2015 WAIRC 00204
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2015 WAIRC 00204

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 22 OCTOBER 2014, THURSDAY, 23 OCTOBER 2014, WEDNESDAY, 4 FEBRUARY 2015, THURSDAY, 5 FEBRUARY 2015

DELIVERED : THURSDAY, 26 FEBRUARY 2015

FILE NO. : M 186 OF 2013

BETWEEN
:
KYRA PHILLIPS
CLAIMANT

AND

MVJ ENTERPRISES PTY LTD
RESPONDENT

Catchwords : Alleged failure to comply with Educational Services (Post-Secondary Education) Award 2010; claim alleging underpayment

Legislation : Workplace Relations Act 1996
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Fair Work Act 2009
Minimum Conditions of Employment Act 1993
Industrial Relations Act 1979

Instruments : Educational Services (Post-Secondary Education) Award 2010 (MA000075)
2009 State Wage Order (2009 WAIRC 00402)

Result : Claim proven to the extent of $375.82

REPRESENTATION:

CLAIMANT : MR N MAROUCHAK OF MKI LEGAL APPEARED FOR THE CLAIMANT

RESPONDENT : MR G J DOUGLAS OF DOUGLAS CHEVERALLS LAWYERS APPEARED FOR THE RESPONDENT

REASONS FOR DECISION
Parties
1 MVJ Enterprises Pty Ltd (the Respondent) operates Perth College of Beauty Therapy (the College). The College offers nationally recognised vocational training courses in beauty and make-up.
2 The Claimant, Ms Kyra Phillips (Ms Phillips), is a qualified beauty therapist. Between 17 August 2009 and about 20 September 2013 the Respondent employed her as a casual teacher. She taught students enrolled at the College who were undertaking a Certificate II course in Nail Technology.
Claim
3 Ms Phillips alleges that the Respondent had underpaid her. Initially she sought $49,081.00 but now says that she is owed either $65,721.96, or alternatively, $32,823.59, depending on whether or not certain transitional provisions of the Educational Services (Post-Secondary Education) Award 2010 (MA000075) (the Award) had application.
4 The Respondent denies underpaying Ms Phillips, however concedes that on the most favourable assessment of her claim Ms Phillips will be entitled to recover $375.82.
Employment Contract
5 On 17 August 2009 Ms Phillips and the Respondent entered into a written contract of employment. The contract did not make reference to an award but provided that she was to be paid at an hourly rate of $27.
6 At the time Ms Phillips entered into that contract she did not possess any formal teaching qualification despite asserting significant teaching experience. The lack of formal teaching qualifications was problematic for the Respondent. Consequently it was a condition of the contract of employment that Ms Phillips, as a matter of priority, obtained the appropriate teaching qualification (Certificate IV in Training and Assessment). The agreement provided that until such time that occurred, her teaching would be under supervision. It suffices to say that Ms Phillips did not attain that qualification until 4 July 2013. Notwithstanding that, she was, prior to the attainment of that qualification, permitted to teach without supervision.
History of Dispute
7 This dispute between the parties can be tracked back to 23 July 2013, when the Respondent asked Ms Phillips to sign a new contract of employment. The new contract made reference to the Award, a Modern Award, made under the Fair Work Act 2009 (FW Act).
8 Upon reading the new contract, Ms Phillips was alerted to the existence of the Award, of which she had no prior knowledge. Ms Phillips read the Award and then sought advice from Fair Work Australia and the Fair Work Ombudsman. Having done so, she formed the view that she had been paid at a lesser rate than that to which she believed she was entitled. She also concluded that she was entitled to certain allowances which had not been paid to her.
9 On 17 September 2013, Ms Phillips wrote to the Respondent alleging underpayment. Upon receipt of her correspondence, the Respondent sought advice from its lawyer and asked Ms Phillips not to discuss her claim with other employees.
10 On 18 September 2013, Ms Phillips received an email from the Respondent which she says implied that she had been discussing the issue with other staff members. Ms Phillips denies having discussed the matter with other employees of the Respondent.
