a calling described in an award requires, in my view, more than identifying one duty performed by the worker which is mentioned in the definition of a calling unless that is the predominate duty.  For example, it is easy to see how a cashier fits within the definition of Food and Beverage Attendant Grade 2.

28     When one considers the duties of Ms Daintith, duty by duty, it is clear, in my view, that they are well in excess of those listed in the classification of a Food and Beverage Attendant Grade 3 and more consistent with her classification of a Canteen Co-Ordinator.

29     The Full Bench of the Western Australian Industrial Relations Commission in Richardson v Action Food Barns WA Pty Ltd 65 WAIG 1087 upheld the Industrial Magistrate’s finding that a worker employed as an Assistant Manager was not a Shop Assistant within the calling mentioned in the award, although her duties included those of a shop assistant.

30     In this case Ms Daintith’s duties may have included some of those of a Food and Beverage Attendant Grade 3 and other classifications in the Award, nevertheless, she was a Canteen Co-Ordinator and that is not a classification found in the Award.

31     The claim therefore is dismissed.

WG Tarr

Industrial Magistrate