2015 WAIRC 00869
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2015 WAIRC 00869

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 12 AUGUST 2015, WEDNESDAY, 26 AUGUST 2015

DELIVERED : THURSDAY, 10 SEPTEMBER 2015

FILE NO. : M 66 OF 2015

BETWEEN
:
TIMOTHY WILLIAM BARLOW
CLAIMANT

AND

FWA MEDIA PTY LTD, TRADING AS FISHING WESTERN AUSTRALIA PROTACKLE
RESPONDENT


Catchwords : Alleged failure to comply with the General Retail Industry Award 2010 (MA000004); Alleged underpayment; Small Claim; Limitation of claim to bring it within Small Claims jurisdiction.

Legislation : Fair Work Act 2009
Industrial Magistrates Court (General Jurisdiction) Regulations 2005

Instruments : General Retail Industry Award 2010 (MA000004)

Result : Findings made

REPRESENTATION:

CLAIMANT : IN PERSON
RESPONDENT : MR HARRY BAUMANN (DIRECTOR OF THE RESPONDENT)


REASONS FOR DECISION
Introduction
1 FWA Media Pty Ltd, Trading as Fishing Western Australia Protackle (the Respondent) employed Mr Timothy William Barlow (the Claimant) to manage its fishing tackle store at Wangara from about March 2014 until 2 February 2015.
2 The Claimant asserts that he worked very long hours and for numerous consecutive days without a break. He alleges that the Respondent, in requiring him to work such hours, contravened the requirements of the General Retail Industry Award 2010 (MA000004) (the Award) which governed his employment.
3 The Claimant alleges that the Respondent was in breach of the Award for the entirety of his employment, but notwithstanding that, limits his Claim to only cover the period 13 March 2014 to 25 September 2014 (the relevant period). He alleges that during the relevant period he was underpaid $20,878.17. The Claimant has abandoned the amount in excess of $20,000.00 in order to facilitate the bringing of this Claim, utilising the Small Claims procedure provided for under s.548 of the Fair Work Act 2009 (FW Act). Despite that, the Claimant asks the Court to award him whatever sum in excess of $20,000.00 that the Court thinks fits.
4 Prior to the commencement of the Trial, I explained to the Claimant that this Court does not, in dealing with this matter as a Small Claim, have the power to award him any more than $20,000.00. Further, the Claimant was informed that in dealing with this Small Claim, the Court does not have the power to make the other orders that he seeks which are in respect to the following:
· the Respondent’s alleged failure to pay the Claimant’s correct superannuation guarantee levy;
· the Respondent’s alleged fraud, impropriety and misconduct;
· the Respondent’s alleged mis-statement to the Australian Taxation Office; and
· the imposition of a caveat on the Respondent’s property.
5 The Claimant was also informed that his Claim for costs in the sum of $1,550.00, on account of the Respondent’s “constant delaying tactics” is not maintainable because what he seeks is not the recovery of legal costs incurred, but rather, the imposition of a punitive penalty.
6 The Respondent denies the Claim on the basis that the Claimant did not work all of the hours and consecutive days he alleges, and further, that the Claimant has used the wrong Award classification in calculating his Claim. The Respondent says also that even if it has failed to comply with the Award for a specific pay period or periods, the Claimant has, in any event, over the course of his employment, been paid more than that to which he was entitled to.
Background
7 The Claimant has worked in the recreational fishing retail business for many years. The Respondent is also involved in the recreational fishing industry and has produced television programs and magazines about recreational fishing in Western Australia.
8 In late December 2013, the Respondent’s Director, Mr Harry Baumann (Mr Baumann), sought out the Claimant’s advice about opening up a tackle store. Mr Baumann enquired whether the Claimant might be interested in helping the Respondent set up a new tackle store, and thereafter, to manage the store. The Claimant indicated that he was.
9 In about February 2014, the Respondent secured premises in Wangara from which the new business was to operate. The Claimant assisted in setting up the store prior to its opening however was not paid for his efforts in that regard. The store opened for business on or about 12 March 2014.
10 Prior to the store’s opening, the Claimant and Mr Baumann discussed the Claimant’s remuneration. They agreed that the Claimant was to be paid an annualised salary of $55,000.00, payable in weekly instalments. They also agreed that the Claimant would be paid a $200.00 bonus for each occasion that his weekly sales figures exceeded $7,000.00. The agreement was never reduced to writing. Little else was discussed about the Claimant’s working conditions, although it was understood by both parties that the Claimant would, during the business’ formative period, work its busy days which were forecast to be Fridays, Saturdays and Sundays.
11 When the store first opened, its trading hours were;
· Monday to Thursday from 8:00am to 6:00pm;
· Friday from 8:00am to 7:00pm;
· Saturday from 8:00am to 5:00pm; and
· Sunday from 10:00am to 4:00pm.
