Patrick Louis v KDB Engineering Pty Ltd t/as K-Care
Document Type: Decision
Matter Number: M 38/2003
Matter Description: Draughtmen's, Tracers, Planners & Technical Officers Award 1979
Industry:
Jurisdiction: Industrial Magistrate
Member/Magistrate name:
Delivery Date: 23 Oct 2003
Result:
Citation: 2003 WAIRC 09821
WAIG Reference: 83 WAIG 3676
100319735
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT
PARTIES PATRICK LOUIS
CLAIMANT
-V-
KDB ENGINEERING PTY LTD T/AS K-CARE
RESPONDENT
CORAM MAGISTRATE G CICCHINI IM
DATE THURSDAY, 23 OCTOBER 2003
CLAIM NO M 38 OF 2003
CITATION NO. 2003 WAIRC 09821
_______________________________________________________________________________
Representation
Claimant Mr P Mullally of Workclaims Australia appeared as agent.
Respondent Mr D Jones of The Chamber of Commerce and Industry of Western Australia (Inc) appeared as agent.
_______________________________________________________________________________
Reasons for Decision
The Claim
1 On 6 March 2003 the Claimant filed his claim in this matter alleging breaches by the Respondent of the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 (the Award) between 15 August 1996 and 16 August 2002 (the material period). It is not in issue that the Respondent employed the Claimant from 4 May 1992 until 16 August 2002, which included the material period.
2 The Claimant alleges that for each pay week during the material period the Respondent failed to pay to him the correct minimum rates and overtime. The Claimant accordingly alleges that he has been underpaid a total of $24,439.10.
Response
3 The Respondent denies that it is bound by the Award and asserts that, given that it is engaged in the industry of furniture and equipment making, that the Furniture Trades Industry Award No A 6 of 1984 applies to its business enterprises.
Background of Respondent
4 The business “KDB Engineering” commenced in 1976 when Kerry John Ford and two others commenced trading in partnership. The business initially traded out of premises in Osborne Park and later moved to premises in Balcatta. Subsequently and more recently it has operated out of premises in Malaga with a sales warehouse in Melbourne. The business originated when Mr Ford took over the lease of a small factory that had closed its doors. He acquired the equipment in the factory that included just a few welders and a couple of pipe benders. The business used to fabricate brackets, plates and the like for use by businesses involved in the weights and measures industry. The business also involved itself in fabricating equipment for the bakery industry. It fabricated tube racks, trolleys, baking trays and the like.
5 The business was first registered pursuant to the Business Names Act 1962 on 11 February 1976. By January 1979 the business had diversified its activities and had become involved in jobbing work fabrication. It became involved in tube bending to a greater extent than it had previously and started making chairs, furniture and other rehabilitation equipment. Its initial foray into that work was quite modest, however, as time progressed that work became the dominant aspect of the business’ work, which ultimately developed into a multi-million dollar business.
6 When registered in 1976 the business was described by the registrants to be one of General Engineers. Mr Ford testified that the business then, and indeed subsequently, was really one of fabrication only. He “never used an engineering calculation in his life”.
7 On 23 February 1979 the business name KDB Engineering was taken over by Brentway Nominees Pty Ltd, of which Mr Ford and his partners were directors, as Trustee for the Brentway Unit Trust. By about 1979 or 1980 the business had become significantly involved in the manufacture of home care furniture and rehabilitation equipment. To distinguish its operations in that regard from the hospital furniture produced, the name “K Care” was used for such home care products manufactured. The “K Care” brand has continued since then. In about 1981 Mr Ford’s two “partners” sold out.
8 On 22 April 1987 Brentway Nominees Pty Ltd changed its name to KDB Engineering Pty Ltd following its resolution to do so made on 9 February 1987.
9 In 1991 the company’s operation was divided up into three separate divisions, namely, K Care, Kerry Equipment and Shoprider. K Care’s operations were designed to manufacture aids for daily living for the aged and/or disabled and to provide equipment for rehabilitation. The product was sold to hospitals, nursing homes, and aged care homes and to members of the general public for use within their own homes. K Care manufactured a wide range of product including chairs, seats, stools, commodes, bedroom furniture, tables, bed rails and grabs, toilet aids, mobility devices including walkers, walking frames, crutches and walking sticks. A number of other miscellaneous items for the aged and disabled were also produced. Kerry Equipment produced hospital equipment such as furniture, trolleys, instrument trolleys, patient trolleys and the like. The Shoprider division imported and marketed a wide range of electric wheel chairs and scooters for use by the aged and/or disabled.
10 In its quality manual produced in early 2001 the Respondent promoted itself as being “one of Australia’s largest manufacturers of Healthcare and Hospital Equipment with agency infrastructure throughout Australia, New Zealand and expanding into the Asian region”. At that time the company employed some sixty people in Western Australia and had an Australia-wide network.
11 In October 2002 Hills Industries Ltd acquired the businesses of “the K Care Group comprising K Care, Kerry Equipment and Shoprider”. In his press release concerning the acquisition Mr David Simmons, the Managing Director of Hills Industries Ltd, commented that the K Care Group sales were approximately $20 million. Mr Simmons also announced that Mr Kerry Ford, the founder of the K Care Group, would continue as Managing Director of the Group.
The Claimant’s Background
12 The Claimant is thirty two years of age having been born on 3 August 1971. On 3 April 1992 he was awarded an Advanced Certificate in Mechanical Engineering from the Department of Technical and Further Education, Wembley Campus.
13 Following the completion of his studies the Claimant responded to an advertisement placed by the Respondent’s “sister company”, Kerry Equipment, which sought to employ the services of a suitably qualified draftsman. He responded to the advertisement. As part of the evaluation process for the job, the Claimant was required to undergo a drawing test. Although unsuccessful in gaining employment the drawings he had completed in the evaluation process were kept on file. Kerry Ford contacted the Claimant a few months later and asked him to attend an interview. After a brief interview Mr Ford told him that he liked the Claimant’s drawings completed in the earlier job application and consequently there and then offered him a job as a draftsman. It was agreed that the Claimant would start the following Monday.
Claimant’s Employment with the Respondent
Claimant’s Evidence
14 Upon commencement the Claimant was required to work within the factory. Kerry Ford wanted him to gain a hands-on understanding of how the machinery worked and how the manufacturing process was conducted. Accordingly the Claimant carried out the functions of a labourer for about the first two to three months of his employment. He did the preparatory work necessary to enable manufacture. In his testimony the Claimant said that the operations of the Respondent within the factory at that time consisted of pressing, steel fabrication, bending, welding, tooling, upholstery and assembling product.
15 Following his initial stint on the factory floor he was transferred into a newly completed office built especially for him. The Claimant thereafter began to carry out drafting work. He solely carried out drafting work for the first couple of years of his employment with the Respondent. That was under the direct supervision of John Catoni who was in charge of the “tool room”. Mr Catoni exposed the Claimant to the various products manufactured by the Respondent.
16 Initially the Claimant set about making records of the products that had been in manufacture for some time. Given that the Respondent had not hitherto employed a draftsman there was very little information available on how to make the product. Accordingly the Claimant was engaged in making drawings and production cards (i.e. steps on how to make the product). He had to make production cards for existing product. All drawings and production cards were collated and filed away.
17 After a little while that aspect of the Claimant’s work diminished as he became more routinely involved in research and development (R & D). That involved putting ideas onto paper with the overriding criteria being that the end product would be cheap to manufacture. Prototypes of the product would be made. If Mr Ford was happy with the product it would become part of the standard product. It was the Claimant’s obligation to record and collate all relevant information relating to the manufacture of such product.
18 The Claimant asserts that the ideas for new product were essentially his. Mr Ford would, for example, go to him and say, “I want this chair to tilt backwards and forwards or something like that”. The Claimant said that he then set about designing the actual mechanisms. He thought of and developed the ideas to make it work. The Claimant said that he was not just involved in drawing but also looking at the specification and costs. Kerry Ford wanted him to be pro-active in getting involved with every aspect of design, which included contacting suppliers and obtaining prices. The Claimant said that his work entailed making engineering calculations all the time. He said that Mr Ford was not too concerned about the calculations but rather he was more concerned that the end product be satisfactory. Accordingly all the intermediate steps in calculating strength and so on were of little or no concern to Mr Ford. No records were kept in that regard. It was simply a situation of the end product being suitable and setting up the processes for manufacturing the same.
19 In the early days of his employment the Claimant’s work was conducted manually. About two to three years into his employment the Respondent, at the suggestion of the Claimant, purchased a computer for use by the Claimant. The computer was used for drawing using CAD (Computer Aided Drawing) software and in order to run the then recently purchased CNC milling machine using CAM (Computer Aided Manufacture) software. The milling machine was then a state of the art apparatus that enabled the manufacture of more complex product. The Claimant, who had been trained to use the computer system, thereafter relied solely on the computer system to draw and assist in manufacturing. The computer systems were thereafter upgraded from time to time.
