WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JENNI-LEE MANN

CLAIMANT

-v-

AUSTRALIAN FAST FOODS PTY LTD T/AS CHICKEN TREAT

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD WEDNESDAY, 6 JULY 2005, WEDNESDAY, 17 AUGUST 2005, THURSDAY, 13 OCTOBER 2005, WEDNESDAY, 19 OCTOBER 2005, THURSDAY, 20 OCTOBER 2005, THURSDAY, 3 NOVEMBER 2005

CLAIM NO. M 280 OF 2004

CITATION NO. 2005 WAIRC 03183

CatchWords Certified Agreement - Retail Employee Grade IV - Assistant Manager, giving directions - overtime.

Result Claim dismissed

Representation 

CLAIMANT  Mr RW Clohessy instructed by Workclaims Australia appeared as agent

for the Claimant.

Respondent  Mr A Power (of Counsel) and with him Ms D Flint (of Counsel) instructed

by Deacons appeared for the Respondent.

REASON FOR DECISION

Background

1         The Claimant was born on 14 June 1982.  On or about 16 September 1997, the Respondent employed her in the position of Retail Employee.  On 30 October 2000 she was appointed as an Assistant Manager and continues in that position.  She currently works at the Respondent’s Mirrabooka store, being one of its fifty-six Chicken Treat stores in Western Australia.  There are also thirteen other franchised Chicken Treat stores in Western Australia.

2         A store Manager, Assistant Manager/s (the management team) and “crew”, typically staffs each Chicken Treat store. The terms and conditions of employment of the store Managers and Assistant Managers are contained within written agreements (Employment Agreement).  Store Managers and Assistant Managers are paid a salary plus incentive bonuses.  The crew’s conditions of employment are currently governed by the Chicken Treat Employees SDA Agreement 2004 certified pursuant to section 170LJ of the Workplace Relations Act 1996.    It appears that the various versions of the Agreement, the first of which was certified in 1998, have substantially remained unchanged since inception. It is the former 2001 certified agreement numbered AG 007342 (the Agreement), which is relevant for my purposes in this matter.  The Agreement, in clauses 6(2) to 6(5), defines four different classes of Retail Employees (the crew) that are covered by the agreement.  I set out those provisions.

3         “Retail Employee Grade I” shall mean an employee engaged in a retail food establishment who is in the first six months of employment and who is gaining the skills required of an Employee Grade II or Grade III.

4         “Retail Employee Grade II” shall mean an employee with not less than six months service with Chicken Treat who is engaged to assist with the preparation, assembly, cooking or packing of product for sale; the maintenance of the work area at a standard of cleanliness as determined by Chicken Treat; the cleaning of cooking utensils, cutlery and glassware; and/or in the delivery of product to the customer outside the establishment.

5         “Retail Employee Grade III” shall mean an employee with not less than six months service with Chicken Treat who performs customer service functions including the taking of orders by any means, the entering of information onto a computer, the receipt of monies or other duties involving customer contact except the delivery of product to the customer outside the establishment.

6         “Retail Employee Grade IV” shall mean an employee involved in the preparation of food using trades equivalent skills and/or required to give direction to or be in charge of Employees Grades I – III.

7         The Respondent employs as its crew in its retail outlets Retail Employees in classifications in “Grades I, II or III”.  It does not employ any “Retail Employees Grade IV”.   Grades I, II and III Retail Employees provide their labour in performing the various tasks including assisting with preparation, assembly, cooking and/or packing of the product for sale.  They are also involved in maintenance of the work area, the cleaning of utensils, the delivery of product, the taking of orders, the entering of information onto a computer and the receipt of monies.  Generally they provide a service to customers. It is axiomatic that the management team is responsible for their supervision.   The management teams responsibilities however are not limited to supervision.  Indeed they are responsible for a myriad of other things aimed at the profitable operation of the particular store.

The Claim

8         The Claimant asserts that she is a Retail Employee Grade IV because she is involved in the preparation of food using trade equivalent skills and because she is required to give directions, or be in charge of other employees.  It is the second assertion that she pleads as substantiating her claim.

9         In essence the Claimant says that she has worked 45 hours per week since October 2000 but has not been paid overtime for the 7 hours per week overtime worked in excess of the 38 ordinary hours as provided for by clause 8 (Hours) of the Agreement.  The Claimant contends that she should have, pursuant to clause 9 (Overtime) of the Agreement, been paid 7 hours of overtime each week with the first 2 hours thereof at time and a half and the balance at double time.  She has calculated the total underpayment to 8 November last year to be $27,517.52.  The Claimant has, in her replacement schedule dated 23 September 2005, claimed in excess of that amount which includes amounts allegedly underpaid subsequent to the filing of the claim.  It suffices to say that this Court cannot entertain that part of the claim that postdates the initiating process in this matter.

