WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES CYNTHIA ELLEN CURRIE

CLAIMANT

-v-

Digital Documents Co (W.A.) Pty Ltd

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 2 August 2006, Thursday, 6 July 2006

DELIVERED Wednesday, 2 August 2006

CLAIM NO. M 23 OF 2006

CITATION NO. 2006 WAIRC 05262

CatchWords Commercial traveller; salesperson; Commercial Travellers and Sales Representatives’ Award; probation; substantially away from employer’s place of business; vehicle allowance; generalia specialibus non derogant; private contract; contracting out of an award; section 114 Industrial Relations Act 1979

Legislation Industrial Relations Act 1979

 Commercial Travellers and Sales Representatives’ Award 1978

Cases referred to

in decision James Turner Roofing Pty Ltd v Christopher Lawrence Peters 83 WAIG 427

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

J Fenwick and Company Pty Limited and others v Merchant Service Guild of Australia and others (1973) 150 CAR 99

Montuolo v Amcor Packaging (Augsralia Pty Ltd trading as Amcor Flexibles Australais) (1999) 79 WAIG 2647

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

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

Hungry Jacks Pty Limited and others v GeoffreyWilkins and others 71 WAIG 1751

Cases also cited James Austin Fuller v North Beach Bowling Club 83 WAIG 1133

 Electrical Trades Union of Workers of Australia (WA Branch), Perth v Signlite Pty Ltd

Result Claim alleging underpayment proved.

Representation 

Claimant Ms C E Currie appeared in person

Respondent Mr O Moon of Oliver Moon and Associates appeared as agent.

REASONS FOR DECISION

The Claimant’s Appointment

1         In March 2004 the Claimant was introduced to the Respondent by her job provider.  The Respondent at that time was seeking the services of a travelling sales representative.  The Claimant was interviewed for that position by the Respondent’s director, Mr William Blake.  During the interview the Claimant was advised that the position entailed the sale and distribution of print and photocopied materials which included brochures, pamphlets, books, business cards and the like.  She was told that the job necessitated “cold calling”.  The Claimant asserts that during the interview Mr Blake told her that he felt that she should service certain areas within the metropolitan area which he considered to be under serviced.  Mr Blake on the other hand suggests that he informed the Claimant that her efforts should be concentrated on the Perth Central Business District (CBD).  Indeed that was the area that he wanted her to service.

2         The Claimant testified that Mr Blake explained to her during interview what her job entailed.  He explained that her function necessitated the use of a motor vehicle to attend clients, to do cold calls, to pick up supplies, to meet with graphic artists, to take proofs of documents created to clients, to organise any changes that might be necessary, to facilitate the production of what was required and then deliver the product.  The Claimant testified that because she lacked experience and had no contacts within the industry she was told that to begin with she would be given a few inactive customer accounts to follow up on.

3         The Claimant testified that during the interview she was asked whether she had a reliable car to which she replied that she did.  That drew the comment “you will need it”.  Mr Blake on the other hand suggests in his testimony that the Claimant was specifically advised that she was to take public transport to service her clients in the CBD.  He said that, given the proximity of the Respondent’s head office at Burswood to the CBD and the availability of public transport in that area, the use of a motor vehicle was unnecessary.

4         During the interview the Claimant was told that she would be required to work Mondays to Fridays from 8.30 am to 5.00 pm.  She was advised that her commencing salary would be $25,000.00 per annum plus commission on the attainment of certain sales targets.

5         The Claimant was subsequently offered the position which she accepted.  The terms and conditions of the Claimant’s employment were reduced to writing in a letter dated 31 March 2004 (see exhibit 4) which was handed to the Claimant on her first day at work being the 31 March 2004.  On 6 April 2004 the Claimant formally accepted, in writing, the terms and conditions set out in the letter.  The terms and conditions set out in the letter provided inter alia as follows.

. . .