20 After the Claimant had worked for the Respondent for about 5 years, the Respondent moved its operations from Balcatta to Malaga. At about that time Fred Slivkoff was employed by the Respondent to join the Claimant in its R & D section. Indeed Mr Slivkoff was appointed to be the Claimant’s supervisor. The Claimant testified that Mr Slivkoff’s role was similar to his but that Mr Slivkoff did not use the CAD/CAM computer software. It was Mr Slivkoff’s role to liaise with Mr Ford and concerned himself more so with issues relating to design and patent registration. The Claimant said that Mr Slivkoff was more of a graphic designer. “He was good with pencil and paper”. He showed Mr Ford appealing conceptual pictures of proposed product.
21 On 27 February 2002 the Respondent announced to its staff that it would be employing two persons to assist Mr Slivkoff and the Claimant in the R & D section. The two people employed were Toshiyuki Maeda (Toshi), a qualified mechanical engineer, and Kamalika Wijewardene (Kam), a student who was then completing her final year of a Mechanical Engineering Degree. The Claimant testified that although each of the new employees was ostensibly employed to assist the Claimant and Mr Slivkoff, the reality was that they had little involvement with them. Toshi’s main task was to work independently in the design and manufacture of prams for “Plunketts for Babies”.
22 The Claimant testified that the R & D section was treated somewhat differently to other sections within K Care. In that regard he was told that those working within the R & D did not fall under the same employment conditions as other employees. It is the case, which is obvious from the correspondence contained within exhibit 5, that the Claimant repeatedly sought that he be appraised in respect of his performance but that was never carried out. It is apparent that the Claimant was concerned that there had never been an objective assessment of his work performance but rather that his overall performance was judged on an entirely subjective basis having regard to irrelevant criteria. That had led to him being placed on probation following many years of service. There can be no doubt that in the final years of his employment the Claimant became increasingly frustrated at the Respondent’s unwillingness to define his role and performance. He was unable to pin his employer down on those issues. In the end it was an issue over the final promulgation of an accurate duty statement that caused the irreconcilable difference that led to the Claimant’s resignation.
23 It is obvious from the documentary evidence before me that the Claimant’s last few years with the Respondent were unhappy. During that period he was the subject of written warnings and was placed on probation. There was a concern on his part, as is reflected in the various letters that he wrote to management, that his position was being undermined for reasons unrelated to work performance. The letters reflect a degree of insecurity on his part, which is understandable in the light of the Respondent’s failure to address the matters of concern expressed by the Claimant which effectively left him in limbo concerning his role and long-term position with the Respondent.
24 There can be no doubt also that the Claimant was of the view that he was an undervalued member of staff who was paid inadequately for the work that he did which went beyond mere drafting and which included the following:
· Creation of 3D models and the generation of tool poll programs using 3D CAD/CAM software for the design and manufacture of injection moulds and press tool dies.
· Designing new product.
· Developing and maintaining detailed drawings and operation sheets for all manufactured product.
· Assisting the production department in development of product part numbers and maintaining product materials lists and operation cycle times.
· Providing technical assistance to his supervisor and authorising modifications to product.
· Providing the sales team with technical information on all manufactured product and advising them on product modifications and limitations.
· Designing custom special product to customer specification and providing detailed drawings and materials lists for manufacture.
25 The Claimant also testified that in the last three to four years of his employment with the Respondent that he worked a little under forty-two hours for each week. Prior to that he had worked forty-two and a half hours per week. Accordingly he is of the view that his claim, based on the allegation that he worked forty hours per week, is conservative.
Kerry Ford’s Evidence
26 Mr Kerry Ford was called by the Claimant to give evidence. He was invited to comment on the evidence given by the Claimant concerning his duties. Other than a difference of opinion concerning the extent of the Claimant’s involvement in designing product, Mr Ford’s evidence concerning the Claimant’s duties is not inconsistent with evidence given by the Claimant relating to the issue.
27 Mr Ford testified that he believed that the Furniture Trades Industry Award binds the Respondent and its employees. Indeed he testified that the Respondent is a named party to that award. His evidence was that the Respondent carried out similar work and manufactured similar product to other named respondents within that award. Indeed many of the named respondents are in direct competition with KDB Engineering Pty Ltd. When cross-examined Mr Ford was invited to comment about the nature of activities undertaken by named respondents listed in the schedule of the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award under the headings “Engineering – Fabricating” and “Engineers – General”. In that regard he was able to identify a number of the named respondents thereto. He testified that he had knowledge of the industries within which they operated and proffered the view that their operations were essentially different to that of the Respondent.
28 During the course of Mr Ford’s examination in chief and also during his cross-examination, Mr Ford was asked a number of questions concerning the Respondent’s employment of engineers. In that regard it became apparent that Mr Ford was careful to portray the impression that the Respondent did not employ qualified engineers to work in the capacity of engineers within its enterprises. It suffices to say that the reality was that the Respondent did during a particular period employ the services of engineers. That is so notwithstanding Mr Ford’s obvious attempt to disguise that fact. Having said that, however, it remains the case that despite the Claimant having an engineering qualification, he was never employed to work in the capacity of an “engineer”. I accept however that he utilized his engineering knowledge in the performance of his various duties.
Mr Fred Slivkoff
29 Mr Slivkoff was called by the Claimant to testify concerning this matter. His evidence was generally not inconsistent with that of the Claimant.
Conclusions
30 Given that the evidence concerning the Claimant’s duties is not generally disputed, I have not been required in any comprehensive way to review the evidence given by the Claimant, Mr Ford and Mr Slivkoff. Indeed much of the evidence before me is not in issue except for those matters referred to by Mr Ford during the course of cross-examination going to the issue of the nature of the Respondent’s operations and the issues addressed by both Mr Ford and Mr Slivkoff concerning the extent of the Claimant’s involvement in original design. The Respondent has elected not to call evidence with respect to this matter and accordingly does not from an evidentiary standpoint challenge the evidence of the Claimant. Rather the Respondent points to inconsistencies within the Claimant’s own case relating to his duties and the operations of the Respondent as undermining his case.
31 It suffices for my purposes to say that I accept the evidence given by the Claimant relating to his duties and employment generally. Indeed his evidence, except in some minor aspects, is not inconsistent with the evidence of Mr Ford and that of Mr Slivkoff. I find therefore that during the course of his employment with the Respondent the Claimant worked in the R & D section and was engaged in computer assisted drafting, documentation of tool paths and in the creation of design work both for existing products and for the creation and/or implementation of new ideas, designs and product for the Respondent’s growing business. I accept that he carried out the responsibilities and functions set out in exhibit 5.3. I accept that the Claimant was involved in a vast range of drafting and designing work of a computer nature as depicted in exhibit 4. His involvement in projects was also considerable as is reflected in exhibits 18.1 to 18.10. The Claimant had a considerable involvement in the design and implementation of a vast range of products. His involvement included designing, drawing, recording and signing off as to quality. I accept that the Claimant’s involvement in design was certainly much greater than Mr Ford and Mr Slivkoff were prepared to give him credit for. It was the Claimant’s skill in design drafting which enabled the Respondent’s business to grow as it did. There can be no doubt that the Claimant was, during the material period, involved in both design and drafting.
Application of the Award
Onus of Proof
32 The Claimant bears the onus of proving on the balance of probabilities that the Award applied to his employment with the Respondent and that the Respondent is in breach of the relevant provisions of the Award rendering it liable to make the payments sought. At the commencement of the hearing I was advised that the parties had agreed that I should at this stage decide the issue of liability without the need to consider quantum. I have accordingly proceeded upon that basis.
Claimant’s Submission
33 KDB Engineering Pty Ltd is not a named Respondent to the Award. The Claimant nevertheless alleges that the Award has application by force of section 37(1) of the Industrial Relations Act 1979 which provides:
37. Effect, area and scope of awards
(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section —
(a) extend to and bind —
(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii) all employers employing those employees;
and
(b) operate throughout the State, other than in the areas to which section 3(1) applies.
34 It is the case that the qualifying provision found in subsection (1)(b) has no application in this instance.
35 The Scope clause in the Award is in common form and provides as follows:
This Award shall apply to all employees employed in the classifications defined in Clause 6. - Definitions of this Award and employed by employers engaged in the industries set out in the Schedule to this Award.
36 The named respondents are set out in the Schedule under the heading which best describes the industry within which they operate. Accordingly the Award itself identifies the industries to which the Award applies. This type of Scope clause has been referred to as a “Donovan clause”. (See RJ Donovan and Associates Pty Ltd v Federated Clerks Union of Australia WA Branch (1977) 57 WAIG 1317.) The Claimant says that it is not necessary for this Court to embark upon a detailed analysis of the business activities of the Respondents to the Award as the scope or coverage of the Award is determinable by reference to the document itself.