Response

10      The Respondent denies that the Agreement binds the Claimant or in any way applies to her employment.  It says that a correct interpretation of the Agreement will result in a finding that the classification Retail Employee Grade IV cannot apply to Assistant Managers because the Agreement does not cover its managerial personnel.

Determination

11      The pivotal issue to be determined in this matter is whether at the material times the Agreement applied to the Claimant.  Such entails a consideration of the terms and conditions of her employment contained within her Employment Agreement together with a consideration of her specific duties and responsibilities outlined thereunder.

12      It is common ground that the terms and conditions of the Claimant’s employment are those as set out in Exhibit 1 being the Employment Agreement dated 5 February 2003.  The initial agreement relating to the Claimant’s appointment to the position of Assistant Manager was lost in a fire, which destroyed much of the Respondent’s records.  Exhibit 1 was created to replace the one that had been lost in the fire.  A perusal of Exhibit 1 demonstrates that the Claimant was appointed to the position of Assistant Manager.  As the Assistant Manager she is required to report to the Restaurant Manager and to assist with the development and maintenance of performance standards and profitability required by Chicken Treat outlets.  In that regard she was at the material times required to work a 45 hour week including weekends, evenings and public holidays in accordance with set rosters.  More recently her hours have reduced to 40 per week.  The Claimant is remunerated by way of base salary, plus incentive bonuses.  The Employment Agreement purports to govern other aspects of the employment relationship including leave, termination and duties.

13      The duties and role of an Assistant Manager is reflected in the Claimant’s own testimony; the evidence given by Simon Kaye who is the Respondent’s State Manager, and in the documentary evidence before the Court, particularly the Employment Agreement (exhibit 1) and the various manuals, handouts and instruction sheets contained within the three volumes of Exhibit 4.

14      A review of the evidence dictates that the Claimant was in her capacity as an Assistant Manager required inter alia to do the following:

1 Manage, monitor and maintain production, budgets, sales and profits, stock and supplies.

2 Manage, monitor and maintain marketing.

3 Minimise waste of resources, supplies and product.

4 Manage, monitor and maximise the quality of product.

5 Manage, monitor and maximise customer service.

6 Manage, monitor and maximise the use of human resources to improve customer service and product.

7 Maintain cleanliness and appearance of product, premises and personnel.

8 Manage, monitor and attend to all store banking, accounting and financial control, record keeping and reporting.

9 Manage relationships with suppliers.

10 Manage and maintain the security and safety of premises, personnel and others that enter the store.

11 Manage and maintain the assets of the Respondent.

12 Manage all occupational health safety and welfare issues pertaining to the store.

13 Work with the Area and State Managers to ensure the success of the business as a whole.

15      To achieve those ends the Claimant was required to and did do the following, which are not an exhaustive list of her duties:

• Daily monitoring of sales, budgets and costs.
• Monitoring of satisfactory sales performance and budgets, throughout the day and at the end of the day.
• Daily involvement in proactive sales.
• Daily preparation of sales forecasts to reduce waste.
• Daily control of expenses against a budget.
• Daily and weekly involvement in stock takes and mini stock takes.
• Ensure on a daily basis that product did not run out.
• Constantly monitor product, quality and cleanliness.
• Instruct crews as required on a daily basis.
• Deal with customer complaints as required.
• Cook, preparing and presenting food to the highest standards on a daily basis.
• Manage labour costs by minimising overtime on a daily and ongoing basis.
• Constantly manage labour resources to achieve the appropriate result, having regard to budgetary considerations.
• Minimise staff turnover by producing a happy and pleasant working environment.
• Manage individual employees with respect to their performance and deal with any misconduct issues.
• Ensure on a daily basis that the store is presented appropriately.
• Ensure that staff is appropriately presented.
• Maintain cleanliness and hygiene standards by drafting and enforcing a cleaning schedule.
• Monitor of cleanliness issues, on a daily basis, and instructing staff with respect to problems identified.
• Answer the telephone.
• Ensure that menu board and visual display presentations are appropriate.
• Regularly monitor sales and cash on hand.
• Regularly operate the till and skim the till as required.
• Prepare cash envelopes and drop cash cleared from skimming into the safe.
• Authorise voids and sale cancellations as required.
• Daily balances of the tills.
• Maintain sales records on an hourly and daily basis.
• Collect change from the bank twice a week.
• Count the till float on a daily basis.
• Quote on catering.
• Consolidate the tills on a daily basis.
• Constantly audit sales and crew achievements.
• Receive deliveries on a daily basis.
• Order stock as required to ensure an adequate supply of product.
• Being responsible for the security of keys, alarm codes and safe codes.
• Ensure on a daily basis that the security cameras operate.
• Ensure the integrity of the premises and constantly monitor entry and exits from the store.
• Ensure on a daily basis the maintenance of a safe, secure environment for staff, customers, visitors and contractors.
• Ensure that no alcohol, drugs or other illegal substances make their way onto the premises.
• Ensure no unauthorised person enters the work area.
• Maintain the store’s occupational safety and health hazard book.
• Administer first aid as required.
• Respond to any occupational safety and health issue that may arise.
• Ensure that food handling and health requirements are complied with.
• Regularly attend store management meetings with the Area Manager.
• Liaise with the Area Manager to implement marketing programs.

