2019 WAIRC 00197
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2019 WAIRC 00197

CORAM
: INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD
:
THURSDAY, 21 FEBRUARY 2019

DELIVERED : WEDNESDAY, 17 APRIL 2019

FILE NO. : M 10 OF 2018

BETWEEN
:
JAMES (ANDREW) HOGBEN
CLAIMANT

AND

UPPER EAST INTERNATIONAL PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claim – Modern award coverage – General retail industry – Classification of retail employee within General Retail Industry Award 2010 [MA000004] – Contravention of terms of modern award on minimum pay
Legislation : Fair Work Act 2009 (Cth)
Taxation Administration Act 1953 (Cth)
Instrument : General Retail Industry Award 2010 [MA000004]
Case(s) referred to
in reasons : Transport Workers Union of Australia v Coles Supermarkets
Australia Pty Ltd [2014] FCAFC 148
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621
Director of Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097
Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
Miller v Minister of Pensions [1947] 2 All ER 372
McShane v Image Bollards Pty Ltd [2011] FMCA 215
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
Result : Judgment for the claimant
REPRESENTATION:
CLAIMANT : IN PERSON
RESPONDENT : MR X. ZHAO, A DIRECTOR OF UPPER EAST INTERNATIONAL PTY LTD

REASONS FOR DECISION
Introduction
1 Mr Hogben was initially employed as a ‘shop assistant’ by Upper East International Pty Ltd (the Company) under a Wage Subsidy Scheme Agreement (the Agreement) dated 25 June 2014 operated by Options Employment on behalf of the Australian Government.
2 The Company was paid $1,500 plus GST to employ Mr Hogben for a minimum of eight hours per week for a minimum of 13 weeks where the gross wage noted on the Agreement is $229.18. However, the anticipated period of employment under the Agreement could extend to 25 December 2014 and beyond that by agreement between the Company and Mr Hogben.
3 According to Mr Hogben, he continued to work for Company past the initial 13-week period pursuant to a verbal agreement with Jerry Zhao (Mr Zhao), a director of the Company, until 1 November 2015. Mr Hogben says the Company paid him $10 per hour, rather than the amount he was entitled to be paid under the provisions of the General Retail Industry Award 2010 [MA000004] (the Retail Modern Award).
4 Mr Hogben claims $19,363.89 from the Company, alleged to be the minimum weekly wages to which he is entitled under the provisions of the Retail Modern Award at a level one classification (Mr Hogben says he was underpaid for the days he worked).
5 The Company disputes the claim on several grounds. First, the Company submits that Mr Hogben and the Company signed the Agreement at the commencement of his employment where Mr Zhao understood from Options Employments that the correct hourly rate was $16.87 and this was the rate of pay Mr Hogben was to be paid and was paid. Secondly (and alternatively), the Company submits Mr Hogben did not work the hours he says he worked and that he was paid for all of time he worked.
6 In Schedule 1 of this decision I have set out the law relevant to the jurisdiction, practice and procedure of this court in determining this case. Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule 1 of this decision, I am satisfied: Mr Hogben has elected to use the small claims procedure provided for in s 549 of the Fair Work Act 2009 (FW Act); the Company is a corporation to which paragraph 51(XX) of the Constitution applies and it is a ‘national system employer’; Mr Hogben was an individual who was employed by the Company.
7 The principle issues for determination include:
· Whether Mr Hogben and the Company were covered by the Retail Modern Award (or no award)? In Schedule 2 of this decision, I have set out relevant extracts of the Retail Modern Award. For the reasons set out below, I conclude that Mr Hogben and the Company were covered by the Retail Modern Award and that, because of the FW Act, this award applies to this case.
· What is the appropriate classification of Mr Hogben under the Retail Modern Award? For the reasons set out below, I conclude that the appropriate level of classification from the levels set out in Schedule B of the Retail Modern Award is ‘Retail Employee Level 1’.
· What is the significance of the Agreement? For the reasons set out below, I conclude that the Agreement does not comply with the provisions of the Retail Modern Award in cl 7 setting out the requirements to vary the award. Accordingly, the Agreement is of no effect insofar as it is inconsistent with the Retail Modern Award. Further, the general terms and conditions of the Agreement includes the participant being employed and paid in accordance with the relevant award classification for the whole of their period of employment.
· What (if any) are Mr Hogben’s entitlements under the terms of the Retail Modern Award given the terms of the award concerning minimum weekly payments?
The Business of the Company and the Duties of Mr Hogben
8 To resolve the first two issues – identifying the relevant award and determining the appropriate classification of Mr Hogben’s position – it is necessary to make findings on the business of the Company and the role performed by Mr Hogben in that business.
9 The Company operated a deli or convenience store at the Esplanade Busport in Perth. It conducts business under the name of ‘Lucky 7, The City Pantry’.
10 Unsurprisingly the business sold convenience items, normally found at a deli or convenience stores. Mr Hogben served customers and stocked shelves at the business and was broadly referred to as a ‘shop assistant’.
11 On 25 June 2014, Options Employment entered into the Agreement with the Company for which the Company was paid a subsidy of $1,500 to employ Mr Hogben on certain terms (exhibit 1).
12 Mr Hogben commenced work on or around 25 June 2014 and ceased working at ‘Lucky 7, The City Pantry’ on or around 1 November 2015.
13 For my purposes - identifying the relevant award and the appropriate classification - it is sufficient to make the findings below on the tasks of a shop assistant in the position of Mr Hogben during the relevant period.
First Issue: Award Coverage in the Convenience Store Business
14 Mr Hogben contends that his employment was covered by the Retail Modern Award because the Fair Work Ombudsman told him that it did. The Company did not specifically dispute this but said that under the terms of the Agreement it was liable to pay Mr Hogben $16.87 per hour.
15 Clause 4.1 of the Retail Modern Award provides for the coverage of 'employers in the general retail industry and their employees in the classifications’ as listed in cl 16 of the Retail Modern Award. Clause 3.1 defines ‘general retail industry' to mean the 'sale or hire of goods or services to final consumers for personal, household or business consumption'. Clause 16 links to a classification structure set out in Schedule B. Schedule B provides for the classification of an employee into one of eight levels, dependent upon the tasks that the employee is performing at a retail establishment (my emphasis).
16 A modern award made by the Fair Work Commission does not impose an obligation or give an entitlement unless the award applies to the employer and the employee: s 46 of the FW Act. An award applies to the employer and the employee if the award covers each of them: s 47 of the FW Act. An award covers an employer and an employee if the award is expressed to cover each of them: s 48(1) FW Act. It follows that the starting point to determine award coverage are the words of the award itself. More specifically, it is 'the objective meaning of the words used (in the relevant award) bearing in mind the context in which they appear and the purpose they were intended to serve': Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 [22].