37 In The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers -v- Terry Glover Pty Ltd (1970) 50 WAIG 704 His Honour Burt J (as he then was) said at 705:
“Each and every award must relate to an industry and what the industry is, is in every case primarily a question of construction of the particular award. It may be that the question is not only primarily but finally a question of construction, and it may be that the award as a matter of construction fails to give the final answer and requires for that purpose that findings of fact be made.
An award if made in terms "to relate to the ship building industry" would be of the first-mentioned kind. An award expressed to relate, as the one under construction here is expressed to relate, to "the industries carried on by the respondents set out in the schedule attched (sic) to this award" is of the other kind. In such a case the industry to which the award relates cannot be made known without definition of the industries carried on by the respondents. And this is necessarily a question off fact.”
38 Accordingly the Claimant contends that as a matter of construction the Award applies to a range if industries all of which have been set out and identified in the Schedule of Respondents.
39 The Claimant submits that it is the task of this Court to do the following in this matter:
1. Identify the industry carried on by the named respondents to the Award;
2. Identify the industry in which the employee was employed; and
3. Identify the industry in which the Claimant was employed as being one of the industries carried on by the named respondents to the Award (see Freshwest Corporation Pty Ltd v Transport Workers Union, Industrial Union of Workers, WA Branch (1990) 71 WAIG 1746 per Franklyn J.).
40 The Claimant says that on an examination of the activities of the Respondent in the totality of the evidence before this Court, that the Court should be satisfied that the Respondent is engaged in any one of the industries of “Engineers – Fabricating”, “Engineers – General” or “Engineers – Equipment and Material Distributing” all of which are referred to in the Schedule of Respondents to the Award.
41 The Claimant suggests that the evidence demonstrates that he was initially engaged as a design draftsman but by 1993 had worked his way up to be a “technical officer” being a classification in the Award. He says that the Respondent is not engaged in the furniture industry as it contends but rather is engaged in an industry set out in the Award. It is suggested that such a finding can be made if one has, amongst other factors, regard to the Respondent’s origins, corporate structure, nature of operations and product range.
42 The starting point, it is said, is the Respondent’s name. Relevantly it is called KDB Engineering Pty Ltd. It is involved in manufacturing and distributing an extensive range of disability and rehabilitation products. Design and drafting was and is at the very heart of the Respondent’s business. The function of design and drafting as the first step in a manufacturing process is at the very heart of engineering, being the creation of something new and original. Accordingly its name reflects the industry within which it operates.
43 The operation of the Respondent included a substantial manufacturing and fabrication process conducted in its factory workshop. It operated a CNC milling machine, a tool shop and also extensively utilised injection moulds. Intrinsic to the operations of the Respondent were the use of welders, tool makers and sewing machinists. The Respondent had a significant welding division. By February 2002 its stainless steel welding section had expanded so significantly that it was to be housed in a separate building. The Claimant points out that the fact that the Respondent had two welding teams, an assembly team, a CNC milling machine, pipe benders and powder coating machines is entirely consistent with and indicative of the fact that it operated within the engineering industry generally or more particularly within engineering fabrication or engineering equipment manufacture and distribution. It is submitted that the processes of the Respondent, which includes design and drafting, cutting, welding, fabricating, assembly and sales, is consistent with an engineering undertaking.
44 The Claimant also contends that the product manufactured by the Respondent was not furniture but rather distinctly rehabilitation equipment for the aged and disabled taking the product outside of the type of product produced by those operating within the furniture industry to which the Furniture Trades Industry Award applies. Further the Claimant also contends that the fact that the Respondent has from time to time employed engineering staff is indicative of the fact that it was engaged in engineering. Indeed the corporate structure of the Respondent is also said to reflect its actual operations. The choice of the name KDB Engineering Pty Ltd was a deliberate choice by the directors and was consistent with their perception of the operations of the company. It has continued over the years to represent itself as a company involved in engineering and manufacturing home care and rehabilitation equipment.
Respondent’s Submissions
45 The Respondent submits that the Court is required to determine the industry to which the Award applies and thereafter, by way of a fact-finding exercise, determine whether the employer is within the industry to which the Award applies. Once having done that, then the occupation of the employee must be considered to ascertain whether or not it fits within a term of the “definitions” clause, which describes the classifications covered by the Award. Only in that way can the determination be made as to whether the Award binds the employer. The first step must be the determination of what the industry of the employer is. The Respondent points out that the approach as suggested by the Claimant was in fact criticised by the Full Bench of the Western Australian Industrial Relations Commission in Bell A Bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – WA Branch [2002 WAIRC 06654] 82 WAIG 2655.
46 The Respondent contends that although clause 4 of the Award is a typical “Donovan clause” in that it refers to industries set out in the Schedule to the Award, the employer (Respondent) can only be bound if its business can properly be held to answer to the description of an industry so specified. In those circumstances an employer who is not named as a respondent to the Award will nevertheless be bound. In such circumstances it is not necessary to go outside the Award to determine the industry to which the Award applies. The proposition, however, only holds well if what is specified in the Schedule is an industry within the meaning of the Act. It is necessary to determine whether the emphasis in the Award is on the nominated industry or the work of the named respondents (see Australian Builders’ Labourers’ Federated Union, WA Branch v Heyring Pty Ltd (1988) 68 WAIG 683 at 684 per O’Dea P).
47 It is submitted that the terms “Engineers – Fabricating”, “Engineers – General” and “Engineers – Equipment and Material Distributing” being headings within the Schedule of Respondents of the Award suffer from the same type of difficulty as was referred to in Federated Clerks’ Union of Australia Industrial Union of Workers, WA Branch v Hospital Salaried Officers Association of Western Australia (Union of Workers) and Spastic Welfare Association of WA Inc (1979) 59 WAIG 905 (the Spastic Welfare case) in that the descriptions do not adequately define what the industry is. At page 908 His Honour Brinsden J said:
“Associations and/or Societies” does not in my view spell out with sufficient particularity the calling and hence does not spell out with sufficient particularity an industry. All it does is to state in general terms a group of employers. In my view therefore as a matter of law it is not sufficient to find the Spastic Welfare Association being an association is covered by the classification. In order to reach that conclusion it would be necessary to have entered into a fact finding exercise to determine the industry carried on by the named respondents under this classification and also a fact finding exercise to determine the industry carried on by the Spastic Welfare Association, the conclusion as to the industry in each case being arrived at by the application of the doctrine in Parker’s case.
48 It is submitted that the term “Engineers – Fabricating” does not at all identify an industry with the particularity required. “Fabricating” means “to make”. That alone does not describe the industry. In such circumstances the Court must embark upon a fact-finding exercise in relation to what industries are fairly represented by the named respondents to the Award. Similarly, it is said, the term “Engineers – General” does not identify with particularity an industry.
49 In such circumstances a fact finding exercise as in “Parker’s Case” (Parker & Son v Amalgamated Society of Engineers (1926) 29 WAIG 90) is necessary to determine the industry that the named respondents were in and that such exercise is predicated upon the Claimant establishing the industry that the named respondents carried on at the time that the Award was made. It is submitted in that regard that there is no evidence before the Court as to the undertakings of the named respondents falling under the description in the headings of the Schedule, which are said to apply in this instance. The Respondent says that the Claimant’s claim must fail on that basis alone. It is argued in the alternative that even if I were to find against the Respondent on that issue I should only embark upon an inquiry to determine what it was that the employee was employed to do only if satisfied that the descriptive headings in the Schedule clearly define, in each relevant instance, a well known industry.
50 The Respondent in its submissions also addressed the issues raised by the Claimant concerning the company’s name and product. In that regard the Respondent points out that the major and substantial components of the product range is furniture. Although it is true that some incidental items were produced, there can be no doubt that the Respondent’s production was devoted to the production of furniture as is depicted in exhibit 12 (K Care catalogue). The manufacturing process which undeniably involves pipe bending and welding is all geared to the manufacture of home care furniture for use mainly within the home and domestic type environment. The Respondent does however acknowledge that such furniture is also sold to aged care facilities and hospitals. It is also accepted that the Respondent manufactures product for a very narrow sector of the market. The point stressed is that the operation of the Respondent is focused upon the production of furniture thereby bringing it within the furniture making industry.
51 Further and in the alternative the Respondent says that if the Court were to find against it by concluding that the Respondent conducts its operation within an industry to which the Award applies, then in any event, the Claimant is not a “Technical Officer” within the meaning of the Award. “Technical Officer” is defined in clause 6(13) of the Award as follows:
(13) "Technical Officer" - A technical officer shall mean an adult worker -
(a) (i) who has been engaged for at least four years as a technical assistant or who has had two years' experience as a technician, or who has had training deemed by the employer to be equivalent thereto; and
(ii) who has received a diploma from a State Education Department or Technical Education Department such as the Mechanical Engineering Diploma, Electrical Engineering Diploma, Chemistry Diploma or Metallurgy Diploma appropriate to the work in which he is engaged or its equivalent; and
(b) who is required to perform technical duties as a specific field of engineering or scientific practice, such as research, development, laboratory and/or engineering activities, and who in carrying out such work is required to apply the skill acquired pursuant to the provisions of sub-paragraphs (a)(i) and (ii) hereof.