16      A review of the Claimant’s duties reveals that she carries a high degree of responsibility, which extends well beyond that of supervision.  Her role as Assistant Manager requires her to assume the prime managerial position when working in the store in the absence of the Manager.  She is, in those circumstances, in ultimate control of the store.  Indeed her title well reflects her position.  The fact that the Claimant performs the duties described above is not in dispute and is consistent with the Employment Agreement she entered into with respect to her appointment as Assistant Manager.  The Claimant accepted her appointment on the terms and conditions set out in the Employment Agreement. There is no suggestion that the Employment Agreement is a sham.  Accordingly the Employment Agreement and in particular the Claimant’s position description within that agreement must be given its full weight.

17      In Federal Commissioner of Taxation v Krakos Investments Pty Ltd 133 ALR 545 the Full Court of the Federal Court of Australia held per Hill J (Von Doussa and O’Loughlin JJ concurring) that:

“The parties cannot determine the proper characterisation of a relationship by the label which they choose to attach to it.  However, where a transaction is not a sham, and it is not suggested that the label used is not a genuine statement of the parties’ intention, that label will be given its proper weight.”

Australian Mutual provident Society v Allen (1978) 18 ALR 385; 52 ALJR 407; Narich Pty Ltd v Commissioner of Pay-Roll tax [1983] 2 NSWLR 597, applied.

18      The Claimant was and continues to be employed as an Assistant Manager.  The nature and extent of the work required to be performed by an Assistant Manager is, in a number of important respects, significantly different to and much broader in scope than a person employed to perform work under one of the classifications in the Agreement.  The evidence overwhelmingly dictates that the Claimant is not employed by the Respondent in the Retail Employee Grade IV classification and that the Agreement does not apply to govern her employment.  Indeed the Grade IV classification does not describe, nor does it encompass, the much wider array of duties performed by an Assistant Manager.

19      The language of clause 6(5), when considered in the light of the language of the Agreement as a whole, reflects the fact that the Agreement does not contemplate an Assistant Manager to come within the Grade IV classification of the Agreement.  Clauses 41(1) (a) and (b) distinguish the respective roles of an employee under the Agreement and a store Manager (which includes an Assistant Manager) in dealing with grievances or disputes. Practically that provision cannot operate if an Assistant Manager fell within the Grade IV classification.  A similar inconsistency exists in clauses 43(1) (a) and (e) which deal with “right of entry”.  In the absence of the store Manager the Assistant Manager assumes the primary management role and is for all intents and purposes the Manager.  The holding of such a position is materially inconsistent with the classification under the Agreement and, in particular, the Grade IV classification.

20      I find there is no ambiguity in clause 6(5) of the Agreement.  Its meaning is to be obtained by considering the terms of the Agreement as a whole, applying the reasoning of the Full Bench of the Western Australian Industrial Relations Commission in Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia and others (1987) 67 WAIG 1097 at 1098 and Norwest Beef Industries Limited and Derby Meat Processing Co Ltd v West Australian Branch, Australasian Meat Industry Employees Union, Industrial Union of Workers, Perth (1984) 64 WAIG 2124 at 2127.  Accordingly there is no need to resort to extrinsic material as an aid to interpretation.  It follows that there is no need to consider the evidence given by Joseph Bullock, the Secretary of The Shop, Distributive and Allied Employees’ Association of Western Australia, concerning his role in negotiating the Agreement.

21      On no reasonable view of the evidence could the Claimant be said to have been employed during the material times in the Retail Employee Grade IV classification.  The claim must be dismissed on that basis alone.  Further, and in any event the Claimant has failed to produce evidence to prove on the balance of probabilities that she is entitled to the amounts sought as reflected in her replacement schedule dated 4 March 2005.

G Cicchini

Industrial Magistrate