WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES ANTHONY RAYMOND FISK

CLAIMANT

-v-

SSS Auto Parts

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 29 June 2006, Wednesday, 19 July 2006, Thursday, 23 February 2006, Wednesday, 31 May 2006

DELIVERED Wednesday, 19 July 2006

CLAIM NO. M 127 OF 2005

CITATION NO. 2006 WAIRC 05229

CatchWords Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977; classification; Storeman Operator Grade II; substantial performance; forklift driver; in charge allowance, overtime

Legislation Industrial Relations Act 1979.

Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977

Cases referred to

in decision  Ware v O’Donnell Griffin (Television Services) Pty Ltd (1971) AR (NSW) 18.

J Fenwick and Co v Merchant Service Guild of Australia (1973) 150 CAR 99.

Montuolo v Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia (1999) 79 WAIG 2647.

Doropoulos v Transport Workers Union of Australia, WA Branch (1989) 69 WAIG 1290.

Cases also cited Federated Clerks Union v Cary (1977) 57 WAIG 585.

Result Claim allowed

Representation 

Claimant Mr M Cox, of Counsel, of Employment law Centre of WA (Inc) appeared for the Claimant.

Respondent Mr R H Gifford of the Motor Trade Association of Western Australia (Inc) appeared as agent for the Respondent.

REASONS FOR DECISION

Background

1         In March 2004 the Claimant’s job provider introduced him to the Respondent.  The Claimant had stores experience, computer skills and a recently acquired forklift “ticket” which made him suitable for appointment as a part-time stores person.  The Claimant was interviewed on 18 March 2004 and accepted a position as a part-time driver / stores person on the basis that the job was likely to evolve into a full-time position when the Respondent expanded its operations.

2         Initially the Claimant worked as a delivery driver and would help out in the warehouse during any breaks in delivery duties.  Then in late May 2004 he was offered a full-time stores position which he accepted.  There is no dispute that the Claimant’s employment from that time onwards was regulated by the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (the Award).

Claimant’s Evidence

3         The Claimant testified that, upon his appointment to the full-time stores position, he was given the responsibility of opening the premises.  In that regard he was required to open the gate and doors and to disarm the alarm.  He would then turn on all the lights of the retail premises at the front of the building before moving into the stores area at the back.

4         Initially he was not required to use a forklift very often whilst carrying out his full-time stores duty.  The amount of time that he spent on a forklift in that initial stage varied greatly.  On occasions he was only required to drive a forklift for half an hour per day.  That was because stock levels had been kept low in anticipation of the major extension that was soon to take place. 

5         The Claimant testified that he had been instructed by Simon Emery who was second in charge of operations as to what was required within the warehouse.  That, however, was no more than an orientation process.  Indeed Mr Emery did not supervise him and he was very much left to his own devices.  Notwithstanding that, he did from time to time seek Mr Emery’s guidance on account of his “phenomenal” knowledge of auto parts and vehicles.  The Claimant testified that Mr Emery’s wealth of knowledge made him conducive to sales.  Customers would routinely want to speak to him because of his knowledge.  The importance of Mr Emery’s role is also reflected by the fact that the Respondent’s managing director, George Chia, would usually leave at lunch times at which times Mr Emery would take over the running of the business in his absence.

6         The Claimant started work at 7.30 am and finished at 4.00 pm each day.  He worked Mondays through to Fridays but not Saturdays despite the Respondent suggesting to him that he work on Saturdays for cash.  He usually took a short break at about

7         8.30 am followed by a lunch break between 11.30 am and 12.00 noon.  No other breaks were taken.  His hours of work were not formally recorded.  He did not receive payslips indicating hours worked.  Furthermore no separate record was kept of the hours he spent driving a forklift. 

8         The Claimant testified that no-one spent as much time on the forklift as he.  He said that he used the forklift in the ordinary course of his duties to unload vehicle parts from the “twenty foot” and the “forty foot” sea containers which were regularly delivered to the warehouse.  The containers usually took half a day to empty.  In one instance the contents of a forty foot container took three days to unload and store given the size and intricate nature of the genuine parts received.  Apart from the unloading of sea containers, the forklift was used to unload and reload “TNT Pallecons”, to transport stock about the warehouse, to remove packaging to the appropriate area and to do all other things necessary and incidental to the operation of the warehouse.