(c) Notwithstanding the provisions of sub-paragraphs (a)(i) and (ii) hereof, an employer shall classify an employee as a technical officer who for six months satisfactorily performs work which is of the same nature as required by paragraph (b) hereof and which requires the application of a similar standard of knowledge and/or engineering or scientific experience which has been acquired by other means than as provided for in sub-paragraphs (a)(i) and (ii) hereof.
52 The Respondent says that the Claimant does not meet the necessary criteria required by clause 6(13) (a) and (b). The Respondent notes that the Claimant has not received a Diploma but rather an Advanced Certificate (see exhibit 2). Further it argues that he does not come within paragraph (b) of the definition because almost all of the conceptual and innovative work in designing new product was done by Mr Ford. That is supported by the evidence of Mr Ford and Mr Slivkoff. The Respondent contends that the bulk of the Claimant’s work was drafting up product designed by Mr Ford. It acknowledges however that from time to time the Claimant did do some one-off designs which comprised modifications of existing designs. The Respondent also denies that the Claimant is a “design draughtsman” within the meaning of clause 6(6) of the Award because he has not received the required Diploma and further because he has not met the criteria set out in clause 6(6)(b) of the Award. The Respondent argues that the definition which would best describe what the Claimant did is to be found in the definition of “Draughtsman Detail” found in clause 6(2) of the Award. That provides:
"Draughtsman Detail" - A draughtsman detail shall mean any worker, other than a "trainee draughtsman" as defined herein, employed on the making of drawings from sketches or other data.
53 Another limb of the Respondent’s argument is that the Furniture Trades Industry Award No A6 of 1984 applies to the Respondent. Indeed it is a named Respondent to that award falling within the subset of industries undertaking metal furniture making. Many of the other named respondents within that award also make the same or similar type of product to that made by the Respondent and are in competition with it. The Respondent says that the Claimant falls within the classification “Furniture Making Employee - Group 5” of that Award. It points out that the Claimant’s major and substantial duties, being designing and/or drafting using CAD and CAM, are consistent with that classification and reflect his engagement in work connected to or incidental with the production and distribution operations of the employer as a metal furniture manufacturer.
54 The Respondent also contends that should the Court find that the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 also binds the Respondent then the specific award, being the Furniture Trades Industry Award overrides the general award in accordance with the principles outlined in Hungry Jacks Pty Limited & Others v Wilkins & Others (1991) 71 WAIG 1751 and Shenton Enterprises Pty Ld trading as John Shenton Pumps v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia (2000) 80 WAIG 2842.
Determination
55 The starting point for my consideration of this matter is to determine the industry to which the Award applies. The Claimant says that the scope clause (clause 4) is a typical “Donovan clause” in that it refers to the industries set out in the Schedule of Respondents to the Award. Accordingly this Court does not need to embark upon a detailed analysis of the activities of the respondents to the Award as the scope or coverage of the Award is determinable by reference to the document itself. I agree with the Claimant’s submission in that regard. There can be no doubt in my mind that the headings “Engineers – Fabricating”, “Engineers – General” and “Engineers – Equipment and Material Distributing” are description of industries covered by the Award. Indeed the Award covers a number of other industries which are clearly delineated and defined. I reject the Respondent’s contention that the description of the industries within the Award suffers from the same sorts of difficulties discussed in the Spastic Welfare case (supra). It is apparent that the headings within the Schedule of Respondents do, in this instance, refer to an industry as defined in section 3 of the Industrial Relations Act 1979. In my view a fair reading of the Award can only lead to that conclusion. Clearly headings such as “Concrete Products Manufacturing”, “Earthmoving Contractors”, “Steel Pipe Manufacturing” and others to be found within the Schedule of Respondents to the Award are reflective of the industry within which the respective named employers are engaged. In those circumstances it is unnecessary to embark upon a fact finding exercise to determine the industry to which the Award relates.
56 The next step is to determine whether the Respondent was engaged within an industry referred to in the Schedule of Respondents to the Award. In my view the evidence clearly and overwhelmingly dictates that it was not. The evidentiary material before me dictates that the Respondent was during the material periods engaged in the manufacture of furniture to be used either at home, in aged care facilities or hospitals. The K Care catalogue (exhibit 12) is reflective of the nature of the product produced by the Respondent. It is the case, albeit with some exceptions, that the Claimant ostensibly manufactured furniture consisting of adjustable seating, shower commodes, bedroom furniture, toilet seats and bathroom and toilet accessories. Indeed such items are in keeping with the definition of furniture contained within the New Shorter Oxford Dictionary which defines “furniture” to mean:
“The moveable (functional) articles in a room, house etc; such articles in general.”
57 The Claimant contends that the Respondent is and was engaged in the manufacture and distribution of rehabilitation, aged care, nursing care and hospital equipment. Indeed it is pointed out that exhibit 12 of itself describes the items shown within it as being “home care and rehabilitation equipment”. Such is found in bold writing on its cover and almost every page of the divisions within the folder. Indeed the Respondent’s own advertising in the “Yellow Pages” refers to the Respondent as a manufacturer and supplier of equipment for the aged and invalid. Although the Claimant’s contention in that regard is undeniable, the situation nevertheless remains that at all material times the Respondent’s trading arm “K Care” manufactured and distributed what in reality was furniture but which it, for its own purposes, possibly for marketing reasons, referred to as “equipment”. The labelling of furniture as equipment does not change its intrinsic characteristic as furniture.
58 Further the fact that the Respondent’s name is KDB Engineering Pty Ltd does not of itself enable a conclusive inference to be drawn that its undertaking is one of engineering. Indeed the name of a company or business may not necessarily be indicative of the type of industry within which it operates. The operations of companies and of businesses often evolve and their names do not always reflect the industry in which they operate. I also reject the Claimant’s argument that the Respondent’s name was deliberately chosen to reflect its undertaking. There is no evidence before this Court to enable it to find that the company name, KDB Engineering Pty Ltd, reflects a deliberate choice on the part of the directors that the name be indicative of the operations of the company. The fact that the word “Engineering” is found within the Respondent’s name is not determinative. The title of engineer is often used by those who are not professional engineers or otherwise involved in engineering. That is also the case with the description “Engineering”. That descriptor is often used by those who are not, in reality, involved in engineering as it is usually commonly understood. Mr Ford testified that the Respondent was not an engineering company. He pointed out that he has never used engineering calculations. His company evolved from simple beginnings in general fabrication to one where it predominantly manufactures or fabricates tubular steel furniture product. It is the case that the Respondent did not, as a rule, engage the services of engineers. Its one attempt to do so which took place in the later stages of the Claimant’s employment was largely unspectacular and unsuccessful. I accept Mr Ford’s evidence that engineers were not an integral part of the Respondent’s business.
59 Another of the Claimant’s arguments upon which he relies is that the actual operations of the Respondent’s business by the use of its various machines in manufacture, including welding, is indicative of the fact that the Respondent was and is involved in engineering. Although it is undeniable that at the material times, the processes used by the Respondent in manufacturing were engineering processes, it nevertheless remains the case that such processes were aimed at the manufacture of furniture. Indeed almost every manufacturing or fabricating process involves, whether by design or as a consequence of its actual operation, some engineering consideration. However just because an engineering process may have been utilised by the Respondent in the manufacture of furniture does not of itself change the nature of its undertaking or calling from one of furniture making to that of engineering, whether it be general, fabricating or any other form. The engineering process is only but one of the necessary steps in the production of the end product, in this case furniture. Further the fact that the Respondent is a named respondent within the Furniture Trades Industry Award is also reflective of the fact that its undertaking is that of furniture making was considered to be so by the relevant union who is a party to that award.
60 Accordingly for the reasons referred to above I conclude that the industry which the Respondent undertakes is that of furniture making.
61 Even if I am wrong in that regard (and I do not accept that I am), the fact remains that the Claimant has not established on the available evidence that he fits within the definition of “Technical Officer” or “Draughtsman Designing”, being classifications within the Award. In each instance he does not meet the criteria because he has failed to achieve a “Diploma”. An Advanced Certificate (exhibit 2) is not a Diploma.
62 Further, even if it could be said that the Award applies and that the Claimant satisfies the requirements of the definitions which he says apply to him, then nevertheless there would be two awards binding upon the Respondent. In those circumstances the specific award would override the general award and accordingly the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 would not be operative. I agree with the submissions of Mr Jones on behalf of the Respondent in that regard.
