2017 WAIRC 00222
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2017 WAIRC 00222

CORAM
: INDUSTRIAL MAGISTRATE M. FLYNN

HEARD
:
WEDNESDAY, 1 MARCH 2017, THURSDAY, 2 MARCH 2017, THURSDAY, 9 MARCH 2017

DELIVERED : THURSDAY, 20 APRIL 2017

FILE NO. : M 23 OF 2016

BETWEEN
:
CHRISTINE DOROTHY ZEEB
CLAIMANT

AND

KALHAVEN HOLDINGS PROPRIETY LIMITED
RESPONDENT

CatchWords : INDUSTRIAL LAW – Small Claim – Modern award coverage – Travel Industry – Classification of travel consultant within General Retail Industry Award 2010 [MA000004] – Contravention of terms of a modern award on minimum pay; overtime and penalty rates – Serious misconduct
Legislation : Fair Work Act 2009
Fair Work Regulations 2009
Instruments : Clerks - Private Sector Award 2010 [MA000002]
General Retail Industry Award 2010 [MA000004]
Case(s) referred to
in reasons : Transport Workers Union of Australia v Coles Supermarkets
Australia Pty Ltd [2014] FCAFC 148
Mr David Joseph v Amandon Pty Ltd T/A World Business Travel
[2013] FWCFB 8539
Saga Holidays Ltd v Commissioner of Taxation [2006] FCAFC 191
Mr David Joseph v Amandon Pty Ltd T/A World Business Travel
[2013] FWCFB 8539
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd
[2016] FCCA 621
Director of Fair Work Building Industry Inspectorate v Linkhill
Pty Ltd (No7) [2013] FCCA 1097
Logan and Otis Elevator Company [1997] IRCA 200
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR
(NSW) 18
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd
[2016] FCCA 621
Fair Work Ombudsman v Da Adamo Nominees Pty Ltd No 4
[2015] FCCA 1178
Aldo Becherelli v Mediterraneus Pty Ltd trading as Lucioli [2017]
WAIRC 65
Linkhill Pty Ltd v Director, Office of the Fair Work Building
Industry Inspectorate [2015] FCAFC 99
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20
Rankin v Marine Power International Pty Ltd (2001) 107 IR117
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2016]
FCA 1453
Hill v Compass Ten Pty Ltd (No. 2) [2012] FCA 815
Concut Pty Ltd v Worrell [2000] HCA 64
Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21
Bruce v A W B Ltd [2000] FCA 594
Result : Judgment for the claimant
REPRESENTATION:

CLAIMANT : IN PERSON
RESPONDENT : MS M. HARDING, A DIRECTOR

REASONS FOR DECISION
Introduction
1 Ms Christine Zeeb (Ms Zeeb) was employed by Kalhaven Holdings Pty Ltd (the Company) from 25 February 2014 until 26 October 2015. Ms Zeeb was a travel consultant in a business operated by the Company, ‘Discover Australia Holdings’. She claims $14,589.34 from the Company, alleged to be the minimum weekly wages, annual leave (including loading) and payment in lieu of notice upon termination, to which she is entitled under the provisions of the Clerks - Private Sector Award 2010 [MA000002] (the Clerks Modern Award), at a level 2 classification.
2 The Company disputes the claim on a number of grounds. First, the Company submits that the Clerks Modern Award (or any award) did not apply in circumstances where Ms Zeeb and the Company signed documents at the commencement of her employment (the Signed Documents) providing for an hourly rate and a ‘team productivity bonus’ which was expressed to be ‘for all amounts of overtime, allowances, penalties and loadings’. Secondly (and alternatively), the Company submits that the terms and conditions of Ms Zeeb’s employment were governed by the General Retail Industry Award 2010 [MA000004] (the Retail Modern Award) at a level 1 classification with the result that Ms Zeeb has been paid her entitlements in full. Thirdly, the Company submits that it had no obligation to make any payment in lieu of notice in circumstances where Ms Zeeb was summarily dismissed for lawful grounds on the last day of her employment.
3 In Schedule 1 of this decision I have set out the law relevant to the jurisdiction, practice and procedure of this court in determining this case. Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule 1 of this decision, I am satisfied: Ms Zeeb has elected to use the Small Claims procedure provided for in s 549 of the Fair Work Act 2009 (FW Act); the Company is a corporation to which paragraph 51(XX) of the Constitution applies and it is a ‘national system employer’; Ms Zeeb was an individual who was employed by the Company.
4 In order to determine this case, I must resolve five issues.
· First, I must determine whether Ms Zeeb and the Company were covered by the Clerks Modern Award or the Retail Modern Award (or no award). In Schedule 2 of this decision, I have set out relevant extracts of the Retail Modern Award. For the reasons set out below, I conclude that Ms Zeeb and the Company were covered by the Retail Modern Award and that, as a result of the FW Act, this award applies to this case.
· Secondly, I must determine the appropriate classification of Ms Zeeb under the Retail Modern Award. For the reasons set out below, I conclude that the appropriate level of classification from the levels set out in Schedule B of the Retail Modern Award is ‘retail employee level 4’.
· Thirdly, I must determine the significance of the Signed Documents. For the reasons set out below, I conclude that the Signed Documents do not comply with the provisions of the Retail Modern Award in cl 7 setting out the requirements to vary the award. Accordingly, the Signed Documents are of no effect insofar as they are inconsistent with the Retail Modern Award.
· Fourthly, I must determine the entitlements of Ms Zeeb under the terms of the Retail Modern Award given the terms of the award concerning minimum weekly wages, ordinary hours of work, overtime, penalties and annual leave loading. I must also determine whether the entitlement of Ms Zeeb under the Retail Modern Award ought to be reduced on account of any above award payments made by the Company to Ms Zeeb (e.g. on account of team productivity bonuses). For the reasons set out below I conclude that, compared to her entitlements under the Retail Modern Award, the Company has underpaid Ms Zeeb the sum of $ 9441.06 and must now pay her that amount.
· Fifthly, I must determine whether the Company was entitled to terminate the employment of Ms Zeeb on the 26 October 2015 without notice (on the grounds of ‘serious misconduct’) and, if not, Ms Zeeb’s entitlement to a payment in lieu of notice under the Retail Modern Award. For the reasons set out below I conclude that, by reason of the repudiatory conduct of Ms Zeeb on 26 October 2015, the Company was not required to give notice of termination.
The Business of the Company and the Duties of Ms Zeeb
5 To resolve the first two mentioned issues – identifying the relevant award and determining the appropriate classification of Ms Zeeb’s position – it is necessary to make findings on the business of the Company and the role performed by Ms Zeeb in that business.