9         The Claimant testified that when he first started that the Respondent’s premises consisted of a front office with a one thousand square metre warehouse at its rear containing three levels of auto parts stored on shelves.  There was also a back area where old second hand auto parts and packaging materials were stored.  Adjacent to the premises was a vacant block where the new warehouse addition was to be constructed.  The addition would effectively double the size of the existing warehouse.  It is not clear from the evidence as to when construction of the warehouse addition started but the Claimant says that construction of the same was completed in about late August 2004.  During the construction phase stock levels were kept low and the delivery of stock containers was delayed.

10      The Claimant testified that upon completion of the extension all stock from the old section was moved to the new section and that the existing shelving in the old section was deconstructed so as to facilitate the erection of new shelving.  He was involved in the process by driving a forklift to relocate stock and to deconstruct shelving.  He said that the process required him to drive the forklift for substantial periods and, on occasions, for the whole day.  That, combined with the arrival within a relatively short period of time of numerous containers that had been held back awaiting the completion of the construction process, resulted in an extremely heavy workload from September 2004 onwards.  His workload was at all times high and stressful.  Consequently he was under a great deal of pressure particularly given the responsibilities thrust onto him by Mr Chia.  Not only was he in charge of the warehouse but the relocation process as

11      Ultimately in February 2005 the Claimant took annual leave followed by a period of sick leave before resigning.  He testified that his resignation resulted from his position becoming intolerable after he had complained about the Respondent using unlicensed employees to drive forklifts.  Following his resignation he discovered that he had not been paid in accordance with the Award and brought this claim.

The Respondent’s Evidence

12      The Respondent called only one witness, being Simon Emery.  Mr Emery testified that he is a “stores supervisor” with the Respondent; a position which he has held for most of the fourteen years that he has worked for the Respondent.

13      Mr Emery said that he was, at the relevant times, in charge of the warehouse and that the Claimant worked under his supervision.  He said that his main responsibility was the warehouse and that he was not involved in sales to the extent suggested by the Claimant.  Indeed the sales aspect of the business was left to dedicated salespeople employed by the Respondent.  His main concern was to ensure that all stock that arrived was identified and labelled correctly and stored appropriately.  He kept an eye on the warehouse staff to ensure that their functions were correctly carried out.  That was so notwithstanding that his office was located within the front office.  He said he kept an eye on what happened within the warehouse through a window next to his desk looking into the warehouse area.  Mr Emery testified that he left the Claimant to his own devices in carrying out his necessary functions in the warehouse.  Those functions, on occasions, required the use of a forklift.

14      Mr Emery confirmed that the Claimant was placed in charge of the relocation process.  The Claimant was assisted in the relocation process by casual staff under the Claimant’s direction.  Mr Emery estimated that the relocation process and the restocking of the warehouse took some two to three months but could not be more precise.

15      Mr Emery’s evidence was that there were a number of employees who could operate forklifts; of which he was one.  He operated forklifts on a regular basis.  Often there was more than just one forklift in operation.  He testified that the unloading of containers and pallecons was a relatively quick process.  He said that the pallecons, received at the rate of one a week or one a fortnight, only took ten minutes to unload.  Similarly sea containers took in the order of half an hour or less to unload.  In some extreme circumstances the unloading of the containers may take an hour.  He said that the use of the forklift during such process would not be for any more than twenty minutes.  He said he never spent half a day on the forklift.

16      When cross-examined, Mr Emery conceded that he did not directly supervise the Claimant and further that he was aware that some employees who were not licensed to drive a forklift did, in fact, do so.

Findings

17      I find that the Claimant was, between 28 May 2004 and 6 March 2005, employed as a full-time stores person by the Respondent which at all material times traded as SSS Auto Parts (WA).  The Claimant and the Respondent were during that period bound by the Award.  I find that the Claimant was in charge of the warehouse operations both generally and also with respect to the relocation process.  I accept the Claimant’s evidence in that regard which is supported by the documentary evidence (see exhibits 5 and 9).  In emails sent to staff George Chia referred to the Claimant as being the person in charge of warehousing.  He also indicated that other employees were to “assist” the Claimant.  The Claimant was left to his own devices in his capacity as storeman in charge and was not directly instructed by Mr Emery.  I accept that as a necessary part of the performance of his duties the Claimant was required to drive a forklift.  I reject the Respondent’s contention that the requirement to drive a forklift was incidental to the Claimant’s functions.  I find that the driving of the forklift was an important and necessary requirement in the execution of his duties.  I find that the Claimant drove a forklift for very substantial periods during the relocation and restocking period which I accept started in about September 2004 and continued on until after Christmas 2004.  I find that the relocation and restocking process merged into one continuous process.  The influx of the higher than usual number of sea containers commencing in about September 2004 resulted from the need to build up stock levels from the low levels maintained leading up to relocation.  The completion of the extension resulted in a surge of work in the warehouse which continued beyond Christmas 2004.  It is axiomatic that the Claimant was required to use the forklift for extended periods during this time to facilitate the Respondent’s requirements.  I accept the Claimant’s evidence in that regard because the prevailing situation he described was far more probable than that portrayed by Mr Emery.  I find Mr Emery’s evidence to be unacceptable.  I gained the firm view from what he said and how he gave his evidence that his testimony was slanted in such a way as to protect the Respondent’s interest.  I agree with Counsel for the Claimant’s submissions in that regard.