11 Late on Thursday, 19 September 2013, Ms Phillips perused the www.seek.com.au website and discovered what she believed to be her job being advertised. Upset and distressed by what she had discovered, the next morning, she attended the College to retrieve her personal belongings.
12 Later that day, Ms Phillips spoke to the College’s Deputy Principal, Ms Andrea Granagan, about her job having been advertised. Ms Granagan told her that her job had not been advertised, but rather the advertisement was aimed at providing her with an assistant. Ms Phillips did not accept that explanation. She was, because of what had happened to other employees, convinced that her employment was about to be terminated. Ms Phillips resigned from her employment before her employment could be terminated.
13 Ms Phillips subsequently corresponded with the Respondent in an attempt to recover entitlements that she believes are owed to her. The Respondent has resisted her claims.
Issues
14 The issues to be determined in this matter are:
1. the applicable legislation and/or instruments that governed Ms Phillips’ employment; and
2. whether Ms Phillips was paid in accordance with the applicable legislation and/or instruments; and
3. if not, the amount owed to her.
Applicable Legislation and/or Instruments
15 At all material times, the Respondent was a national system employer, pursuant to the Workplace Relations Act 1996 (WR Act) and the Fair Work Act 2009 (FW Act). Around the commencement of Ms Phillips’ employment, federal employment laws were in the process of significant reform. The FW Act replaced the WR Act on 1 July 2009, with some provisions commencing on 1 January 2010. The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) provided that certain provisions of the WR Act were to remain in force notwithstanding the repeal of the WR Act. The preserved provisions of the WR Act involved minimum conditions of employment that had been transitioned from the jurisdiction of state legislature, to the federal jurisdiction.
16 The Minimum Conditions of Employment Act 1993 (WA) (MCE Act) had provided, with some exceptions, that a minimum wage be paid to all employees in the state of Western Australia. The exceptions are not relevant to this matter. The MCE Act is a pre-reform instrument contemplated by section 208 of the WR Act. The operation of the MCE Act was preserved as a pre-reform instrument until the Award (a Modern Award for the purpose of the FW Act) came into force on 1 July 2010.
17 It follows that, prior to 1 July 2010 Ms Phillips’ rate of remuneration was governed by the MCE Act and thereafter, by the Award. The Award displaced the MCE Act (see Clause 11 of Schedule 9 of the Transitional Act).
18 Pursuant to the Award, if the minimum conditions under a previously existing award or Australian Pay and Classification Scale (APCS) applicable under Division 2 of Part 7 of the WR Act (in this instance the MCE Act) were different to the minimum conditions under the Award, transitional provisions applied to transition the employee’s minimum entitlements from the previous applicable rate under the MCE Act to the Award rate. That is clear from what is contained in Schedule A of the Award.
19 It follows that whilst Ms Phillips’ employment was subject to the MCE Act, the minimum wage to which she was entitled was that under the 2009 State Wage Order (2009 WAIRC 00402) (State Wage Order) (see section 11 of the MCE Act and section 50A of the Industrial Relations Act 1979 (WA)).
20 From the commencement of her employment and up until 30 September 2009, Ms Phillips was entitled to be paid an hourly rate of $17.90 ($14.67 plus 20% casual loading) and then between 1 October 2009 and 31 December 2009 her hourly rate was $17.99 ($14.99 plus 20% casual loading). Between 1 January 2010 and 1 July 2010, Ms Phillips’ hourly rate of pay continued to be $17.99 because of what is contained in Clause A.2.3 of Schedule A of the Award. Up until 1 July 2010 Ms Phillips was not entitled to payment for any overtime, public holiday or other penalty rate.
21 From 1 July 2010 onwards, the minimum wage payable under the Award was the applicable annual rate, divided by 26 and further divided by five, to arrive at an hourly rate, less 80% of the difference between the Award rate and the APCS rate. The 80% deduction decreased each subsequent year on 1 July, by 20% (see Clause A.2.5 of Schedule A of the Award).