6 The Company has been involved in the tourism industry for twenty years including as a ‘licensed Travel Agent, a member of the Travel Compensation Fund and a member of Australian Tourism Export Council’ (Exhibits 2, 24). It conducts business under names including ‘Discover Australia Holidays’ and ‘Discover West Holidays’.
7 The products of the Company are various ‘packaged holiday deals’ comprising combinations of transport (air, rail, coach, hire car etc.), accommodation and other experiences (e.g. tours). The Company does not itself supply the transport, accommodation and other experiences forming the package. Those goods and services are supplied by third party suppliers - airlines, hotels, tour providers etc. - to a customer after a booking has been placed by the Company in the name of the customer who has purchased a package deal from the Company. An example (from Exhibit 13) of a package deal is the ‘Indian Pacific to Perth All-Inclusive 9 Day Train Package’. It features (prominently) an advertised ‘starting cost’ of $2,630 and sets out components including, ‘Gold Service Indian Pacific, Airfare Perth to Sydney, 5 nights central hotel, 3 luxury coach tours: Pinnacles Desert, New Norcia, Margaret River’.
8 Each ‘packaged deal’ is assembled, maintained and checked by the Products Department of the Company (Exhibits 9, 24, 25). At the date of hearing, the Products Department comprised four staff, including staff located in Spain, Queensland and Fremantle, i.e. ‘off-site’ from the Company premises in West Leederville (Exhibit 25). The packaged deals are advertised by the Marketing Department of the Company. The advertising is to the general public in a variety of forums and using a variety of media e.g. ‘The Senior’ magazine (Exhibit 4). The response to the marketing is from the general public (98%) rather than travel agents (2%) (TT294). The advertising may highlight a price for each ‘packaged deal’ which, as the advertising states in small print, may only be available for select low season dates (Exhibit 4, 13). The advertising directs the reader to ‘book now on 1800 73 2000’ and states that ‘full details on discoverAustralia.com’.
9 The ‘lower value’ customers of the Company, measured by the amount spent with the Company, tend to initiate contact with the Company via its’ website and use the website to book and pay for an advertised package via a ‘fully automated process’. ‘Flights, hotels etc. are electronically booked and payment is automatically processed at the time of booking (via credit card) and documentation is automatically sent by email to the customer’ (Exhibit 24). The Reservations Department of the Company is not involved in those fully automated transactions. The average value of ‘fully automatic transactions’ was said by the witness, Mr Nathan Harding, to be approximately $1,100 (TT303). The ‘higher value’ customers of the Company, said to be those with an average spend of approximately $8,000, tend to initiate contact with the Company by telephone. These calls are answered by a Company employee located in the Reservations Department at the Company premises.
10 On 29 January 2014, Ms Zeeb applied for a position advertised by the Company as a ‘wholesale travel consultant’ (Exhibit 19). In her letter of application, Ms Zeeb referred to a ‘Tourism Management Degree’ and relevant work experience (‘short term full time at Holiday Planet and Cruise Planet group at marketing internet assistant’; ‘casual basis at Discovery Holiday Park’, ‘Creative Holidays full time 3 years as a reservations sales consultant and direct passenger consultant’). In her attached resume she notes: ‘Retail Travel and Tourism Certificate IV (1998)’; ‘Diploma in Tourism and Travel (2000)’, ‘Bachelor of Tourism Management (2005)’. On 25 February 2014 the parties signed what I have referred to above as “the Signed Documents”. More particularly, the Signed Documents comprise: (1) a six page document in two parts, a one page ‘Employee Induction Record’ and a five page ‘Agreement to Terms and Conditions’; (2) an eight page document in the form of a letter to Ms Zeeb, stating that ‘this letter sets out the terms of your employment with the Company’. None of the documents make reference to the duties, skills or functions that Ms Zeeb was expected to perform.
11 Ms Zeeb commenced work on 25 February 2014. After a short period of training she moved to the Reservations Department and commenced work as a travel consultant. The Reservations Department was divided into two teams. Each team is comprised of a team leader and between four and seven travel consultants (Exhibit 11).
12 The function of a travel consultant is to do whatever is reasonably necessary to secure and maintain a booking from a customer who contacts the Company (TT295). The tasks performed by a travel consultant in discharging this function were variously described by the witnesses in the case. Ms Zeeb and witnesses called by her (Ms Giraldo, Mr Hariya, Ms d’Hotman de Villiers and Ms Kury) emphasised the complexity and variety of tasks that were necessary to be performed by the travel consultant in securing and maintaining a customer booking. The witnesses for the Company (Ms Harding, Ms Shah, Mr Patel, Mr Harding and Ms Innes) emphasised the routine nature of the tasks performed by the travel consultant, said to be the result of two features of the Company business model. First, a Computer system was said to enable almost every task of a travel consultant to be done by ‘pointing and clicking’ on a computer screen (Exhibit 24). Secondly, the implementation of a Company business system that involved a high degree of specialisation between the separate and distinct departments of the Company (reservation department, accounts department, documentation department etc.) was said to free travel consultants from the usual accounting tasks and the documentation tasks associated with a customer booking (Exhibits 24, 28). The Company witnesses also emphasised the high level of training available to a travel consultant.
13 For my purposes - identifying the relevant award and the appropriate classification - it is not necessary for me to make precise findings on the disparate views of the witnesses. It is sufficient for my purposes to make the findings below on the tasks of a travel consultant in the position of Ms Zeeb during the relevant period. The findings in points ‘a’ – ‘g’ below reflected consistencies in evidence given all witnesses. The finding in point ‘h’ below reflects my preference for the consistent evidence of witnesses with most experience of the role of travel consultant in preference to the evidence of Company management on the intended effect of Company systems.
a. Travel consultants communicated with customers by telephone, email, over the web and, rarely (see below), in person, as necessary to respond to customer enquiries and initiate advice about products of the Company.
b. Travel consultants prepared a written quote/costing for a proposed customer booking and ‘followed up’ with the customer to ascertain if the customer wished to make a booking.
c. Travel consultants, upon a customer requesting a booking, placed bookings with third parties for transport, accommodation and other experiences as required by the customer booking.
d. Travel consultants recorded the taking of the above steps, typically in a ‘log’. Depending upon the task, this recording was done by a manual log entry of a travel consultant or an automatic log entry generated by the Computer system.
e. Wherever possible, travel consultants used the computer systems of the Company to complete the above tasks. For this purpose, the travel consultant actively used the Reservation Engine, the ‘log’ system and computer systems set up by the Company by which the Company communicated with customers and with certain suppliers. The travel consultant passively viewed the Product Engine, Accounts Engine and Documentation Engine to the extent necessary to obtain the information required to perform the above tasks.
f. On occasion, the Reservation Engine (and other Engines) were not able to be used to complete the above tasks. This was usually because of the policy of the supplier (e.g. airlines, Great Southern Rail and car hire) or the need to check on availability of a particular product (Exhibit 11). In these cases, an additional task of the travel consultant was to use the supplier’s web site as required or to contact the supplier by email or telephone to complete an availability check.
g. Travel consultants did not perform tasks that the Company business system required to be performed by staff employed in other departments, notably by staff in the accounts department (receive payments, pay suppliers and other third parties, undertake banking, undertake bank reconciliations, process refunds, pay for flights) or the documentation department (issue flights, prepare travel documents, arrange collection of travel documents) (Exhibits 24, 25, 28).
h. On occasion, at the specific request of a customer during a telephone conversation with a travel consultant, it was expedient for a travel consultant to process a credit card payment over the phone (Exhibits 11, 15). On occasion, at the request of a customer to an identified travel consultant, it was expedient for a travel consultant to initiate a ‘request for a refund’ to be approved by Company management and paid by the accounts department in accordance with the terms and conditions of the customer booking.
14 The time involved by a travel consultant in the respective tasks outlined above is difficult to quantify with accuracy. There was evidence that on average, 11% of enquiries to a travel consultant resulted in a booking (TT 297), suggesting that significant time was spent fielding telephone enquiries (a. above). However, those telephone enquiries may have resulted in quotes/written costings which takes time (b. above) and which did not translate to bookings. It is sufficient for my purposes to state that I am satisfied that sufficient time is involved by a travel consultant in the tasks that I describe in a, b, c, d, f and h above so as to be relevant to the issues of award coverage and award classification (considered below).
15 The Company operates from premises at Railway Parade, West Leederville. Photographs (Exhibit 14) reveal the premises to have a ‘commercial office’ appearance. On the ground floor is a glass entry door with the Company logo. This door opens into a reasonably sized reception area with seating and a reception desk on which are displayed brochures advertising ‘package deals’. The seating and the reception is used on the infrequent occasions when a customer attends and ‘rings the bell’ on the reception desk. It was said that 0.1% of customer enquiries were initiated by personal contact at the Company premises. A member of staff would attend upon the customer in the reception area and deal with the customer’s enquiry. Often as not, given the absence of a computer terminal in the reception area, the customer would be encouraged to make future contact with the Company after the customer has left the premises and used their own computer device to view the Company website.
First Issue: Award Coverage in the Travel Industry
16 Ms Zeeb contends that her employment was covered by the Clerks Modern Award. Clause 4.1 of the Clerks Modern Award provides for the coverage of 'employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature.' Clause 3.1 defines ‘clerical work’ to include 'recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk'. In support of her contention, Ms Zeeb emphasizes the similarity between the function and tasks of the travel consultants in the Reservation department of the Company and the duties and skills listed for the classifications, including the duties and skills of call centre contact officers grade 1, as set out in Schedule B of the Clerks Modern Award at B.2.2(x) for a level 2 employee. The call centre duties listed include: use known routines and procedures; some accountability for quality outcomes; receive calls; use common call centre technology; enter and retrieve data; work in a team; manage own work under guidance; and provide at least one specialised service (sales and advice for products and services, complaints or fault enquiries or data collection surveys).
17 The Company contends that if any award covered Ms Zeeb's employment, the Retail Modern Award was the most appropriate award. Clause 4.1 of the Retail Modern Award provides for the coverage of 'employers in the general retail industry and their employees in the classifications’ as listed in cl 16 of the award. Clause 3.1 defines ‘general retail industry' to mean the 'sale or hire of goods or services to final consumers for personal, household or business consumption'. Clause 16 links to a classification structure set out in Schedule B. Schedule B provides for the classification of an employee into one of eight levels, dependent upon the tasks that the employee is performing at a retail establishment (my emphasis). In support of its contention, the Company emphasises that the business of the Company is the selling of travel products to the general public and that the role of travel consultants was to provide ‘information, advice and assistance to customers to sell the tourism products and packaged products of the Company’ (Respondent’s Amended Documents lodged on 29 June 2016).
18 A modern award made by the Fair Work Commission does not impose an obligation or give an entitlement unless the award applies to the employer and the employee: s 46 of the FW Act. An award applies to the employer and the employer if the award covers each of them: s 47 of the FW Act. An award covers an employer and an employee if the award is expressed to cover each of them: s 48(1) FW Act. It follows that the starting point to determine award coverage are the words of the award itself. More specifically, it is 'the objective meaning of the words used (in the relevant award) bearing in mind the context in which they appear and the purpose they were intended to serve': Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 [22] (Siopis, Buchanan and Flick JJ).
19 An examination of the words of each of the Clerks Modern Award and the Retail Modern Award is instructive. Clause 4.1 of the Clerks Modern Award provides that 'the [Clerks Modern] award does not cover an employer bound by a modern award that contains clerical classifications'. The Retail Modern Award contains clerical classifications (as a result of cl 16 and Schedule B). The Retail Modern Award provides that the functions of retail employees at levels 1, 4 and 6 are expressed, respectively, to include, ‘clerical assistants functions level 1’ (B.1.1), ‘clerical officer level 2’ (B.4.4) and ‘clerical officer level 3’ (B.6.3). The Retail Modern Award sets out the ‘typical duties and skills’ of those employees, respectively, at clauses B.1.8, B.4.5 and B.6.4. Put shortly, if the Company is covered by the Retail Modern Award, the effect of cl 4.1 of the Clerks Modern Award is to give priority to the Retail Modern Award.
20 As a result of cl 4.1 and cl 16 (with Schedule B) of the Retail Modern Award, the Retail Modern Award covers the Company if the following two questions are answered affirmatively. For the reasons set out below, my view is that each question must be answered affirmatively, with the result that the Retail Modern Award covers the Company.
Is the Company ‘in the general retail industry’ (cl 4.1); meaning 'the sale or hire of goods or services to final consumers for personal, household or business consumption' (cl 3.1)?
21 It is apparent from my findings above that the Company sells ‘package deals’ of transport, accommodation and other experiences to consumers for their personal consumption, see paragraph 7. There is no reason why the sale of this combination of goods and services does not fall within the ordinary meaning of ‘general retail industry’ as defined in the Retail Modern Award. The fact that it is the sale of a future delivery of the transport, accommodation or other experience and that the delivery is to be by a third party and not the Company, does not affect this conclusion. It is sufficient to adapt the observation of Stone J (with whom Gyles and Young JJ agreed) in Saga Holidays Ltd v Commissioner of Taxation [2006] FCAFC 191 [34] in a case where, at issue, was the legal characterisation of a transaction involving a consumer purchasing a ‘package deal’ from a travel agent for, inter alia, hotel accommodation that would be supplied by a third party.
The contract between the [travel agent] and a tourist was one whereby [the travel agent] promised to provide the tourist with certain accommodation. Had the tourist not been supplied with the promised accommodation, [the travel agent] would have been in breach of this contract. This is true irrespective of the fact that [the travel agent] was not in a position to provide the accommodation itself and was relying on its arrangements with [third parties] to enable it to fulfil its contractual obligations to the tourist. It is also irrelevant …that the accommodation had not been appropriated to the contract at the time the contract was made and that, had [the travel agent] breached the contract, specific performance would not have been an available remedy. … [A]t the time it was entered into, the contract between [the travel agent] and the tourist was an executory contract. It was none the less binding although the time for performance … had not yet arrived. There is nothing unusual about that.
The sale of a ‘package deal’ by the Company confers upon the customer the right to be supplied, on a date in the future, with the contents of the ‘package deal’ in exchange for payments (as promised by the customer).
Do the employees of the Company perform their functions or perform work at a retail establishment (Schedule B1.1, B2.1, B1.3 etc.)?
22 Two things are apparent from my findings above. First, the Company premises at Railway Parade, West Leederville is a ‘bricks and mortar’ establishment i.e. it has a significant physical presence and it has a role in housing all of the employees of the Reservations department of the Company and (almost) all of the operations of the Company. Secondly, almost all of the retail transactions of the Company involve electronic or telephonic communications between employees of the Company and customers. Notwithstanding that an overwhelming percentage of customers of the Company will never attend the Company premises, it was from those premises that all of the employees of the Reservations department received or initiated electronic or telephonic communications that were necessary to commence, advance and resolve each retail transaction of the Company. This fact is sufficient, in my view, to characterise the Company premises as a ‘retail establishment’.
23 My conclusion that the Retail Modern Award covers Ms Zeeb and the Company is consistent with the reasoning of the Fair Work Commission in an appeal by Mr David Joseph v Amandon Pty Ltd T/A World Business Travel [2013] FWCFB 8539 where at issue was a claim by an employee responsible for making travel bookings and supervising other travel consultants who were engaged in taking and making telephone and internet travel related bookings for an employer's corporate clients. The employer was a corporate travel consultant business with seven full-time employees and one part-time employee. Relevantly, the Commission stated:
In our view the work of a travel consultancy in selling and making travel bookings on behalf of clients falls within the description of the retail industry because it involves selling goods and services to final consumers for personal or business consumption. Further we are of the view that the broad classifications in that award extend to the travel consultants and (the employee) as a supervisor and a person required to perform similar duties as well as supervise their work was also covered by the award. We also are of the view that the (Clerks Modern Award) covers the substantial clerical nature of the work of travel consultants and their supervisor, although the most appropriate award to the business of (the employer) is the (Retail Modern Award) because of the nature of the employer's business and the priority given to the (Retail Modern Award) in the coverage clause of the (Clerks Modern Award) [28].
24 Ms Zeeb’s contention that her entitlements are to be found in the Clerks Modern Award cannot succeed given my conclusion that the Retail Modern Award covers the Company in circumstances where the Retail Modern Award contains clerical classifications. It remains necessary to determine the appropriate classification of Ms Zeeb’s position in the Retail Modern Award.
Second Issue: Classification of Ms Zeeb Under the Retail Modern Award