Result
63 The Claimant has failed to prove, on the balance of probabilities, that the Award binds the Respondent. Accordingly the claim fails.
G Cicchini
Industrial Magistrate
100319735
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT
PARTIES PATRICK LOUIS
CLAIMANT
-v-
KDB ENGINEERING PTY LTD T/AS K-CARE
RESPONDENT
CORAM MAGISTRATE G CICCHINI IM
DATE THURSDAY, 23 OCTOBER 2003
CLAIM NO M 38 OF 2003
CITATION NO. 2003 WAIRC 09821
_______________________________________________________________________________
Representation
Claimant Mr P Mullally of Workclaims Australia appeared as agent.
Respondent Mr D Jones of The Chamber of Commerce and Industry of Western Australia (Inc) appeared as agent.
_______________________________________________________________________________
Reasons for Decision
The Claim
1 On 6 March 2003 the Claimant filed his claim in this matter alleging breaches by the Respondent of the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 (the Award) between 15 August 1996 and 16 August 2002 (the material period). It is not in issue that the Respondent employed the Claimant from 4 May 1992 until 16 August 2002, which included the material period.
2 The Claimant alleges that for each pay week during the material period the Respondent failed to pay to him the correct minimum rates and overtime. The Claimant accordingly alleges that he has been underpaid a total of $24,439.10.
Response
3 The Respondent denies that it is bound by the Award and asserts that, given that it is engaged in the industry of furniture and equipment making, that the Furniture Trades Industry Award No A 6 of 1984 applies to its business enterprises.
Background of Respondent
4 The business “KDB Engineering” commenced in 1976 when Kerry John Ford and two others commenced trading in partnership. The business initially traded out of premises in Osborne Park and later moved to premises in Balcatta. Subsequently and more recently it has operated out of premises in Malaga with a sales warehouse in Melbourne. The business originated when Mr Ford took over the lease of a small factory that had closed its doors. He acquired the equipment in the factory that included just a few welders and a couple of pipe benders. The business used to fabricate brackets, plates and the like for use by businesses involved in the weights and measures industry. The business also involved itself in fabricating equipment for the bakery industry. It fabricated tube racks, trolleys, baking trays and the like.
5 The business was first registered pursuant to the Business Names Act 1962 on 11 February 1976. By January 1979 the business had diversified its activities and had become involved in jobbing work fabrication. It became involved in tube bending to a greater extent than it had previously and started making chairs, furniture and other rehabilitation equipment. Its initial foray into that work was quite modest, however, as time progressed that work became the dominant aspect of the business’ work, which ultimately developed into a multi-million dollar business.
6 When registered in 1976 the business was described by the registrants to be one of General Engineers. Mr Ford testified that the business then, and indeed subsequently, was really one of fabrication only. He “never used an engineering calculation in his life”.
7 On 23 February 1979 the business name KDB Engineering was taken over by Brentway Nominees Pty Ltd, of which Mr Ford and his partners were directors, as Trustee for the Brentway Unit Trust. By about 1979 or 1980 the business had become significantly involved in the manufacture of home care furniture and rehabilitation equipment. To distinguish its operations in that regard from the hospital furniture produced, the name “K Care” was used for such home care products manufactured. The “K Care” brand has continued since then. In about 1981 Mr Ford’s two “partners” sold out.
8 On 22 April 1987 Brentway Nominees Pty Ltd changed its name to KDB Engineering Pty Ltd following its resolution to do so made on 9 February 1987.
9 In 1991 the company’s operation was divided up into three separate divisions, namely, K Care, Kerry Equipment and Shoprider. K Care’s operations were designed to manufacture aids for daily living for the aged and/or disabled and to provide equipment for rehabilitation. The product was sold to hospitals, nursing homes, and aged care homes and to members of the general public for use within their own homes. K Care manufactured a wide range of product including chairs, seats, stools, commodes, bedroom furniture, tables, bed rails and grabs, toilet aids, mobility devices including walkers, walking frames, crutches and walking sticks. A number of other miscellaneous items for the aged and disabled were also produced. Kerry Equipment produced hospital equipment such as furniture, trolleys, instrument trolleys, patient trolleys and the like. The Shoprider division imported and marketed a wide range of electric wheel chairs and scooters for use by the aged and/or disabled.
10 In its quality manual produced in early 2001 the Respondent promoted itself as being “one of Australia’s largest manufacturers of Healthcare and Hospital Equipment with agency infrastructure throughout Australia, New Zealand and expanding into the Asian region”. At that time the company employed some sixty people in Western Australia and had an Australia-wide network.
11 In October 2002 Hills Industries Ltd acquired the businesses of “the K Care Group comprising K Care, Kerry Equipment and Shoprider”. In his press release concerning the acquisition Mr David Simmons, the Managing Director of Hills Industries Ltd, commented that the K Care Group sales were approximately $20 million. Mr Simmons also announced that Mr Kerry Ford, the founder of the K Care Group, would continue as Managing Director of the Group.
The Claimant’s Background
12 The Claimant is thirty two years of age having been born on 3 August 1971. On 3 April 1992 he was awarded an Advanced Certificate in Mechanical Engineering from the Department of Technical and Further Education, Wembley Campus.
13 Following the completion of his studies the Claimant responded to an advertisement placed by the Respondent’s “sister company”, Kerry Equipment, which sought to employ the services of a suitably qualified draftsman. He responded to the advertisement. As part of the evaluation process for the job, the Claimant was required to undergo a drawing test. Although unsuccessful in gaining employment the drawings he had completed in the evaluation process were kept on file. Kerry Ford contacted the Claimant a few months later and asked him to attend an interview. After a brief interview Mr Ford told him that he liked the Claimant’s drawings completed in the earlier job application and consequently there and then offered him a job as a draftsman. It was agreed that the Claimant would start the following Monday.
Claimant’s Employment with the Respondent
Claimant’s Evidence
14 Upon commencement the Claimant was required to work within the factory. Kerry Ford wanted him to gain a hands-on understanding of how the machinery worked and how the manufacturing process was conducted. Accordingly the Claimant carried out the functions of a labourer for about the first two to three months of his employment. He did the preparatory work necessary to enable manufacture. In his testimony the Claimant said that the operations of the Respondent within the factory at that time consisted of pressing, steel fabrication, bending, welding, tooling, upholstery and assembling product.
15 Following his initial stint on the factory floor he was transferred into a newly completed office built especially for him. The Claimant thereafter began to carry out drafting work. He solely carried out drafting work for the first couple of years of his employment with the Respondent. That was under the direct supervision of John Catoni who was in charge of the “tool room”. Mr Catoni exposed the Claimant to the various products manufactured by the Respondent.
16 Initially the Claimant set about making records of the products that had been in manufacture for some time. Given that the Respondent had not hitherto employed a draftsman there was very little information available on how to make the product. Accordingly the Claimant was engaged in making drawings and production cards (i.e. steps on how to make the product). He had to make production cards for existing product. All drawings and production cards were collated and filed away.
17 After a little while that aspect of the Claimant’s work diminished as he became more routinely involved in research and development (R & D). That involved putting ideas onto paper with the overriding criteria being that the end product would be cheap to manufacture. Prototypes of the product would be made. If Mr Ford was happy with the product it would become part of the standard product. It was the Claimant’s obligation to record and collate all relevant information relating to the manufacture of such product.
18 The Claimant asserts that the ideas for new product were essentially his. Mr Ford would, for example, go to him and say, “I want this chair to tilt backwards and forwards or something like that”. The Claimant said that he then set about designing the actual mechanisms. He thought of and developed the ideas to make it work. The Claimant said that he was not just involved in drawing but also looking at the specification and costs. Kerry Ford wanted him to be pro-active in getting involved with every aspect of design, which included contacting suppliers and obtaining prices. The Claimant said that his work entailed making engineering calculations all the time. He said that Mr Ford was not too concerned about the calculations but rather he was more concerned that the end product be satisfactory. Accordingly all the intermediate steps in calculating strength and so on were of little or no concern to Mr Ford. No records were kept in that regard. It was simply a situation of the end product being suitable and setting up the processes for manufacturing the same.
19 In the early days of his employment the Claimant’s work was conducted manually. About two to three years into his employment the Respondent, at the suggestion of the Claimant, purchased a computer for use by the Claimant. The computer was used for drawing using CAD (Computer Aided Drawing) software and in order to run the then recently purchased CNC milling machine using CAM (Computer Aided Manufacture) software. The milling machine was then a state of the art apparatus that enabled the manufacture of more complex product. The Claimant, who had been trained to use the computer system, thereafter relied solely on the computer system to draw and assist in manufacturing. The computer systems were thereafter upgraded from time to time.