Was Ms Phillips Paid Her Correct Entitlements?
MCE Act
22 I find that during the period that the MCE Act applied, being from the commencement of her employment up until 1 July 2010, Ms Phillips was paid an hourly rate in excess of that required under that Act. As indicated earlier, Ms Phillips was not entitled to any overtime, payment for public holidays or any other penalty rates.
Award
23 Whether or not Ms Phillips was paid her correct entitlements under the Award will in part depend upon her classification, and her level under that classification.
24 Clause 13 of the Award provides:

“13. Classifications

13.1 All employees covered by this award must be classified according to the classification descriptors set out in Schedule B-Classifications-Academic Teachers, Schedule C-Classifications-Teachers and Tutor/instructors or Schedule D-General Staff, and paid the minimum weekly rate or the minimum annual salary for the classification level in clause 14-Minimum wages. Employers must advise their employees in writing of their classification level and of any changes to their classification level.

13.2 The classification by the employer must be according to the principal functions and skill requirements of the employment as determined by the employer.”

25 Ms Phillips asserts that she falls within Schedule C - Classifications - Teachers and Tutor/instructors of the Award (Award Schedule). Clause C.3 of the Award Schedule provides:

“C.3 Teachers other than TESOL teachers

C.3.1 A teacher other than a TESOL teacher will be classified in accordance with the following:

(a) Category A - a teacher with a five year degree or equivalent at university level in a field relevant to the teaching area.

(b) Category B - a teacher with a four year degree or equivalent at university level in a field relevant to the teaching area.

(c) Category C - a teacher with a three year degree or equivalent at university level in a field relevant to the teaching area.

(d) Category D - any other teacher, including a Vocational Education and Training (VET) tutor who has the qualifications required by the accredited curriculum or training package and who delivers and/or assesses nationally recognised competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework (ARF).

C.3.2 For the purpose of this schedule experience will mean full-time adult teaching experience or equivalent part-time or casual experience.
C.3.3 Casual experience will be credited on the basis that 800 face-to-face teaching hours is equivalent to one year of full-time experience.”

26 A “Teacher” is defined in Clause 3.1 of the Award as follows:

“teacher means an employee engaged to teach students where a teaching qualification is mandatory or required by the employer, and where the work required involves teaching a course of study or units of work recognised within or pursuant to the Australian Qualifications Framework or accredited by a relevant state or territory authority and which is neither the work of an academic teacher nor a tutor/instructor”.

27 The Respondent concedes that Ms Phillips is a Category D teacher. At paragraph 23 of its submissions lodged on 15 October 2014, the Respondent said:

“23. At the time the claimant was employed by (the) College, her highest educational qualification was a Diploma in Beauty Therapy, and she held no teaching qualifications or certificates. Accordingly, the claimant was a Category D teacher.”

28 I agree that Ms Phillips was a Category D teacher because she was conducting an accredited course.
29 I now move to consider the appropriate rate of pay payable to Ms Phillips. Relevantly, Clause C.1 of the Award Schedule provides:

“C.1 Teachers and tutor/instructors will be paid according to the salary scale set out in clause 14.3.

C.1.1 On appointment a teacher will be placed on a salary level commensurate with the minimum salary for their qualifications and experience as determined by this schedule. The progress for a teacher classified as Category A, B, C, or D will be as follows:

(a) Category A commences at Level 4 and progresses to a maximum of Level 12.

(b) Category B commences at Level 3 and progresses to a maximum of Level 12.

(c) Category C commences at Level 2 and progresses to a maximum of Level 12.

(d) Category D commences at Level 1 and progresses to a maximum of Level 9.

Provided that a Category D employee who achieves Level 9 may be promoted beyond that level where that employee can demonstrate that they are able to carry on the full duties of a Category A, B, or C teacher.

C.1.2 If an employer does not accept (fully or in part) the qualifications or experience of a teacher, the employer will advise the teacher in writing what qualifications or experience are not accepted or the extent to which they are not accepted.

C.1.3 Subject to the continuing satisfactory conduct, diligence and performance of a teacher and the acquisition and utilisation of skills and knowledge through experience, progression from one salary level to the next will occur on the completion of a year of full-time experience or equivalent part-time experience.