12 The store was initially staffed by the Claimant and Mr Baumann. A casual employee was later employed to work weekends. Ms Larissa Pak-Poy (Ms Pak-Poy), an administrative officer who managed the Respondent’s financial affairs, also helped out. She usually worked at the store three days per week performing accounting and administrative duties. When necessary she also assisted with sales and covered for the Claimant during his lunch breaks.
13 The Claimant asserts that he ran the store despite Mr Baumann being present and working within it. He said that Mr Baumann would come and go as he pleased. Indeed, Mr Baumann was often away for extended periods filming fishing shows and it was the Claimant who was left to run the store in Mr Baumann’s absences. He further asserts that Mr Baumann was often drunk and therefore incapable of running the store.
14 The Claimant says that he initially worked seven days per week without any days off allocated to him. In due course, he took some days off but that was on an ad-hoc basis. Indeed, there was no formal arrangement made for the taking of days off until the latter part of 2014. It was only when those arrangements were made in about September 2014 that he was thereafter able to take pre-arranged consecutive days off.
15 The Claimant says that although there was from mid-year, a reduction in his working hours to take into account the slower winter season, his hours remained long and he worked most Fridays, Saturdays and Sundays.
16 In about October 2014, there was a further change in the store’s opening hours. Contemporaneously with the change of opening hours in October 2014, another employee was taken on to assist the Claimant. At that time, the Respondent unilaterally changed the Claimant’s bonus arrangement, introducing a requirement that the Claimant achieve $8,000.00 in sales before he became eligible to receive the $200.00 bonus payment.
17 In October 2014, the Claimant took time off on sick leave. However, he noted that the Respondent had not paid him sick leave, but rather, had allocated annual leave to some of that time off. It is fair to say that from that time onward, the parties became involved in a dispute concerning the Claimant’s employment. The dispute was the subject of correspondence and meetings between the parties. None of the issues were resolved. The relationship continued to be strained thereafter and on 2 February 2015, the Claimant was summarily dismissed. The Claimant subsequently initiated an unfair dismissal action. That action was settled by the parties, by entering into a confidential agreement.
18 Mr Baumann testified that the Claimant was employed to help him manage the store and that the Claimant only managed the store during his absences. Mr Baumann said that the Claimant was under his direction and could not place orders, except when instructed to do so by Mr Baumann. He was not given autonomy or any significant administrative duties, nor was he given the power to hire or fire employees. The Claimant’s duties were primarily related to stocking the store and selling the store’s products. Mr Baumann suggests that the Claimant was, in reality, no more than a salesman. Despite holding the title of manager, he did not in fact manage and was a manager in name only. Mr Baumann said that the Claimant could take time off as he required but chose to work on Fridays, Saturdays and Sundays because they were the store’s busiest days. He agrees however that a formal monthly roster was only implemented from 1 October 2014 onwards.
19 Mr Baumann testified that the relationship between him and the Claimant deteriorated so significantly that they were, towards the end of the employment relationship, in continual conflict. In the end, he was forced to summarily dismiss the Claimant.
Determination
20 There can be no doubt that there is a great deal of acrimony between the parties in relation to the Claimant’s employment by the Respondent. Many of the issues that give rise to that acrimony are not relevant for my purposes and I do not intend to address them. What I am required to do is relatively straight forward. That is, to determine the following:
· whether the employment relationship between the parties was governed by the Award;
· whether, during the relevant period, the Respondent paid the Claimant his correct entitlements under the Award; and
· if not, the amount owed to the Claimant.
Issues
21 The parties agree that the Award applied to them during the relevant period.
22 That being the case, the only issues that require determination are:
· the Claimant’s classification under the Award; and
· whether he was paid his correct entitlements for the hours that he worked during the relevant period.
Award Classification
23 The Claimant asserts that his correct classification under the Award was that of “Retail Employee Level 8”, whereas, the Respondent says that his correct classification under the Award was “Retail Employee Level 4”. The various Award classifications are set out in Schedule B - Classifications of the Award. Clause B.4 of the Award sets out the duties of a Retail Employee Level 4:
“B.4 Retail Employee Level 4
B.4.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 3.
B.4.2 Indicative of the tasks which might be required at this level are the following:
· Management of a defined section/department,
· Supervision of up to 4 sales staff (including self),
· Stock control,

· Buying/ordering requiring the exercise of discretion as to price, quantity,
quality etc.,