17 The Retail Modern Award provides that the functions of retail employees at level one are expressed to include, ‘receiving and preparation for sale and or display of goods in or about any shop’, ‘display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods, ‘sale or hire of goods by any means’ (B.1.1). The Retail Modern Award sets out the ‘indicative job titles’ of those employees at clause B.1.3.
18 Because of cl 4.1 and cl 16 (with Schedule B) of the Retail Modern Award, the Retail Modern Award covers the Company if the following two questions are answered affirmatively. For the reasons set out below, my view is that each question must be answered affirmatively, with the result that the Retail Modern Award covers the Company.
Is the Company ‘in the general retail industry’ (cl 4.1); meaning 'the sale or hire of goods or services to final consumers for personal, household or business consumption' (cl 3.1)?
19 The Company sells deli or convenience store goods to consumers for their personal consumption.
Do the employees of the Company perform their functions or perform work at a retail establishment (Schedule B1.1, B2.1, B1.3, etc.)?
20 Firstly, the Company premises at the Esplanade Busport, Perth is a ‘bricks and mortar’ establishment i.e. it has a significant physical presence and it has a role in housing the employees who work in that business. Secondly, the retail transactions of the Company operating that business must have been carried out within the shop because it involved serving customers convenience items, thus characterising the Company premises as a ‘retail establishment’.
Second Issue: Classification of Mr Hogben Under the Retail Modern Award
21 The Retail Modern Award states that the classification of an employee ‘must be according to the skill level required to be exercised by the employee in order to carry out the principle functions of the employment as determined by the employer’ (cl 16.2 of the Retail Modern Award). It is necessary to focus on the skills, duties and tasks required of a shop assistant in Mr Hogben’s case.
22 The following principles are relevant to determining the appropriate classification of Mr Hogben’s position:
· ‘Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect.’ Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621 [27]; Director of Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097; Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200.
· Determining the major or substantial aspect of an employee’s employment is ‘not merely a matter of quantifying the time spent on the various elements of work performed…; the quality of the different types of work done is also a relevant consideration’. Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
23 Mr Hogben contends he is at the level of ‘Retail Employee Level 1’, I infer because the Fair Work Ombudsman told him that he was. Again, the Company did not expressly dispute this contention, but for the sake of completeness where the parties are self-represented I will determine whether this is, in fact, the case. Mr Hogben said he served customers and stacked shelves.
24 The sale of a product, receiving and preparation for sale or display goods and shelf filling, appears as the duty of a level one retail employee (Schedule B, B.1). Further, Schedule B, B1.3 provides indicative jobs which are usually within the definition of a level one retail employee and includes ‘shop assistant’.
25 Therefore, I am satisfied that the Retail Modern Award applies and Mr Hogben was employed as a level one retail employee.
Third Issue: The Significance of the Agreement
26 The effect of my conclusion with respect to the first two issues is that the Retail Modern Award applies to the Company and Mr Hogben and that his entitlements will be determined as provided in that award (as a level one retail employee). However, cl 7.1 of the Retail Modern Award provides that, ‘notwithstanding any [provision of the award], an employer and an individual employee may agree to vary the application of the following terms of [the award] to meet the genuine individual needs of the employer and the individual employee’:
a. arrangements for when work is performed;
b. overtime rates;
c. penalty rates;
d. allowances; and
e. leave loading (a Clause 7 Agreement).
27 A Clause 7 Agreement has no effect unless a number of conditions are satisfied; those conditions are set out in clauses 7.2 - 7.4 of the Retail Modern Award (the Clause 7 Agreement Pre-conditions). In paragraphs one and 11 above I noted the Agreement was signed by Options Employment and Mr Zhao on behalf of the Company and included General Terms and Conditions. It is necessary to compare the provisions of the Agreement with the Clause 7 Agreement Pre-conditions.
28 The Agreement includes (relevantly) the following:
a. Rate of Pay. The gross wage per week noted on the Agreement is $229.18 per week.
b. Hours of work. minimum of eight hours per week.
c. Reference to relevant award classification. The participant must be employed and paid in accordance with the relevant award classification for the whole of their period of employment.
d. On-going employment. The employer must in good faith, provide on-going sustainable employment beyond the subsidy period barring unforeseen circumstances – such circumstances should be discussed with the employment services provider as soon as identified by the employer.
29 The agreement between the Company and Options Employment, on behalf of Mr Hogben, as evidenced by the Agreement fails to satisfy the Clause 7 Agreement Pre-conditions as follows:
a. A Clause 7 Agreement must be confined to a variation in the application of one or more of:
(i) arrangements for when work is performed;
(ii) overtime rates;
(iii) penalty rates;
(iv) allowances; and
(v) leave loading.
The Agreement goes beyond the topics upon which cl 7 applies, most notably, in relation to rate of pay.
b. A Clause 7 Agreement must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to. A comparison of the terms of the Agreement and the Retail Modern Award reveal that at the time the agreement was made, i.e. 24 June 2014, Mr Hogben was not better off overall as a result of the Agreement. It is sufficient to observe that the effect of the Agreement was silent on any other entitlements, such as overtime rates, penalty rates, when work was to be performed (because it deferred to any relevant award).
c. A Clause 7 Agreement must (b) state each term of this award that the employer and the individual employee have agreed to vary; (c) detail how the application of each term has been varied by agreement.
The Agreement does not identify the Retail Modern Award or the text of the terms of that award that are being varied or how each term has been varied.
d. A Clause 7 Agreement must (d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment.
The Agreement does not detail how, compared to the Retail Modern Award, Mr Hogben is better off overall. As noted above, he is, arguably not, in fact, better off.
30 The Agreement fails to satisfy the Clause 7 Agreement Pre-conditions I identified in paragraph 29. It follows that the Agreement is of no effect to the extent that it is inconsistent with the Retail Modern Award. In any event, the Agreement makes express reference to a ‘participant’ being employed and paid in accordance with the relevant award classification for the whole of their period of employment.