C.1.4 Where the employer considers that the conduct, diligence or performance of a teacher is not satisfactory or the teacher has not acquired and utilised increased skills and knowledge which could reasonably be expected to be acquired and utilised and for that reason considers that progress to the next salary level is not warranted, a formal review will be undertaken by the employer prior to the date when the increment is due.

C.1.5 When a teacher achieves the further experience or qualifications which entitle the teacher to an increase in salary the increase will be calculated on and from the first pay period after the results of the course are announced or the experience is gained.”

30 A teacher will advance to the next salary level on the satisfactory completion of a year of “experience”. Experience is defined in Clause C.3.2 of the Award Schedule (supra) as full-time teaching experience or part-time casual experience. Clause C.3.3 of the Award Schedule provides that casual experience is credited on the basis of 800 face to face teaching hours.
31 Clause C.5 of the Award Schedule sets out when an employee is eligible to move between pay points. It provides:

“C.5 Movement between pay points

C.5.1 An employee will be eligible for movement to the next pay point within the classification structure after each 12 month period, following a performance review which the employer will complete before the end of the 12 month period.

C.5.2 Where an employee has been absent for in excess of three months, in aggregate, during the 12 month period the performance review will be delayed by the period of the absence. Any resultant increase will also be delayed by the same period.

C.5.3 Where, due to the employer’s operational requirements, a performance review is not completed before the end of the 12 month period any resultant increase will take effect from the day on which the next 12 month period commenced.

C.5.4 Movement to the next pay point will only occur when the employee has, over the preceding 12 months:

(a) acquired and utilised additional skills, experience and competencies within the ambit of the classification level and in accordance with the priorities of the employer; and

(b) demonstrated satisfactory performance.

C.5.5 If the requirements in clause C.5.4 are not met at the conclusion of the 12 month period the employee will not progress to the next pay point until such time as the requirements are met.”

32 Clause C.1.1 of the Award Schedule required the identification of Ms Phillips’ salary level upon “appointment”. That was a necessary pre-condition to any consideration of movement between salary levels. In order to give meaning to Clause C.1.1 “on appointment” must be read to mean “on commencement” of the Award.
33 It is not in dispute that upon commencement of the Award the Respondent failed to classify Ms Phillips based on her functions and skills. No classification process occurred thereafter.
34 In the end result, the parties are now at odds as to Ms Phillips’ correct classification and her pay rate.
35 Ms Phillips asserts that upon commencement of the Award, the appropriate level for her classification was Level 9, particularly taking into account her estimated 15,000 teaching hours experience accumulated prior to her being employed by the Respondent.
36 The Respondent says that, based on the role performed by Ms Phillips (teaching four units of a Certificate II level course), and taking into account her qualifications and experience, her appropriate level on commencement of the Award would have been Level 1.
37 As indicated earlier Clause 13.2 of the Award provides:

“13.2 The classification by the employer must be according to the principal functions and skill requirements of the employment as determined by the employer.”