Your commencing salary will be $25,000 per annum (includes a car allowance) and will be paid fortnightly by bank transfer.  Base salary is paid one week in advance and one week in arrears.  You’re (sic) on target commission earnings for the first three months will be $3,750 based on an achieved quarter target of $36,000 invoiced revenue ($12,000.00 per month).  Your commission payment will be assessed according to the percentage of achieved revenue against target i.e. Month one revenue $9,000.00 = 75% x $1250.00 = $937.50 and so on.  Any revenue results that exceed the $36,000.00 will attract an additional payment of 5%.  Also, provided that the full revenue result over the three month period is achieved then full payment of the amount ($3,750.00) will be made retrospectively.

. . .

In terms of basic business practices the company expects you to understand and accept that the only way to succeed will be through maintaining a consistently high level of activity in the field.  Specifically, once assigned to a territory, you will be required to complete a minimum number of faces to face calls per day.  It is expected that your activity will lead to the achievement of revenue targets.  Management will review your performances against this commitment at least weekly, via accurate data provided by you from your Diary and/or Territory management forms.  These diary/forms will be given to you upon commencement and its use explained by your Manager.

We will review your performance three months after date of commencement with regard to future employment prospects with Digital Documents.  Should any aspect of your performance be unsatisfactory your employment may be terminated at this time.  Once a full time position is offered to and accepted by you we will offer a complete remuneration package similar to that of other persons employed in the same position with our company.

. . .

It was the case that neither party at that stage contemplated the application of the Commercial Travellers and Sales Representatives Award 1978 (the Award).

Commencement

6         The Claimant commenced working for the Respondent on 31 March 2004 and carried out her functions as discussed during the interview.  She testified that she was paid at the rate of $961.40 per fortnight exclusive of commissions.  From time to time she also received commissions but continues to be uncertain as to how those commissions paid were calculated.

7         The written agreement provided that there would be a review of the Claimant’s performance three months after the date of commencement.  The purpose of the review was to determine whether a permanent full time position would be offered.  It is open to infer that the Claimant was to be on probation for the first three months of her employment.  It suffices to say that the review did not occur when it was supposed to have been conducted.  In fact Mr Blake conducted a review at the end of July 2004 in consequence of which he purported to extend the Claimant’s probationary period for a further month.  By that time the Claimant had already been in the Respondent’s employment for about four months.  Mr Blake confirmed his decision in that regard in a memo to the Claimant dated 10 August 2004.  On 19 August 2004 the Claimant acknowledged the Respondent’s memorandum detailing the extension of the probationary period.

8         The Claimant testified that throughout the period of her employment with the Respondent she carried out the tasks that were required of her.  She serviced clients throughout the metropolitan area from Brigadoon to Canning Vale.  She had to necessarily use her vehicle in the performance of her duties.  The use of public transport to carry out such duties was neither feasible nor practicable.  The Claimant asserts that other than time spent in the office for sales preparation, she was on the road constantly, attending to sales, servicing customers and picking up and dropping off items for Mr Blake, other sales representatives or the office generally.  She felt like a “gopher” in doing those tasks for others.

The Dispute

9         In about March 2005 the Claimant, in discussions with a friend, apprehended that she may have been underpaid.  After making enquiries through “Wageline” she spoke to Mr Blake about it.  Mr Blake said he would have the Respondent’s accountant sort it out.  That, however, did not eventuate.  In the end the Claimant decided to leave her employment with the Respondent.  Her employment ceased on Friday 29 April 2005.

10      The Claimant asserts that the Award regulated her employment with the Respondent.  She says that she should have, as a commercial traveller, been paid $561.20 per week instead of that which she received, resulting in an underpayment of $80.50 per week amounting to a total underpayment of $4,508.00 over the fifty six weeks of her employment.  She asserts further that she should have also been paid $147.10 per week by way of a vehicle allowance.  She claims an amount of $8,237.60 being the value of the vehicle allowance which she alleges she was entitled to for the fifty six weeks of her employment, but which was not paid.

11      The Respondent on the other hand contends that the Claimant was not a commercial traveller as defined in the Award.  It says that her employment was subject to, and regulated by, the written agreement entered into by the parties which was a private agreement and not subject to the provisions of the Award.