31 I note the Company refers to an email dated 23 July 2014 from Options Employment informing Mr Zhao of the National Minimum Wage Order 2014 where the hourly rate is identified as $16.87 (exhibit 9). Mr Zhao says he relied on this information to pay Mr Hogben the hourly rate of $16.87.
32 Firstly, as will be demonstrated by reference to the table in Schedule 3 of wages paid and hours worked as compared to the limited number of pay slips provided by the Company to Options Employment for 2014 (exhibit 2), Mr Hogben was not paid $16.87 per hour. The amounts on the 2014 pay slips do not always correlate to payments into Mr Hogben’s bank accounts (exhibits 5 and 6).
33 The gross amount of wages paid in 2014 according to the pay slips is $5,634.58, whereas Mr Hogben’s bank account demonstrates that for the corresponding time $7,153.67 was deposited into his accounts credited by either the Company or Mr Zhao.
34 Second, in my view and for reasons I cannot discern, Options Employment erroneously informed Mr Zhao of an hourly rate that did not apply to Mr Hogben where the Agreement specifically referred to him being paid in accordance with the relevant award and the Retail Modern Award applies in Mr Hogben’s case.
35 Third, the PAYE payment summary tendered by the Company for Mr Hogben for the financial year 1 July 2015 to 30 June 2016 shows Mr Hogben was paid $13,872 by the Company (exhibit 10). However, Mr Hogben’s bank accounts show that the Company and Mr Zhao credited him significantly less than that during the same period.
36 Therefore, I do not accept that the Company necessarily paid Mr Hogben $16.87 per hour for hours worked and I do not accept that this was the amount per hour that he was required to be paid.
Fourth Issue: Mr Hogben’s Entitlements Under the Retail Modern Award
37 It follows from my conclusion with respect to the first three issues (above) that the Retail Modern Award applies to the parties and that Mr Hogben’s entitlements will be determined as provided in that award as a level 1 retail employee. The Retail Modern Award provides for:
· Minimum weekly wages as set out in cl 17. The weekly wage can be divided by 38 to calculate a minimum hourly rate. In Schedule 2 to this judgment, at cl 17 of the Retail Modern Award, I have set out each relevant iteration of cl 17 showing that the minimum hourly rate of pay (day rate, Saturday rate and Sunday rate respectively) for Mr Hogben was as follows:
From
1/7/13
$17.98
From
1/7/14
$18.52/$23.15/$37.04
From
1/7/15
$18.99/$23.74/$37.98
38 Set out below are my findings:
· On Mr Hogben’s entitlements as provided in Schedule 3:
o on the hours worked by Mr Hogben to which is entitled to be paid as ordinary hours;
o on Mr Hogben’s entitlement to ordinary pay over the total period of his employment by application of the relevant rate of pay under the Retail Modern Award, level 1 retail employee to the number of hours worked.
· On the total amount paid by the Company to Mr Hogben as provided in Mr Hogben’s bank statements, see paragraph 47.
· My conclusion on Mr Hogben’s entitlement, reflecting the difference between his total entitlement for ordinary hours over the period of his employment and the total amount paid to him by the Company, see paragraph 49.
39 Hours worked, Rate of Pay Calculations. Save for pay slips for the period 23 June 2014 to 21 December 2014, Mr Zhao informed the court that the Company did not have any other records relevant to what hours Mr Hogben worked in 2014 and 2015. Mr Hogben did not have any personal contemporaneous records of the hours he worked in 2014 but he kept a personal diary of the hours worked in 2015 (exhibit 3). Mr Hogben also took photographs of rosters he says were posted on a wall at the business approximately two to three weeks in advance, albeit that he did not have ready to hand all the photographs of the rosters he says were posted on the wall (exhibit 4).
40 I note Mr Zhao was issued an infringement by the Fair Work Commission for failing to provide Mr Hogben with pay slips.
41 Mr Hogben bears the onus of proving his claim.
42 Notwithstanding Mr Zhao’s denial that Mr Hogben worked the hours that he claimed, I find that there are, when viewed together, a number of factors upon which it is open to me to prefer Mr Hogben’s evidence to Mr Zhao’s denial in respect of the hours worked in 2015:
· Mr Hogben kept a personal diary of the hours he worked in 2015;
· the photographs of the rosters show hours and days of work consistent with the hours of work in the personal diary and the names on the rosters are consistent with Mr Zhao working at the business;
· the Company cannot provide any evidence in the form of payslips, signing on sheets, computer records that supports its contention that Mr Hogben worked less hours than he claims;
· the PAYE summary for 1 July 2015 to 30 June 2016 is clearly inconsistent with the amounts paid into Mr Hogben’s bank accounts for the corresponding period; and
· similarly, the amounts paid into Mr Hogben’s bank account in 2014 are for the most part inconsistent with the 2014 pay slips.
43 Therefore, I do not accept Mr Zhao’s denial that Mr Hogben worked less hours than he claims in 2015. I prefer Mr Hogben’s evidence in the form of his personal diary for 2015.
44 In respect of the hours worked in 2014, the only evidence before the court is that which is contained in the 2014 pay slips. Notwithstanding the obvious discrepancies between the amounts shown on the 2014 pay slips and the amounts paid into Mr Hogben’s bank accounts, I am unable to make any finding as to whether Mr Hogben worked more hours than that provided for in the 2014 pay slips and, if so, the number of hours worked. Mr Hogben could not say how many hours he did in fact work, albeit that it is at least one to say that he may have worked more from time to time. Unlike in 2015, Mr Hogben did not keep any personal records for 2014, albeit I accept he was not lawfully required to do so.
45 Accordingly, for the purposes of the claim, I accept the hours recorded on the 2014 pay slips as the hours worked by Mr Hogben in 2014.
46 The parties conducted the hearing as if Mr Hogben was a part time worker, rather than a casual worker. I note the payslips provided by the Company for 2014 refer to Mr Hogben as a part time worker (exhibit 2). Mr Hogben refers to the hourly rates relevant to either full time or part time employees and Mr Hogben for the most part worked reasonably regular hours (according to his diary). However, Mr Hogben took extended time off and I note that his claim is only for alleged underpayment of wages and for no other claim. Accordingly, I have treated Mr Hogben’s claim as if he was a part time worker (rather than a casual worker attracting a higher hourly rate) and limited the alleged entitlement to that claimed by him.
47 The Company paid Mr Hogben amounts reflected in Mr Hogben’s bank statements (exhibits 5 and 6). The total amount paid in 2014 was $7,153.67. The total amount paid in 2015 was $10,268.17.
48 In Schedule 3 of this decision I have undertaken the calculations necessary to work out Mr Hogben’s entitlement to ordinary pay for the total period of his employment by application of the relevant rate of pay under the Retail Modern Award, level one retail employee to the number of hours worked. The result is that Mr Hogben’s entitlement to ordinary pay is:
Total:
$29,837.97
Ordinary Pay