38 It follows that the experience of the employee alone is not determinative of classification. Clause C.1.1 of the Award Schedule provides that upon appointment, a teacher will be placed on a salary level commensurate with the minimum salary for their qualifications and experience. The progress for a Category D teacher is from Level 1 to Level 9.
39 The Respondent says that the language of Clause C.1.1 of the Award Schedule is prescriptive, meaning that Category D teachers all must start at Level 1 and progress up through the various levels.
40 I reject that contention. Clause C.1.1 of the Award Schedule in fact requires the employer to assess the teacher upon appointment and then pay the teacher the minimum salary for that level. The assessment will require taking into account the teacher’s qualifications and experience. If the Respondent’s contention was correct, it would mean that a Category D Level 9 teacher changing employers but doing the same job would automatically revert to being a Level 1 teacher. Such an outcome would be absurd. In any event, the Respondent’s argument would render Clause 13.2 of the Award otiose.
41 As a result of the Respondent failing to classify Ms Phillips when required, I am called upon to determine her proper classification as at the commencement of the Award.
Ms Phillips’ Teaching Experience
42 Ms Phillips testified that she has worked continuously in nail therapy since attaining her qualification in November 1988. Her work history is that she worked at the Merlin Hotel for approximately one year before moving to the Gold Coast where she started her own salon. Her primary business at the salon was that of “nails”. She then moved to a different location in Queensland and conducted a business in nails and training. She trained girls on Mondays and at night for a period of two years before returning to Perth in about 1993.
43 In 1993 and 1994, Ms Phillips ran a nail salon in the Perth central business district. In 1994 she started her own business known as Kyra’s Nail Studio. She asserts that as part of that business, she carried out accredited training on Mondays and at night. She continued that until 2004 when she moved her business to her home. She has since continued to run her business from home, providing nail services and acting as a wholesaler of nail products.
44 Ms Phillips says that since 1991, she has regularly provided training to staff and others. She estimates that she has accumulated experience well in excess of that required for appointment to that of a Level 9.
45 In a publication produced by the College, entitled Student Handbook (Exhibit 34), reference is made to Ms Phillips’ teaching experience. When the handbook was produced, the statement contained within it about Ms Phillips’ teaching experience was based on her representations to the Respondent about the same. It pronounces for students and others to see that Ms Phillips had been teaching nails since 1993. It is apparent from the evidence given by the College’s Principal Ms Jones, and it’s Deputy Principal Ms Granagan, that the Respondent accepted, without verification, Ms Phillips’ representations about her teaching experience.
46 The onus is on Ms Phillips to establish, on the balance of probabilities, that she has accumulated the number of casual teaching hours required to permit her classification level being Level 9. She asserts extensive teaching experience. However other than her bare assertions about her teaching experience there is little to support her contentions. Indeed there is a lack of documentary evidence to corroborate what she has said about her teaching experience. Further she has not called former students and/or employees to support her claim about her teaching experience.
47 The Respondent submits that Ms Phillips should not be believed about her teaching experience, her qualifications, and the hours worked for the Respondent. The Respondent says that she has made false statements about each of those matters.
48 Ms Phillips’ claim is contingent upon my accepting her evidence about various issues, but particularly about her teaching experience. However, Ms Phillips’ credibility was found to be wanting particularly when cross-examined. When cross-examined about a document she had prepared which asserted certain qualifications (see Transcript, pages 114 - 116), she was forced to admit that she did not possess some of the qualifications asserted (e.g. Bachelor of Laws and MBA), but rather, that she had undertaken courses to achieve those qualifications.
49 More significantly however it is apparent that Ms Phillips signed a certificate (Exhibit 2) which falsely asserted that she held CIBTAC and CIDESCO qualifications. When challenged about that under cross-examination, she said that she had almost completed those courses but failed to do so because she was ill when the final assessment was conducted. Notwithstanding that, she was told by her trainer that she could attribute those qualifications to herself. I find her explanation about what she was told to be inherently incredible. In any event she knew that she had not attained those qualifications and yet represented she had. Irrespective of how she now seeks to rationalise that, her representation was plainly false which fundamentally undermines her credibility.
50 It appears that Ms Phillips will say anything to further her own cause, including the making of false statements. Ms Phillips’ propensity to be less than accurate with the truth is demonstrated also by other evidence. I do not propose to exhaustively list examples of the same. However, one such example is her over charging the Respondent with respect to a course attended on a Sunday. She charged the Respondent at double-time for the course which she has now admitted included 15 minutes to “set up” and the lunch hour break.
51 Ms Phillips was not credible.
52 A finding that it is more probable than not, that Ms Phillips has accumulated the teaching experience she asserts cannot be made based on her uncorroborated testimony. Indeed, it is impossible to determine how much teaching experience she in fact had. It follows that she has failed to prove that her previous teaching experience was such that upon commencement of the Award she should have been classified as being at Level 9 or otherwise at a level exceeding Level 1.
Classification
53 I find that when the Award commenced, Ms Phillips’ proper pay level under her classification was that of Level 1.
54 Clause C.3.3 of the Award Schedule provides that casual experience is to be credited on the basis that 800 face to face hours is equivalent to 12 months’ full-time experience. Accordingly, Ms Phillips would have been entitled to progress from Level 1 to a higher level after completing 800 face to face teaching hours during her employment with the Respondent.
55 Ms Phillips completed the following face to face teaching hours during her employment:

Year

Number of Hours
2009

96.0
2010

680.0
2011

540.0
2012

582.0
2013

415.5

56 Accordingly, Ms Phillips would have only been eligible to progress pay levels on two occasions. Once in 2011 and once in 2012. Clause C.5.4 of the Award Schedule facilitates the movement between pay points if the employee has, over the preceding 12 months:

(a) acquired and utilised additional skills, experience and competencies within the ambit of the classification level and in accordance with the priorities of the employer; and

(b) demonstrated satisfactory performance.