12      The Respondent says that even if the Claimant’s work was regulated by the Award, which is denied, that her claim is defective in any event because the first nine months of her employment was subject to probation thereby reducing her entitlement to $460.90 for the first 9.3 weeks of her employment and to $477.00 for the next 30 weeks of her employment.  Accordingly it follows that the Claimant was over paid $4,608.38.

13      With respect to the claim for a vehicle allowance the Respondent asserts that the Claimant was allocated a sales area, which was the CBD and that she was informed at interview that any requirement to use her car would be minimal.  She was expected to travel to the CBD by train, and then in the CBD by City Clipper.  The cost of train travel would be reimbursed.

14      The Respondent admits (in the outline of defence) that the Claimant was, from time to time, required to use her car to pick up and deliver artwork, pick up and deliver supplies and deliver finished work but says that the Claimant was entitled to reimbursement for such and would have been reimbursed had she provided receipts or made a claim for such vehicle expenses.  The Respondent points out that on one occasion the Claimant was paid fuel money out of petty cash which was demonstrative of the arrangement.  The Claimant says in that regard that she was given money to pay for fuel after she made it known that she could not undertake a delivery, as instructed, because she had no fuel and no money.  She was given money out of petty cash to facilitate the delivery required by the Respondent.

Mr Blake’s Evidence

15      Mr Blake is the Respondent’s Managing Director.  He testified that the Respondent is in the business of providing photocopying services.  The Respondent which formerly operated from its Perth Mill Street office had, over a four year period, built up customers in the CBD.  A significant reason for choosing to relocate its business premises to Burswood was its proximity to the CBD and major transport routes and public transport.  Given that the Respondent was anxious to maintain its customers in the CBD it decided to recruit a trainee sales person to specifically service that area.

16      The Claimant was successful in her application and was appointed as a sales representative.  She was told that she was to service the CBD by public transport.  In that regard she had to do “cold calling” and in some instances re-establish old accounts.  Some existing accounts would be handed to her.  No written instructions were given to her in that regard, however, it was something spoken about at interview and later reinforced during sales meetings.  He said that it was intended that the Claimant be reimbursed for the cost of public transport use.

17      Mr Blake was taken to comment about the reference in the written agreement to a car allowance.  He said that the reference to a car allowance in brackets as set out therein was deliberately expressed that way so as to demonstrate that the use of a vehicle was only a minor aspect of the Claimant’s work.

18      Mr Blake testified that the Claimant spent a considerable portion of her time in the office.  That was an issue of concern and discussion.  Notwithstanding that, he acknowledged that time spent in the office was necessary.  He said that “doing paperwork, follow-up work, (making) telephone calls” was essential.  He continued that “if you don’t do the before work, you’re not going to succeed when you go out into the field”.

19      Mr Blake testified that he did not discuss the issue of the Claimant’s car with her except on one occasion when he asked, “Why aren’t you out?”  The Claimant is said to have replied, “Because my car is playing up”.  He said that although at regular sales meetings the issue of servicing areas such as Fremantle, Canning Vale, and Maddington were discussed, the Claimant was never instructed to go to those areas.  The greatest opportunity for the Claimant was the CBD.

20      Mr Blake suggested that the Claimant was not good at her job.  He said that she had been allocated one particular account in the CBD which had taken him a month to win but which was lost following customer complaints about the Claimant’s performance.  Mr Blake opined that, given the low sales figures achieved by the Claimant, that she would have only spent twenty per cent of her time on the road.  The lack of time on the road resulted in poor sales figures.

21      Mr Blake rejected the contention that it had only been “suggested” to the Claimant that she service the CBD maintaining that she had been directed in that regard.

