100423907

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES GREG LOGAN-SCALES, DEPARTMENT OF CONSUMER & EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 ECO TOURS PTY LTD T/AS WESTERN TRAVEL BUG

RESPONDENT

CORAM MAGISTRATE RH BURTON IM

DATE FRIDAY, 9 JULY 2004

FILE NO M 199 OF 2003

CITATION NO. 2004 WAIRC 12088

_______________________________________________________________________________ 

Representation

Claimant  The Claimant appeared in person.

Respondent Ms L Walser and with her Mr B Anderson appeared on behalf of the Respondent.

_______________________________________________________________________________

Reasons for Decision

The Claim

1         This is a claim by Mr Greg Logan-Scales, an Industrial Inspector, made under section 83(1) of the Industrial Relations Act 1979 (the Act), for the enforcement of an instrument on behalf of Allan Thomas Morgan (hereinafter referred to as “Morgan”).

2         Morgan is a tour guide who drives a bus under contract to the Respondent. He is a casual worker.

3         The Claimant alleges that Morgan’s work is covered by the Transport Workers (Passenger Vehicles) Award No R47 of 1978 (the Award) by virtue of section 37(1) of the Act.

4         Section 37 of the Act has the heading “Effect, area and scope of awards” and subsection (1) provides:

An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section-

(a)   extend to and bind-

(i)                    all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and

(ii)                  all employers employing those employees;

and

(b) operate throughout the State, ….

5         Morgan claims he has not been paid:

• the minimum casual hourly rate of pay for all the hours worked in some weeks.
• the 15% shift penalty for hours worked between certain times Monday to Friday.
• the additional penalty rate of 50% for work performed during ordinary hours on Saturdays.
• the additional penalty rate of 100% for work performed during ordinary hours on Sundays.
• the additional penalty for work performed on a Labour Day public holiday.
• overtime rates of pay for additional hours worked on any or all days of the week Monday to Saturday.
• overtime rates of pay for additional hours worked on two Sundays.

6         Morgan had kept calculation sheets recording hours and days worked in the period from 5 December 2001 to 10 May 2002 and these have been used to base a claim for payment of $7083.02.  The claim also seeks pre-judgment interest, costs and the imposition of a penalty.

7         At the outset I decide that the claim made for pre-judgment interest is unsuccessful because of the decision of the Full Bench of the Western Australian Industrial Relations Commission in Foy v Terraqua (2003) 83 WAIG 3319.

8         The Respondent’s answer to the claim is that Morgan is only bound by the Minimum Conditions of Employment Act 1993 (the MCE Act) and is employed as a tour guide and not a bus operator and has been paid according to the MCE Act.

9         The Respondent disputes much of the detail recorded on the calculation sheets produced by the Claimant as to the hours worked.

10     It was agreed that my principal task was to decide whether Morgan was a bus driver and the parties could probably resolve later the question of quantum, or the sum to be paid, if any.

11     The question I have to resolve is whether the driving of the twenty-five seater bus was the major and substantial part of the employment as a bus driver/tour guide.

12     I find that the Respondent is a tour bus operator.

The Evidence

Allan Thomas Morgan

13     Morgan gave evidence that at the relevant time he was a bus driver/tour guide and had initially responded to an advertisement that was for a tour coach driver/guide.  He said he did not get that job but later responded again to an advertisement.  Later again he was called in for an interview.  The advertisements stated that knowledge of the South-West of the State was essential.  The fax number in the advertisement was that of Western Travel Bug.

14     He said he has an F class driver’s licence that covers passenger vehicles and paying passengers.  He said he thought he had to have the appropriate licence, interest in the tourism industry, knowledge of tourist places of interest and be able to communicate with and get on with people.  He was expected to adhere to a schedule, perform the appropriate duties at each destination, and pay park fees and accommodation expenses.

15     He was paid $145.00 per trip and that sum increased to a maximum of $160.00 after twelve months experience.  He was not paid while being trained.

16     He started work at 6.00 am at the bus depot and finished at 7.00 pm to 8.00 pm.

17     He took tours to the Pinnacles, Wave Rock, Albany, (a two day trip) and Margaret River.  He often drove around to pick up passengers and later dropped them off at their Perth accommodation.