57 The Respondent did not increase Ms Phillips’ pay level from Level 1 to Level 2 after she had completed 800 hours of face to face teaching. She had not at that stage met her employer’s priorities. It was clear from the evidence of Ms Granagan that any movement in pay was contingent upon Ms Phillips obtaining a Certificate IV in Training and Assessment.
58 In 2013 the National Skills Standards Council introduced a new standard for Registered Training Organisations which included the Respondent. From 1 July 2013, all trainers were required to hold a Certificate IV in Training and Assessment. Ms Phillips eventually completed the requirements of the Certificate IV in Training and Assessment a few days after the introduction of the minimum standard.
59 Ms Phillips did not meet the criteria for movement between pay points until such time as she met her employer’s criteria and achieved her Certificate IV in Training and Assessment qualification. In July 2013 she progressed to Level 2.
Applicable Pay Rates
17 August 2009 to 30 June 2010
60 From 17 August 2009 until 30 June 2010, Ms Phillips was, by operation of the MCE Act, entitled to a minimum wage as set out in the State Wage Order (supra). There was no provision for the payment of penalty rates, or for work undertaken on public holidays or weekends. It suffices for my purposes to observe that Ms Phillips was, during that period, paid at an hourly rate which included a casual loading which was greater than that required by the MCE Act.
1 July 2010 to 30 June 2011
61 The Award minimum wage for a Level 1 teacher was $38,926.78. At that time, the minimum wage under the State Wage Order (supra) was $15.45. In accordance with the applicable transitional provisions, Ms Phillips’ hourly rate of pay was calculated as follows:

$38,926 divided by 261 divided by 5 equals $29.83;
$29.83 minus $15.45 equals $14.38;
$14.38 multiplied by 0.8 equals $11.50;
$29.83 minus $11.50 equals $18.33.

62 Ms Phillips’ minimum wage for the period was $18.33, without any casual loading.
63 Pursuant to the State Wage Order (supra), Ms Phillips was entitled to a casual loading of 20% of her agreed hourly rate of pay, however under the Award she was entitled to a 25% casual loading. The transitional provisions of the Award provided that the casual loading payable under the Award was to be phased in over five years, commencing on 1 July 2010.
64 The casual loading that applied to Ms Phillips in the first year of the Award was 21%. Her minimum hourly rate was therefore $18.33 x 1.21 = $22.18 per hour.
65 Clause 14.5 of the Award provides:

“14.5 Casual rates—teachers, tutor/instructors and general staff

(a) A teacher and a tutor/instructor will be paid a daily rate except where the engagement is for less than five hours when payment will be at the hourly rate. Where an hourly rate is paid, it will be payable for each hour of attendance other than for timetabled tea breaks (in respect of which no more than 15 minutes will be deducted) and timetabled lunch breaks.

(b) Other than as specified above, casual rates for staff will be calculated as follows:

Category

Calculation
General staff
Weekly applicable rate for full-time employees divided by 38 plus 25%

Teachers
Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5
Tutor/instructors
Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5”

66 The transitional provisions in the Award do not affect the provision of a daily rate. Consequently, a daily rate was applicable from 1 January 2010. The daily rate that applied from 1 July 2010 to 30 June 2011 was $110.90, inclusive of casual loading.
Remaining Years
67 Using the same formulae referred to above, and taking into account movements in the State Minimum Wage and the transitional requirements, I determine that the following pay rates applied to Ms Phillips’ employment from 1 July 2011 and onwards:

