Cox v Benson Micropropagation Pty Ltd [2011] QIRC 44

CITATION: David Francis Cox for Lyn Elizabeth King AND Benson Micropropagation Pty Ltd (B/2010/35) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. David Francis Cox for Lyn Elizabeth King AND Benson Micropropagation Pty Ltd (B/2010/35) COMMISSIONER BROWN 11 July 2011 DECISION [1] By Application pursuant to s. 278 of the Industrial Relations Act 1999 (the Act) lodged on 29 October 2010, David Francis Cox (Applicant) sought an order that Benson Micropropagation Pty Ltd (Respondent) pay the sum of $1587.28 for wages allegedly underpaid to Ms King between 1 November 2004 and 25 March 2006. [2] By agreement the amount claimed was amended to $1504.06. [3] Ms King was a casual employee of the Respondent at relevant times and the parties agreed that the applicable industrial instrument for the period under review was the Nursery Award - State 2003. [4] The matter in issue was whether Ms King should have been remunerated as a "Propagator" as claimed by the Applicant. Ms King was remunerated as a "Nurseryhand", a classification attracting lower wages. [5] The Nursery Award - State 2003 at Part 5 - Wage and Wage Related Matters states: "5.1.6 "Propagator" means an employee who is capable of determining the proper stage of growth at which cuttings may be taken; and whose duties include the maintenance of nursery stock for the budding, grafting and layering of such stock and who possesses a thorough knowledge of modern propagation techniques.". [6] The parties agreed that if it was determined that the classification "Propagator" was the appropriate classification for Ms King then the application would succeed. [7] An issue of importance was the relevance of the wording of the definition of propagator, and how the terminology should be interpreted by the Queensland Industrial Relations Commission (Commission) when applying the Award definition to the processes of the business of the Respondent. [8] The parties agreed that the methods of micropropagation used in the business of the Respondent weren't in existence and therefore not considered when the definition of propagator was first included in the then Nurseryhand Award State. That was 1974. [9] Within the business of the Respondent, the process of micropropagation commences with the extraction of the plant tissue which is used to commence the propagation process. Whilst other plants were occasionally propagated, the vast majority of the work of the Respondent was to propagate banana plants. [10] At the risk of over-simplification, the process is basically as follows:  The plant tissue used to commence the process in the case of banana propagation is taken from the very centre layer of a cross section of a banana plant measuring about 12 centimetres in length and about the same in diameter.  This material once extracted for initiating the tissue culture undergoes processing including sterilisation and placement into tubs containing a gel substance comprised of chemicals conducive to growth promotion. This gel is known as media.  The tubs are round and plastic and similar to those in which Chinese takeaway food is sold.  Once in the tubs, the tubs are placed in a climate controlled storage facility where due to the interaction of humidity, light and other factors beyond the comprehension of the Commission the material in each tub grows into a number of tiny banana plants.  These are monitored and when appropriate, selected for the next step in the process - cutting. -- 1 of 5 -- 2  It is this step (cutting) for which Ms King was engaged and it was the evidence that Ms King spent all of her time on the cutting function.  Cutters, Ms King included, worked with the aid of a scalpel and forceps on the separation of the banana plantlets in each tub for sale to customers.  The residual material, not selected for sale, was prepared by Ms King for return to the controlled chamber for further propagation. [11] Ms King's role involved a delicate process in which her skill and dexterity in the separation of the plants impacted directly on the success of the Respondent's business. Ms King displayed a fulsome knowledge of all aspects of her cutting role including hygiene, plant selection, and infection detection. Ms King's statement (Exhibit 4) from paragraphs 30-49 sets out her day to day duties, how she performed them, how she prepared for them and the process she followed at days end. This evidence indicated that Ms King's duties were primarily, if not exclusively, confined to cutting. [12] Excluding the actual dispatch of the separated plantlets to customers, cutting was the last function in the process undertaken at the Respondent's premises. [13] It was Ms King's evidence, following her hygiene routine, her day's work started at her workstation which was comprised of a "flow cabinet" which enabled the cutting process to occur in sterile circumstances, and a bench arrangement upon which Supervisors would place the tubs, each containing a number of propagated plantlets, to be processed by cutters that day. The number of plantlets varied but in evidence the number 34 was repeatedly used. [14] It was the Supervisors' role to select the tubs of plants from the controlled chamber - storage facility and while I accept Ms King had sufficient knowledge to select the tubs for cutting, it was the Supervisors' responsibility to choose which tubs were at the appropriate stage of development for cutting. [15] For familiarisation purposes, the Commission was shown plant material relevant to the banana propagation process referred to above. There was no objection to this and also no objection to the material being shown only for information purposes and not admitted to evidence as exhibits. [16] The evidence of Mr Timothy O'Toole, Senior Inspector with the Department of Justice and Attorney General, included a transcript of a tape recording made during an interview between himself, Mr Francis Rupert Benson (Principal of the Respondent) and Mr Don Scott (Executive Officer, Nursery & Garden Industry Queensland Industrial Union of Employers). [17] The record of interview was helpful in that the content was consistent with the evidence educed during the hearing particularly in relation to