Conclusion
49 In the result, I am satisfied that Mr Hogben and the Company were covered by the Retail Modern Award and that his appropriate level of classification was as a ‘Retail Employee Level 1’. When applied to hours worked by Mr Hogben, and given the terms of the award concerning minimum weekly wages, my finding is that he was underpaid by the Company in the amount of $12,416.13.
50 Section 547(1)(2) of the FW Act provides, in effect, that when making an order that an employer pay an amount to an employee, the court ‘must, on application, include an amount of interest in the sum ordered unless good cause is shown to the contrary’. I will hear from the parties. If an application is made, the appropriate interest payable is 6% per annum calculated from 2 November 2015 until judgement. The interest payable is at $2.04 per day. The total of interest payable is for 1,236 days totalling $2,522.69.
Orders
51 Subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), the respondent is to pay to the claimant the amount of $12,416.13.
52 Upon application by the claimant, the respondent is to pay interest on the judgment sum in the amount of $2,522.69.



D. SCADDAN
INDUSTRIAL MAGISTRATE
Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA) under the Fair Work Act 2009 (Cth): Small Claim Alleging Contravention of Modern Award
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The Industrial Magistrates Court (WA) (IMC), being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘Magistrates Court’); Industrial Relations Act 1979 (WA), ss 81, 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of a modern award where the award applies to give an entitlement to a claimant employee and to impose an obligation upon a respondent employer: FWA, s 45, s 46. The award applies if it covers the employee and the employer and there are no relevant statutory exceptions (e.g. high income employees e.g. $138,900 pa from 1 July 2016): FWA, s 47. The award covers the employee and the employer if it is expressed to cover the employee and the employer: FWA, s 48(1).
[5] An obligation upon an ‘employer’ covered by an award is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 47, s 14, s 12. An entitlement of an employee covered by an award is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: FWA, s 42, s47, s 13.
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] Where the claimant elects to use the small claims procedure as provided for in section 548 of the FWA, the Court may not award more than $20,000 and may not make orders for any pecuniary penalty: FWA, s 548(1)(a), (2)(a).
Burden and standard of proof
[8] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not.
[9] Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that 'I am satisfied on the balance of probabilities' of that fact or matter. Where I state that 'I am not satisfied' of a fact or matter I am saying that 'I am not satisfied on the balance of probabilities' of that fact or matter.
Practice and Procedure of the Industrial Magistrates Court: Small Claim
[10] The FWA provides that ‘in small claims proceedings, the court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities: FWA, s 548(3). The significance of this provision was explained by Judge Lucev in McShane v Image Bollards Pty Ltd [2011] FMCA 215 [7] in the following terms:
Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claim proceedings in the Fair Work Division, this does not relive an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.
[11] The IMC has experience of similar provisions. The Industrial Relations Act 1979 (WA) (IRA) provides that, except as prescribed by or under the Act, the powers, practice and procedure of the IMC is to be the same as if the proceedings were a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA): IRA, s 81CA Relevantly, regulations prescribed under the IRA provide for an exception: a court hearing a trial is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit: Regulation 35(4). In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observations (omitting citations):
40 … The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly, such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence.
42 … After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of enquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'.
43 … The tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent opinion, for instance, upon oath, and whether the cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence and is authorised to act according to substantial justice and the merits of the case.
44 … An essential ingredient of procedural fairness is the opportunity of presenting one's case.
45 … the right to cross-examination is viewed as an important feature of procedural fairness.
47 … Procedural fairness requires fairness in the particular circumstances of the case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is.
Schedule 2: MA000004 - General Retail Industry Award 2010

This Fair Work Commission consolidated modern award incorporates all amendments up to and including 27 June 2014 [PR551831].
…
3. Definitions and interpretation
[Varied by PR992088, PR992124, PR992724, PR994449, PR997207, PR997772, PR503607, PR540640, PR544243, PR545959]
3.1 In this award, unless the contrary intention appears:
[Definition of Act substituted by PR994449 from 01Jan10]
Act means the Fair Work Act 2009 (Cth)
…
[Definition of employee substituted by PR994449, PR997772 from 01Jan10]
employee means national system employee within the meaning of the Act
[Definition of employer substituted by PR994449, PR997772 from 01Jan10]
employer means national system employer within the meaning of the Act
…
[Definition of general retail industry varied by PR992724 ppc 29Jan10, PR997207 from 01Jan10, PR540640 ppc 23Aug13]
general retail industry means the sale or hire of goods or services to final consumers for personal, household or business consumption including:
· food retailing, supermarkets, grocery stores;
· department stores, clothing and soft goods retailing;
· furniture, houseware and appliance retailing;
· recreational goods retailing;
· personal and household goods retailing;
· household equipment repair services;
· bakery shops, where the predominant activity is baking products for sale on the premises;
and includes:
· customer information and assistance provided by shopping centres or retail complexes;
· labour hire employees engaged to perform work otherwise covered by this award; and
· newspaper delivery drivers employed by a newsagent,
but does not include:
· community pharmacies;
· pharmacies in hospitals and institutions providing an in-patient service;
· hair and beauty establishments;
· hair and beauty work undertaken in the theatrical, amusement and entertainment industries;
· stand-alone butcher shops;
· stand-alone nurseries;
· retail activities conducted from a manufacturing or processing establishment other than seafood processing establishment;
· clerical functions performed away from the retail establishment;
· warehousing and distribution;
· motor vehicle retailing and motor vehicle fuel and parts retailing;
· fast food operations;
· restaurants, cafes, hotels and motels; or
· building, construction, installation, repair and maintenance contractors engaged to perform work at a retail establishment
…
[Definition of NES substituted by PR994449 from 01Jan10]
NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
…
[Definition of shop with Departments/Sections inserted by PR992724 ppc 29Jan10]
Shop with Departments/Sections means any shop which has clearly distinguishable Departments or Sections. A department or Section will have a dedicated Department or Section Manager and at least 3 subordinate employees who work solely or predominantly in that section
…
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
4. Coverage
[Varied by PR994449]
[4.1 substituted by PR994449 from 01Jan10]
4.1 This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16— to the exclusion of any other modern award. The award does not cover employers covered by the following awards:
· the Fast Food Industry Award 2010;
· the Meat Industry Award 2010;
· the Hair and Beauty Industry Award 2010; or
· the Pharmacy Industry Award 2010.
4.2 The award does not cover an employee excluded from award coverage by the Act.
[4.3 substituted by PR994449 from 01Jan10]
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
[New 4.4, 4.5 and 4.6 inserted by PR994449 from 01Jan10]
4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.6 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
[4.4 renumbered as 4.7 by PR994449 from 01Jan10]
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performed the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
5. Access to the award and the National Employment Standards
[5 varied by PR540640 ppc 23Aug13]