20 After the Claimant had worked for the Respondent for about 5 years, the Respondent moved its operations from Balcatta to Malaga. At about that time Fred Slivkoff was employed by the Respondent to join the Claimant in its R & D section. Indeed Mr Slivkoff was appointed to be the Claimant’s supervisor. The Claimant testified that Mr Slivkoff’s role was similar to his but that Mr Slivkoff did not use the CAD/CAM computer software. It was Mr Slivkoff’s role to liaise with Mr Ford and concerned himself more so with issues relating to design and patent registration. The Claimant said that Mr Slivkoff was more of a graphic designer. “He was good with pencil and paper”. He showed Mr Ford appealing conceptual pictures of proposed product.
21 On 27 February 2002 the Respondent announced to its staff that it would be employing two persons to assist Mr Slivkoff and the Claimant in the R & D section. The two people employed were Toshiyuki Maeda (Toshi), a qualified mechanical engineer, and Kamalika Wijewardene (Kam), a student who was then completing her final year of a Mechanical Engineering Degree. The Claimant testified that although each of the new employees was ostensibly employed to assist the Claimant and Mr Slivkoff, the reality was that they had little involvement with them. Toshi’s main task was to work independently in the design and manufacture of prams for “Plunketts for Babies”.
22 The Claimant testified that the R & D section was treated somewhat differently to other sections within K Care. In that regard he was told that those working within the R & D did not fall under the same employment conditions as other employees. It is the case, which is obvious from the correspondence contained within exhibit 5, that the Claimant repeatedly sought that he be appraised in respect of his performance but that was never carried out. It is apparent that the Claimant was concerned that there had never been an objective assessment of his work performance but rather that his overall performance was judged on an entirely subjective basis having regard to irrelevant criteria. That had led to him being placed on probation following many years of service. There can be no doubt that in the final years of his employment the Claimant became increasingly frustrated at the Respondent’s unwillingness to define his role and performance. He was unable to pin his employer down on those issues. In the end it was an issue over the final promulgation of an accurate duty statement that caused the irreconcilable difference that led to the Claimant’s resignation.
23 It is obvious from the documentary evidence before me that the Claimant’s last few years with the Respondent were unhappy. During that period he was the subject of written warnings and was placed on probation. There was a concern on his part, as is reflected in the various letters that he wrote to management, that his position was being undermined for reasons unrelated to work performance. The letters reflect a degree of insecurity on his part, which is understandable in the light of the Respondent’s failure to address the matters of concern expressed by the Claimant which effectively left him in limbo concerning his role and long-term position with the Respondent.
24 There can be no doubt also that the Claimant was of the view that he was an undervalued member of staff who was paid inadequately for the work that he did which went beyond mere drafting and which included the following:
- Creation of 3D models and the generation of tool poll programs using 3D CAD/CAM software for the design and manufacture of injection moulds and press tool dies.
- Designing new product.
- Developing and maintaining detailed drawings and operation sheets for all manufactured product.
- Assisting the production department in development of product part numbers and maintaining product materials lists and operation cycle times.
- Providing technical assistance to his supervisor and authorising modifications to product.
- Providing the sales team with technical information on all manufactured product and advising them on product modifications and limitations.
- Designing custom special product to customer specification and providing detailed drawings and materials lists for manufacture.
25 The Claimant also testified that in the last three to four years of his employment with the Respondent that he worked a little under forty-two hours for each week. Prior to that he had worked forty-two and a half hours per week. Accordingly he is of the view that his claim, based on the allegation that he worked forty hours per week, is conservative.
Kerry Ford’s Evidence
26 Mr Kerry Ford was called by the Claimant to give evidence. He was invited to comment on the evidence given by the Claimant concerning his duties. Other than a difference of opinion concerning the extent of the Claimant’s involvement in designing product, Mr Ford’s evidence concerning the Claimant’s duties is not inconsistent with evidence given by the Claimant relating to the issue.
27 Mr Ford testified that he believed that the Furniture Trades Industry Award binds the Respondent and its employees. Indeed he testified that the Respondent is a named party to that award. His evidence was that the Respondent carried out similar work and manufactured similar product to other named respondents within that award. Indeed many of the named respondents are in direct competition with KDB Engineering Pty Ltd. When cross-examined Mr Ford was invited to comment about the nature of activities undertaken by named respondents listed in the schedule of the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award under the headings “Engineering – Fabricating” and “Engineers – General”. In that regard he was able to identify a number of the named respondents thereto. He testified that he had knowledge of the industries within which they operated and proffered the view that their operations were essentially different to that of the Respondent.
28 During the course of Mr Ford’s examination in chief and also during his cross-examination, Mr Ford was asked a number of questions concerning the Respondent’s employment of engineers. In that regard it became apparent that Mr Ford was careful to portray the impression that the Respondent did not employ qualified engineers to work in the capacity of engineers within its enterprises. It suffices to say that the reality was that the Respondent did during a particular period employ the services of engineers. That is so notwithstanding Mr Ford’s obvious attempt to disguise that fact. Having said that, however, it remains the case that despite the Claimant having an engineering qualification, he was never employed to work in the capacity of an “engineer”. I accept however that he utilized his engineering knowledge in the performance of his various duties.
Mr Fred Slivkoff
29 Mr Slivkoff was called by the Claimant to testify concerning this matter. His evidence was generally not inconsistent with that of the Claimant.
Conclusions
30 Given that the evidence concerning the Claimant’s duties is not generally disputed, I have not been required in any comprehensive way to review the evidence given by the Claimant, Mr Ford and Mr Slivkoff. Indeed much of the evidence before me is not in issue except for those matters referred to by Mr Ford during the course of cross-examination going to the issue of the nature of the Respondent’s operations and the issues addressed by both Mr Ford and Mr Slivkoff concerning the extent of the Claimant’s involvement in original design. The Respondent has elected not to call evidence with respect to this matter and accordingly does not from an evidentiary standpoint challenge the evidence of the Claimant. Rather the Respondent points to inconsistencies within the Claimant’s own case relating to his duties and the operations of the Respondent as undermining his case.
31 It suffices for my purposes to say that I accept the evidence given by the Claimant relating to his duties and employment generally. Indeed his evidence, except in some minor aspects, is not inconsistent with the evidence of Mr Ford and that of Mr Slivkoff. I find therefore that during the course of his employment with the Respondent the Claimant worked in the R & D section and was engaged in computer assisted drafting, documentation of tool paths and in the creation of design work both for existing products and for the creation and/or implementation of new ideas, designs and product for the Respondent’s growing business. I accept that he carried out the responsibilities and functions set out in exhibit 5.3. I accept that the Claimant was involved in a vast range of drafting and designing work of a computer nature as depicted in exhibit 4. His involvement in projects was also considerable as is reflected in exhibits 18.1 to 18.10. The Claimant had a considerable involvement in the design and implementation of a vast range of products. His involvement included designing, drawing, recording and signing off as to quality. I accept that the Claimant’s involvement in design was certainly much greater than Mr Ford and Mr Slivkoff were prepared to give him credit for. It was the Claimant’s skill in design drafting which enabled the Respondent’s business to grow as it did. There can be no doubt that the Claimant was, during the material period, involved in both design and drafting.
Application of the Award
Onus of Proof
32 The Claimant bears the onus of proving on the balance of probabilities that the Award applied to his employment with the Respondent and that the Respondent is in breach of the relevant provisions of the Award rendering it liable to make the payments sought. At the commencement of the hearing I was advised that the parties had agreed that I should at this stage decide the issue of liability without the need to consider quantum. I have accordingly proceeded upon that basis.
Claimant’s Submission
33 KDB Engineering Pty Ltd is not a named Respondent to the Award. The Claimant nevertheless alleges that the Award has application by force of section 37(1) of the Industrial Relations Act 1979 which provides:
37. Effect, area and scope of awards
(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section —
(a) extend to and bind —
(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii) all employers employing those employees;
and
(b) operate throughout the State, other than in the areas to which section 3(1) applies.
34 It is the case that the qualifying provision found in subsection (1)(b) has no application in this instance.
35 The Scope clause in the Award is in common form and provides as follows:
This Award shall apply to all employees employed in the classifications defined in Clause 6. - Definitions of this Award and employed by employers engaged in the industries set out in the Schedule to this Award.
36 The named respondents are set out in the Schedule under the heading which best describes the industry within which they operate. Accordingly the Award itself identifies the industries to which the Award applies. This type of Scope clause has been referred to as a “Donovan clause”. (See RJ Donovan and Associates Pty Ltd v Federated Clerks Union of Australia WA Branch (1977) 57 WAIG 1317.) The Claimant says that it is not necessary for this Court to embark upon a detailed analysis of the business activities of the Respondents to the Award as the scope or coverage of the Award is determinable by reference to the document itself.