18     The passengers would, during the tour, have a morning tea stop, toilet breaks and lunch and afternoon tea stops.  Sometimes these were organised by the driver.  Visits were made to various sites and commercial premises.  Morgan would also unload the coach for overnight stops and arrange and pay for accommodation and generally look after his passengers.

19     On longer trips he could be on the job for as much as eleven to thirteen hours per day.

20     He said that the majority of his time was spent driving and while driving and when stopped he would give the passengers local information.  This varied to a certain extent depending on the number of passengers on the trip and who they were.

21     He said he had to keep records for the Respondent.  He said he did not have any experience as a tour guide prior to commencing with the Respondent, but had driven buses for three or four years.

22     He said that at the conclusion of each trip he had to have the bus fuelled up for the following day and then he washed and cleaned it at the depot.  There was evidence that cleaning could take half an hour to an hour and a half.  He said sometimes he had to wait as there were other drivers cleaning buses.

23     Morgan said that he had recorded the hours in a school exercise book that he had later summarised and then, later still, lost.

24     Mr Anderson who is the sole director of the Respondent cross-examined Morgan.  Additionally I permitted Mr Anderson’s daughter, Ms Walser, to also ask questions of the witnesses as she is involved extensively in the business.

25     The Respondent disputed the time taken to complete the work required to be performed on the return of the buses to Perth.

26     Ms Walser disputed that Morgan had obtained the job in response to any advertisement but, on the evidence, I find that Morgan got the job through the advertisements.

27     Every tour guide had to have an appropriate driver’s licence and additional knowledge.  Morgan had to have other skills as well as driving.

28     There was a dispute as to at least some of the times Morgan had recorded.

Garry James Chidlow

29     Mr Chidlow gave evidence for the Claimant.  He said he had worked for the Respondent for about four months from January 2002.  His evidence more or less corroborated that of Morgan.

30     His evidence was subjected to cross-examination.

Brian Anderson

31     Mr Anderson (hereinafter referred to as “Anderson”) gave evidence that he was the managing director of Eco Tours.  The company has ceased business and owes about $80,000.00.  It has not been liquidated due to the current proceedings.

32     His evidence was that Morgan was employed as a tour guide on minimum wage conditions.  He said that Morgan had allegedly had difficulty sticking to the itinerary for his trips.

33     He said it was essential to have tour guiding skills.

34     While being cross-examined he handed over certain financial statements to the Claimant.  He said Eco Tours traded as Western Travel Bug and reaffirmed that Morgan was employed on minimum conditions.

35     I find that Eco Tours hired Morgan.

36     Ms Walser, in examining Mr Anderson, referred to the decision Transport Workers Union v Pinnacle Services Pty Ltd 80 WAIG 4402.  I decide that the test set out in that decision is not the test I have to apply but rather the one set out below being that of the major and substantial purpose of the employment.  I make a further comment about this case below.

Steven Vincent Crawford

37     Mr Crawford told the Court he was a director of the Western Australian Tourism Commission.  He said there was a difference between a mere bus driver and a tour guide.  I agree with that.  A tour guide must contribute much more, including information and care and other skills.

38     I agree with the witness that the tourism industry is a very competitive market.

Jeffrey Noye

39     Mr Noye said that he had been a tour guide for some ten years on a casual basis.  He said there was a lot more to being a tour guide than merely driving a bus.

Submissions - Claimant

40     Mr Logan-Scales submitted that Morgan was bound by the Award because of its scope clause and, as a common rule award; it applied through section 37(1) of the Act.

41     He quoted clause 3.- Scope and clause 4.- Area of the Award, which are as follows:

3. - SCOPE

This Award shall apply to all bus drivers (including Service, Tour, Charter and School Bus drivers) employed in the classifications described in Clause 10. - Wages of this Award, except those workers employed by the Western Australian Government Railways, the Eastern Goldfields Transport Board, and the Metropolitan (Perth) Passenger Transport Trust.

4. - AREA

This Award shall operate over the whole of the State of Western Australia.

42     Clause 10.- Wages gives two rates for adult drivers based on whether the bus being driven has a seating capacity of under or over twenty-five.  A slightly higher sum is stated for the larger bus.  The rates of pay set out in exhibit B have no doubt been changed since 1986.

Submissions – Respondent

43     Ms Walser made submissions on behalf of the Respondent.  She emphasised the fact that Morgan was taken on as a tour guide not a driver.