The employer must ensure that copies of this award and the NES are easily available to all employees to whom they apply either on a noticeboard or other prominent location which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
6. The National Employment Standards and this award

The NES and this award contain the minimum conditions of employment for employees covered by this award.
7. Award flexibility
[Varied by PR994449, PR542124]
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terMr of this award to meet the genuine individual needs of the employer and the individual employee. The terMr the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
[7.2 varied by PR542124 ppc 04Dec13]
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terMr listed in clause 7.1; and
[7.3(b) substituted by PR994449 from 01Jan10; varied by PR542124 ppc 04Dec13]
(b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.
[7.4 substituted by PR994449 from 01Jan10]
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terMr and conditions of employment; and
(e) state the date the agreement commences to operate.
[7.5 deleted by PR994449 from 01Jan10]
[7.6 renumbered as 7.5 by PR994449 from 01Jan10]
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
[New 7.6 inserted by PR994449 from 01Jan10]
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
[7.8(a) varied by PR542124 ppc 04Dec13]
(a) by the employer or the individual employee giving 13 weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
[Note inserted by PR542124 ppc 04Dec13]
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).
[New 7.9 inserted by PR542124 ppc 04Dec13]
7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a), subject to four weeks’ notice of termination.
[7.9 renumbered as 7.10 by PR542124 ppc 04Dec13]
7.10 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.
….
16. Classifications
[Varied by PR988390]
16.1 All employees covered by this award must be classified according to the structure set out in 0. Employers must advise their employees in writing of their classification and of any changes to their classification.
16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
17. Minimum weekly wages
[17 varied by PR997881, PR509035, PR522866, PR536669, PR551592 ppc 01Jul14]

Classifications
Per week

$
Retail Employee Level 1
703.90
Retail Employee Level 2
720.70
Retail Employee Level 3
731.90
Retail Employee Level 4
746.20
Retail Employee Level 5
776.90
Retail Employee Level 6
788.20
Retail Employee Level 7
827.60
Retail Employee Level 8
861.30
…
Part 5— Ordinary Hours of Work
27. Hours of work
[Varied by PR992724, PR994449]
[26 renumbered as 27 by PR998580 from 1Jul10]
27.1 This clause does not operate to limit or increase or in any way alter the trading hours of any employer as determined by the relevant State or Territory legislation.
27.2 Ordinary hours
(a) Except as provided in clause 27.2(b), ordinary hours may be worked, within the following spread of hours:
Days
Spread of hours
Monday to Friday, inclusive
7.00 am–9.00 pm
Saturday
7.00 am–6.00 pm
Sunday
9.00 am–6.00 pm
[26.2(b)(i) substituted by PR994449 from 01Jan10]
(b) Provided that:
(i) the commencement time for ordinary hours of work for newsagencies on each day may be from 5.00 am;
[26.2(b(ii) substituted by PR994449 from 01Jan10]
(ii) the finishing time for ordinary hours for video shops may be until 12 midnight; and
[26.2(b)(iii) inserted by PR992724 ppc 29Jan10]
(iii) in the case of retailers whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00 pm.
(c) Hours of work on any day will be continuous, except for rest pauses and meal breaks.
27.3 Maximum ordinary hours on a day
(a) An employee may be rostered to work up to a maximum of nine ordinary hours on any day, provided that for one day per week an employee can be rostered for 11 hours.
[26.3(b) deleted by PR992724 ppc 29Jan10]
28. 38 hour week rosters
[27 renumbered as 28 by PR998580 from 01Jul10]
28.1 A full-time employee will be rostered for an average of 38 hours per week, worked in any of the following forms or by agreement over a longer period:
(a) 38 hours in one week;
(b) 76 hours in two consecutive weeks;
(c) 114 hours in three consecutive weeks; or
(d) 152 hours in four consecutive weeks.
28.2 The 38 hour week may be worked in any one of the following methods:
(a) shorter days, that is 7.6 hours;
(b) a shorter day or days each working week;
(c) a shorter fortnight, i.e. four hours off in addition to the rostered day off;
(d) a fixed day off in a four week cycle;
(e) a rotating day off in a four week cycle;
(f) an accumulating day off in a four week cycle, with a maximum of five days being accumulated in five cycles.
28.3 In each shop, an assessment will be made as to which method best suits the business and the proposal will be discussed with the employees concerned, the objective being to reach agreement on the method of implementation. An assessment may be initiated by either the employer or employees not more than once a year.
28.4 Circumstances may arise where different methods of implementation of a 38 hour week apply to various groups or sections of employees in the shop or establishment concerned.
28.5 In retail establishments employing on a regular basis 15 or more employees per week, unless specific agreement exists to the contrary between an employer and an employee, the employee will not be required to work ordinary hours on more than 19 days in each four week cycle.
28.6 Where specific agreement exists between an employer and employee, the employee may be worked on the basis of:
(a) not more than 4 hours’ work on one day in each two week cycle;
(b) not more than 6 hours’ work on one day in each week;
(c) not more than 7.6 hours’ work on any day.
28.7 Substitute rostered days off (RDOs)
(a) An employer, with the agreement of the majority of employees concerned, may substitute the day or half day an employee is to take off in accordance with a roster arrangement for another day or half day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.
(b) By agreement between an employer and an employee, another day may be substituted for the day that employee is to be rostered off.
28.8 Accumulation of RDOs
By agreement between the employer and an employee, the rostered day off may be accumulated up to a maximum of five days in any one year. Such accumulated periods may be taken at times mutually convenient to the employer and the employee.
28.9 A roster period cannot exceed four weeks.
28.10 Ordinary hours will be worked on not more than five days in each week, provided that if ordinary hours are worked on six days in one week, ordinary hours in the following week will be worked on no more than four days.
28.11 Consecutive days off
(a) Ordinary hours will be worked so as to provide an employee with two consecutive days off each week or three consecutive days off in a two week period.
(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.
28.12 Ordinary hours and any reasonable additional hours may not be worked over more than six consecutive days.
28.13 Employees regularly working Sundays
(a) An employee who regularly works Sundays will be rostered so as to have three consecutive days off each four weeks and the consecutive days off will include Saturday and Sunday.
(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.
28.14 Notification of rosters
(a) The employer will exhibit staff rosters on a notice board, which will show for each employee:
(i) the number of ordinary hours to be worked each week;
(ii) the days of the week on which work is to be performed; and
(iii) the commencing and ceasing time of work for each day of the week.
(b) The employer will retain superseded notices for twelve months. The roster will, on request, be produced for inspection by an authorised person.
(c) Due to unexpected operational requirements, an employee’s roster for a given day may be changed by mutual agreement with the employee prior to the employee arriving for work.
(d) Any permanent roster change will be provided to the employee in writing with a minimum seven days notice. Should the employee disagree with the roster change, they will be given a minimum of 14 days written notice instead of seven days, during which time there will be discussions aimed at resolving the matter in accordance with clause, of this award.
(e) Where an employee’s roster is changed with the appropriate notice for a onceonly event caused by particular circumstances not constituting an emergency, and the roster reverts to the previous pattern in the following week, then extra work done by the employee because of the change of roster will be paid at the overtime rate of pay.
(f) An employee’s roster may not be changed with the intent of avoiding payment of penalties, loading or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.
29. Overtime and penalties
[Varied by PR992724, PR994449, PR504525, PR539248, PR540640]
[28 renumbered as 29 by PR998580 from 1Jul10]
29.1 Reasonable overtime
(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime at overtime rates in accordance with the provisions of this clause.
(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
(i) any risk to employee health and safety;
(ii) the employee’s personal circumstances including any family responsibilities;
(iii) the needs of the workplace or enterprise;
(iv) the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it; and
(v) any other relevant matter.