· An employee who is required to utilise the skills of a trades qualification for
the majority of the time in a week, or
· Clerical functions Level 2.
B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4 include:
[B.4.3 varied by PR992724 ppc 29Jan10]
· An Assistant, Deputy, or 2IC Shop Manager of a shop without Departments,
· An employee who is required to utilise the skills of a trades qualified person for the majority of the time in a week. This includes: Butcher, Baker, Pastry Cook, Florist,
· An employee who has completed an appropriate trades course or holds an appropriate Certificate III and is required to use their qualifications in the course of their work,
· A Qualified Auto Parts and Accessories Salesperson,
· A Window Dresser (Cert III or equivalent experience),
· A Boot/Shoe Repairer (Cert III),
· A Shiftwork Supervisor,
· Section/Department manager with up to 2 employees (including self),
· Service Supervisor of up to 15 employees,
· Nightfill Supervisor/Leader,
B.4.4 Clerical Officer Level 2 characteristics:
· This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
· Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
· The work of these employees may be subject to final checking and as required progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level.
B.4.5 Indicative typical duties and skills at this level may include:
· Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position.
· Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter.
· Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents.
· Stenographer/person solely employed to take shorthand and to transcribe by means of appropriate keyboard equipment.
· Copy typing and audio typing.
· Maintenance of records and/or journals including initial processing and recording relating to the following:
(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
· Computer application involving use of a software package which may include one or more of the following functions:
(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
· Arrange routine travel bookings and itineraries, make appointments.
· Provide general advice and information on the organisation’s products and services, e.g. front counter/telephone.”

24 Clause B.8 of the Award describes a Retail Employee Level 8 as follows:
“B.8 Retail Employee Level 8
B.8.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 7.
B.8.2 A person with a Diploma qualification.
B.8.3 Indicative job titles which are usually within the definition of a Retail Employee 8 include:
[B.8.3 varied by PR992724 ppc 29Jan10]
· A Shop Manager of a shop with Departments/Sections, or
· Clerical Officer Level 5.
B.8.4 Clerical Officer Level 5 characteristics:
· Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.
· Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.
· They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, in terms of, among other things, scheduling workloads, resolving operations problems, monitoring the quality of work produced as well as counselling staff for performance as well as work related matters.
· They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They often exercise initiative, discretion and judgment in the performance of their duties.
· The possession of relevant post secondary qualifications may be appropriate but not essential.
B.8.5 Indicative typical duties and skills at this level may include:
· Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.
· Application of computer software packages within either a micropersonal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.
· Provide reports for management in any or all of the following areas:
(i) account/financial
(ii) staffing
(iii) legislative requirements
(iv) other company activities.
· Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.”

25 In its Outline of Submissions lodged on 5 August 2015, the Respondent says that the Claimant should not be classified at Level 8 because he was not a manager of a shop with “departments or sections”. Further, the Respondent says that there were no staff under the Claimant’s direction during the relevant period and that, in any event, Mr Baumann was consistently at the shop providing the Claimant with direction and instruction.
26 Despite those submissions and what was said by Mr Baumann in evidence, at the completion of the Claimant’s employment Mr Rik Thornton, a co-director of the Respondent, provided the Claimant with a statement of service.
27 The statement of service, dated 9 February 2015 was provided to the Court by the Claimant. I, pursuant to the provisions of s.548(3) of the FW Act and Regulation 35(4) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005, have regard to that document which is now before the Court marked as Exhibit 11. In the statement of service, Mr Thornton described the Claimant as a Store Manager and said that, as Store Manager, the Claimant had the following responsibilities:
· Sales, staff selection, training and performance management
· Inventory management
· Store Presentation
· Store Sales and Marketing
28 Attached to the statement of service is a Store Manager job description which provided more details. I will not repeat what was said in that document, save to observe that the Claimant is said to have had responsibilities with respect to staff, sales and marketing, dealing with customers, business development, administration, placing orders and reporting to management.
29 Based on that job description, the Claimant certainly did not come within the Award classification of Retail Employee Level 4. Furthermore given the extent of his responsibilities, he did not come within the descriptions of the Award classifications relevant to a Retail Employee Level 6 or a Retail Employee Level 7.
30 The Respondent argues that the Claimant does not fall within the Retail Employee Level 8 Award classification because he was not a manager of a shop with departments or sections, as is required by Clause B.8.3 of Schedule B of the Award. I observe, however, that Clause B.8.3 does not provide an exhaustive list of job titles falling within that level. The titles and functions are indicative only and do not exclude other permutations. The level of responsibility given to the Claimant as is evidenced in Mr Thornton’s statement of service and job description document completely undermines the Respondent’s position in regards to the Claimant’s Award classification.
31 Although the Claimant’s circumstances did not fit neatly within what is provided in Clause B.8 (Retail Employee Level 8), in that he was not the manager of a store with departments or sections, the breadth of his responsibilities take him outside the lower classifications and into the higher Level 8 classification.
32 It is irrelevant for my purposes to consider whether the Claimant actually carried out all or some of those tasks satisfactorily, or even at all. In the end he was charged with those responsibilities and engaged as a manager. He did in fact manage the store in Mr Baumann’s absences whilst Mr Baumann was filming. The Claimant carried managerial responsibilities at those times and supervised staff (the casual employee).
33 I find that the Claimant was a Retail Employee Level 8, given the extent of his autonomy and responsibilities.
Was the Claimant Paid Correctly?
34 In order to determine this issue I will need to make findings as to the days and hours worked during the relevant period. Further, I must necessarily determine whether the Claimant was forced to work numerous consecutive days without a day off and when he was given a day or days off whether he was given adequate notice of such.
Claimant’s Position
35 The Claimant’s Claim is best indicated by what he has set out in Attachment “E” to his Claim (Exhibit 5). I replicate Attachment E below:
Calculations of Pay as per Award Pay Level 8
13/03/2014
$
1,800.70