18      Further I accept the Claimant’s submission that the unloading of containers and pallecons, together with his other necessary stores duties outside of the relocation and restocking period, required him to drive a forklift for more than half an hour per day.  I accept that the use of the forklift varied from day to day dependent upon the tasks at hand but invariably his use of the forklift was significant and not merely incidental.

19      I accept the Claimant’s testimony as to his hours worked and payments received.  I further accept that the substituted schedule produced on the first day of the hearing accurately represents such things.

20      It follows that I find that the Claimant worked from 7.30 am to 4.00 pm Monday to Friday, with a half hour for lunch, amounting to forty hours per week and not the thirty eight hours provided by the Award.  It is the case that the Claimant has not been paid for the overtime he has worked.  The Respondent, on the final day of the hearing, conceded the claim for overtime but takes issue with the quantum on the basis that the Claimant’s claim in that regard is made with respect to the wrong classification.  It says he was at all material times a storeman and not a Storeman Operator Grade II.

21      Finally, the Respondent concedes that it failed to pay the increased Award rate from 4 June 2004 until 9 July 2004.

Determination

22      The issues requiring determination are:

1)       Whether the Claimant was employed as a Storeman Operator Grade II; and

2)       Whether the Claimant was required by his employer to be in charge of the warehouse; and

3)       Whether the Claimant was required to perform higher duties.

23      Pursuant to subclause 6(2) of the Award, Storeman Operator Grade II is defined to mean:

. . . a worker employed as such carrying out the duties of a storeman who is substantially required to operate the following mechanical equipment in the performance of his duties:

(a) Ride-on power operated forklift

. . .

24      There is no dispute about the fact that the Claimant was required to operate a forklift, however, the Respondent maintains that such did not constitute a substantial requirement of his employment but rather was incidental thereto.  As indicated earlier I do not accept that to be the case.  The evidence establishes that the Claimant was required to operate a forklift on an ongoing basis as part of his duties.  Indeed he could not perform his duties without using a forklift.  Although the Claimant’s use of the forklift varied from day to day it was nevertheless substantial.  That is so whether or not he spent more than half his time at work driving a forklift.  As His Honour Sheldon J said in Ware v O’Donnell Griffin (Television Services) Pty Ltd (1971) AR (NSW) 18 a practical approach needs to be taken.  In His Honour’s opinion it was:

. . . not merely a matter of quantifying the time spent on the various elements of work performed . . .

25      but it was necessary to take into account as a relevant consideration:

. . . the quality of the different types of work done . . .

26      In J Fenwick and Company Pty Limited and others v Merchant Service Guild of Australia and others (1973) 150 CAR 99 Ludeke J said at 101-102:

To ascertain the course of the calling of particular employees, it is not enough merely to make a quantitative assessment of time spent in carrying out various duties.  In my opinion, not only should the nature of the work done by the class of employees be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if a worker is required by his employer to carry out diverse duties, the inquiry should be directed to ascertaining the principal purpose for which the worker is employed.

27      A similar approach has been adopted by the Western Australian Industrial Relations Commission.  In that regard I refer to the decision of Kenner C in Montuolo v Amcor Packaging (Australia) Pty Ltd trading as Amcor Flexibles Australasia (1999) 79 WAIG 2647.  In his decision Kenner C referred to the decision of the Full Bench of the Western Australian Industrial Relations Commission in Doropoulos v Transport Workers Union of Australia, WA Branch (1989) 69 WAIG 1290 in which reference was made to the test of “major and substantial employment” and in referring to Federated Clerks Union v Cary (1977) 57 WAIG 585 the Full Bench observed at 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.