25 The Retail Modern Award states that the classification of an employee ‘must be according to the skill level required to be exercised by the employee in order to carry out the principle functions of the employment as determined by the employer’ (cl 16.2 of the Retail Modern Award). It is necessary to focus on the skills, duties and tasks required of a travel consultant to successfully carry out the function required of a travel consultant by the Company, namely, to do whatever is reasonably necessary to secure and maintain a booking from a customer.
26 The following principles, drawn from decided cases, are relevant to determining the appropriate classification of Ms Zeeb’s position:
· ‘Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect.’
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621 [27]; Director of Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097; Logan and Otis Elevator Company, Moore J, 1997 IRCA 200 (20 June 1997).
· Determining the major or substantial aspect of an employee’s employment is ‘not merely a matter of quantifying the time spent on the various elements of work performed…; the quality of the different types of work done is also a relevant consideration’.
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
27 The Company contends that the appropriate classification of a travel consultant in the position of Ms Zeeb is at the level of ‘Retail Employee Level 1’. In support of its contention, the Company emphasizes the function of travel consultants was to sell ‘package deals’ in response to customer enquiries. From the list of skills and duties indicative of a level 1 retail employee, set out in paragraph B.1.1, the Company highlights the following as particularly relevant to the function of the travel consultant in selling packaged deals: sale of goods by any means; arranging payment by any means; provision of information, advice and assistance to customers.
28 My view is that a comparison of the tasks performed by travel consultants, in accordance with my findings as set out above at paragraphs 13-14, with the lists of indicative skills and duties set out in Schedule B suggests that the appropriate classification of a travel consultant in the position of Ms Zeeb was at the level of ‘Retail Employee Level 4’. The function required of the Company, the sale of a product, appears as the duty of a level 1 retail employee. However, the same function is repeated for each higher level (B.2.1, B.3.1, B.4.1 etc) and the role performed by travel consultants is more accurately and more particularly captured by the description of the characteristics, duties and skills that appears for a level 4 retail employee at paragraph B.4.4 (i.e. a clerical officer level 2). Five matters are particularly significant in reaching this conclusion.
29 First, the characteristics of the role performed by travel consultants in the sale of the particular products of the Company (i.e. package deals comprising transport, accommodation and experiences) is aptly captured at paragraph B.4.4 as having ‘had sufficient experience or training to enable (the employee) to carry out assigned duties under general direction’. Further, ‘employees are responsible and accountable for their own work which is performed within established guidelines’ and ‘detailed instructions may be necessary’. I note the evidence of the witnesses for the Company on, firstly, the substantial level of training given to travel consultants and, secondly, on the detailed instructions available to travel consultants in the form of standard operating procedures.
30 Secondly, the typical duties and skills required of a travel consultant, described by me in paragraph 13 above, comfortably fall within the following descriptions at paragraph B.4.5: responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services and use of interpersonal skills are a key aspect of the position; operation of computerized equipment; word processing; maintenance of records including initial processing and recording relating to letters; computer application involving the use of a software package including functions such as creation of new files and records and following standard procedures and using existing models/fields of information; provide advice and information on the organisation’s products and services.
31 Thirdly, compared to the text of the classification of a level 4 retail employee, the role performed by a travel consultant does not fit as comfortably in the text of the classification of any other level of retail employee. The descriptions of classifications levels 1, 2 and 3 refer to some tasks undertaken by travel consultants: the sale of goods; the provision of information, advice and assistance to customers; performing routine clerical and office functions under close direction using established procedures. However, of significance to me is the absence of reference in the level 1, 2 and 3 classifications to the giving of advice and information about the Company’s products and the absence of reference to the necessity to use computer systems.
32 The Company required travel consultants to have a sufficient level of specialist product and specialist industry knowledge to confidently and appropriately enter contracts with customers for the sale of a ‘package deal’. The evidence of the Company witnesses was that it devoted significant resources to training and preparing travel consultants to perform the task of advising customers and selling package deals. A number of witnesses noted that an important duty of a travel consultant was to confirm, in writing, telephone advice and costings. Before making any booking a travel consultant was required to notify the customer of the consequences if the customer was to subsequently change or ‘cancel’ the booking and, if a subsequent change or cancellation was requested, the travel consultant was required to advise the customer accordingly. This process of confirmation and the capacity of a travel consultant to enter a binding contract for the sale of a package deal that, after amendment, might have a sale price as high as approximately $30,000 (with an average of $8,000) is evidence of the duties of the travel consultant in advising customers and the necessity to use interpersonal (communication) skills.
33 An argument might be made for appropriate classification of Ms Zeeb’s position at level 5 or level 6, having regard to the occasional requirement of ‘specialized and non-routine tasks’ and to the use of specialist terminology/process’ that are relevant to the travel industry. However, I note that Ms Zeeb’s function and tasks did not significantly change from the commencement of her employment until the end of her employment. I also note that, on my assessment of the evidence, that the principal or major role that she performed is more aptly captured by level 4 than level 6.
34 Fourthly, I have emphasized the parts of the text of the level 4 retail employee classification in Schedule B that are apposite to the work environment of the Company. The fact that other parts of the text of the level 4 classification are clearly inapposite to the work environment of the Company does not detract from my overall conclusion on the quality of work done by a travel consultant. For example, none of the indicative titles listed for a level 4 classification (assistant, deputy, second-in-command, service supervisor etc.) is relevant to the work environment of the Company which is characterized by travel consultants, team leaders, head of departments and ‘management’.
35 Fifthly, the Company led evidence alleging a lack of skill of Ms Zeeb to perform the tasks expected of a travel consultant. This evidence may be relevant to the issue of the right of the Company to summary dismissal (discussed below). However, for the purpose of classification Ms Zeeb’s position as a travel consultant, my focus is upon the identification of the skills and duties required of an employee who is called upon to perform the function that is required to be performed by the employer. The individual performance of a particular employee (e.g. quality and quantity of work, capacity for more complex work etc.) is less relevant than the skills and duties necessary to perform the function required to be performed by the employer: Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621 [32]; Fair Work Ombudsman v Da Adamo Nominees Pty Ltd No 4 [2015] FCCA 1178 [256].
Third Issue: The Significance of the Signed Documents.
36 The effect of my conclusion with respect to the first two issues (above) is that the Retail Modern Award applies to the Company and Ms Zeeb and that her entitlements will be determined as provided in that award (as a level 4 retail employee). However, cl 7.1 of the Retail Modern Award provides that, ‘notwithstanding any [provision of the award], an employer and an individual employee may agree to vary the application of the following terms of [the award] to meet the genuine individual needs of the employer and the individual employee’: (a) arrangements for when work is performed; (b) overtime rates; (c) penalty rates; (d) allowances; and (e) leave loading (a Clause 7 Agreement).
37 A Clause 7 Agreement has no effect unless a number of conditions are satisfied; those conditions are set out in clauses 7.2 - 7.4 of the Retail Modern Award (the Clause 7 Agreement Pre-conditions). In paragraph 10 above I noted that the documents signed by the parties on 25 February 2014, at the time Ms Zeeb commenced her employment, included a document entitled ‘Agreement to Terms and Conditions’ (T & C) and a letter which commenced, ‘this letter sets out the terms of your employment with the Company’ (Employment Letter, or EL). The Company contends that the Signed Documents constitute an agreement to vary the terms of the Retail Modern Award with the result that Ms Zeeb’s entitlements with respect to rate of pay, hours of work, overtime and penalties and public holidays are governed by those documents and not by the Retail Modern Award. It is necessary to compare the provisions of the Signed Documents with the Clause 7 Agreement Pre-conditions.
38 The Signed Documents include the following:
a. Rate of Pay. Clause 1.8 of the EL states that the company will pay ‘an hourly rate of $17.38 inclusive of superannuation’ and a ‘team productivity bonus’ and that ‘your salary includes payment for all amounts of overtime, allowances, penalties and loadings to which you may become entitled under industrial laws’.
b. Bonus. Under the heading ‘Above Award Payments’, the T & C state that ‘bonus payments above the award are made at the discretion of management’. Clause 1.8 of the EL states that ‘it is expected you will be put on full team productivity bonus within six weeks’ and sets out circumstances where the bonus may not be paid or may be reduced. E.g. ‘any losses incurred by the company due to errors or omissions on your part will be deducted’.
c. Hours of work. ‘8 hours per day is to be worked (not including 30-minute lunch break), totalling 40 hours per week’ (T & C). ‘Your ordinary hours will be rostered hours and ‘other hours required by the company as may be reasonable and necessary’ (cl 1.2 of the EL).
d. Penalties. ‘Saturday morning is worked on a roster basis which is a 4.5-hour shift. Weekends may if the need arises be required to be performed as part of the basic hours’ (T & C)
e. Public Holidays. The T & C state that employees are required to work on public holidays and ‘will receive standard rates’. Clause 3 of the EL states that ‘you will also be entitled to paid public holidays under the Fair Work Act’.
f. Overtime. ‘All overtime must be authorized … prior to commencement. Overtime will not be authorized in the case of slow work performance’ (T & C).
g. Leave. The T & C provide for accrued annual leave of 152 hours, not to be taken until the employee has been employed for 12 months, and for sick leave of 1.462 hours per week. Clause 3 of the EL states that ‘you will be entitled to 4 weeks paid annual leave’ and ‘10 days per annum’ paid personal/carers leave.
h. Deductions. The T & C states that the Company can deduct ‘pay in lieu of hours’ from the pay of an employee who has accepted a bonus payment and fails to give ‘appropriate notice’ at the time of termination.
i. Notice. The T & L states that ‘4 weeks notice must be given mutually’ and ‘in accordance with the Common Law Contract signed by the employer and employee, pay in lieu of notice applies’. Clause 4 of the EL states that either party may terminate employment by giving one month’s notice.
j. Summary termination. Clause 4(c) identifies the grounds upon which the company may summarily terminate employment including ‘serious or gross misconduct’, ‘breach a fundamental condition’ and ‘engage in any conduct which in the reasonable opinion of the company might tend to injure the reputation or business of the company’.
k. Reference to other ‘industrial laws’. Clause 1.7 of the EL states that ‘the terms of the letter does not operate to the extent of inconsistency with any industrial laws’ to which the company is subject except where the employee is ‘in a better position than you would be’ as a result of the consideration made by the Company to the employee.
39 The agreement between the Company and Ms Zeeb as evidenced by the Signed Documents fails to satisfy the Clause 7 Agreement Pre-conditions as follows:
a. A Clause 7 Agreement must be confined to a variation in the application of one or more of: (a) arrangements for when work is performed; (b) overtime rates; (c) penalty rates; (d) allowances; and (e) leave loading.
The Signed Documents go beyond the topics upon which cl 7 applies, notably, in relation to rate of pay, deductions and notice. Mention should also be made of the Company practice, apparently authorised by the Signed Documents, by which losses as a result of an error of a travel consultant are deducted from bonus payments. Sections 324, 325 and 326 of the FW Act may have the effect of making this practice unlawful: Andrew Stewart et al, Creighton and Stewart’s Labour Law, 6th edition, Federation Press, Sydney Australia (2016) at [15.74]. The matter was not argued before me and it is not necessary for me to offer a conclusive view.
b. A Clause 7 Agreement must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.
A comparison of the terms of the Signed Documents and the Retail Modern Award reveal that at the time the agreement was made i.e. 25 February 2014, Ms Zeeb was not better off overall as a result of the Signed Documents. It is sufficient to observe that the effect of the Signed Documents on:
(i) the arrangements for when work is performed, provides for more than an average of 38 hours per week to be performed, and infringed cl 28 of the Retail Modern Award;
(ii) overtime rates and penalty rates, does not provide for a loading, and infringed clauses 29.2 and 29.4 of the Retail Modern Award;
(iii) leave loading, does not provide for a loading and infringed cl 32.3 of the Retail Modern Award.
The Company relied upon the regular payment of a Team Productivity Bonus to Ms Zeeb, in addition to a fortnightly wage calculated by reference to information from the Fair Work Commission as to the rate of the national minimum wage, in support of an argument that Ms Zeeb was ‘better off overall’. The argument overlooks the fact that the Signed Documents do not provide for a certain payment of any Team Productivity Bonus of any minimum amount. At 25 February 2014, the entitlement to a team productivity bonus is qualified by terminology such as ‘discretion of management’ and ‘expected’. The Team Productivity Bonus must be ignored for the purposes of application of the better off overall calculations.
c. A Clause 7 Agreement must (b) state each term of this award that the employer and the individual employee have agreed to vary; (c) detail how the application of each term has been varied by agreement
The Signed documents do not identify the Retail Modern Award or the text of the terms of that award that are being varied or how each term has been varied.
d. A Clause 7 Agreement must (d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment.
The Signed documents do not detail how, compared to the Retail Modern Award, Ms Zeeb is better off overall. As noted above, she is not, in fact, better off.
40 The Signed Documents fail to satisfy the Clause 7 Agreement Pre-conditions I identified in paragraph 38. It follows that the Signed Documents are of no effect to the extent that they are inconsistent with Retail Modern Award. For completeness, I note that the Signed Documents do satisfy the following additional Clause 7 Agreement Pre-conditions: an agreement genuinely made without coercion or duress; in writing and signed; state a commencement date.
Fourth Issue: Ms Zeeb’s Entitlements Under the Retail Modern Award
41 It follows from my conclusion with respect to the first three issues (above) that the Retail Modern Award applies to the parties and that Ms Zeeb’s entitlements will be determined as provided in that award as a level 4 retail employee. The Retail Modern Award provides for:
· Minimum weekly wages as set out in cl 17. The weekly wage can be divided by 38 to calculate a minimum hourly rate. In Schedule 2 to this judgment, at cl 17 of the Retail Modern Award, I have set out each relevant iteration of cl 17 showing that the minimum hourly rate of pay for Ms Zeeb was as follows:
From 1/7/13 $19.07
From 1/7/14 $19.64
From 1/7/15 $20.13
· Ordinary hours to be worked at the times set out in cl 27.
· Overtime for hours calculated in accordance with cl 29.2 to be paid at: 150% for the first three hours and 200% thereafter; 200% on a Sunday and 250% on a Public Holiday i.e.
From 1/7/13 150%: $28.60; 200%: $38.14; 250%: $47.67
From 1/7/14 150%: $29.46; 200%; $39.28; 250%: $49.10
From 1/7/15 150%: $30.19; 200%; $40.26; 250%: $50.32
· Penalty payments for hours calculated in accordance with cl 29.4 to be paid at: 125% for ordinary hours after 6.00 pm Monday to Friday and ordinary hours worked on a Saturday; 200% for all hours worked on a Sunday; 250% for work on a public holiday. i.e.
From 1/7/13 125%: $23.84; 200%: $38.14; 250%: $47.67
From 1/7/14 125%: $24.55; 200%; $39.28; 250%: $49.10
From 1/7/15 125%: $25.16; 200% $40.26; 250%: $50.32
· Annual Leave of four weeks for each year of service accrued progressively to be paid at the employee’s base rate of pay for the ordinary hours of work i.e. (38 per week) (see s 87 of the FW Act) and an annual leave loading of 17.5% (see cl 32) i.e.
From 1/7/13 $22.41
From 1/7/14 $23.08
From 1/7/15 $23.65
42 Set out below are my findings:
· On Ms Zeeb’s entitlements:
· in paragraph 43, on the hours worked by Ms Zeeb to which is entitled to be paid as: ordinary hours (including sick leave entitlement), overtime and penalty rates;
· in paragraph 44, on Ms Zeeb’s entitlement to ordinary pay (including sick leave), overtime and penalty payments over the total period of her employment by application of the relevant rate of pay under the Retail Modern Award, level 4 retail employee to the number of hours worked.
· in paragraph 45, on Ms Zeeb’s accrued annual leave entitlements.
· On the total amount paid by the Company to Ms Zeeb on account of her entitlements under the Retail Modern Award, see paragraph 47.
· My conclusion on Ms Zeeb’s entitlements, reflecting the difference between her total entitlements over the period of her employment and the total amount paid to her by the Company, see paragraph 48.
43 Hours worked, Overtime and Penalty Calculations. Each party has submitted calculations on Ms Zeeb’s entitlements. Appendix ‘CZ1’ to Ms Zeeb’s submission lodged 22 March 2017 sets out her calculations based on the Retail Modern Award as a level 1 retail employee (Claimant’s Calculations Document, or CCD) and in Appendix ‘KAL1’ to the Company’s submission lodged 15 March 2017, the Company sets out its calculations based on the Retail Modern Award as a level 1 retail employee (Respondent’s Calculations Document, or RCD). Those documents reveal that subject to two exceptions (of 44 fortnights), the parties are in agreement on the total hours worked each fortnight by Ms Zeeb (See 6th column, ‘Total Hours’ in CCD and 5th column ‘Total Hours Paid’ in the RCD). However, those documents also reveal that in 32 fortnights the parties disagree on the effect of the application of the Retail Modern Award to Ms Zeeb’s entitlement to overtime and penalty payments (compare the 7th (ORD Hours), 8th (Sat ORD), 9th (O/T 1.5), 10th (O/T 2) and 11th (P/H) columns in the CCD and following columns in the RCD: 9th (NORMAL HOURS WORKED, 11th (Overtime), 13th (Saturday hours worked), 15th (Sunday hours worked), 17th (Public Holiday), 19th (Sick hours paid), 21st (Annual Leave hours paid). It is necessary to give a ruling on the 34 fortnights where the parties are in disagreement as to the hours worked and the applicable rate of pay (ordinary, overtime, penalty etc.). It should be noted that the table below only identifies occasions where the parties are in dispute; it does not reproduce the figures for any fortnight or within a fortnight where the parties are in agreement on the allocation of hours to 100%, 125%, 150%, 200% or 250% of ordinary rate of pay.