37 In The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers -v- Terry Glover Pty Ltd (1970) 50 WAIG 704 His Honour Burt J (as he then was) said at 705:
“Each and every award must relate to an industry and what the industry is, is in every case primarily a question of construction of the particular award. It may be that the question is not only primarily but finally a question of construction, and it may be that the award as a matter of construction fails to give the final answer and requires for that purpose that findings of fact be made.
An award if made in terms "to relate to the ship building industry" would be of the first-mentioned kind. An award expressed to relate, as the one under construction here is expressed to relate, to "the industries carried on by the respondents set out in the schedule attched (sic) to this award" is of the other kind. In such a case the industry to which the award relates cannot be made known without definition of the industries carried on by the respondents. And this is necessarily a question off fact.”
38 Accordingly the Claimant contends that as a matter of construction the Award applies to a range if industries all of which have been set out and identified in the Schedule of Respondents.
39 The Claimant submits that it is the task of this Court to do the following in this matter:
- Identify the industry carried on by the named respondents to the Award;
- Identify the industry in which the employee was employed; and
- Identify the industry in which the Claimant was employed as being one of the industries carried on by the named respondents to the Award (see Freshwest Corporation Pty Ltd v Transport Workers Union, Industrial Union of Workers, WA Branch (1990) 71 WAIG 1746 per Franklyn J.).
40 The Claimant says that on an examination of the activities of the Respondent in the totality of the evidence before this Court, that the Court should be satisfied that the Respondent is engaged in any one of the industries of “Engineers – Fabricating”, “Engineers – General” or “Engineers – Equipment and Material Distributing” all of which are referred to in the Schedule of Respondents to the Award.
41 The Claimant suggests that the evidence demonstrates that he was initially engaged as a design draftsman but by 1993 had worked his way up to be a “technical officer” being a classification in the Award. He says that the Respondent is not engaged in the furniture industry as it contends but rather is engaged in an industry set out in the Award. It is suggested that such a finding can be made if one has, amongst other factors, regard to the Respondent’s origins, corporate structure, nature of operations and product range.
42 The starting point, it is said, is the Respondent’s name. Relevantly it is called KDB Engineering Pty Ltd. It is involved in manufacturing and distributing an extensive range of disability and rehabilitation products. Design and drafting was and is at the very heart of the Respondent’s business. The function of design and drafting as the first step in a manufacturing process is at the very heart of engineering, being the creation of something new and original. Accordingly its name reflects the industry within which it operates.
43 The operation of the Respondent included a substantial manufacturing and fabrication process conducted in its factory workshop. It operated a CNC milling machine, a tool shop and also extensively utilised injection moulds. Intrinsic to the operations of the Respondent were the use of welders, tool makers and sewing machinists. The Respondent had a significant welding division. By February 2002 its stainless steel welding section had expanded so significantly that it was to be housed in a separate building. The Claimant points out that the fact that the Respondent had two welding teams, an assembly team, a CNC milling machine, pipe benders and powder coating machines is entirely consistent with and indicative of the fact that it operated within the engineering industry generally or more particularly within engineering fabrication or engineering equipment manufacture and distribution. It is submitted that the processes of the Respondent, which includes design and drafting, cutting, welding, fabricating, assembly and sales, is consistent with an engineering undertaking.
44 The Claimant also contends that the product manufactured by the Respondent was not furniture but rather distinctly rehabilitation equipment for the aged and disabled taking the product outside of the type of product produced by those operating within the furniture industry to which the Furniture Trades Industry Award applies. Further the Claimant also contends that the fact that the Respondent has from time to time employed engineering staff is indicative of the fact that it was engaged in engineering. Indeed the corporate structure of the Respondent is also said to reflect its actual operations. The choice of the name KDB Engineering Pty Ltd was a deliberate choice by the directors and was consistent with their perception of the operations of the company. It has continued over the years to represent itself as a company involved in engineering and manufacturing home care and rehabilitation equipment.
Respondent’s Submissions
45 The Respondent submits that the Court is required to determine the industry to which the Award applies and thereafter, by way of a fact-finding exercise, determine whether the employer is within the industry to which the Award applies. Once having done that, then the occupation of the employee must be considered to ascertain whether or not it fits within a term of the “definitions” clause, which describes the classifications covered by the Award. Only in that way can the determination be made as to whether the Award binds the employer. The first step must be the determination of what the industry of the employer is. The Respondent points out that the approach as suggested by the Claimant was in fact criticised by the Full Bench of the Western Australian Industrial Relations Commission in Bell A Bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – WA Branch [2002 WAIRC 06654] 82 WAIG 2655.
46 The Respondent contends that although clause 4 of the Award is a typical “Donovan clause” in that it refers to industries set out in the Schedule to the Award, the employer (Respondent) can only be bound if its business can properly be held to answer to the description of an industry so specified. In those circumstances an employer who is not named as a respondent to the Award will nevertheless be bound. In such circumstances it is not necessary to go outside the Award to determine the industry to which the Award applies. The proposition, however, only holds well if what is specified in the Schedule is an industry within the meaning of the Act. It is necessary to determine whether the emphasis in the Award is on the nominated industry or the work of the named respondents (see Australian Builders’ Labourers’ Federated Union, WA Branch v Heyring Pty Ltd (1988) 68 WAIG 683 at 684 per O’Dea P).
47 It is submitted that the terms “Engineers – Fabricating”, “Engineers – General” and “Engineers – Equipment and Material Distributing” being headings within the Schedule of Respondents of the Award suffer from the same type of difficulty as was referred to in Federated Clerks’ Union of Australia Industrial Union of Workers, WA Branch v Hospital Salaried Officers Association of Western Australia (Union of Workers) and Spastic Welfare Association of WA Inc (1979) 59 WAIG 905 (the Spastic Welfare case) in that the descriptions do not adequately define what the industry is. At page 908 His Honour Brinsden J said:
“Associations and/or Societies” does not in my view spell out with sufficient particularity the calling and hence does not spell out with sufficient particularity an industry. All it does is to state in general terms a group of employers. In my view therefore as a matter of law it is not sufficient to find the Spastic Welfare Association being an association is covered by the classification. In order to reach that conclusion it would be necessary to have entered into a fact finding exercise to determine the industry carried on by the named respondents under this classification and also a fact finding exercise to determine the industry carried on by the Spastic Welfare Association, the conclusion as to the industry in each case being arrived at by the application of the doctrine in Parker’s case.
48 It is submitted that the term “Engineers – Fabricating” does not at all identify an industry with the particularity required. “Fabricating” means “to make”. That alone does not describe the industry. In such circumstances the Court must embark upon a fact-finding exercise in relation to what industries are fairly represented by the named respondents to the Award. Similarly, it is said, the term “Engineers – General” does not identify with particularity an industry.
49 In such circumstances a fact finding exercise as in “Parker’s Case” (Parker & Son v Amalgamated Society of Engineers (1926) 29 WAIG 90) is necessary to determine the industry that the named respondents were in and that such exercise is predicated upon the Claimant establishing the industry that the named respondents carried on at the time that the Award was made. It is submitted in that regard that there is no evidence before the Court as to the undertakings of the named respondents falling under the description in the headings of the Schedule, which are said to apply in this instance. The Respondent says that the Claimant’s claim must fail on that basis alone. It is argued in the alternative that even if I were to find against the Respondent on that issue I should only embark upon an inquiry to determine what it was that the employee was employed to do only if satisfied that the descriptive headings in the Schedule clearly define, in each relevant instance, a well known industry.
50 The Respondent in its submissions also addressed the issues raised by the Claimant concerning the company’s name and product. In that regard the Respondent points out that the major and substantial components of the product range is furniture. Although it is true that some incidental items were produced, there can be no doubt that the Respondent’s production was devoted to the production of furniture as is depicted in exhibit 12 (K Care catalogue). The manufacturing process which undeniably involves pipe bending and welding is all geared to the manufacture of home care furniture for use mainly within the home and domestic type environment. The Respondent does however acknowledge that such furniture is also sold to aged care facilities and hospitals. It is also accepted that the Respondent manufactures product for a very narrow sector of the market. The point stressed is that the operation of the Respondent is focused upon the production of furniture thereby bringing it within the furniture making industry.
51 Further and in the alternative the Respondent says that if the Court were to find against it by concluding that the Respondent conducts its operation within an industry to which the Award applies, then in any event, the Claimant is not a “Technical Officer” within the meaning of the Award. “Technical Officer” is defined in clause 6(13) of the Award as follows:
(13) "Technical Officer" - A technical officer shall mean an adult worker -
(a) (i) who has been engaged for at least four years as a technical assistant or who has had two years' experience as a technician, or who has had training deemed by the employer to be equivalent thereto; and
(ii) who has received a diploma from a State Education Department or Technical Education Department such as the Mechanical Engineering Diploma, Electrical Engineering Diploma, Chemistry Diploma or Metallurgy Diploma appropriate to the work in which he is engaged or its equivalent; and
(b) who is required to perform technical duties as a specific field of engineering or scientific practice, such as research, development, laboratory and/or engineering activities, and who in carrying out such work is required to apply the skill acquired pursuant to the provisions of sub-paragraphs (a)(i) and (ii) hereof.