Evidence of Witnesses Called by the Claimant

22      The Claimant called two witnesses in support of her claim.  They were Grant Thompson and Ken Cashmore.  Grant Thompson worked for the Respondent for three months in the same role as the Claimant commencing on 25 February 2005.  He testified that he left the Respondent’s employment because he could not afford the fuel costs involved in carrying out his job.  He said that his job could not be done without a car.  He was never reimbursed for petrol expenses incurred in carrying out his duties.  He estimated that he spent about eighty percent of his time out of the office and on the road.  When cross examined Mr Thompson was shown the petty cash ledger (see exhibit 12) which showed that he was reimbursed petrol money on one occasion.  He said that he did not recall receiving any petrol money.  He said that he did not even know he could claim the same.  I note that exhibit 12 appears to be a document prepared by the Respondent for the purpose of this hearing.  It does not contain any acknowledgment from the alleged recipients that they received the same.  The accuracy of the document is accordingly subject to contest.  Given the contest it is apparent that exhibit 12 alone cannot establish that on 1 April 2005 Mr Thompson received out of petty cash money for fuel.

23      Mr Cashmore formerly worked in the production section of the Respondent business.  He retired following the Claimant’s departure.  He testified that he knew the Claimant to be, at the material time, a sales representative.  Mr Cashmore testified that he saw that the Claimant used her car to “pick up plates” and to “deliver jobs”.

Evidence of Other Witnesses Called by the Respondent

24      In addition to Mr Blake the Respondent called three witnesses.  They were its Sales Manager Harry Dover, its Production Manager Douglas Mason and Deborah Blake, being Mr Blake’s wife who was and continues to be responsible for the Respondent’s administration.

25      Mr Dover’s evidence was that the Claimant worked in the sales area.  Given that she was new to the industry she was helped and encouraged.  He testified that weekly sales meetings were held.  During those meetings the sales figures of all sales persons were put up on a whiteboard and discussed.  The Claimant’s sales figures were low.  He testified that the Respondent wanted the Claimant to go out and develop business in the CBD.  Mr Dover gave her some of his clients and encouraged her to do cold calling.  To his knowledge the Claimant was to service the CBD and East Perth area.  Mr Dover testified that the Claimant’s vehicle was unreliable and prone to failure.  He picked her up from her home a few times because her vehicle was in a state of disrepair.

26      Mr Mason testified that he observed the Claimant at the office on a daily basis but was unable to estimate the proportion of her work day spent at the office.  Furthermore, he told the Court that although he was, at the material time, responsible for the administration of petty cash he could not say conclusively by looking at exhibit 12 that payments were made as indicated therein.  He could only assume that the document was accurate.  He conceded however that there were no documents produced to acknowledge receipt of petty cash by those who received the same.  He also acknowledged that none of the other sales representatives ever made claims from petty cash for petrol money.

27      Deborah Blake testified concerning the various documents she generated in an administrative capacity relating to the Claimant’s employment.  She produced some documents specifically for the purpose of this hearing.  In a document entitled sales comparison (see exhibit 13) she set out the sales earnings of the Respondent’s salespeople during the material period and subsequent.  It suffices to say that the earnings of sales people subsequent to the Claimant’s termination are not relevant to my consideration.  Furthermore, the sales comparison is otherwise of little assistance.  The Claimant’s sales over the material period, when compared against sales of very experienced colleagues, are of little moment.  The figures alone do not establish anything with respect to the Claimant’s work.  Of themselves, the figures are meaningless.  In any event the document provides a distorted view of the Claimant’s earnings for the Respondent.  The sales comparison suggests that the Claimant earned $44,842.80 by way of sales between 1 April 2004 and 30 April 2005, however, when questioned about it Mrs Blake disclosed that such sum consisted of the amount of sales she believed the Claimant brought in from new clients.  Her total sales from existing but dormant clients and new clients in fact amounted to in excess of $70,000.

28      Mrs Blake produced a payroll activity statement for the period 1 January 2004 to 30 June 2005 which disclosed that the Claimant had in fact been paid $31,985.50 in wages during that period.

29      It suffices to say that much of Mrs Blake’s evidence related to documents produced which are of a self serving nature with respect to which little weight attaches.