Fortnight
Ending
CZ Submission
Company Submission
Ruling
1.
22/3/14
6 hrs overtime at 150% and 1.13 hrs overtime at 200%
7.13 hrs at 150%
Uphold CZ claim. See Clauses 28.1(b),29.2(a).
2.
5/4/14
6 hrs overtime at 150% and 1.13 hrs overtime at 200%
7.13 hrs at 150%
Uphold CZ claim. See Clauses 28.1(b),29.2(a).
3.
17/5/14
33.8hrs at ordinary time
32.8hrs at 100% and 1 hr sick leave at 100%
Same result.
4.
31/5/14 and 14/6/14
4.37 hrs Saturday penalty at 125%
Incorporated in ordinary time hours.
Uphold Company claim. Timesheet in evidence does not show any Saturday worked in these fortnights.
5.
28/6/14
14 hrs overtime at 150%
6.38 hr overtime at 150%, 7.62hrs Saturday at 125%.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked 76 hrs before work on Saturday 28/6/14, so 150% overtime rate applies, see cl 29.2(a).
6.
12/7/14
8.46 hrs overtime at 150%
0.16 hrs overtime at 150% and 8.3 hrs at 125%(Saturday).
Uphold CZ claim. Timesheet in evidence shows that CZ had worked 76 hrs before work on Saturday 28/6/14, so 150% overtime rate applies, see cl 29.2(a).
7.
26/7/14
76 hrs ordinary time and 12 hrs overtime at 150%
80.22 hrs at ordinary time (inc 8 hrs sick pay) and 7.78 hrs at 125% (Saturday)
Uphold CZ claim. Timesheet in evidence shows that CZ had worked 39.85 hrs before work on Saturday 19/7/14, so 150% overtime rate applies.
8.
9/8/14
72.12 hrs ordinary time and 15.43 hrs at 200%
69.4 hrs ordinary time, 2.73 hrs at 125% Saturday and 15.43 hrs at 200% (Sunday)
Uphold Company calculations.
Timesheet in evidence shows that CZ worked 2.73 hrs on Saturday 2/8/14.
9.
23/8/14
68.4 hrs ordinary time, 3 hrs at 125% Saturday, 10.61 hrs overtime at 150%, 8.35 hrs at 200%.
74.51 hrs ordinary time, 7.5 hrs at 125% Saturday, 8.35 hrs at 200%
Uphold CZ claim. Timesheet in evidence shows that after CZ had worked 3 hrs on Saturday 16/8/14 reached 38 hrs, so entitled to overtime rate after that.
10.
20/9/14
6.68 hrs at 150%, 7.67 hrs at 200%.
12.68 hrs at 150%.
7.67 hrs at 200%. (Error in total hours.)
Uphold CZ claim. Timesheet in evidence shows that after CZ worked 7.67 hrs on Sunday 14/9/14.
11.
4/10/14
13.4 hrs at 150%.
8.62 hrs at 150% and 5.15 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked 42.95 hrs before work on Saturday 27/9/14, so 150% overtime rate applies.
12.
18/10/14
76 ordinary hrs and 14.2 hrs at 150%.
66.63 ordinary hrs and 8 hrs sick leave at ordinary rate and 15.57 hrs at 125% Saturday rate.
Partial uphold CZ claim. Timesheet in evidence shows that CZ had worked 41.61 hrs before work on Saturday 11/10/14 of 7.59 hrs, so 150% overtime rate applies to those hours. However, normal Saturday rate applies to 7.98 hrs work done on 18/10/14
13.
27/12/14
76 ordinary hrs, 15.52 hrs at 150%
67.58 ordinary hrs and 7.94 hrs at 125% and 15.2 hrs as public holiday.
Company claim partially upheld. Timesheet in evidence shows that CZ worked 67.58 ordinary hrs and 7.94 hrs on Saturday 27/12/14 and correct rate for that is 125%.
14.
10/1/15
76 ordinary hrs and 12.89 hrs at 150%.
66.89 ordinary hrs and 8 hrs sick leave at ordinary time and 7.6 hrs as public holiday.
Company claim partially upheld. Timesheet in evidence shows that CZ worked 66.89 hrs and received sick pay (which equates to 7.6 hrs ordinary pay). Result is 74.49 hrs ordinary pay.
15.
24/1/15
19.51 hrs at 150%.
15.6 hrs at 150% and 4.23 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked over 76 hrs before work on Saturday 24/1/15, so 150% overtime rate applies
16.
7/2/15
21.87 hrs at 150%
0.27 hrs at 150%, 5.6 hrs at 125%, 7.6 hrs at 250%.
Neither claim upheld. Timesheet in evidence shows CZ worked 89.87 hrs which equates to 76 ordinary hrs and 13.87 hrs at 150% overtime.
17
21/2/15
14.36 hrs at 150% overtime.
5.69 hrs at 150% and 8.67 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked over 76 hrs before work on Saturday 14/2/15, so 150% overtime rate applies
18
7/3/15
29.35 hrs at 150% overtime.
8.23 hrs at 150% and 13.12 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked over 38 hrs before work on Saturday 28/2/14 and 76 hrs before work on Saturday 7/3/15, so 150% overtime rate applies.
19
21/3/15
16.85 hrs at 150% overtime.
9.25 hrs at 150% and 7.6 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked over 76 hrs before work on Saturday 21/3/15 and so 150% overtime rate applies.
20.
4/4/15
76 hrs ordinary time and 2.45 hrs overtime at 150%.
70.45 hrs ordinary (inc 45.17 hrs sick pay) and 7.6 hrs as public holiday.
Neither claim upheld. Timesheet in evidence shows 25.28 hrs worked over 3 days and balance of time on sick leave. Entitled to 76 hrs at ordinary time.
21
18/4/15
16.09 hrs at 150% overtime
7.6 hrs as public holiday and 9.78 hrs at 125% Saturday rate
Neither claim upheld. Timesheet in evidence shows that Saturday rate applies to 5.13 hrs on Saturday 11/4/15 and that over 76 hrs had been worked before 4.65 hrs on Saturday 18/4/15 so 150% rate applies and that balance of hours (76 hrs) should be at the normal rate.
22
2/5/15
68.4 ordinary hrs and 7.93 hrs at 150% overtime.
76 hrs ordinary and 9.4 hrs at 150%.
Uphold CZ claim. Timesheet in evidence shows that CZ calculations to be correct.
23.
16/5/15
15.24 hrs overtime at 150%.
7.54 hrs at 150% and 7.7 hrs at 125% Saturday rate.
Uphold CZ claim. Timesheet in evidence shows that CZ had worked over 38 hrs before work on Saturday 9/5/15 and so 150% overtime rate applies.
24
30/5/15
76 ordinary hrs and 5.35 hrs at 150% and 8.3 hrs at 200%
38 ordinary hrs and 3.35 hrs at 150% and 8.3 hrs at 200%. 40 hrs annual leave taken and Company submits that leave loading of 117.5% applies.
Company claim upheld. Timesheet in evidence supports Company calculations.
25.
13/6/15
76 ordinary hrs and 12.7 hrs at 150% overtime.
45.6 ordinary hrs and 3.29 hrs at 150% and 7.81 hrs at 125% Saturday rate. 32 hrs annual leave taken and Company submits that leave loading of 117.5% applies.
Company claim upheld. Timesheet in evidence supports Company calculations.
26.
27/6/15
68.4 ordinary hrs and 5.43 hrs at 125% Saturday rate.
73.83 ordinary hrs.
Company claim upheld. Timesheet in evidence supports Company calculations (no Saturday work in that fortnight.)
27.
25/7/15
76 ord hrs and 11.8 hrs overtime at 150%.
82.77 ord hrs (inc 8 hrs sick leave) and 5.03 hrs at 125% Saturday rate.
CZ claim upheld. Timesheet in evidence shows CZ worked over 38 hrs before work on Saturday 18/7/15.
28.
8/8/15
76 ordinary hrs and 6.15 hrs overtime at 150%.
82.15 ordinary hrs (inc 8 hrs sick leave).
CZ claim upheld. Timesheet in evidence shows hrs in excess of daily average of 7.6 hrs per day for days worked in fortnight.
29.
22/8/15
76 ordinary hrs and 8.15 hrs overtime.
60.15 ordinary hrs and 24 hrs annual leave. 24 hrs annual leave taken and Company submits that leave loading of 117.5% applies.
Company claim upheld. Timesheet in evidence supports Company calculations.
30.
5/9/15
76hrs ordinary and 6.75 hrs overtime at 150%
81.08 hrs ordinary (inc 8 hrs sick).
CZ claim upheld. Timesheet in evidence shows hours in excess of daily average of 7.6 hrs per day for days worked in fortnight.
31
19/9/15
10.78 hrs at 150% overtime.
5.76 hrs at 150% overtime and 5.02 hrs at 125% Saturday rate.
CZ claim upheld. Timesheet in evidence shows CZ worked over 38 hrs before work on Saturday 12/9/15 and so 150% overtime rate applies.
32.
3/10/15
67.35 ordinary hrs and 5.54 hrs at 150% overtime rate
72.89 ordinary hrs (including 8 hrs sick leave).
CZ claim upheld. Timesheet in evidence shows hrs in excess of daily average of 7.6 hrs per day for days worked in fortnight.
33.
17/10/15
44.1 ordinary hrs and 3.72 hrs at 150% overtime.
41.72 ordinary hrs and 6.1 hrs personal leave.
CZ claim upheld. Timesheet in evidence shows hrs in excess of daily average of 7.6 hrs per day for days worked in fortnight
34.
26/10/15
43.8 ordinary hrs and 2.58 hrs overtime at 150%.
Same as CZ for this per period.