20/03/2014
$
1,800.70

27/03/2014
$
1,800.70

3/04/2014
$
1,800.70

10/04/2014
$
1,800.70

17/04/2014
$
1,800.70

24/04/2014
$
1,800.70

1/05/2014
$
1,800.70

8/05/2014
$
1,800.70

15/05/2014
$
1,800.70

22/05/2014
$
2,068.91
****
29/05/2014
$
1,800.70

5/06/2014
$
1,800.70

12/06/2014
$
1,800.70

19/06//2014
$
1,800.70

26/06/2014
$
1,800.70

3/07/2014
$
2,068.91
****
10/07/2014
$
1,800.70

17/07/2014
$
1,800.70

24/07/2014
$
1,800.70

31/07/2014
$
1,800.70

7/08/2014
$
1,800.70

14/08/2014
$
1,800.70

21/08/2014
$
1,800.70

28/08/2014
$
2,068.91
****
4/09/2014
$
2,068.91
****
11/09/2014
$
1,800.70

18/09/2014
$
1,800.70

25/09/2014
$
1,800.70

Wages due at Retail Pay Level 8
$
53,293.14

Wages actually paid
$
17,665.00


$
14,749.97

Total wages Paid
$
32,414.97

Amount Owing
$
20,878.17





Claimed amount

$20,000.00

Notes:
1. No continuous break until 13 Sept. 6 Months continuous work, minimal RDO’s
2. RDO’s were all at less than 24 hours notice, therefore not valid under the Award.
3. Claimed 65 hours per week when Harry away, unable to have breaks as on my own in
store.
4. Paid for 38 hours but worked 62.50 average.
5. Annual leave accumulated at 38 hours but worked excess of 62.
6. Does not include Superannuation.

**** Refer Note 3
Hours Worked
36 The Claimant has calculated his Claim by adopting the store’s opening and finishing times as his starting times and finishing times.
37 There are no available records relating to the Claimant’s start and finish times. The Respondent did not record the Claimant’s start and finish times believing it to be unnecessary given that the Claimant was on an annualised salary. So much is apparent from Mr Baumann’s evidence. There was therefore, from the Respondent’s perspective, no need to account for the hours the Claimant actually worked.
38 The Claimant asserts that the store’s opening times during the relevant period were as follows:
February 2014 to July 2014
Monday to Thursday
8:00am to 6:00pm
Friday
8:00am to 7:00pm
Saturday
8:00am to 5:00pm
Sunday
10:00am to 4:00pm

July 2014 to October 2014
Monday to Thursday
9:00am to 5:00pm
Friday
9:00am to 6:00pm
Saturday
8:00am to 5:00pm
Sunday
10:00am to 4:00pm