Findings

30      I find that in March 2004 Mr William Blake, the Managing Director of the Respondent, interviewed the Claimant for the position of trainee sales person.  I am satisfied that during interview the Claimant, who had no previous experience within the industry, was advised that the position with respect to which she was being interviewed entailed the sale and distribution of print and photocopied material.  I accept the Claimant’s evidence that she was told that she would be required to service areas which were under serviced.  I accept also that there was during interview a discussion about the CBD but I find that the Claimant was not instructed to service that area.  I accept that Mr Blake advised the Claimant that he thought that her best opportunities were in that area.  That did not amount to an instruction that she was to service that area.  Further I find that there was no discussion during interview about the utilisation of public transport in the performance of the Claimant’s duties.  Mr Blake’s contention in that regard is inconsistent with what is contained in the Claimant’s letter of appointment concerning a car allowance.  If the situation was as Mr Blake says it was; why would there have been any reference to a car allowance?  The reference to a car allowance reflects as being true what the Claimant said about what she was told.  She was asked whether she had a reliable vehicle because she would need it.  Indeed in its defence the Respondent admitted that from time to time the Claimant was required to use her car to pick up and deliver artwork, pick up and deliver supplies and deliver finished work however I find its requirements of the Claimant with respect to the use of a motor vehicle amounted to more than that.

31      Ms Currie carried out a substantial amount of work outside the CBD.  I accept her evidence that she in fact serviced clients from Brigadoon to Canning Vale.  I also accept that she was encouraged to source new clients outside of the metropolitan area.  The fact that the Claimant serviced clients outside of the CBD must have been manifest to Mr Blake from the sales records in the possession of the Respondent.  The servicing of such clients outside the CBD could only have been achieved by the use of a motor vehicle. 

32      I find that the use of a motor vehicle was a necessary and integral part of the performance by the Claimant of her duties as reflected in the Respondent’s outline of defence and in the written agreement.  Had that not been the case, reference to a vehicle would have been totally unnecessary.  I accept the Claimant’s evidence in preference to Mr Blake’s evidence.  The documentary evidence supports her contentions.  The written agreement prepared by Mr Blake does not instruct the Claimant to service a particular territory nor does it confirm any prior arrangement in that regard.  It refers to the prospective assignment of a territory.  Further it appears from the evidence of Mr Thompson and Mr Dover that the Respondent’s operating systems were such as to necessitate the use of motor vehicles.

33      Further I find that the Claimant was never advised that she could recover out of pocket transport expenses from petty cash.  I am fortified in that view because there is no reference to that contained the Claimant’s detailed letter of appointment.  Furthermore, Mr Mason’s evidence is indicative of the fact that sales representatives did not routinely recover fuel costs from petty cash.  In the one instance that the Claimant was paid fuel money out of petty cash, it occurred so as to facilitate the Respondent’s requirement.  It was a one off situation which I accept occurred in the circumstances described by the Claimant.

34      I reject Mr Blake’s evidence concerning the use of public transport.  His letter to the Claimant dated 31 March 2004, detailing the terms and conditions of employment, contra-indicates the use of public transport.  The letter makes it clear that the Claimant’s salary included a car allowance.  If the routine use of a car was not envisaged, why then would that provision have been included?  If the intention was that the Claimant be paid out of petty cash for the casual use of her motor vehicle, then surely that would have been expressed in writing.  The fact that it was not so expressed supports that there was no such arrangement.  It is apparent that the use of a motor vehicle was discussed during interview.  The confirmatory letter makes reference to a car allowance because the use of a vehicle was required.  It could not serve any other purpose.  I reject Mr Blake’s explanation as to why reference was made within the letter.  His evidence in that regard is not accepted.

35      In the end I find that the Claimant was engaged as a salesperson with respect to which she had to necessarily, in the performance of her duties, use her own motor vehicle.  She was not instructed, either orally or otherwise, to service the CBD by public transport.  She in fact serviced clients throughout the city and metropolitan area and in doing so used her vehicle, of which fact the Respondent was or should have been aware.  At no time was the Claimant paid a separate vehicle allowance because the same was incorporated into her salary.