44 In Schedule 3 of this decision I have undertaken the calculations necessary to work out Ms Zeeb’s entitlement to ordinary pay (including sick leave), overtime and penalty payments over the total period of her employment by application of the relevant rate of pay under the Retail Modern Award, level 4 retail employee to the number of hours worked (reflecting my ruling in paragraph 42 above). The calculation has been done by amending the electronic version of the spreadsheet which is the Claimant’s Calculations Document to incorporate the correct rates of pay and my ruling in paragraph 43 above and checking that the formulae in the spreadsheet are correct. The result is that Ms Zeeb’s entitlement to ordinary pay (including sick leave), overtime and penalty payments is:
Total: $75,284.22
Ordinary Pay, Overtime and Penalty Payments
45 Accrued annual leave and leave loading. The Company made payments to Ms Zeeb at the rate calculated in accordance with the Signed Documents, without any leave loading, on four occasions: 40 hours (3 June 2015), 32 hours (17 June 2015); 24 hours (26 August 2015); 145.96 hours (26 October 2015) (see RCD). Ms Zeeb does not dispute the number of hours of accrued annual leave (see Exhibit 1). It will be necessary to re-calculate Ms Zeeb’s entitlement based on the rate provided in the Retail Modern Award plus leave loading. The result is:
40 x $23.08 = $ 923.2
32 x $23.08 = $ 738.56
24 x $23.65 = $ 567.60
145.96 x 23.65 = $3,451.95
Total: $5,681.31
Annual Leave entitlement
46 Total entitlements of Ms Zeeb. $80,965.53 is the combined total of Ms Zeeb’s entitlements for ordinary pay, overtime and penalty payments ($75,284.22) and annual leave ($5,681.31) from the above paragraphs.
47 Payments made by the Company to Ms Zeeb on account of her entitlements under the Retail Modern Award. Ms Zeeb calculates the gross amount paid by the Company to her over the period of her employment and excluding superannuation payments, as $68,384.09 (see CCD, column 5 – ‘Gross wages paid (ex super)’). The Company calculates the amount paid by it to Ms Zeeb as $71,981.98 (see RCD, Column 4 – ‘Gross Pay’). The difference between the calculations ($3,597.89) arises because:
· Ms Zeeb’s calculations do not reflect an ex gratia payment made on 26 October 2015 of $616.73. This amount should be included in calculating the amount paid to Ms Zeeb.
· Ms Zeeb’s calculations do not reflect an accrued annual leave made on 26 October 2015 of $2,523.65. This amount should be included in calculating the amount paid to Ms Zeeb.
· The remaining discrepancy is an amount of $457.51 which arises because there are 10 fortnights where the parties are at odds on the amount paid by the Company to Ms Zeeb – in amounts ranging from $40 - $98.29 ($50 being a common discrepancy) said by the Company to have been paid but said by Ms Zeeb not to have been paid. An explanation appears in a sample ‘Payroll Advice Slip’ for payment date of 8 April 2015 which is annexure KAL 4.1 to the RCD where ‘-$50’ appears as an ‘Adjustment for Income’ and the same entry for the pay slip of Ms Zeeb (attached to Exhibit 6) appears as ‘-$50 Adjustments’. It is apparent that these amounts were not paid to Ms Zeeb. However, the Company has the onus to explain any deduction and the reason for the deduction is not explained. Unless Ms Zeeb concedes that she is not entitled to this amount, it should not be included in calculating the amount paid to Ms Zeeb.
The result is that $71,524.47 paid by the Company to Ms Zeeb ($71,981.98 claimed to have been paid less $457.51), will be taken into account in calculating her outstanding entitlements.
48 Outstanding balance of Ms Zeeb’s entitlements. $9,441.06 is the difference between the total entitlements of Ms Zeeb of $80,965.53 (calculated above) and the amount paid by the Company to Ms Zeeb of $71,524.47 (calculated above) and this represents the amount to which Ms Zeeb is entitled.
49 The payments made by the Company to Ms Zeeb were comprised of two components. First, an hourly rate determined by the agreement evidenced by the Signed Documents and, secondly, a ‘productivity bonus’. The bonus was a discretionary payment and, when paid, was calculated on the basis of an (undisclosed) fraction of (undisclosed) total sales made by the ‘team’ of which the employee was a member. Ms Zeeb and the Company have, in their submissions, assumed that the productivity bonus payment made to Ms Zeeb may be applied in discharge of the award obligations of the Company. For the reasons set out below, I conclude that this assumption was, in this case, correct.
50 In a recent decision (Aldo Becherelli v Mediterraneus Pty Ltd trading as Lucioli [2017] WAIRC 65 [23]) I noted that in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99, the Full Court of the Federal Court reviewed the law on this issue. The review included an assessment of the decision of the WA Industrial Appeal Court (Anderson, Scott and Parker JJ) in James Turner Roofing Pty Ltd v Peters [2003] WASCA 28. The judgment of North and Bromberg JJ placed emphasis on the following passage of the judgement of Anderson J from James Turner Roofing:
The payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, overtime, weekend penalty rates, holidays worked or any other like monetary entitlement under the award. This is so, whether the payment of the wages is made in contemplation of the obligations arising under the award or without regard for the award. However, if a payment is made expressly or impliedly to cover a particular obligation (whether for ordinary time, overtime, weekend penalty rates, fares, clothing or any other entitlement whether arising under the award or pursuant to the contract of employment) the payment cannot be claimed as a set off against monies payable to cover some other incident of employment. A payment made on account of say ordinary time worked cannot be used in discharge of an obligation arising on some other account such as a claim for overtime. Whether or not the payment was for a particular incident of employment will be a question of fact in every case [45].
51 In Linkhill Pty Ltd the joint judgment proceed to state:
[W]hat is required is a close correlation between the award obligation and the contractual obligation in respect of which the payment was made. It is not the monetary nature of the payment made under the contract that must correlate with the award. It is the subject matter of the contractual obligations for which the payment was made that must be examined and be found to closely correlate with the obligations in the award said to be discharged by the payment. … [98]
52 Applied to the facts of this case, I noted above that the Signed Documents included reference to salary payments by the Company to employees (including the bonus) being in discharge of payments required by industrial laws (see paragraph 38). The subject matter of the contractual obligation included the discharge of award obligations. It is also significant to me that pay slips given by the Company to employees included reference to the bonus for each week and added the bonus to the fortnightly salary before recalculating in the pay slip an hourly rate of pay. This documentation is strongly suggestive that the bonus was paid and received in discharge of any obligation to pay a wage, overtime or penalty rates.
Fifth Issue: Whether the Company was Entitled to Summarily Terminate the Employment of Ms Zeeb on the 26 October 2015
53 On 26 October 2015, Ms Harding, on behalf of the Company, informed Ms Zeeb that her employment was being terminated with immediate effect. The effect of sections 117 and 123(1)(b) of the FW Act (set out below) is that, unless Ms Zeeb’s employment was being terminated for ‘serious misconduct’, the Company was required to either give Ms Zeeb two weeks’ notice or to make a payment in lieu of two weeks’ wages (i.e. $1,529.88 - 76 hours at $20.13 per hour). Ms Zeeb was not given any notice or given any payment in lieu; she was required to forthwith leave the Company premises on 26 October 2015. The Company submits that her employment was lawfully terminated because Ms Zeeb had engaged in ‘serious misconduct’. Ms Zeeb disputes this contention. If the Company does not satisfy me that Ms Zeeb engaged in serious misconduct, there will be an order that the Company pay to Ms Zeeb the sum of $1,529.88 (a payment in lieu of two weeks’ notice). If the Company does satisfy me that Ms Zeeb engaged in serious misconduct, then it will be for Ms Zeeb to satisfy me that in the circumstances, her conduct did not make it unreasonable for her to work for a further period of two weeks (see reg 1.07(3)(c) of the Fair Work Regulations 2009 (FW Regulations) set out below).
54 Section 117(2) of the FW Act provides:
(2) The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
55 The operation of s 117 of the FW Act is subject to s 123(1)(b) of the FW Act, which provides, in effect, that the section does not apply to an employee ‘whose employment is terminated because of serious misconduct. The FW Regulations define ‘serious misconduct’ in regulation 1.07:
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
56 Cases on the meaning of ‘serious misconduct’ establish the following relevant principles:
· Repudiation. Conduct which, to a reasonable person, is incompatible with the future fulfilment of an employee’s duty or impedes the faithful performance of an employee’s obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. However, the conduct of the employee must itself involve the incompatibility, conflict, or impediment or be destructive of confidence. An actual repugnance between the conduct and the employment relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 (26 February 2015) [12] - [13]; Rankin v Marine Power International Pty Ltd (2001) 107 IR117 [254]
· Fundamental Breach. A one-off sufficiently serious act of misconduct may justify dismissal, even though the probabilities are high that it would not occur again. In assessing whether the breach is sufficiently serious to justify termination, the court will take into account ‘the nature of the term, the kind and degree of the breach, and the consequences of the breach for the other party’. Such conduct may not, of itself, show that an employee was intending not to perform contractual obligations in the future.
Melbourne Stadiums Ltd [12] - [13]; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2016] FCA 1453 [51] (Tracey J)
· Grounds discovered by employer after termination. ‘If an employer terminates an employee for misconduct on certain grounds and another ground of misconduct is subsequently discovered, the fact that the employer is not aware of such misconduct while the employee is employed is not relevant. The employer may subsequently raise such misconduct in support of a decision to terminate the employee’ (Hill v Compass Ten Pty Ltd (No. 2) [2012] FCA 815 [18] per Cowdery J)
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693 at [27]; Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 371.
57 At the time of termination, the Company relied upon the following as ‘serious misconduct’ of Ms Zeeb which justified the summary termination of her employment:
· Ms Zeeb, in breach of the standard operating procedures of the Company, knowingly made a false log entry in the computer database of the Company. The relevant log entry was alleged to have been made at 4.32 pm on 22 October 2015 and recorded Ms Zeeb as stating that she had completed and sent a costing to a customer when, in fact, Ms Zeeb did not complete that task on 22 October 2015 (the False Log Entry Allegation) (see the ‘Termination Letter’ in Exhibit 19).
· Ms Zeeb, in breach of the standard operating procedures of the Company, failed to use the template supplied by the Company for use by travel consultants in communications with customers (the Template Allegation) (see the ‘Termination Letter’ in Exhibit 19)
· Ms Zeeb, in the presence of other employees, had argued loudly with her supervisors, including challenging their authority to give directions relevant to ‘taking shifts’ (the Insubordination Allegation). The allegation related to an incident reported by ‘Kelsey and Paulina’ as Acting Head of Reservations to Ms Harding by email on 22 October 2015 when Ms Zeeb loudly refused to participate in a process to complete work rosters for a period that included public holidays (see the ‘Termination Letter’ in Exhibit 19 and the email of 22 October 2015 from Head of Reservations to Marlene Harding in Exhibit 19).
· Ms Zeeb’s response to the Insubordination Allegation, made during a meeting with Ms Harding and Ms Shah on 26 October 2015, included: claiming that Ms Harding had falsely recorded the presence of Joel Collins at an earlier meeting involving Ms Zeeb; maintaining that the wrongful conduct of her supervisors was the cause of any workplace disruptions on earlier occasions; stating that she felt unsafe in the workplace. (Ms Zeeb’s Unsafe Workplace Allegation) (see Ms Shah’s diary note of 26 October 2015 at 1:50 pm in Exhibit 19).
58 Finding on False Log Entry and Template Allegation. Ms Zeeb admits that her log entry of 22 October 2015 was inaccurate. She says that she did not have time to complete the costing on 22 October 2015 and completed the task on the morning of 23 October 2015. I am satisfied that she did complete the task on the 23 October 2015 in accordance with her evidence. The log entry was false. Ms Zeeb also admits that, on occasion, she did not use the template supplied by the Company when communicating with customers. She says that the supplied templates were not always suitable for a communication she was required to undertake. The Company did not introduce any document constituting “standard operating procedures” into evidence. However, I am satisfied that a knowingly inaccurate entry into an employer’s computer business records, as admitted by Ms Zeeb, is a breach of the ‘good faith’ and ‘reasonable skill’ obligations of an employee. Similarly, Ms Zeeb’s failure to use a template was a breach of her obligations to her employer. Notwithstanding these findings, I am not satisfied that the conduct constituted by each breach (alone or in combination) amounts to ‘serious misconduct’. There is no evidence of the Company suffering a financial loss or a reputational loss from the conduct of Ms Zeeb. I accept that the integrity of log entries is critical to the operation of the business of the Company. However, I note that Ms Zeeb ensured that the relevant task was completed the following day.
59 Finding on Insubordination Allegation. A difficulty for the Company in relying upon Ms Zeeb’s conduct in protesting about roster arrangements is that it is apparent from my findings above on the failure of the Company to observe the provisions of the Retail Modern Award that her protests about the lawfulness of her being directed to work on public holidays at non-award rates were well founded. Ms Zeeb’s refusal to perform work based upon a good faith interpretation of her legal rights, much less a ‘good interpretation’ of her legal rights, is not repudiation and not serious misconduct: Bruce v A W B Ltd [2000] FCA 594 [16].
60 Finding on Ms Zeeb’s Unsafe Workplace Allegation. I am satisfied that during the meeting with Ms Harding on 26 October 2015, Ms Zeeb made irrational and unsubstantiated allegations about Ms Harding falsely recording the presence of Joel Collins at an earlier meeting and about feeling ‘unsafe’ in the workplace. My finding is based on the evidence of Ms Shah who was present, resilient in cross-examination and made a diary note to the same effect. Ms Zeeb was unhappy about the level of attention shown to her work performance over previous months, believing that the Company was artificially seeking a pretext to terminate her employment. Insofar as that attention was a result of her complaints about the Company’s failure to comply with the relevant award, her unhappiness was well-founded. However, Ms Zeeb’s complaint about an unsafe workplace, combined with the unjustified attack on Ms Harding’s creditability (regarding Joel Collins presence at an earlier meeting), created the impression that Ms Zeeb no longer considered herself bound to follow any directions of Ms Harding and other workplace supervisors, lawful or otherwise. Those statements by Ms Zeeb went beyond an uneasiness as to her future conduct; they were incompatible with the employment relationship. The Company has satisfied me that it was serious misconduct. Ms Zeeb has failed to satisfy me that, in the circumstances, her conduct did not make it unreasonable for her to work for a further period of two weeks. The breakdown in the relationship between Ms Zeeb and Ms Harding, as a result of Ms Zeeb’s statements in the meeting of 26 October 2015, was irreparable.
61 As a result of my finding in paragraph 59, the Company was not required to give notice of termination or to make any payment in lieu of notice. Accordingly, it is not necessary to make findings on other allegations by the Company of conduct of Ms Zeeb that was said to be instances of unsatisfactory performance.
Conclusion
62 In the result, I am satisfied that Ms Zeeb and the Company were covered by the Retail Modern Award and that her appropriate level of classification was as a ‘Retail Employee Level 4’. When applied to hours worked by Ms Zeeb, and given the terms of the award concerning minimum weekly wages, ordinary hours of work, overtime, penalties and annual leave loading, my finding is that she was underpaid by the Company in the amount of $9,441.06.
63 Section 547(1)(2) of the FW Act provides, in effect, that when making an order that an employer pay an amount to an employee, the court ‘must, on application, include an amount of interest in the sum ordered unless good cause is shown to the contrary’. I will hear from parties. If an application is made, the appropriate interest payable is 6% per annum calculated from 26 October 2015 until judgement. The interest payable is at $1.55 per day. The total of interest payable is for 542 days totalling $840.10.