39 The Claimant says he worked between those hours. He also asserts that he worked an extra two hours on one Sunday in each month in order to give talks to customers.
40 Although there were no records kept of the starting and finishing times, some assistance in that regard can be gained from the available alarm monitoring records for August and September 2014 (see Exhibit 8). Those records show that the store did not necessarily open and close exactly on time. Notwithstanding that, I am satisfied that the Claimant’s evidence about the opening and closing times is generally correct despite allowances made for minor latitudes.
41 Mr Baumann says that it is apparent from the Respondent’s alarm records that the Claimant is inaccurate in what he claims. He therefore argues that the Claimant’s calculation of his entitlements using the Fair Work Ombudsman Website Calculator (see Exhibit 6) is fundamentally flawed.
42 Mr Baumann’s recollection of the designated opening and closing times of the store is less convincing. He admitted as to being unsure as to when changes in the opening times took effect. Further the alarm record he has produced is limited in utility and does not displace the Claimant’s assertions concerning hours worked.
43 I prefer the Claimant’s evidence concerning the store’s opening times. His approach was more regimented and as I am satisfied that the Claimant has a better recollection of the store’s opening times. I accept and rely on what he says in that regard.
44 I find that during the relevant period the Claimant worked the hours set out in the schedule hereto. There is however insufficient evidence that would lead me to conclude that the Claimant was denied lunch breaks on days worked.
Days Off
45 The Claimant has calculated his Claim on the basis that he has worked continuously during the relevant period using the store’s opening and closing times to frame his Claim.
46 Although the Claimant acknowledges that he may have had some days off during the relevant period, he nevertheless maintains that he was entitled to be paid for those days as if they were worked by reason of the fact that his days off were not rostered and he was given inadequate notice to take days off.
47 The Claimant says that the taking of days off was unplanned and occurred ad-hoc, with Mr Baumann often saying to him the night before, “don’t come in tomorrow”. He says that there was no ‘rostered day off’ (RDO) roster or schedule as required by the Award, and as a result, he was unable to plan his days off in advance.
48 Mr Baumann on the other hand testified that the Claimant could and did arrange his affairs as he pleased. He took time off as he required it. In any event, the time to be taken off was reflected in the planner (Exhibit 1) used by the Claimant and Mr Baumann.
49 Mr Baumann strenuously denies the Claimant’s assertions about the ad-hoc arrangements regarding leave.
50 The Respondent further says that it should not pay the Claimant for the days that the Claimant took off. It says that the days that the Claimant had off can be established from various sources, including:
· the Respondent’s point of sales records which demonstrate that there were no sales by the Claimant on certain days (Exhibit 7);
· the alarm records showing that the Claimant did not deactivate, or activate the alarm on certain days (Exhibit 8); and
· the planner (Exhibit 1).
51 The Respondent has produced an annotated version of Attachment E of the Claimant’s Claim, setting out the number of days the Respondent says that the Claimant took off during each week of the relevant period. That version of Attachment E was tendered during proceedings as Exhibit 13 and is reproduced below:

52 I observe, however, that there is an inconsistency between the annotations indicated above and what is demonstrated by the point of sales record (Exhibit 7). For example, there is no point of sale record produced relating to the week ending 13 March 2014.
53 The Claimant asserts that the point of sales records should not be relied upon because they are a fabrication. However, there is absolutely no evidence to support that contention and I accept the evidence of Ms Pak-Poy that the document is genuine.
54 Based on those records it is apparent that the Claimant made no sales on particular days. Some of those days correlate precisely to the days which the Claimant accepts that he took as a day or days off (see Exhibit 1).
55 I find it more probable than not that the Claimant was not at work on the days when no sales were recorded against his name. I make that finding in the full knowledge that there was a practice that allowed the Claimant’s sales to be put through by Mr Baumann. In my view, that would not explain the total absence of sales on any given day.
56 Based on the point of sales records (Exhibit 7), I find that the Claimant took the following days off during the relevant period in 2014:
· Tuesday 18 March
· Sunday 23 March
· Tuesday 25 March
· Tuesday 1 April
· Sunday 20 April
· Wednesday 23 April
· Sunday 4 May
· Sunday 11 May
· Tuesday 13 May
· Sunday 1 June
· Monday 2 June
· Sunday 8 June
· Monday 9 June
· Tuesday 17 June
· Wednesday 18 June
· Sunday 22 June
· Monday 23 June
· Tuesday 24 June
· Sunday 29 June
· Friday 4 July
· Saturday 5 July
· Wednesday 16 July
· Thursday 17 July
· Friday 18 July
· Saturday 19 July
· Sunday 27 July
· Monday 28 July
· Sunday 3 August
· Monday 4 August
· Sunday 10 August
· Monday 11 August
· Wednesday 13 August
· Sunday 17 August
· Monday 18 August
· Sunday 24 August
· Monday 25 August
· Thursday 28 August
· Friday 29 August
· Saturday 30 August
· Saturday 13 September
· Sunday 14 September
· Monday 15 September
· Saturday 20 September
· Monday 22 September
57 The planner (Exhibit 1) supports that, during the relevant period in 2014, 16-19 July, 10 August, 13 August, 17-18 August, 24-25 August, 28-30 August and 14-15 September, were not worked. The planner and the point of sales records correlate.
58 Notwithstanding not having worked the aforementioned days, the Claimant says that he is entitled to payment for those days because the Respondent did not give him the notice required under the Award relevant to the taking of those days off.
59 The Claimant bears the onus of proving his contention on the balance of probabilities. Mr Baumann’s evidence was that the Claimant’s taking of days off was left entirely to the Claimant, and that he could take time off as and when it suited him.
60 In determining the conflict in the evidence on this issue, I have no reason to prefer one version over another. Indeed, given the loose arrangements, the Respondent’s contention was entirely feasible. In the circumstances, I cannot be satisfied on the balance of probabilities that the Claimant was given insufficient notice of the days off to take. In that regard, a breach of the Award has not been demonstrated.
Public Holidays
61 No evidence has been led concerning the working of particular public holidays during the relevant period. It is self-evident, for example, that the Claimant did not work on Easter Sunday (20 April 2014), however the evidence concerning other public holidays is lacking. In the absence of evidence that public holidays were worked, I proceed on the basis that they were not worked.
Conclusion
62 It is apparent that the Respondent failed to consider the Award with respect to hours of work. Mr Baumann believed that the placement of the Claimant on an annualised salary removed the Respondent’s obligation to comply with specific requirements of the Award, subject to it ensuring that the Claimant was paid no less than that which was required by the Award. That was a misconception on his part.
63 The provision of an annualised salary needs to be specific as to what Award obligation it covers. The arrangements with the Claimant were non-specific. The fact that the Claimant was paid an annualised salary did not permit the working of long hours without payment of overtime. The Award still applied to ensure that the Claimant was correctly paid for all of the hours he worked which included penalty rates for the hours worked in excess of 38 hours per week. The applicable penalty rate must be calculated on the hourly rate produced from the $55,000 annualised salary.