28      A qualitative assessment of the Claimant’s duties results in a finding that he was substantially required to operate a forklift; being something more than incidental to his function.  Put another way his function as storeman, as an integral part, required the driving of a forklift.  In those circumstances it is unnecessary to determine with any specificity the proportion of the Claimant’s time as a storeman spent operating a forklift.  Quantification in an exact amount is, in those circumstances, unnecessary.  Furthermore, even if the Claimant did spend less than half his time operating the forklift, it does not detract from the fact that he was substantially required to operate a forklift to perform his job.  He could only properly carry out his job by driving a forklift.  There can be no question that the Claimant was, at the material times, a Storeman Operator Grade II as defined in the Award and should have been paid as such.  His duties went well beyond that of a “storeman” as defined in the Award.

29      In any event, if I had found against the Claimant with respect to the issue of classification, it would have been the case that he would have been entitled to recover, pursuant to clause 28 Part III (1)(b) of the Award, an amount of sixty three cents per hour for each hour that he was required to operate a ride-on power operated forklift.  When operating the forklift in such circumstances the Claimant was performing work to which a higher rate applied.  Clause 18 of the Award (Higher Duties) had application to his circumstances.  It provides:

18. - HIGHER DUTIES

A worker who is required to do work, which is entitled to a higher rate under this award, other than that which he or she usually performs shall be entitled to payment at the higher rate while so employed.  Provided that where no record is kept in the time and wages record of the actual times upon which the worker is engaged on such higher grade work, the worker shall be paid for the whole day at the rate prescribed for the highest function performed.

30      Given that the Respondent did not keep a record of the actual times the Claimant worked on higher duties, the Claimant was entitled to be paid at the higher rate for the whole day.  In this instance the Claimant would have been entitled to the higher rate for the whole day of each day that he worked.

31      Finally I turn to consider the claim for an in charge allowance.  Subclause 28(2) of the Award provides:

(2) An employee in (1) - (5) above who is required by the employer to be in charge of a shop, store or warehouse or other employees shall be paid an in charge allowance for all purposes of the award calculated as follows:

(a) if placed in charge of a shop, store or warehouse with no other employees or if placed in charge of less than three other employees -

3.4% of the rate specified in subclause (1) - (5) above, as appropriate

(b) if placed in charge of three or more other employees but less than ten other employees -

6.2% of the rate specified in subclause (1) - (5) above, as appropriate

(c) if placed in charge of ten or more other employees -

11.2% of the rate specified in subclause (1) - (5) above, as appropriate

32      The Claimant was at all material times an employee to which the aforementioned subclause applied by virtue of his position as a Storeman Operator Grade II as provided for in subclause 28(1) of the Award.

33      The Claimant was appointed by Mr George Chia to be in charge of warehousing.  Mr Chia’s email to staff dated 20 September 2004 (see exhibit 5) reflects that to be the case.  Indeed the Claimant’s status as being responsible for warehousing can be traced back to as early as 17 July 2004 when Mr Chia, by email sent to staff, made it clear that warehousing was the Claimant’s responsibility and that he should enforce the appropriate standards with respect to employees working in that area.  Furthermore there can be no issue about the fact that the Claimant was in charge during the warehouse extension, refit and relocation.  A consideration of the rosters (see exhibit 9) together with the Claimant’s evidence reflects that he had responsibility for and was in charge of employees throughout and particularly during the relocation period.  I accept that from appointment until termination the Claimant was usually in charge of less than three employees except for the relocation period (late August to mid October 2004) when he was in charge of more than three but less than ten employees.  The documentary evidence overwhelmingly establishes that to be the case.  Mr Emery’s role as supervisor did not preclude the Claimant from being in charge of other employees.  Even accepting Mr Emery’s evidence about his role, it does not establish that he had an exclusive supervisory role.  Indeed that evidence does no more than to establish that he was the Claimant’s superior.  It does not of itself demonstrate that the Claimant was not in charge of other employees.

34      In conclusion, I am satisfied on the balance of probabilities that the Claimant was at all material times employed as a Storeman Operator Grade II who was in charge of other employees.  The Claimant should have, at all material times, been remunerated in accordance with the rate applicable to a “Storeman Operator Grade II” and he should have been paid an in charge allowance, however, that did not occur.  It follows that I am satisfied that the claim, in so far as it is not conceded, is made out.  I accept the Claimant’s substituted schedule as accurately reflecting the underpayments suffered for each pay period, amounting to $3,295.11.

35      I will now hear from the parties as to the appropriate orders.

G Cicchini

Industrial Magistrate