44     I note that there was other written information on the Court file but I have only acted upon the evidence from the witnesses called.  I also record that the appropriate hourly rate under the MCE Act during the material time was $10.01 until 28 April 2002 and $10.34 thereafter.

45     I observe that I have tried to help the Respondent present its case, but it is difficult where the Respondent is not represented either by Counsel or an industrial agent.  I have done the best I can while remaining impartial.

Authorities

46     I have been referred to, and given consideration to, the following cases:

47     Parker & Son v Amalgamated Society of Engineers (1926) 29 WAIG 90.  The Claimant submitted that this authority did not apply in this matter because in this case before the Court I have found that the Respondent is a bus operator whereas in that case there was not such a finding.

48     Montuolo v  Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia (1999) 79 WAIG 2674.  This authority deals with the concept of the major and substantial purpose of the engagement.

49     Doropolous v Transport Workers’ Union of Australia, WA Branch (1989) 69 WAIG  1290 dealt with the same issue.

50     Flood, Industrial Inspector v Westwright Pty Ltd trading as Harts-Parkers Drycleaners (1984) 64 WAIG 2008 was also on the same point.

51     The Western Australian Shop Assistants and Warehouse Employees Industrial Union of Workers v Richared Spaanderman trading as Carry on Camping Pty Limited (1983) 63 WAIG 1956 deals with the fact that it is not merely the quantity of the work but also the quality of the work which had to be considered.

52     There is also another authority I have found; Federated Clerks’ Union of Australia, WA Branch v Cary (1977) 57 WAIG 585 and I will deal with this later herein.

Determination

53     I come to the conclusion that exhibit G, a summary of working hours for Morgan, properly records the hours worked by Morgan.

54     I also conclude that the TWU v Pinnacles case (supra) is not relevant as it was held there that the defendant was not operating buses.

55     Another matter that I should note is that a passenger on one of these tours does not just go to be driven to Hyden’s Wave Rock for example.  He or she goes for the total experience that includes the commentary, the trip, the morning tea and accommodation if any.

56     I should also record that in any event I come to the conclusion that it is unfair that if Morgan is a driver he would be paid more when in fact as a tour guide, doing far more, he may be caught by the MCE Act only, and be paid less.  Having said that, I clearly state that unfairness is not the test to be applied in this matter.

57     I now refer back to the FCU v Cary case (supra).  In that regard Burt J (as he then was) said, at page 586, the enquiry is to find what it is the worker was employed to do.  Regard should be had to the (major and) substantial nature of the employment in terms of the purpose to be achieved by it in terms of ends and means.  His Honour said:

… one judges the question as it may arise in any particular case simply by finding as a fact what it is that the worker was employed to do and then deciding whether upon the facts so found he was employed to “make written entries, keep accounts” and other work of that character.  Of course one has regard to the substantial nature of the employment in terms of the purpose to be achieved by it, the question being, I think, very much controlled by the difference, which is not always accepted by philosophers but which serves the purposes of practical men, between ends and means.  If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not.  The “substance” of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.

58     The employee in that case negotiated agreements, supervised tenants and advised landlords as to termination of leases.  The making of written entries that coincided with a clerk’s duties was incidental to the main tasks as stated above.

59     Further, in Doropoulos (supra) the Full Bench, after quoting the above passage from Cary, stated at page 1293:

Thus, incorporated in the consideration of major and substantial employment on that authority, are questions of substantial nature of the employment, the substance of it, and the purpose to be achieved by it. One has to look at the contract or evidence of it, and obtain a comprehensive picture of the whole of the employment, to enable one to apply Burt J.'s test.

60     Here, what I have is a man who drives a bus and conducts a tour at the same time.  His driving is the major and substantial part of his time spent on such tours.  The rest occupies a much lesser time.  I find that the majority of the work was driving the bus on each occasion.

61     It is axiomatic that if there is no driving then there is no tour.  The other matters attended to by the driver are important but incidental aspects to the contract.  I have the reverse of Cary as the other duties were incidental to the driving.

62     I find that Morgan is a driver and is covered by the Award.

63     If I am wrong in that regard, I find also that, on the hours of work presented to me, Morgan has on at least some occasions not been paid his minimum entitlements.

64     The matter is adjourned for the parties to make the relevant calculations.  In default of agreement the matter may be referred back to me.

RH Burton

Industrial Magistrate