Determination

36      One of the grounds raised in response to the Claim was that the Claimant’s employment was subject to a private contract, taking it outside of the scope of the Award.  It is suggested that James Turner Roofing Pty Ltd v Christopher Lawrence Peters 83 WAIG 427 (James Turner Roofing) is authority for the proposition that where such private agreement exists that this Court will not have jurisdiction to hear and determine the matter.  With all due respect, James Turner Roofing did not determine that to be so.  The “private agreement” discussed therein related to the payment of over award rates.  The Industrial Appeal Court did not decide that parties to a contract of employment could by private agreement contract out of an award.  The minimum conditions provided in an Award cannot be undermined even by agreement.  Section 114 of the Industrial Relations Act 1979 (the Act) which prohibits contracting out states:

114. Prohibition of contracting out

(1) Subject to this Act, a person shall not be freed or discharged from any liability or penalty or from the obligation of any award, industrial agreement or order of the Commission by reason of any contract made or entered into by him or on his behalf, and every contract, in so far as it purports to annul or vary such award, industrial agreement or order of the Commission, shall, to that extent, be null and void without prejudice to the other provisions of the contract which shall be deemed to be severable from any provisions hereby annulled.

(2) Each employee shall be entitled to be paid by his employer in accordance with any award, industrial agreement or order of the Commission binding on his employer and applicable to him and to the work performed, notwithstanding any contract or pretended contract to the contrary, and the employee may recover as wages the amount to which he is hereby declared entitled in any court of competent jurisdiction, but every action for the recovery of any such amount shall be commenced within 6 years from the time when the cause of action arose, and the employee is not entitled to recovery of wages under this subsection and otherwise, in respect of the same period.

37      The pivotal issue to be determined is whether the Award regulated the employment of the Claimant.  The scope provision of the Award provides:

3. - SCOPE

This award shall apply to all workers employed in the callings listed in Clause 7. - Wages hereof by employers engaged in the industries set out in the schedule to this award.

38      If the Claimant establishes, on the balance of probabilities, that the scope provision of the Award includes both her and the Respondent, then the Award will have application by virtue of “common rule” as provided for in section 37 of the Act

39      The Claimant asserts that she was at all material times a “Commercial Traveller / Sales Representative”, being a calling within clause 7 of the Award.  She also asserts that the Respondent was at all material times engaged in an industry set out in the schedule to the Award.  I have no difficulty in concluding that the Respondent was at all material times engaged in the printing supplies industry, being an industry mentioned in the schedule.  The question remains as to whether the Claimant was a “Commercial Traveller / Sales Representative” as defined in clause 6 of the Award.

40      Subclause 6(1) of the Award provides:

6. - DEFINITIONS

(1) "Commercial Traveller/Sales Representative" shall mean a worker who is employed:

(a) away from or substantially away from his employer's place of business; and

(b) wholly or mainly for the purpose of soliciting orders or promoting business;

but shall not include:

(i) persons selling Motor Vehicles or attachments or Motor Cycles;

(ii) persons eligible to be members of the Western Australian Shop Assistants' and Warehouse Employees' Industrial Union of Workers, Perth, in accordance with the rules of that Union as they existed on 1st March, 1979; or

(iii) persons employed in the calling of Motor Vehicle drivers wholly or mainly for the purpose of delivering goods to retail establishments.

41      The exclusionary provisions of the subclause have no application to the Claimant.  Can it be said however that the duties she was required to carry out whilst working for the Respondent brought her within the definition of “Commercial Traveller / Sales Representative”?  In that regard the Respondent submits that she was not “substantially away from her employer’s place of business” and further that she was not employed “wholly or mainly for the purpose of soliciting orders or promoting business”.  In that regard the Respondent produced copies of telephone accounts (exhibit 11) relating to the mobile phone used by the Claimant in her employment to demonstrate that the Claimant remained at the Respondent’s place of business for lengthy periods each day.  That was to reinforce Mr Blake’s testimony to that effect.  Although a perusal of exhibit 11 establishes that the Claimant spent time within the office each work day, the same cannot be used to determine the exact amount of time or proportion of time spent thereat.  There is no empirical data which enables such quantification of time.  The fact that the Claimant spent time in the office does not of itself exclude her from the calling of Commercial Traveller / Sales Representative.  The Claimant had to necessarily spend some time in the office as is reflected in Mr Blake’s evidence.  He said that the doing of paperwork, follow up work and the making of telephone calls was essential.  As he said, “If you don’t do the before work, you’re not going to succeed when you go out into the field”.