[29.2 substituted by PR504525; corrected by PR505487 from 10Dec10]
29.2 Overtime
(a) Hours worked in excess of the ordinary hours of work, outside the span of hours (excluding shiftwork), or roster conditions prescribed in clauses 27 and 28 are to be paid at time and a half for the first three hours and double time thereafter.
(b) Hours worked by part-time employees in excess of the agreed hours in clause 12.2 or as varied under clause 12.3 will be paid at time and a half for the first three hours and double time thereafter.
(c) The rate of overtime on a Sunday is double time, and on a public holiday is double time and a half.
(d) Overtime is calculated on a daily basis.
29.3 Time off instead of payment
[28.3 renamed by PR994449 from 01Jan10]
[28.3(a) varied by PR994449 from 01Jan10]
(a) Time off instead of payment for overtime may be provided if an employee so elects and it is agreed by the employer.
(b) Such time off will be taken at a mutually convenient time and within four weeks of the overtime being worked or, where agreed between the employee and the employer may be accumulated and taken as part of annual leave.

[28.3(c) substituted by PR994449 from 01Jan10]
(c) Time off instead of payment for overtime will equate to the overtime rate, i.e. if the employee works one hour overtime and elects to take time off instead of payment the time off would equal one and a half hours or, where the rate of pay for overtime is double time, two hours.
29.4 Penalty payments
(a) Evening work Monday to Friday
A penalty payment of an additional 25% will apply for ordinary hours worked after 6.00 pm. This does not apply to casuals.
(b) Saturday work
[29.4(b) substituted by PR540640 ppc 23Aug13]
A penalty payment of an additional 25% will apply for ordinary hours worked on a Saturday for full-time and part-time employees. A casual employee must be paid an additional 10% for work performed on a Saturday between 7.00 am and 6.00 pm.
(c) Sunday work
[28.4(c) varied by PR992724 ppc 29Jan10]
A penalty payment of an additional 100% loading will apply for all hours worked on a Sunday. This penalty payment also applies to casual employees instead of the casual loading in clause 13.2.
(d) Public holidays
[29.4(d) substituted by PR539248 ppc 01Aug13]
(i) Work on a public holiday must be compensated by payment at the rate of an additional 150%.
(ii) Provided that by mutual agreement of the employee and the employer, the employee (other than a casual) may be compensated for a particular public holiday by either:
(A) An equivalent day or equivalent time off instead without loss of pay. The time off must be taken within four weeks of the public holiday occurring, or it shall be paid out; or
(B) An additional day or equivalent time as annual leave.
(iii) The employee and employer are entitled to a fresh choice of payment or time off by agreement on each occasion work is performed on a public holiday.
(iv) If no agreement can be reached on the method of compensation, the default arrangement shall be as per clause 29.4(d)(i).
…
32. Annual leave
[31 renumbered as 32 by PR998580 from 1Jul10]
32.1 Annual leave is provided for in the NES.
32.2 Definition of shiftworker
For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.
32.3 Annual leave loading
33. During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 17—Minimum weekly wages
[17 varied by PR997881, PR509035, PR522866, PR536669, PR551592 ppc 01Jul14]
(a) of this award. Annual leave loading is payable on leave accrued.
(b) The loading will be as follows:
(i) Day work
Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.
(ii) Shiftwork
Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.
33.2 Paid leave in advance of accrued entitlement
An employer may allow an employee to take annual leave either wholly or partly in advance before the leave has accrued. Where paid leave has been granted to an employee in excess of the employee’s accrued entitlement, and the employee subsequently leaves or is discharged from the service of the employer before completing the required amount of service to account for the leave provided in advance, the employer is entitled to deduct the amount of leave in advance still owing from any remuneration payable to the employee upon termination of employment.
33.3 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least four weeks’ notice in the following circumstances:
(a) as part of a close-down of its operations; or
(b) where more than eight weeks’ leave is accrued.
…
Schedule B —Classifications
[Sched B varied by PR988390, PR992724, PR540640]
B.1 Retail Employee Level 1
B.1.1 An employee performing one or more of the following functions at a retail establishment:
· the receiving and preparation for sale and or display of goods in or about any shop;
· the pre-packing or packing, weighing, assembling, pricing or preparing of goods or provisions or produce for sale;
· the display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods;
· the sale or hire of goods by any means;
· the receiving, arranging or making payment by any means;
· the recording by any means of a sale or sales;
· the wrapping or packing of goods for despatch and the despatch of goods;
· the delivery of goods;
· window dressing and merchandising;
· loss prevention;
· demonstration of goods for sale;
· the provision of information, advice and assistance to customers;
· the receipt, preparation, packing of goods for repair or replacement and the minor repair of goods;
· all directly employed persons engaged in retail stores in cleaning, store greeting, security, lift attending, store cafeterias and food services;
· Clerical Assistants functions Level 1; or
· work which is incidental to or in connection with any of the above.
B.1.2 Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning. The cleaning of toilets is not incidental cleaning except in the case of a take away food establishment.
[B.1.3 varied by PR540640 ppc 23Aug13]
B.1.3 Indicative job titles which are usually within the definition of a Retail Employee Level 1 are:
· Shop Assistant,
· Clerical Assistant,
· Check-out Operator,
· Store Worker,
· Reserve Stock Hand,
· Driver,
· Boot/Shoe Repairer (Not Qualified),
· Window Dresser (Not Qualified),
· LPO,
· Photographic Employee,
· Store Greeter,
· Assembler,
· Ticket Writer (Not Qualified),
· Trolley Collector,
· Video Hire Worker,
· Telephone Order Salesperson,
· Door-to-door Salesperson, or Retail Outdoor Salesperson, and,
· Demonstrator and/or Merchandiser not elsewhere classified (including a Demonstrator and/or Merchandiser who is not a direct employee of the retailer).
B.1.4 Clerical Assistant means an employee accountable for clerical and office tasks as directed within the skill levels set out.
B.1.5 Employees at this level may include the initial recruit who may have limited relevant experience. Initially work is performed under close direction using established practices, procedures and instructions.
B.1.6 Such employees perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.
B.1.7 Employees at this level are responsible and accountable for their own work within established routines, methods and procedures and the less experienced employee’s work may be subject to checking at all stages. The more experienced employee may be required to give assistance to less experienced employees in the same classification.
B.1.8 Indicative typical duties and skills at this level may include:
· reception/switchboard, e.g. directing telephone callers to appropriate staff, issuing and receiving standard forms, relaying internal information and initial greeting of visitors;
· maintenance of basic records;
· filing, collating, photocopying etc;
· handling or distributing mail including messenger service;
· recording, matching, checking and batching of accounts, invoices, orders, store requisitions etc; or
· the operation of keyboard and other allied equipment in order to achieve competency as prescribed in Level 2.
B.2 Retail Employee Level 2
B.2.1 An employee performing work at a retail establishment at a higher skill level than a Retail Employee Level 1.
B.2.2 Indicative job titles which are usually within the definition of a Retail Employee Level 2 include:
· Forklift Operator,
· Ride on Equipment Operator.
B.3 Retail Employee Level 3
B.3.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 2.
B.3.2 Indicative of the tasks which might be required at this level are the following:
· Supervisory assistance to a designated section manager or team leader,
· Opening and closing of premises and associated security,
· Security of cash, or
· Fitting of surgical corset.