1 July 2011 to 30 June 2012 (Level 1)

Hourly Rate

$ 26.74
Daily Rate

$133.71
1 July 2012 to 30 June 2013 (Level 1)

Hourly Rate

$ 31.55
Daily Rate

$157.75
1 July 2013 to Termination (Level 2)

Hourly Rate

$ 36.95
Daily Rate

$184.75

Penalty Rates
68 Clause 14.5 of the Award provides that a casual teacher is to be paid a daily rate, except where the engagement is less than five hours. There is no contemplation within that provision of overtime or penalty rates. The penalty provision within the Award is found in Clause 23, which is entitled Penalty rates - general employees. The term general employee is not defined in the Award. The term general staff is defined as employees employed in non-teaching roles. There is only one other reference to general employee found in the Award.
69 That is within Clause 17, which provides:

“17. Higher duties

An employee who is required to perform the duties of a position in a classification higher than their usual classification for, in the case of a general employee classified at Level 7 or below, more than two weeks or in the case of a general employee classified at Level 8 or 9 or a member of the teaching staff, more than four weeks will be paid for all time worked at the higher level rate.”

70 The use of the term general employee in Clause 17 of the Award clearly excludes teaching staff. The construction of the term general employee in Clause 23 of the Award must be the same as that which arises from Clause 17. It follows that penalty rate provisions apply only to non-teaching staff.
71 Ms Phillips’ remuneration as a casual employee is fully set out in Clause 14.3 of the Award. It provides for the payment of a daily rate, and where applicable, hourly rates without provision for penalty rates or overtime. It mattered not that Ms Phillips may have taught a morning class and then an evening class in the same day. A daily rate applied for the whole day. I reject the submission made on behalf of Ms Phillips that there were two engagements each day, one in the morning and one in the evening. The daily rate contemplates all work done over any given day, irrespective of the hours actually worked or the spread of hours over which the work is undertaken.
Working Through Lunch
72 Ms Phillips asserts that she was required to attend regular lunch time meetings and was not given a break, as contemplated by Clause 22.3 of the Award. Clause 22.3(c) provides:

“22.3 All employees
…
(c) If an employee is required to work through their normal meal break the employee will be paid double time for all time so worked until such time as the meal break is given.”

73 In Exhibit 30, being the spreadsheet that details Ms Phillips’ claim, she has set out numerous occurrences of lunch time meetings. She has claimed double-time for all time worked during the lunch time meetings, and following, during the relevant day.
74 Clause 22 of the Award does not specify the length of a normal meal break (lunch break). Notwithstanding that, Clause 22.3(d) of the Award provides:

“22.3 All employees
…
(d) An employee working overtime will be allowed a meal break of 20 minutes without deduction of pay after each four hours of overtime worked.”