42      There can be no question that the Claimant was mainly employed for the purpose of soliciting orders and promoting business, but can it be said that in the performance of her duties she was substantially away from the Respondent’s place of business?  It is axiomatic that the amount of time that the Claimant was away from the Respondent’s place of business varied from day to day.  Time spent in the office was certainly a necessary and integral part of the Claimant’s duties.  The extent to which she spent time in the office cannot be determined with any degree of accuracy given that there was no record kept of the hours spent at the office. It is open to subjective assessment.

43      In considering whether the Claimant was substantially away from the Respondent’s place of business, a practical approach needs to be taken.  As His Honour Sheldon J said in Ware v O’Donnell Griffin (Television Services) Pty Ltd (1971) AR (NSW) 18,

. . . (it was) not merely a matter of quantifying the time spent on the various elements of work performed . . .

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

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

44      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.

45      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.

46      A qualitative assessment of the Claimant’s duties results in a finding that she was required to be both in the field and in the office.  The requirement to be away in the field was something more than incidental to her function.  Indeed it was her primary requirement upon which everything else depended but she could only perform that function if she spent time in the office doing the necessary preparation and follow up work.  Accordingly a quantification of the relative times spent in the field and in the office is in those circumstances unnecessary.  Even if the Claimant was at the Respondent’s office for lengthy periods, it does not detract from the fact that she was required to be and was substantially away from the office in the performance of her job.  That was the only way she could and did carry out her job.  The sales figures alone do not support the Respondent’s contention that the Claimant was not substantially away from its place of business.  I accept that the Claimant was, because of her newness to the industry, the salesperson most likely to be involved in the less remunerative sales.  That in part helps to explain the low sales figures.  The fact that her figures were comparatively low does not of itself enable the conclusion to be reached that she was mainly in the office.  In any event I accept her evidence that she was constantly on the road.  I accept as being accurate her estimation that she spent eighty per cent of her time away from the office.  I found Ms Currie to be a credible witness and I prefer her evidence to that of Mr Blake.

47      The Respondent argues that the Claimant does not fit the Award definition of “Commercial Traveller / Sales Representative” because she carried out some duties which were not in keeping with soliciting orders or promoting business.  In my view all of the Claimant’s work was a facet of soliciting orders and promoting business.  The necessary groundwork and follow up are all part and parcel of a salesperson’s job and can only be aimed at promoting business.

48      “Promote” is defined in the Shorter Oxford Dictionary to mean:

To further the growth, development, progress, or establishment of (anything), to further, advance, encourage.

49      Indeed such measures were a necessary and important part of the sales work.  It amounted to promotion of business.  It facilitated the growth, development and advancement of business.  In any event even if it could be said that she was not wholly employed in that capacity, it remains the case that she was mainly employed for the purpose of soliciting orders and promoting business.

50      The Respondent submits that the callings defined in the Award are specific and should not be interpreted as being of a general nature so as to extend the totality of the work performed by the Claimant.  Accordingly, the application of the doctrine “generalia specialibus non derogant” (general things or words do not derogate from special things or words) as referred to in Hungry Jacks Pty Limited and others v Geoffrey Wilkins and others 71 WAIG 1751 applies.  It is argued that the application of that doctrine to the facts in this matter draws the conclusion that the Award does not apply to the Claimant.  With all due respect I do not concur with that submission.  The doctrine has application where there is a need to give meaning to competing statutory provisions.  That is not the case here.  All that needs to be done in this matter is to determine the question of fact as to whether the Claimant falls within the definition in the Award of “Commercial Traveller / Sales Representative”.  I find that she was, at all material times, within that classification.