64 Given that neither party contemplated this outcome their calculations relating to the claim contained in the relevant exhibits is of no assistance. It is impossible for this Court to determine, based on those documents, how much is owed, if anything. It will not be appropriate therefore to determine what is owed, if anything, without first having given the parties an opportunity to re-calculate quantum.
65 I accordingly invite the Claimant to recalculate, in accordance with the Award, the quantum of his Claim based on my findings as to classification and the days and hours worked as set out in the schedule hereto. In so doing the Claimant is not to treat the days taken off as days worked.
66 The Claimant’s recalculation is to be lodged with this Court and served on the Respondent within seven days hereof. The Respondent shall, if it wishes to do so, within seven days thereafter lodge with this Court and serve on the Claimant, any responding calculation that it wants the Court to consider. If the Respondent does that the Claimant shall have a further seven days to lodge and serve his reply to the Respondent’s responding calculations.
67 Unless within 21 days hereof either party applies in writing to the Clerk of Court to be further heard, the Court will determine the issue of quantum on the papers in the absence of the parties.







G. CICCHINI
INDUSTRIAL MAGISTRATE
SCHEDULE

Week Ending
Days Worked

Times
Daily Hours
Weekly Hours
13 March 2014
Wednesday, 12 March 2014

8:00am to 6:00pm
9.5


Thursday, 13 March 2014

8:00am to 6:00pm
9.5
19
20 March 2014
Friday, 14 March 2014

8:00am to 7:00pm
10.5


Saturday, 15 March 2014

8:00am to 5:00pm
8.5


Sunday, 16 March 2014

10:00am to 4:00pm
5.5


Monday, 17 March 2014

8:00am to 6:00pm
9.5


Wednesday, 19 March 2014

8:00am to 6:00pm
9.5


Thursday, 20 March 2014

8:00am to 6:00pm
9.5
53
27 March 2014
Friday, 21 March 2014

8:00am to 7:00pm
10.5


Saturday, 22 March 2014

8:00am to 5:00pm
8.5


Monday, 24 March 2014

8:00am to 6:00pm
9.5


Wednesday, 26 March 2014

8:00am to 6:00pm
9.5


Thursday, 27 March 2014

8:00am to 6:00pm
9.5
47.50
3 April 2014
Friday, 28 March 2014

8:00am to 7:00pm
10.5


Saturday, 29 March 2014

8:00am to 5:00pm
8.5


Sunday, 30 March 2014

10:00am to 4:00pm
5.5


Monday, 31 March 2014

8:00am to 6:00pm
9.5


Wednesday, 2 April 2014

8:00am to 6:00pm
9.5


Thursday, 3 April 2014

8:00am to 6:00pm
9.5
53
10 April 2014
Friday, 4 April 2014

8:00am to 7:00pm
10.5


Saturday, 5 April 2014

8:00am to 5:00pm
8.5


Sunday, 6 April 2014

10:00am to 4:00pm
5.5


Monday, 7 April 2014

8:00am to 6:00pm
9.5


Tuesday, 8 April 2014

8:00am to 6:00pm
9.5


Wednesday, 9 April 2014

8:00am to 6:00pm
9.5


Thursday, 10 April 2014

8:00am to 6:00pm
9.5
62.5
17 April 2014
Friday, 11 April 2014

8:00am to 7:00pm
10.5


Saturday, 12 April 2014

8:00am to 5:00pm
8.5


Sunday, 13 April 2014

10:00am to 4:00pm
5.5


Monday, 14 April 2014

8:00am to 6:00pm
9.5


Tuesday, 15 April 2014

8:00am to 6:00pm
9.5


Wednesday, 16 April 2014

8:00am to 6:00pm
9.5