(c) Notwithstanding the provisions of sub-paragraphs (a)(i) and (ii) hereof, an employer shall classify an employee as a technical officer who for six months satisfactorily performs work which is of the same nature as required by paragraph (b) hereof and which requires the application of a similar standard of knowledge and/or engineering or scientific experience which has been acquired by other means than as provided for in sub-paragraphs (a)(i) and (ii) hereof.
52 The Respondent says that the Claimant does not meet the necessary criteria required by clause 6(13) (a) and (b). The Respondent notes that the Claimant has not received a Diploma but rather an Advanced Certificate (see exhibit 2). Further it argues that he does not come within paragraph (b) of the definition because almost all of the conceptual and innovative work in designing new product was done by Mr Ford. That is supported by the evidence of Mr Ford and Mr Slivkoff. The Respondent contends that the bulk of the Claimant’s work was drafting up product designed by Mr Ford. It acknowledges however that from time to time the Claimant did do some one-off designs which comprised modifications of existing designs. The Respondent also denies that the Claimant is a “design draughtsman” within the meaning of clause 6(6) of the Award because he has not received the required Diploma and further because he has not met the criteria set out in clause 6(6)(b) of the Award. The Respondent argues that the definition which would best describe what the Claimant did is to be found in the definition of “Draughtsman Detail” found in clause 6(2) of the Award. That provides:
"Draughtsman Detail" - A draughtsman detail shall mean any worker, other than a "trainee draughtsman" as defined herein, employed on the making of drawings from sketches or other data.
53 Another limb of the Respondent’s argument is that the Furniture Trades Industry Award No A6 of 1984 applies to the Respondent. Indeed it is a named Respondent to that award falling within the subset of industries undertaking metal furniture making. Many of the other named respondents within that award also make the same or similar type of product to that made by the Respondent and are in competition with it. The Respondent says that the Claimant falls within the classification “Furniture Making Employee - Group 5” of that Award. It points out that the Claimant’s major and substantial duties, being designing and/or drafting using CAD and CAM, are consistent with that classification and reflect his engagement in work connected to or incidental with the production and distribution operations of the employer as a metal furniture manufacturer.
54 The Respondent also contends that should the Court find that the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 also binds the Respondent then the specific award, being the Furniture Trades Industry Award overrides the general award in accordance with the principles outlined in Hungry Jacks Pty Limited & Others v Wilkins & Others (1991) 71 WAIG 1751 and Shenton Enterprises Pty Ld trading as John Shenton Pumps v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia (2000) 80 WAIG 2842.
Determination
55 The starting point for my consideration of this matter is to determine the industry to which the Award applies. The Claimant says that the scope clause (clause 4) is a typical “Donovan clause” in that it refers to the industries set out in the Schedule of Respondents to the Award. Accordingly this Court does not need to embark upon a detailed analysis of the activities of the respondents to the Award as the scope or coverage of the Award is determinable by reference to the document itself. I agree with the Claimant’s submission in that regard. There can be no doubt in my mind that the headings “Engineers – Fabricating”, “Engineers – General” and “Engineers – Equipment and Material Distributing” are description of industries covered by the Award. Indeed the Award covers a number of other industries which are clearly delineated and defined. I reject the Respondent’s contention that the description of the industries within the Award suffers from the same sorts of difficulties discussed in the Spastic Welfare case (supra). It is apparent that the headings within the Schedule of Respondents do, in this instance, refer to an industry as defined in section 3 of the Industrial Relations Act 1979. In my view a fair reading of the Award can only lead to that conclusion. Clearly headings such as “Concrete Products Manufacturing”, “Earthmoving Contractors”, “Steel Pipe Manufacturing” and others to be found within the Schedule of Respondents to the Award are reflective of the industry within which the respective named employers are engaged. In those circumstances it is unnecessary to embark upon a fact finding exercise to determine the industry to which the Award relates.
56 The next step is to determine whether the Respondent was engaged within an industry referred to in the Schedule of Respondents to the Award. In my view the evidence clearly and overwhelmingly dictates that it was not. The evidentiary material before me dictates that the Respondent was during the material periods engaged in the manufacture of furniture to be used either at home, in aged care facilities or hospitals. The K Care catalogue (exhibit 12) is reflective of the nature of the product produced by the Respondent. It is the case, albeit with some exceptions, that the Claimant ostensibly manufactured furniture consisting of adjustable seating, shower commodes, bedroom furniture, toilet seats and bathroom and toilet accessories. Indeed such items are in keeping with the definition of furniture contained within the New Shorter Oxford Dictionary which defines “furniture” to mean:
“The moveable (functional) articles in a room, house etc; such articles in general.”
57 The Claimant contends that the Respondent is and was engaged in the manufacture and distribution of rehabilitation, aged care, nursing care and hospital equipment. Indeed it is pointed out that exhibit 12 of itself describes the items shown within it as being “home care and rehabilitation equipment”. Such is found in bold writing on its cover and almost every page of the divisions within the folder. Indeed the Respondent’s own advertising in the “Yellow Pages” refers to the Respondent as a manufacturer and supplier of equipment for the aged and invalid. Although the Claimant’s contention in that regard is undeniable, the situation nevertheless remains that at all material times the Respondent’s trading arm “K Care” manufactured and distributed what in reality was furniture but which it, for its own purposes, possibly for marketing reasons, referred to as “equipment”. The labelling of furniture as equipment does not change its intrinsic characteristic as furniture.
58 Further the fact that the Respondent’s name is KDB Engineering Pty Ltd does not of itself enable a conclusive inference to be drawn that its undertaking is one of engineering. Indeed the name of a company or business may not necessarily be indicative of the type of industry within which it operates. The operations of companies and of businesses often evolve and their names do not always reflect the industry in which they operate. I also reject the Claimant’s argument that the Respondent’s name was deliberately chosen to reflect its undertaking. There is no evidence before this Court to enable it to find that the company name, KDB Engineering Pty Ltd, reflects a deliberate choice on the part of the directors that the name be indicative of the operations of the company. The fact that the word “Engineering” is found within the Respondent’s name is not determinative. The title of engineer is often used by those who are not professional engineers or otherwise involved in engineering. That is also the case with the description “Engineering”. That descriptor is often used by those who are not, in reality, involved in engineering as it is usually commonly understood. Mr Ford testified that the Respondent was not an engineering company. He pointed out that he has never used engineering calculations. His company evolved from simple beginnings in general fabrication to one where it predominantly manufactures or fabricates tubular steel furniture product. It is the case that the Respondent did not, as a rule, engage the services of engineers. Its one attempt to do so which took place in the later stages of the Claimant’s employment was largely unspectacular and unsuccessful. I accept Mr Ford’s evidence that engineers were not an integral part of the Respondent’s business.
59 Another of the Claimant’s arguments upon which he relies is that the actual operations of the Respondent’s business by the use of its various machines in manufacture, including welding, is indicative of the fact that the Respondent was and is involved in engineering. Although it is undeniable that at the material times, the processes used by the Respondent in manufacturing were engineering processes, it nevertheless remains the case that such processes were aimed at the manufacture of furniture. Indeed almost every manufacturing or fabricating process involves, whether by design or as a consequence of its actual operation, some engineering consideration. However just because an engineering process may have been utilised by the Respondent in the manufacture of furniture does not of itself change the nature of its undertaking or calling from one of furniture making to that of engineering, whether it be general, fabricating or any other form. The engineering process is only but one of the necessary steps in the production of the end product, in this case furniture. Further the fact that the Respondent is a named respondent within the Furniture Trades Industry Award is also reflective of the fact that its undertaking is that of furniture making was considered to be so by the relevant union who is a party to that award.
60 Accordingly for the reasons referred to above I conclude that the industry which the Respondent undertakes is that of furniture making.
61 Even if I am wrong in that regard (and I do not accept that I am), the fact remains that the Claimant has not established on the available evidence that he fits within the definition of “Technical Officer” or “Draughtsman Designing”, being classifications within the Award. In each instance he does not meet the criteria because he has failed to achieve a “Diploma”. An Advanced Certificate (exhibit 2) is not a Diploma.
62 Further, even if it could be said that the Award applies and that the Claimant satisfies the requirements of the definitions which he says apply to him, then nevertheless there would be two awards binding upon the Respondent. In those circumstances the specific award would override the general award and accordingly the Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 No R 11 of 1979 would not be operative. I agree with the submissions of Mr Jones on behalf of the Respondent in that regard.
Result
63 The Claimant has failed to prove, on the balance of probabilities, that the Award binds the Respondent. Accordingly the claim fails.
G Cicchini
Industrial Magistrate