51      Having determined that the Award governed the terms and conditions of the Claimant’s employment with the Respondent, it follows that I need to consider whether the Respondent has breached the Award as alleged.

52      The Claimant worked for the Respondent from 31 March 2004 until 29 April 2005 being a total of fifty six weeks and three days.  For part of that time she was on probation.  The Respondent suggests that she was on probation for the first nine months of her employment because of the definition of “Probationary Traveller /Sales Representative” in subclause 6(2) of the Award which states:

(2) "Probationary Traveller/Sales Representative" shall mean a worker engaged in the occupation of a commercial traveller/sales representative, but who has had less than nine months' experience as a Commercial Traveller/Sales Representative.

53      I disagree with the Respondent’s contention.  All that definition does is to encompass a “Traveller / Sales Representative” with less than nine month’s experience being on probation.  A Commercial Traveller with more than nine month’s experience cannot be on probation for the purposes of the Award.  That provision dictates that new employees just starting out and with little experience within the industry will attract a lower wage for the period of probation agreed.  It does not mean that such a person is on probation for nine months.  Those who have more than nine months experience do not have to prove themselves.  Their experience enables them to start off on full pay.

54      I find that the Claimant was on probation for the first three months of her employment as indicated in the confirmatory letter dated 31 March 2004.  The period of probation ended on 1 July 2004.  The purported retrospective extension of the probation period to four months by memo dated 10 August 2004 was of no effect.  The authorities make it clear that an extension of the probation period cannot occur after the probation period has ended.  The purported extension of the probationary period to four months occurred after the four months period had elapsed in any event.  The Claimant was therefore on probation for thirteen weeks and two days with the balance of forty three weeks and one day being served as a permanent full-time employee. 

55      The Claimant was paid $480.70 per week for each week of her employment; however she was only entitled to $460.90 per week until 3 June 2004 being nine weeks and two days.  She was in fact paid a total of $4518.58 during that period when she was only entitled to $4332.46 representing an overpayment of $186.12.  From 4 June 2004 until 1 July 2004 (four weeks) the Claimant was only entitled to receive $477.00 per week.  Accordingly, she was overpaid $14.80 for that period.  She was overpaid a total of $200.92 whilst on probation.

56      The Claimant should have been paid $561.20 per week for the remaining forty three weeks and one day amounting to $24,243.84 but was only paid $20,766.24, leaving a shortfall of $3,477.60 from which, applying the principles enunciated in James Turner Roofing, must be deducted the overpayment of $200.92 leaving a shortfall of $3,276.68.  Further the Claimant should have been paid out her annual leave entitlements at the higher rate; however, because she has not claimed for such, I do not propose to do anything in that regard except to note it.

57      Finally, given that the Claimant was during the course of her employment required to use her motor vehicle in the performance of her duties, she was entitled, pursuant to subclause 10(2) of the Award, to payment of a vehicle allowance each pay period.  The allowance to which she was entitled consisted of a flat amount plus kilometrage however none was paid.  The Claimant does not pursue any claim for kilometrage but claims the weekly allowance.  The allowance is severable and claimable in the manner claimed.  The fact that the Claimant’s vehicle may have been in a state of disrepair for a day or two does not preclude her from recovering the allowance for the entire period claimed.  I accept that the Claimant used a Honda Accord in the performance of her duties. There is no evidence before the Court as to the engine capacity of that vehicle.  Given the lack of evidence in that regard, I proceed on the basis that the rate claimed is the appropriate rate because it is the lowest available.  I note also that the Respondent has not taken issue with that rate.  What is in dispute is the Respondent’s liability to pay the allowance however I have found against the Respondent in that regard.  It accordingly follows that an amount of $147.56 is payable for each of the fifty six weeks claimed totalling $8,263.36. 

58      I find that the Claimant has been underpaid $11,540.04.  I propose to make an order for the payment of such amount.  I will now invite the parties to address me as to the orders to be made.

G Cicchini

Industrial Magistrate