Thursday, 17 April 2014

8:00am to 6:00pm
9.5
62.5
24 April 2014
Friday, 18 April 2014

8:00am to 7:00pm
10.5


Saturday, 19 April 2014

8:00am to 5:00pm
8.5


Monday, 21 April 2014

8:00am to 6:00pm
9.5


Tuesday, 22 April 2014

8:00am to 6:00pm
9.5


Thursday, 24 April 2014

8:00am to 6:00pm
9.5
47.5
1 May 2014
Friday, 25 April 2014

Anzac Day



Saturday, 26 April 2014

8:00am to 5:00pm
8.5


Sunday, 27 April 2014

10:00am to 4:00pm
5.5


Monday, 28 April 2014

8:00am to 6:00pm
9.5


Tuesday, 29 April 2014

8:00am to 6:00pm
9.5


Wednesday 30 April 2014

8:00am to 6:00pm
9.5


Thursday, 1 May 2014

8:00am to 6:00pm
9.5
52
8 May 2014
Friday, 2 May 2014

8:00am to 7:00pm
10.5


Saturday, 3 May 2014

8:00am to 5:00pm
8.5


Monday, 5 May 2014

8:00am to 6:00pm
9.5


Tuesday, 6 May 2014

8:00am to 6:00pm
9.5


Wednesday, 7 May 2014

8:00am to 6:00pm
9.5


Thursday, 8 May 2014

8:00am to 6:00pm
9.5
57
15 May 2014
Friday 9 May 2014

8:00am to 7:00pm
10.5


Saturday, 10 May 2014

8:00am to 5:00pm
8.5


Monday, 12 May 2014

8:00am to 6:00pm
9.5


Wednesday, 14 May 2014

8:00am to 6:00pm
9.5


Thursday, 15 May 2014

8:00am to 6:00pm
9.5
47.5
22 May 2014
Friday, 16 May 2014

8:00am to 7:00pm
10.5


Saturday, 17 May 2014

8:00am to 5:00pm
8.5


Sunday, 18 May 2014
(TALK)
10:00am to 6:00pm
7.5


Monday, 19 May 2014

8:00am to 6:00pm
9.5


Tuesday, 20 May 2014

8:00am to 6:00pm
9.5


Wednesday, 21 May 2014

8:00am to 6:00pm
9.5


Thursday, 22 May 2014

8:00am to 6:00pm
9.5
64.5
29 May 2014
Friday, 23 May 2014

8:00am to 7:00pm
10.5


Saturday, 24 May 2014

8:00am to 5:00pm
8.5


Sunday, 25 May 2014

10:00am to 4:00pm
5.5


Monday, 26 May 2014

8:00am to 6:00pm
9.5


Tuesday, 27 May 2014

8:00am to 6:00pm
9.5


Wednesday. 28 May 2014

8:00am to 6:00pm
9.5


Thursday, 29 May 2014

8:00am to 6:00pm
9.5
62.5
5 June 2014
Friday, 30 May 2014

8:00am to 7:00pm
10.5


Saturday, 31 May 2014

8:00am to 5:00pm
8.5


Tuesday, 3 June 2014

8:00am to 6:00pm
9.5


Wednesday, 4 June 2014

8:00am to 6:00pm
9.5


Thursday, 5 June 2014

8:00am to 6:00pm
9.5
47.5
12 June 2014
Friday, 6 June 2014

8:00am to 7:00pm
10.5


Saturday, 7 June 2014

8:00am to 5:00pm
8.5


Tuesday, 10 June 2014

8:00am to 6:00pm
9.5


Wednesday, 11 June 2014

8:00am to 6:00pm
9.5


Thursday, 12 June 2014

8:00am to 6:00pm
9.5
47.5
19 June 2014
Friday, 13 June 2014

8:00am to 7:00pm
10.5


Saturday, 14 June 2014

8:00am to 5:00pm
8.5


Sunday, 15 June 2014
(TALK)
10:00am to 6:00pm
7.5


Monday, 16 June 2014

8:00am to 6:00pm
9.5


Thursday, 19 June 2014

8:00am to 6:00pm
9.5
45.5
26 June 2014
Friday, 20 June 2014

8:00am to 7:00pm
10.5


Saturday, 21 June 2014

8:00am to 5:00pm
8.5


Wednesday, 25 June 2014

8:00am to 6:00pm
9.5


Thursday, 26 June 2014

8:00am to 6:00pm
9.5
38
3 July 2014
Friday, 27 June 2014

8:00am to 7:00pm
10.5


Saturday, 28 June 2014

8:00am to 5:00pm
8.5


Monday, 30 June 2014

8:00am to 6:00pm
9.5


Tuesday, 1 July 2014

8:00am to 6:00pm
9.5


Wednesday, 2 July 2014

8:00am to 6:00pm
9.5


Thursday, 3 July 2014

8:00am to 6:00pm
9.5
57
CHANGE OF HOURS