Mr Benson's view of Ms King's duties, the letter of appointment (Exhibit 8) and Mr Benson's recollection of the interview preceding the employment of Ms King in which he was involved. It also indicated that the view espoused by Mr Benson regarding Ms King's duties and classification level was the same in the April 2010 interview as it was in the hearing. There was no concession by Mr Benson that Ms King should have been classified as a Propagator. [18] The evidence of Ms Elaine Denise Stones (Exhibit 5) was that she was Ms King's Supervisor at relevant times. [19] She stated that Ms King was not at any time required to perform a Supervisory role nor was she required to relieve any Supervisors on leave. [20] While discussions with Ms King occurred on general matters, she stated she couldn't recall any significant conversations with Ms King which impacted on the protocols or procedures followed by the Respondent. According to Ms Stones' evidence, Ms King had no input into training. She stated that Ms King's pre-work routine had been a process followed by the employee of the Respondent for many years. [21] The written evidence of Francis Rupert Benson, the sole Director/Managing Director of the Respondent (Exhibit 8) attested to his experience and qualifications in horticulture and micropropagation in particular. [22] In his evidence he claimed Ms King's knowledge of micropropagation was limited and that she had never undertaken any post-secondary training or study on micropropagation. [23] According to Mr Benson, Ms King worked according to protocols which he himself established and Ms King was not required to work other than as a cutter and was not consulted on broader issues. -- 2 of 5 -- 3 [24] At relevant times the pay scales in the Award included two levels between "Nurseryhand", the level at what Ms King was paid and Propagator, namely "Nursery Employee" and "Packer". [25] For clarity it should be noted that this Decision is confined solely to the claim that Ms King should have been remunerated as a "Propagator", and not whether "Nurseryhand" was the appropriate classification. [26] Submissions from both parties were that micropropagation processes were so far removed from the processes followed when the Award definition for propagator was formed in 1974 that the Commission should in effect, interpret the micropropagation language to fit the Award definition. [27] The Commission invited submissions as to whether or not the Award applied at all given the work was conducted in an environment described as a laboratory. Propagation was described at various times as cloning and cell culturing and by agreement, the classification description didn't fit the modern circumstances. Neither party took the point although I doubt the laboratory attendants who worked on the cloning of "Dolly the sheep" saw themselves as farmhands. [28] In any event I regard the Award definition of "Propagator" as comprising three parts, they are:  The first part: "an employee who is capable of determining the proper stage at which cuttings may be taken";  The second part: "and whose duties include the maintenance of nursery stock for the budding, grafting and layering of such stock"; and  The third part: "and who possesses a thorough knowledge of modern propagation techniques". The first and third parts relate to knowledge, the second, to duties. [29] Regarding the first part, I am of the view that knowledge sufficient to determine the proper stage that cuttings can be taken equated to two scenarios in micropropagation, those being the stage at which the original plug of banana plant stem is collected (from which the material is taken to initiate the propagation process) and the stage at which the tubs of propagated plants are selected to be separated (cut) by employees such as Ms King. The first stage did not occur within the Respondent's business. [30] I am satisfied from the evidence that Ms King possessed sufficient knowledge to determine the stage at which the plantlets should be selected for cutting therefore I believe Ms King satisfied the requirement of part one of the definition. [31] The third part of the definition also relates only to the possession of knowledge, I accept Mr Carfrae's submission that this is not the type of scientific cause and effect knowledge obviously within Mr Benson's comprehension. None the less the requirement was that Ms King possessed a "thorough knowledge of modern propagation techniques" and she didn't. [32] This conclusion is reached thus: The modernisation of the wording of this, the third part of the definition to apply to the Respondent's business required only that the term propagation be replaced with micropropagation. [33] The Commission has concluded that the micropropagation techniques of which the thorough knowledge is required commence at initiation. That is the extraction of the tissue material from the original plug at the Respondent's premises and concludes when the propagated plantlets are cut. The evidence was that Ms King lacked knowledge of the "techniques" used in the initiation stages of the process. Also Ms King was not familiar with the techniques for establishing the media (the gel into which the plant material is placed) or the techniques for adjusting the composition of the media to accommodate or correct certain developments in the plants. [34] Mr Carfrae submitted that a lack of scientific knowledge of media was not crucial to determining the question of "thorough knowledge" in this case. However in Ms King's written evidence (Exhibit 4 paragraph 50) she stated: "Another occasion was when he introduced BDI media in manner that required adjustment when I identified the issue and prosecuted the solution in a meeting that I called, it's introduction/transitionally corrected and restored Elaine and my bananas quality.". [35] In his written and oral evidence Mr Benson accepted the possibility that this meeting actually occurred yet under cross examination Ms King responded to questions regarding media as follows: MS KING - "Mr Benson, I have, as you - as I've said, I have no knowledge, really, of what - what's in the media. When I had a problem with the bananas - when Elaine and I had trouble with the bananas, I asked, because it went from either BD or BM to BMI, and we always had the problems at this point. And I asked Elaine about - really, I may have asked Elaine about the media but only as far as, you know, the changes in the media is causing this problem with the I, because I have no knowledge. Is it the I that makes a problem with these bananas -- 3 of 5 -- 4 because they've been stressed or burnt or whatever, but there's a problem with it. So, I know there's a problem with this media, but I left it to Elaine to go and talk to Mr Benson to sort the problem out. MR BENSON - Okay. So do you know what the I in B - in BDI meant?