B.3.3 Indicative job titles which are usually within the definition of a Retail Employee 3 include:
· Machine operators,
· 2IC to Dept Manager,
· Senior Salesperson,
· Corsetiere,
· Driver Selling Stock,
· Cook (Not Qualified) in a cafeteria,
· Senior LPO, including an armed LPO,
· LPO Supervisor,
· Designated second-in-charge of a section (i.e. senior sales assistant),
· Designated second-in-charge to a service supervisor, or
· Person employed alone, with responsibilities for the security and general running of a shop.
B.4 Retail Employee Level 4
B.4.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 3.
B.4.2 Indicative of the tasks which might be required at this level are the following:
· Management of a defined section/department,
· Supervision of up to 4 sales staff (including self),
· Stock control,
· Buying/ordering requiring the exercise of discretion as to price, quantity, quality etc.,
· An employee who is required to utilise the skills of a trades qualification for the majority of the time in a week, or
· Clerical functions Level 2.
B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4 include:
[B.4.3 varied by PR992724 ppc 29Jan10]
· An Assistant, Deputy, or 2IC Shop Manager of a shop without Departments,
· An employee who is required to utilise the skills of a trades qualified person for the majority of the time in a week. This includes: Butcher, Baker, Pastry Cook, Florist,
· An employee who has completed an appropriate trades course or holds an appropriate Certificate III and is required to use their qualifications in the course of their work,
· A Qualified Auto Parts and Accessories Salesperson,
· A Window Dresser (Cert III or equivalent experience),
· A Boot/Shoe Repairer (Cert III),
· A Shiftwork Supervisor,
· Section/Department manager with up to 2 employees (including self),
· Service Supervisor of up to 15 employees,
· Nightfill Supervisor/Leader,
B.4.4 Clerical Officer Level 2 characteristics:
· This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
· Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
· The work of these employees may be subject to final checking and as required progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level.
B.4.5 Indicative typical duties and skills at this level may include:
· Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position.
· Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter.
· Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents.
· Stenographer/person solely employed to take shorthand and to transcribe by means of appropriate keyboard equipment.
· Copy typing and audio typing.
· Maintenance of records and/or journals including initial processing and recording relating to the following:
(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
· Computer application involving use of a software package which may include one or more of the following functions:
(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
· Arrange routine travel bookings and itineraries, make appointments.
· Provide general advice and information on the organisation’s products and services, e.g. front counter/telephone.
B.5 Retail Employee Level 5
B.5.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 4.
B.5.2 Indicative job titles which are usually within the definition of a Retail Employee 5 include:
· A tradesperson in charge of other tradespersons within a section or department,
· Service Supervisor (more than 15 employees).
B.6 Retail Employee Level 6
B.6.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 5.
B.6.2 Indicative job titles which are usually within the definition of a Retail Employee 6 include:
· Section/Department manager with 5 or more employees (including self),
· Manager/Duty Manager in a shop without Departments/Sections (may be under direction of person not exclusively involved in shop management),
[B.6.2 varied by PR992724 ppc 29Jan10]
· Assistant or Deputy or 2IC Shop Manager of a shop with Departments/Sections,
· Clerical Officer Level 3.
B.6.3 Clerical Officer Level 3 characteristics:
· Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
· Such employees may be required to give assistance and/or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and would be able to train such employees by means of personal instruction and demonstration.
B.6.4 Indicative typical duties and skills at this level may include:
· Prepare cash payment summaries, banking report and bank statements; calculate and maintain wage and salary records; follow credit referral procedures; apply purchasing and inventory control requirements; post journals to ledger.
· Provide specialised advice and information on the organisation’s products and services; respond to client/public/supplier problems within own functional area utilising a high degree of interpersonal skills.
· *Apply one or more computer software packages developed for a micro personal computer or a central computer resource to either/or:
(i) create new files and records;
(ii) maintain computer based records management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
· Arrange travel bookings and itineraries; make appointments; screen telephone calls; respond to invitations; organise internal meetings on behalf of executive(s); establish and maintain reference lists/personal contact systems for executive(s).
· Application of specialist terminology/processes in professional offices.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.7 Retail Employee Level 7
B.7.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 6.
B.7.2 Indicative job titles which are usually within the definition of a Retail Employee Level 7 include:
· Visual Merchandiser (diploma),
· Clerical Officer Level 4.
B.7.3 Clerical Officer Level 4 characteristics:
· Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite, a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems.
· They exercise initiative, discretion and judgment at times in the performance of their duties.
· They are able to train employees in Clerical Levels 1–3 by personal instruction and demonstration.
B.7.4 Indicative typical duties and skills at this level may include:
· Secretarial/Executive support services which may include the following: maintain executive diary; attend executive/organisational meetings and take minutes; establish and/or maintain current working and personal filing systems for executive; answer executive correspondence from verbal or handwritten instructions.
· Able to prepare financial/tax schedules, calculate costings and/or wage and salary requirements; complete personnel/payroll data for authorisation; reconciliation of accounts to balance.
· Advise on/provide information on one or more of the following:
(i) employment conditions
(ii) workers compensation procedures and regulations
(iii) superannuation entitlements, procedures and regulations
· *Apply one or more computer software packages, developed for a micro personal computer or a central computer resource to either/or:
(i) create new files and records;
(ii) maintain computer based management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.8 Retail Employee Level 8
B.8.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 7.
B.8.2 A person with a Diploma qualification.
B.8.3 Indicative job titles which are usually within the definition of a Retail Employee 8 include:
[B.8.3 varied by PR992724 ppc 29Jan10]
· A Shop Manager of a shop with Departments/Sections, or
· Clerical Officer Level 5.
B.8.4 Clerical Officer Level 5 characteristics:
· Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.
· Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.
· They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, in terms of, among other things, scheduling workloads, resolving operations problems, monitoring the quality of work produced as well as counselling staff for performance as well as work related matters.
· They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They often exercise initiative, discretion and judgment in the performance of their duties.
· The possession of relevant post secondary qualifications may be appropriate but not essential.
B.8.5 Indicative typical duties and skills at this level may include:
· Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.
· Application of computer software packages within either a micropersonal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.
· Provide reports for management in any or all of the following areas:
(i) account/financial
(ii) staffing
(iii) legislative requirements
(iv) other company activities.
· Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