10 July 2014
Sunday, 6 July 2014

10:00am to 4:00pm
5.5


Monday, 7 July 2014

9:00am to 5:00pm
7.5


Tuesday, 8 July 2014

9:00am to 5:00pm
7.5


Wednesday, 9 July 2014

9:00am to 5:00pm
7.5


Thursday, 10 July 2014

9:00am to 5:00pm
7.5
35.5
17 July 2014
Friday, 11 July 2014

9:00am to 6:00pm
8.5


Saturday, 12 July 2014

9:00am to 5:00pm
7.5


Sunday, 13 July 2014

10:00am to 4:00pm
5.5


Monday, 14 July 2014

9:00am to 5:00pm
7.5


Tuesday, 15 July 2014

9:00am to 5:00pm
7.5
36.5
24 July 2014
Sunday, 20 July 2014
(TALK)
10:00am to 6:00pm
7.5


Monday, 21 July 2014

9:00am to 5:00pm
7.5


Tuesday, 22 July 2014

9:00am to 5:00pm
7.5


Wednesday, 23 July 2014

9:00am to 5:00pm
7.5


Thursday, 24 July 2014

9:00am to 5:00pm
7.5
37.5
30 July 2014
Friday, 25 July 2014

9:00am to 6:00pm
8.5


Saturday, 26 July 2014

9:00am to 5:00pm
7.5


Tuesday, 28 July 2014

9:00am to 5:00pm
7.5


Wednesday, 29 July 2014

9:00am to 5:00pm
7.5


Thursday, 30 July 2014

9:00am to 5:00pm
7.5
38.5
7 August 2014
Friday, 1 August 2014

9:00am to 6:00pm
8.5


Saturday, 2 August 2014

9:00am to 5:00pm
7.5


Tuesday, 5 August 2014

9:00am to 5:00pm
7.5


Wednesday, 6 August 2014

9:00am to 5:00pm
7.5


Thursday, 7 August 2014

9:00am to 5:00pm
7.5
38.5
14 August 2014
Friday, 8 August 2014

9:00am to 6:00pm
8.5


Saturday, 9 August 2014

9:00am to 5:00pm
7.5


Tuesday, 12 August 2014

9:00am to 5:00pm
7.5


Thursday, 14 August 2014

9:00am to 5:00pm
7.5
31
21 August 2014
Friday, 15 August 2014

9:00am to 6:00pm
8.5


Saturday, 16 August 2014

9:00am to 5:00pm
7.5


Tuesday, 19 August 2014

9:00am to 5:00pm
7.5


Wednesday, 20 August 2014

9:00am to 5:00pm
7.5


Thursday, 21 August 2014

9:00am to 5:00pm
7.5
38.5
28 August 2014
Friday, 22 August 2014

9:00am to 6:00pm
8.5


Saturday, 23 August 2014

9:00am to 5:00pm
7.5


Tuesday, 26 August 2014

9:00am to 5:00pm
7.5


Wednesday, 27 August 2014

9:00am to 5:00pm
7.5
31
4 September 2014
Sunday, 31 August 2014

10:00am to 4:00pm
5.5


Monday, 1 September 2014

9:00am to 5:00pm
7.5


Tuesday, 2 September 2014

9:00am to 5:00pm
7.5


Wednesday, 3 September 2014

9:00am to 5:00pm
7.5


Thursday, 4 September 2014

9:00am to 5:00pm
7.5
35.5
11 September 2014
Friday, 5 September 2014

9:00am to 6:00pm
8.5


Saturday 6 September 2014

9:00am to 5:00pm
7.5


Sunday, 7 September 2014

10:00am to 4:00pm
5.5


Monday, 8 September 2014

9:00am to 5:00pm
7.5


Tuesday, 9 September 2014

9:00am to 5:00pm
7.5


Wednesday, 10 September 2014

9:00am to 5:00pm
7.5


Thursday, 11 September 2014

9:00am to 5:00pm
7.5
51.5
18 September 2014
Friday, 12 September 2014

9:00am to 6:00pm
8.5


Tuesday 16 September 2014

9:00am to 5:00pm
7.5


Wednesday 17 September 2014

9:00am to 5:00pm
7.5


Thursday 18 September 2014

9:00am to 5:00pm
7.5
31
25 September 2014
Friday, 19 September 2014

9:00am to 6:00pm
8.5


Sunday, 21 September 2014

10:00am to 4:00pm
5.5


Tuesday, 23 September 2014

9:00am to 5:00pm
7.5


Wednesday, 24 September 2014

9:00am to 5:00pm
7.5


Thursday, 25 September 2014

9:00am to 5:00pm
7.5
36.5