-- No. No, I don't. Do you know why-----?-- I don't know anything about it. -----we have adenine sulphate in the multiplication media?-- I know nothing about the media. Okay. So you've got any idea what the difference was between BM and BD?-- I know nothing about the media.". [36] Ms King not only lacked scientific knowledge, on her on evidence, she lacked any knowledge. The media gel is essential to the micropropagation process and in the view of the Commission knowledge of the techniques for preparation and adjustment of the media would be a requisite part of the thorough knowledge test. [37] On the evidence Ms King also lacked knowledge of the techniques applied in the initiation process and the climate controlled storage area, for instance she was unfamiliar with the technique of using water to cool the base of the tubs in the controlled storage area, she in fact believed that the water was used for heating. [38] While I have not referred to all the evidence on the question of knowledge, after consideration of all the evidence, I have concluded that Ms King did not possess knowledge adequate to satisfy the requirement of part three of the definition of Propagator. [39] Regarding part two, that part which stipulated that the relevant DUTIES involved the MAINTENANCE (my emphasis) of nursery stock for the budding, grafting and layering of such stock. The term "Mother-Stock" which was used in the terminology of the Respondents business equated to the term Nursery Stock in the Award definition in my estimation. [40] It is clear from this wording that the necessary duty is the "maintenance" of such stock and not the ability to bud, graft or layer nor the performance of duties related to the budding, grafting or layering (or the modern equivalent). I regard the term "duty" in this instance as a duty required by the employer. [41] On the evidence it was the Supervisors, including Ms Stones, whose duties included, among other things, the maintenance of the nursery stock. It was not a duty assigned to Ms King, nor was it one that she claimed to perform. [42] For clarity, the maintenance of nursery stock involved inter alia the monitoring and adjustment of factors in the controlled climate area including the occasional adjustment or alteration of composition of the media (gel). Prior to the first cut Ms King didn't come in to contact with the nursery stock. This duty, maintenance, was not a duty required of Ms King. Ms King cut nursery stock and returned material after cutting which would again be used as nursery stock but her duties did not include the maintenance of nursery stock. [43] Exhibit 8, the statement of evidence of Mr Benson, included a copy of the letter of appointment given to Ms King at the time of her engagement. [44] The Commission has drawn no inference from the fact that the letter stated that Ms King was appointed as a nurseryhand. However, I have given weight to the evidence from both Ms King and Mr Benson, that at the interview, which led to her employment, Ms King clearly stated that she did not want any Supervisory responsibilities. [45] Ms King believed that a cutter was in fact a propagator (Transcript day one page 95 line 31) and her evidence was that she only wanted to be a cutter (Transcript day one, page 95, lines 24-25 and Transcript day one, page 78, line 30). [46] Mr Carfrae's submission was that the actual propagation of plants occurred at the cutting stage (Transcript day 2 page 93 lines 10-18). The evidence on this point was clear. The propagation process commenced when the selected tissue was placed into the media compound at initiation. [47] Further and repeated evidence was that this one piece of plant tissue became many tiny plantlets albeit contained in one tub before being selected for cutting. [48] It is my finding that at this stage propagation had occurred and whilst cutting (Ms King's role) and further propagation would then occur, propagation or the micropropagation of which we speak commenced well prior to the cutting role performed by Ms King. -- 4 of 5 -- 5 [49] The Commission believes that cutting is part of the overall propagation process and the requirement of the Award was that a person possess a "thorough knowledge of modern propagation techniques" not merely knowledge of the techniques for part of the process. [50] The submissions of Mr Carfrae and the authorities cited regarding the need for the Commission to avoid too narrow a reading of the definition of Propagator have been considered. [51] I was not swayed by Mr Carfrae's submission that it was sufficient for Ms King to satisfy some or part of the requirements of the definition of propagator. While I have concluded that the definition could be examined in three parts each of the parts is linked by the word "and" not the word "or" and accordingly I have considered the three parts as linked in a way that required Ms King to satisfy all three component parts of the definition. [52] After considering the evidence material and submissions, I have found that Ms King satisfied part one of the definition of the Award Propagator, did not satisfy the knowledge aspect of part three and as to her duties she did not satisfy part two. [53] In all, I find that the knowledge possessed and the duties performed by Ms King at relevant times did not entitle her to be classified and paid as a Propagator. [54] I dismiss the application. D. K BROWN, Commissioner. Hearing Details: June 6 and 7 2011 Released: 11 July 2011 Appearances: Mr Edmund James Carfrae of Department of Justice and Attorney General for the Applicant. Mr Francis Rupert Benson for the Respondent. -- 5 of 5 --