Schedule 3: Calculation of Pay, Overtime and Penalty Payments under General Retail Industry Award 2010 as Level 1 Retail Employee


Ordinary
Saturday
Sunday

100%
125%
200%
2013 Level 1
17.98


2014 Level 1
18.52
23.15
37.04
2015 Level 1
18.99
23.74
37.98

2014

W End
Hrs at 100%
Hrs at 125%
Hrs at 200%
Ord pay at 100%
Sat at 125%
Sun at 200%
Total
Paid into account
29/06/14
12


215.76


215.76
202.61
06/07/14
11


203.72


203.72
176.00
13/07/14
11


203.72


203.72
176.00
20/07/14
12


222.24


222.24
202.44
27/07/14
12


222.24


222.24
202.44
03/08/14
12


222.24


222.24
202.44
10/08/14
12


222.24


222.24
202.44
17/08/14
12


222.24


222.24
238.45
24/08/14
12


222.24


222.24
210.60
31/08/14
12


222.24


222.24
392.20
07/09/14
12


222.24


222.24
397.44
14/09/14
12


222.24


222.24
437.44
21/09/14
12


222.24


222.24
432.44
28/09/14
12


222.24


222.24
390.00
05/10/14
12


222.24


222.24
229.50
12/10/14
12


222.24


222.24
301.50
19/10/14
12


222.24


222.24
319.50
26/10/14
12


222.24


222.24
414.00
02/11/14
15


277.80


277.80
182.19
09/11/14
15


277.80


277.80
367.06
16/11/14
15


277.80


277.80
229.45
23/11/14
15


277.80


277.80
209.45
30/11/14
15


277.80


277.80
274.44
07/12/14
15


277.80


277.80
269.75
14/12/14
15


277.80


277.80
?
21/12/14
15


277.80


277.80
493.89









Total:






$6,179.20
$7,153.67


2015

W End
Hrs at 100%
Hrs at 125%
Hrs at 200%
Ord pay at 100%
Sat at 125%
Sun at 200%
Total
Paid into account
31/12/14







194.50
07/01/15







224.50
25/01/15
27
2
5
500.04
46.30
185.20
731.54
284.40
01/02/15
13*
2
5
240.76
46.30
185.20
796.36
314.70
08/02/15
27
6
5
500.04
138.90
185.20
824.14
404.70
15/02/15
33.5

7
620.42

259.28
879.70
419.60
22/02/15
35

7
648.20

259.28
907.48
435.40
01/03/15
33.5

7
620.42

259.28
879.70
389.65
08/03/15
29.5

6
546.34

222.24
768.58
?
15/03/15
25

7
463.00

259.28
722.28
349.60
22/03/15
25

7
463.00

259.28
722.28
234.60
29/03/15
22.5
3.5

416.70
69.45

486.15
264.60
05/04/15
21*

7
388.92

259.28
902.85
227.70
12/04/15
18
2
9
333.36
46.30
333.36
713.02
187.10
19/04/15
24
6
6
444.48
138.90
222.24
805.62
279.60
26/04/15
23
6*

425.96
277.80

703.76
274.60
03/05/15
17.5
2.5

324.10
57.87

381.97
219.70
10/05/15







214.70
25/05/15







230.00
07/06/15
13
2.5

240.76
57.87

298.63
139.70
14/06/15
26

6
481.52

222.24
703.76
269.60
21/06/15
31.5


583.38


583.38
289.60
28/06/15
26.5


490.78


490.78
214.70
05/07/15
30.5

6
574.02

227.88
801.90
314.60
12/07/15
24.5
6.5
6.5
465.25
154.31
246.87
866.43
310.02
19/07/15
25.5


484.24


484.24
283.70
26/07/15
23.5
2
6
446.26
47.48
227.88
721.62
227.70
02/08/15
23.5
2
6
446.26
47.48
227.88
721.62
313.70
09/08/15
23.5
2
6
446.26
47.48
227.88
721.62
334.60
16/08/15
17
2
6
322.83
47.48
227.88
598.19
324.60
23/08/15
25.5
1.5
6.5
484.24
35.61
246.87
766.72
364.60
30/08/15
25.5
6.5
6
484.24
154.31
227.88
866.43
304.60
06/09/15
24.5
1.5
6
465.25
35.61
227.88
728.74
214.70
13/09/15
17
1.5
6
322.83
35.61
227.88
586.32
219.70
20/09/15
19
1.5
6
360.81
35.61
227.88
624.30
239.70
27/09/15
20
1.5
6
379.80
35.61
227.88
643.29
273.70
04/10/15
15.5
2

294.34
47.48

341.82
149.60
25/10/15
15
3

284.85
71.22

356.07
149.70
01/11/15
17
3

322.83
71.22

394.05
?
02/11/15
7


132.93


132.93
179.70









Total:






$23,658.77
$10,268.17
*Three work days were public holidays – 26/01/15 (seven hours or $324.10), 03/04/15 (5.5 hours or $254.65) and 25/04/15 (6 hours). Each paid at the rate of 150% per hour or $46.30 per hour. Combined total being $856.55, although the total for 25/04/15 is included in the table.