M. FLYNN
INDUSTRIAL MAGISTRATE

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

This Fair Work Commission consolidated modern award incorporates all amendments up to and including 30 December 2013 (variation PR545959).
…
1. Definitions and interpretation
[Varied by PR992088, PR992124, PR992724, PR994449, PR997207, PR997772, PR503607, PR540640, PR544243, PR545959]
1.1 In this award, unless the contrary intention appears:
[Definition of Act substituted by PR994449 from 01Jan10]
Act means the Fair Work Act 2009 (Cth)
…
[Definition of employee substituted by PR994449, PR997772 from 01Jan10]
employee means national system employee within the meaning of the Act
[Definition of employer substituted by PR994449, PR997772 from 01Jan10]
employer means national system employer within the meaning of the Act
…
[Definition of general retail industry varied by PR992724 ppc 29Jan10, PR997207 from 01Jan10, PR540640 ppc 23Aug13]
general retail industry means the sale or hire of goods or services to final consumers for personal, household or business consumption including:
· food retailing, supermarkets, grocery stores;
· department stores, clothing and soft goods retailing;
· furniture, houseware and appliance retailing;
· recreational goods retailing;
· personal and household goods retailing;
· household equipment repair services;
· bakery shops, where the predominant activity is baking products for sale on the premises;
and includes:
· customer information and assistance provided by shopping centres or retail complexes;
· labour hire employees engaged to perform work otherwise covered by this award; and
· newspaper delivery drivers employed by a newsagent,
but does not include:
· community pharmacies;
· pharmacies in hospitals and institutions providing an in-patient service;
· hair and beauty establishments;
· hair and beauty work undertaken in the theatrical, amusement and entertainment industries;
· stand-alone butcher shops;
· stand-alone nurseries;
· retail activities conducted from a manufacturing or processing establishment other than seafood processing establishment;
· clerical functions performed away from the retail establishment;
· warehousing and distribution;
· motor vehicle retailing and motor vehicle fuel and parts retailing;
· fast food operations;
· restaurants, cafes, hotels and motels; or
· building, construction, installation, repair and maintenance contractors engaged to perform work at a retail establishment
…
[Definition of NES substituted by PR994449 from 01Jan10]
NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
…
[Definition of shop with Departments/Sections inserted by PR992724 ppc 29Jan10]
Shop with Departments/Sections means any shop which has clearly distinguishable Departments or Sections. A department or Section will have a dedicated Department or Section Manager and at least 3 subordinate employees who work solely or predominantly in that section
…
3.2 Where this award refers to a condition of employment provided for in the NES,the NES definition applies.
4. Coverage
[Varied by PR994449]
[4.1 substituted by PR994449 from 01Jan10]
4.1 This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16— to the exclusion of any other modern award. The award does not cover employers covered by the following awards:
· the Fast Food Industry Award 2010;
· the Meat Industry Award 2010;
· the Hair and Beauty Industry Award 2010; or
· the Pharmacy Industry Award 2010.
4.2 The award does not cover an employee excluded from award coverage by the Act.
[4.3 substituted by PR994449 from 01Jan10]
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
[New 4.4 inserted by PR994449 from 01Jan10]
4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
[4.5 inserted by PR994449 from 01Jan10]
4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
[4.6 inserted by PR994449 from 01Jan10]
4.6 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
[4.4 renumbered as 4.7 by PR994449 from 01Jan10]
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
5. Access to the award and the National Employment Standards
[5 varied by PR540640 ppc 23Aug13]
The employer must ensure that copies of this award and the NES are easily available to all employees to whom they apply either on a noticeboard or other prominent location which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
6. The National Employment Standards and this award
The NES and this award contain the minimum conditions of employment for employees covered by this award.
7. Award flexibility
[Varied by PR994449, PR542124]
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
[7.2 varied by PR542124 ppc 04Dec13]
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and
[7.3(b) substituted by PR994449 from 01Jan10; varied by PR542124 ppc 04Dec13]
(b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.
[7.4 substituted by PR994449 from 01Jan10]
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
[7.5 deleted by PR994449 from 01Jan10]
[7.6 renumbered as 7.5 by PR994449 from 01Jan10]
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
[New 7.6 inserted by PR994449 from 01Jan10]
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
[7.8(a) varied by PR542124 ppc 04Dec13]
(a) by the employer or the individual employee giving 13 weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
[Note inserted by PR542124 ppc 04Dec13]
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).
[New 7.9 inserted by PR542124 ppc 04Dec13]
7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a), subject to four weeks’ notice of termination.
[7.9 renumbered as 7.10 by PR542124 ppc 04Dec13]
7.10 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.
….
16. Classifications
[Varied by PR988390]
16.1 All employees covered by this award must be classified according to the structure set out in 0. Employers must advise their employees in writing of their classification and of any changes to their classification.
16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
17. Minimum weekly wages