75 It is possible to construe from that provision that the normal meal break contemplated by the Award is that of 20 minutes. The evidence given by Ms Granagan (see Transcript pages 278 - 279) was that employees had 15 to 20 minutes to eat lunch, which was provided by the Respondent, before the meetings commenced. That evidence was corroborated by Ms Paula Simone Hill, the Respondent’s Education Co-ordinator.
76 I accept the evidence of Ms Granagan and Ms Hill. They were both credible and reliable witnesses. Ms Granagan in particular was an extremely impressive witness. She appeared to be a witness of truth, making concessions where necessary.
77 Based on the evidence given by Ms Granagan and Ms Hill, which I prefer to that of Ms Phillips, I find that on each occasion when a lunch time meeting was held, there was a sufficient break that enabled Ms Phillips and other employees to eat their lunch and have a break, without having to work. Given that Ms Phillips was allowed a break, her participation at the lunch time meeting does not trigger the payment of double-time for the remainder of the day on each day that a lunch time meeting was held.
Timesheets and Hours Worked
78 The Respondent suggests that the timesheets submitted by Ms Phillips and recorded in the spreadsheets adduced in support of her claim demonstrate that she exaggerated her hours, working unnecessarily, and charging them to the Respondent. In addition, the Respondent suggests that that pattern of time keeping and recording supports the conclusion that Ms Phillips was progressively taking advantage of the Respondent’s trust in her. It is asserted that Ms Phillips became consistently bolder in claiming additional time before and after classes, she became consistently bolder in claiming working through lunch and claiming the time between the day and evening classes. Numerous examples of the same were referred to in the submissions received.
79 Although much was made about Ms Phillips’ alleged overcharging in submissions and during the course of the Trial, the reality was that the Respondent accepted that she had worked such hours and paid her for the same. It was incumbent upon Ms Granagan to have challenged Ms Phillips about the hours claimed at or about the time that the timesheets were lodged. Ms Granagan did not do so. She accepted Ms Phillips’ claim for hours worked on trust. Perhaps she should not have done so. Any particular scrutiny of the accuracy of the hours claimed would have been appropriate then, at the time the time sheets were submitted for payment. It is hardly appropriate now, ex post facto years down the track to delve into timesheets fishing for anomalies. A revisitation or reassessment of the hours worked based on extrinsic materials and hazy recollections is fraught with danger. Such reconstruction is entirely inappropriate.
80 The Respondent’s payment of the hours claimed by Ms Phillips is an acknowledgement or acceptance that she in fact worked those hours. The Respondent can hardly now resile from that acceptance of hours worked. Although the evidence before me may engender a suspicion that at least some of the Respondent’s contentions may be correct, that is as far as it goes.
81 In the end result, the claim must be assessed based on the hours that Ms Phillips has worked, as accepted by the Respondent. The hours worked by Ms Phillips during the material period are those that are reflected in her spreadsheet (Exhibit 30), and in the Respondent’s calculation of Award entitlements.
Laundry Allowance
82 Clause 15.1(c) of the Award provides that when an employee is required to wear and launder a uniform the employee will be paid a laundry allowance.
83 The evidence given by Ms Granagan and Ms Hill indicates that Ms Phillips was required to wear a uniform. Ms Jones’ evidence was to the contrary. Ms Jones was, however, clearly wrong about that and other things. It was apparent from her evidence that she does not have a good or intimate knowledge of the day to day running of the College.
84 Ms Phillips’ contention that she should have been paid a laundry allowance is clearly established.

Underpayments
85 The Respondent has prepared a spreadsheet of Award entitlements that is based on Ms Phillips’ spreadsheet (Exhibit 30). That spreadsheet records a comparison between the MCE Act and Award rate on the one hand, and the payroll amount received on the other. The amounts shown in the Difference column signify the difference between the two.
86 I accept that the detail contained in the Respondent’s spreadsheet, sourced from evidence which is before me, accurately represents payments, entitlements and shortfalls in payments made to Ms Phillips.
87 Having considered the applicable rates to which I referred earlier, I find that there have been a number of instances when the correct payment has not been made. Underpayment has occurred by reason of not paying the applicable daily or hourly rate, as the case may be, and/or because the laundry allowance was not paid.
Amounts Underpaid
88 The laundry allowance payable under the Award was $3.55 per week, amounting to $7.10 per fortnight. Except for the pay dates below, the fortnightly payment made to Ms Phillips exceeded the Award entitlements by more than $7.10. In those instances there has not been any underpayment. The following table sets out the occasions when there has been an underpayment resulting from the failure to pay a laundry allowance:

Date

Underpayment
12 December 2011

$1.83
27 June 2012

$1.32
11 July 2012

$7.10
4 November 2012

$7.10
1 December 2012

$7.10
13 July 2013

$7.10
Total Underpayment
$31.55
89 The following table sets out when the underpayments occurred, by reason of the failure to pay the correct daily or hourly rate, and the amount of that underpayment:

Date

Underpayment
11 July 2012

$ 3.17
14 November 2012

$ 23.80
1 December 2012

$ 15.30
13 July 2013

$329.00
Total Underpayment
$371.27

Conclusion
90 During the material period Ms Phillips was underpaid $402.82. That amount, however, needs to be adjusted to take into account the admitted overpayment of $27.00 for lunch on 4 August 2013.
91 I find that Ms Phillips has been underpaid $375.82.
92 Insofar as the claim exceeds $375.82 it has not been proven.









G CICCHINI
INDUSTRIAL MAGISTRATE