With effect 1 July 2013
FAIR WORK COMMISSION DETERMINATION Fair Work Act 2009 s.285—Annual wage review (C2013/1) GENERAL RETAIL INDUSTRY AWARD 2010 [MA000004] JUSTICE ROSS, PRESIDENT SENIOR DEPUTY PRESIDENT WATSON COMMISSIONER SPENCER COMMISSIONER HAMPTON MR VINES PROFESSOR RICHARDSON MR DWYER MELBOURNE, 19 JUNE 2013 Annual Wage Review 2012–13. A. Further to the decision issued by the Minimum Wage Panel in the Annual Wage Review 2012–13 on 3 June 2013 1, the above award is varied as follows: 1. By deleting the table appearing in clause 17 and inserting the following:
Classifications Per week
Retail Employee Level 1 683.40
Retail Employee Level 2 699.70
Retail Employee Level 3 710.60
Retail Employee Level 4 724.50 [19.07 per hour]
Retail Employee Level 5 754.30
Retail Employee Level 6 765.20
Retail Employee Level 7 803.50
Retail Employee Level 8 836.20

With effect 1 July 2014
FAIR WORK COMMISSION DETERMINATION Fair Work Act 2009 s.285—Annual wage review Annual Wage Review 2013–14 (C2014/1) GENERAL RETAIL INDUSTRY AWARD 2010 [MA000004] Retail industry JUSTICE ROSS, PRESIDENT SENIOR DEPUTY PRESIDENT WATSON COMMISSIONER SPENCER COMMISSIONER HAMPTON PROFESSOR RICHARDSON MR COLE MR HARCOURT MELBOURNE, 19 JUNE 2014 Annual Wage Review 2013–14. A. Further to the decision issued by the Expert Panel in the Annual Wage Review 2013–14 on 4 June 2014 [[2014] FWCFB 3500], the above award is varied as follows: 1. By deleting the table appearing in clause 17 and inserting the following: Classifications Per week
Retail Employee Level 1 703.90
Retail Employee Level 2 720.70
Retail Employee Level 3 731.90
Retail Employee Level 4 746.20 [19.64 per hour]
Retail Employee Level 5 776.90
Retail Employee Level 6 788.20
Retail Employee Level 7 827.60
Retail Employee Level 8 861.30

With effect 1 July 2015
FAIR WORK COMMISSION DETERMINATION Fair Work Act 2009 s.285—Annual wage review Annual Wage Review 2014–15 (C2015/1) GENERAL RETAIL INDUSTRY AWARD 2010 [MA000004] Retail industry JUSTICE ROSS, PRESIDENT SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON COMMISSIONER HAMPTON MR COLE PROFESSOR RICHARDSON MR GIBBS MELBOURNE, 18 JUNE 2015 Annual Wage Review 2014–15. A. Further to the decision issued by the Expert Panel in the Annual Wage Review 2014–15 on 2 June 2015 [[2015] FWCFB 3500], the above award is varied as follows: 1. By deleting the table appearing in clause 17 and inserting the following: Classifications Per week
Retail Employee Level 1 721.50
Retail Employee Level 2 738.70
Retail Employee Level 3 750.20
Retail Employee Level 4 764.90 [20.13 per hour]
Retail Employee Level 5 796.30
Retail Employee Level 6 807.90
Retail Employee Level 7 848.30
Retail Employee Level 8 882.80
…
Part 5— Ordinary Hours of Work
27. Hours of work
[Varied by PR992724, PR994449; 26 renumbered as 27 by PR998580 from 01Jul10]
27.1 This clause does not operate to limit or increase or in any way alter the trading hours of any employer as determined by the relevant State or Territory legislation.
27.2 Ordinary hours
(a) Except as provided in clause 27.2(b), ordinary hours may be worked, within the following spread of hours:
Days
Spread of hours
Monday to Friday, inclusive
7.00 am–9.00 pm
Saturday
7.00 am–6.00 pm
Sunday
9.00 am–6.00 pm
[26.2(b)(i) substituted by PR994449 from 01Jan10]
(b) Provided that:
(i) the commencement time for ordinary hours of work for newsagencies on each day may be from 5.00 am;
[26.2(b(ii) substituted by PR994449 from 01Jan10]
(ii) the finishing time for ordinary hours for video shops may be until 12 midnight; and
[26.2(b)(iii) inserted by PR992724 ppc 29Jan10]
(iii) in the case of retailers whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00 pm.
(c) Hours of work on any day will be continuous, except for rest pauses and meal breaks.
27.3 Maximum ordinary hours on a day
(a) An employee may be rostered to work up to a maximum of nine ordinary hours on any day, provided that for one day per week an employee can be rostered for 11 hours.
[26.3(b) deleted by PR992724 ppc 29Jan10]
28. 38 hour week rosters
[27 renumbered as 28 by PR998580 from 01Jul10]
28.1 A full-time employee will be rostered for an average of 38 hours per week, worked in any of the following forms or by agreement over a longer period:
(a) 38 hours in one week;
(b) 76 hours in two consecutive weeks;
(c) 114 hours in three consecutive weeks; or
(d) 152 hours in four consecutive weeks.
28.2 The 38 hour week may be worked in any one of the following methods:
(a) shorter days, that is 7.6 hours;
(b) a shorter day or days each working week;
(c) a shorter fortnight, i.e. four hours off in addition to the rostered day off;
(d) a fixed day off in a four week cycle;
(e) a rotating day off in a four week cycle;
(f) an accumulating day off in a four week cycle, with a maximum of five days being accumulated in five cycles.
28.3 In each shop, an assessment will be made as to which method best suits the business and the proposal will be discussed with the employees concerned, the objective being to reach agreement on the method of implementation. An assessment may be initiated by either the employer or employees not more than once a year.
28.4 Circumstances may arise where different methods of implementation of a 38 hour week apply to various groups or sections of employees in the shop or establishment concerned.
28.5 In retail establishments employing on a regular basis 15 or more employees per week, unless specific agreement exists to the contrary between an employer and an employee, the employee will not be required to work ordinary hours on more than 19 days in each four week cycle.
28.6 Where specific agreement exists between an employer and employee, the employee may be worked on the basis of:
(a) not more than 4 hours’ work on one day in each two week cycle;
(b) not more than 6 hours’ work on one day in each week;
(c) not more than 7.6 hours’ work on any day.
28.7 Substitute rostered days off (RDOs)
(a) An employer, with the agreement of the majority of employees concerned, may substitute the day or half day an employee is to take off in accordance with a roster arrangement for another day or half day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.
(b) By agreement between an employer and an employee, another day may be substituted for the day that employee is to be rostered off.
28.8 Accumulation of RDOs
By agreement between the employer and an employee, the rostered day off may be accumulated up to a maximum of five days in any one year. Such accumulated periods may be taken at times mutually convenient to the employer and the employee.
28.9 A roster period cannot exceed four weeks.
28.10 Ordinary hours will be worked on not more than five days in each week, provided that if ordinary hours are worked on six days in one week, ordinary hours in the following week will be worked on no more than four days.
28.11 Consecutive days off
(a) Ordinary hours will be worked so as to provide an employee with two consecutive days off each week or three consecutive days off in a two week period.
(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.
28.12 Ordinary hours and any reasonable additional hours may not be worked over more than six consecutive days.
28.13 Employees regularly working Sundays
(a) An employee who regularly works Sundays will be rostered so as to have three consecutive days off each four weeks and the consecutive days off will include Saturday and Sunday.
(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.
(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.
28.14 Notification of rosters
(a) The employer will exhibit staff rosters on a notice board, which will show for each employee:
(i) the number of ordinary hours to be worked each week;
(ii) the days of the week on which work is to be performed; and
(iii) the commencing and ceasing time of work for each day of the week.
(b) The employer will retain superseded notices for twelve months. The roster will, on request, be produced for inspection by an authorised person.
(c) Due to unexpected operational requirements, an employee’s roster for a given day may be changed by mutual agreement with the employee prior to the employee arriving for work.
(d) Any permanent roster change will be provided to the employee in writing with a minimum seven days notice. Should the employee disagree with the roster change, they will be given a minimum of 14 days written notice instead of seven days, during which time there will be discussions aimed at resolving the matter in accordance with clause Error! Reference source not found.—Error! Reference source not found., of this award.
(e) Where an employee’s roster is changed with the appropriate notice for a onceonly event caused by particular circumstances not constituting an emergency, and the roster reverts to the previous pattern in the following week, then extra work done by the employee because of the change of roster will be paid at the overtime rate of pay.
(f) An employee’s roster may not be changed with the intent of avoiding payment of penalties, loading or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.
29. Overtime and penalties
[Varied by PR992724, PR994449, PR504525, PR539248, PR540640; 28 renumbered as 29 by PR998580 from 01Jul10; 29 varied by PR585796]
29.1 Reasonable overtime
(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime at overtime rates in accordance with the provisions of this clause.
(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
(i) any risk to employee health and safety;
(ii) the employee’s personal circumstances including any family responsibilities;
(iii) the needs of the workplace or enterprise;
(iv) the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it; and
(v) any other relevant matter.
29.2 Overtime
[29.2 substituted by PR504525 from 10Dec10; corrected by PR505487 from 10Dec10]
(a) Hours worked in excess of the ordinary hours of work, outside the span of hours (excluding shiftwork), or roster conditions prescribed in clauses 27 and 28 are to be paid at time and a half for the first three hours and double time thereafter.
(b) Hours worked by part-time employees in excess of the agreed hours in clause Error! Reference source not found. or as varied under clause Error! Reference source not found. will be paid at time and a half for the first three hours and double time thereafter.
(c) The rate of overtime on a Sunday is double time, and on a public holiday is double time and a half.
(d) Overtime is calculated on a daily basis.
29.3 Time off instead of payment for overtime
[28.3 renamed and varied by PR994449; 29.3 renamed and substituted by PR585796 ppc14Dec16]
(a) An employee and employer may agree to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(b) The period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made.
EXAMPLE: By making an agreement under clause 29.3 an employee who worked 2 overtime hours at the rate of time and a half is entitled to 3 hours’ time off.
(c) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(d) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 29.3 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.
(e) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (c), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
(f) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(g) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 29.3 will apply for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(h) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 29.3 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 29.3.
29.4 Penalty payments
(a) Evening work Monday to Friday
A penalty payment of an additional 25% will apply for ordinary hours worked after 6.00 pm. This does not apply to casuals.
(b) Saturday work
[29.4(b) substituted by PR540640 ppc 23Aug13]
A penalty payment of an additional 25% will apply for ordinary hours worked on a Saturday for full-time and part-time employees. A casual employee must be paid an additional 10% for work performed on a Saturday between 7.00 am and 6.00 pm.
(c) Sunday work
[28.4(c) varied by PR992724 ppc 29Jan10]
A penalty payment of an additional 100% loading will apply for all hours worked on a Sunday. This penalty payment also applies to casual employees instead of the casual loading in clause Error! Reference source not found..
(d) Public holidays
[29.4(d) substituted by PR539248 ppc 01Aug13]
(i) Work on a public holiday must be compensated by payment at the rate of an additional 150%.
(ii) Provided that by mutual agreement of the employee and the employer, the employee (other than a casual) may be compensated for a particular public holiday by either:
(A) An equivalent day or equivalent time off instead without loss of pay. The time off must be taken within four weeks of the public holiday occurring, or it shall be paid out; or
(B) An additional day or equivalent time as annual leave.
(iii) The employee and employer are entitled to a fresh choice of payment or time off by agreement on each occasion work is performed on a public holiday.
(iv) If no agreement can be reached on the method of compensation, the default arrangement shall be as per clause 29.4(d)(i).
…
32. Annual leave
[31 renumbered as 32 by PR998580 from 01Jul10; varied by PR583010]
32.1 Annual leave is provided for in the NES.
32.2 Definition of shiftworker
For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.
32.3 Annual leave loading
(a) During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 17—Minimum weekly wages of this award. Annual leave loading is payable on leave accrued.
(b) The loading will be as follows:
(i) Day work
Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.
(ii) Shiftwork
Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.
32.4 Paid leave in advance of accrued entitlement
An employer may allow an employee to take annual leave either wholly or partly in advance before the leave has accrued. Where paid leave has been granted to an employee in excess of the employee’s accrued entitlement, and the employee subsequently leaves or is discharged from the service of the employer before completing the required amount of service to account for the leave provided in advance, the employer is entitled to deduct the amount of leave in advance still owing from any remuneration payable to the employee upon termination of employment.
32.5 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least four weeks’ notice in the following circumstances:
(a) as part of a close-down of its operations; or
(b) where more than eight weeks’ leave is accrued.
…
Schedule B —Classifications
[Sched B varied by PR988390, PR992724, PR540640]
B.1 Retail Employee Level 1
B.1.1 An employee performing one or more of the following functions at a retail establishment:
· the receiving and preparation for sale and or display of goods in or about any shop;
· the pre-packing or packing, weighing, assembling, pricing or preparing of goods or provisions or produce for sale;
· the display, shelf filling, replenishing or any other method of exposure or presentation for sale of goods;
· the sale or hire of goods by any means;
· the receiving, arranging or making payment by any means;
· the recording by any means of a sale or sales;
· the wrapping or packing of goods for despatch and the despatch of goods;
· the delivery of goods;
· window dressing and merchandising;
· loss prevention;
· demonstration of goods for sale;
· the provision of information, advice and assistance to customers;
· the receipt, preparation, packing of goods for repair or replacement and the minor repair of goods;
· all directly employed persons engaged in retail stores in cleaning, store greeting, security, lift attending, store cafeterias and food services;
· Clerical Assistants functions Level 1; or
· work which is incidental to or in connection with any of the above.
B.1.2 Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning. The cleaning of toilets is not incidental cleaning except in the case of a take away food establishment.
[B.1.3 varied by PR540640 ppc 23Aug13]
B.1.3 Indicative job titles which are usually within the definition of a Retail Employee Level 1 are:
· Shop Assistant,
· Clerical Assistant,
· Check-out Operator,
· Store Worker,
· Reserve Stock Hand,
· Driver,
· Boot/Shoe Repairer (Not Qualified),
· Window Dresser (Not Qualified),
· LPO,
· Photographic Employee,
· Store Greeter,
· Assembler,
· Ticket Writer (Not Qualified),
· Trolley Collector,
· Video Hire Worker,
· Telephone Order Salesperson,
· Door-to-door Salesperson, or Retail Outdoor Salesperson, and,
· Demonstrator and/or Merchandiser not elsewhere classified (including a Demonstrator and/or Merchandiser who is not a direct employee of the retailer).
B.1.4 Clerical Assistant means an employee accountable for clerical and office tasks as directed within the skill levels set out.
B.1.5 Employees at this level may include the initial recruit who may have limited relevant experience. Initially work is performed under close direction using established practices, procedures and instructions.
B.1.6 Such employees perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.
B.1.7 Employees at this level are responsible and accountable for their own work within established routines, methods and procedures and the less experienced employee’s work may be subject to checking at all stages. The more experienced employee may be required to give assistance to less experienced employees in the same classification.
B.1.8 Indicative typical duties and skills at this level may include:
· reception/switchboard, e.g. directing telephone callers to appropriate staff, issuing and receiving standard forms, relaying internal information and initial greeting of visitors;
· maintenance of basic records;
· filing, collating, photocopying etc;
· handling or distributing mail including messenger service;
· recording, matching, checking and batching of accounts, invoices, orders, store requisitions etc; or
· the operation of keyboard and other allied equipment in order to achieve competency as prescribed in Level 2.
B.2 Retail Employee Level 2
B.2.1 An employee performing work at a retail establishment at a higher skill level than a Retail Employee Level 1.
B.2.2 Indicative job titles which are usually within the definition of a Retail Employee Level 2 include:
· Forklift Operator,
· Ride on Equipment Operator.
B.3 Retail Employee Level 3
B.3.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 2.
B.3.2 Indicative of the tasks which might be required at this level are the following:
· Supervisory assistance to a designated section manager or team leader,
· Opening and closing of premises and associated security,
· Security of cash, or
· Fitting of surgical corset.
B.3.3 Indicative job titles which are usually within the definition of a Retail Employee 3 include:
· Machine operators,
· 2IC to Dept Manager,
· Senior Salesperson,
· Corsetiere,
· Driver Selling Stock,
· Cook (Not Qualified) in a cafeteria,
· Senior LPO, including an armed LPO,
· LPO Supervisor,
· Designated second-in-charge of a section (i.e. senior sales assistant),
· Designated second-in-charge to a service supervisor, or
· Person employed alone, with responsibilities for the security and general running of a shop.
B.4 Retail Employee Level 4
B.4.1 An employee performing work at a retail establishment at a higher level than a Retail Employee Level 3.
B.4.2 Indicative of the tasks which might be required at this level are the following:
· Management of a defined section/department,
· Supervision of up to 4 sales staff (including self),
· Stock control,
· Buying/ordering requiring the exercise of discretion as to price, quantity, quality etc.,
· An employee who is required to utilise the skills of a trades qualification for the majority of the time in a week, or
· Clerical functions Level 2.
B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4 include:
[B.4.3 varied by PR992724 ppc 29Jan10]
· An Assistant, Deputy, or 2IC Shop Manager of a shop without Departments,
· An employee who is required to utilise the skills of a trades qualified person for the majority of the time in a week. This includes: Butcher, Baker, Pastry Cook, Florist,
· An employee who has completed an appropriate trades course or holds an appropriate Certificate III and is required to use their qualifications in the course of their work,
· A Qualified Auto Parts and Accessories Salesperson,
· A Window Dresser (Cert III or equivalent experience),
· A Boot/Shoe Repairer (Cert III),
· A Shiftwork Supervisor,
· Section/Department manager with up to 2 employees (including self),
· Service Supervisor of up to 15 employees,
· Nightfill Supervisor/Leader,
B.4.4 Clerical Officer Level 2 characteristics:
· This level caters for the employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.
· Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.
· The work of these employees may be subject to final checking and as required progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level.
B.4.5 Indicative typical duties and skills at this level may include:
· Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position.
· Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter.
· Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents.
· Stenographer/person solely employed to take shorthand and to transcribe by means of appropriate keyboard equipment.
· Copy typing and audio typing.
· Maintenance of records and/or journals including initial processing and recording relating to the following:
(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
· Computer application involving use of a software package which may include one or more of the following functions:
(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
· Arrange routine travel bookings and itineraries, make appointments.
· Provide general advice and information on the organisation’s products and services, e.g. front counter/telephone.
B.5 Retail Employee Level 5
B.5.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 4.
B.5.2 Indicative job titles which are usually within the definition of a Retail Employee 5 include:
· A tradesperson in charge of other tradespersons within a section or department,
· Service Supervisor (more than 15 employees).
B.6 Retail Employee Level 6
B.6.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 5.
B.6.2 Indicative job titles which are usually within the definition of a Retail Employee 6 include:
· Section/Department manager with 5 or more employees (including self),
· Manager/Duty Manager in a shop without Departments/Sections (may be under direction of person not exclusively involved in shop management),
[B.6.2 varied by PR992724 ppc 29Jan10]
· Assistant or Deputy or 2IC Shop Manager of a shop with Departments/Sections,
· Clerical Officer Level 3.
B.6.3 Clerical Officer Level 3 characteristics:
· Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
· Such employees may be required to give assistance and/or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and would be able to train such employees by means of personal instruction and demonstration.
B.6.4 Indicative typical duties and skills at this level may include:
· Prepare cash payment summaries, banking report and bank statements; calculate and maintain wage and salary records; follow credit referral procedures; apply purchasing and inventory control requirements; post journals to ledger.
· Provide specialised advice and information on the organisation’s products and services; respond to client/public/supplier problems within own functional area utilising a high degree of interpersonal skills.
· *Apply one or more computer software packages developed for a micro personal computer or a central computer resource to either/or:
(i) create new files and records;
(ii) maintain computer based records management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
· Arrange travel bookings and itineraries; make appointments; screen telephone calls; respond to invitations; organise internal meetings on behalf of executive(s); establish and maintain reference lists/personal contact systems for executive(s).
· Application of specialist terminology/processes in professional offices.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.7 Retail Employee Level 7
B.7.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 6.
B.7.2 Indicative job titles which are usually within the definition of a Retail Employee Level 7 include:
· Visual Merchandiser (diploma),
· Clerical Officer Level 4.
B.7.3 Clerical Officer Level 4 characteristics:
· Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite, a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems.
· They exercise initiative, discretion and judgment at times in the performance of their duties.
· They are able to train employees in Clerical Levels 1–3 by personal instruction and demonstration.
B.7.4 Indicative typical duties and skills at this level may include:
· Secretarial/Executive support services which may include the following: maintain executive diary; attend executive/organisational meetings and take minutes; establish and/or maintain current working and personal filing systems for executive; answer executive correspondence from verbal or handwritten instructions.
· Able to prepare financial/tax schedules, calculate costings and/or wage and salary requirements; complete personnel/payroll data for authorisation; reconciliation of accounts to balance.
· Advise on/provide information on one or more of the following:
(i) employment conditions
(ii) workers compensation procedures and regulations
(iii) superannuation entitlements, procedures and regulations
· *Apply one or more computer software packages, developed for a micro personal computer or a central computer resource to either/or:
(i) create new files and records;
(ii) maintain computer based management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular Level.
B.8 Retail Employee Level 8
B.8.1 An employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 7.
B.8.2 A person with a Diploma qualification.
B.8.3 Indicative job titles which are usually within the definition of a Retail Employee 8 include:
[B.8.3 varied by PR992724 ppc 29Jan10]
· A Shop Manager of a shop with Departments/Sections, or
· Clerical Officer Level 5.
B.8.4 Clerical Officer Level 5 characteristics:
· Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.
· Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.
· They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, in terms of, among other things, scheduling workloads, resolving operations problems, monitoring the quality of work produced as well as counselling staff for performance as well as work related matters.
· They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They often exercise initiative, discretion and judgment in the performance of their duties.
· The possession of relevant post secondary qualifications may be appropriate but not essential.
B.8.5 Indicative typical duties and skills at this level may include:
· Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.
· Application of computer software packages within either a micropersonal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.
· Provide reports for management in any or all of the following areas:
(i) account/financial
(ii) staffing
(iii) legislative requirements
(iv) other company activities.
· Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

Schedule 3: Calculation of Pay, Overtime and Penalty Payments under General Retail In dustry Award 2010 as Level 4 Retail Employee