Anderson v Priority Secure Park Pty Ltd [2010] QIRC 36

CITATION: Peter Jamie Anderson AND Priority Secure Park Pty Ltd (B/2009/86) - 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. Peter Jamie Anderson AND Priority Secure Park Pty Ltd (B/2009/86) DEPUTY PRESIDENT BLOOMFIELD 10 June 2010 DECISION [1] By way of application dated 23 December 2009 Mr Peter Jamie Anderson claimed unpaid wages and superannuation in the amount of $13,617.42, said to be owed to him in respect of work performed in his capacity as a Customer Services Officer with Priority Secure Park Pty Ltd, trading as Priority Airport Parking, (the Respondent) between 10 August 2004 and 25 March 2006, the day prior to the commencement of the Workplace Relations Act 1996 (Mr Anderson's employment actually continued until 6 January 2008). [2] In his application Mr Anderson stated: "(e) The duties that I performed as a Customer Services Officer are outlined in the letter of engagement dated 11 May 2005 (attached as Annexure A). (f) Approximately 95% of the duties I performed on a daily basis were clerical and comprised the following: • In person processing of vehicle rental contracts, including: processing client bookings, generating sales for 'walk in' clients, processing additional extras for clients (e.g. car detailing, daily rates agreed to, location of vehicle on premise request). • Promotion, quoting and selling of all services provided by company either by phone or by face-to- face (e.g. car detailing services, daily rates, bus transfers included in costs). • Electronic maintenance of client bookings (e.g. ensuring client details are current, removing irrelevant or expired bookings, rectifying confusing or incorrect bookings when required). • Manage logistics of bus network, including: Bookings, answering phone calls, staff requests and management incoming/outgoing manifest. This role was performed without supervision and most frequently in isolation or with one additional office staff member. • Producing reports in accordance with company policy (e.g. incoming and outgoing customer manifests, customer complaint/satisfaction forms, damaged vehicle forms, free-day parking forms, booking receipts organised in relationship to early/late returns or expired receipts). • Filing and management of customer booking receipts and company forms. • Organisation of staff breaks and staff rostering e.g. requesting staff to perform overtime and early leave requests. • Arranging unusual customer requests e.g. 'pickups' that were outside of usual bus route, trucks/trailers/boats and highly valuable vehicle storage. • Management of customer vehicle keys on a collection board. • Communication with company affiliates (e.g. car rental department) and corporate clients (e.g. travel agents and airline staff). Communication was done by phone, in person, written or by electronic means. • Processing customer payments by cash, electronic or by cheques and balancing of till. • Maintaining an orderly and organised office in accordance with company policy. (g) The balance of my duties constituting approximately 5% of daily functions comprised: • Providing breaks (0.5 hour) for bus drivers whereby I performed bus driving duties. • Providing breaks (0.5 hour) and additional support for parking attendants. • Performing call centre duties which primarily dealt with customer bookings and customer pickups. • Cleaning of vehicles. • Attending staff meetings. (h) My Employment Contract did not specify any particular Award. My employer paid me under the Motoring Services Award - South Eastern District. (i) As the majority of my duties were clerical in nature, I believe I should have been employed under the Clerical Employees Award State - 2002. …". -- 1 of 9 -- 2 [3] Annexure A to the Application, a letter of engagement dated 11 May 2005, relevantly provided: "DUTIES: The following summarises the expected duties & responsibilities of the role of Customer Service Officer. Customer Service: • Ensure that customers are delivered to and pick up (sic) from the Airport as required promptly and within agreed time frames. • Liaise with previous customers to gauge feedback on our service. Use information to regularly exceed customer expectations in the delivery of service. • Adhere to Priority Airport Parking phone procedures, answering all calls within three rings. • Promote a professional image at all times and conduct business in a courteous and ethical manner. • Attend to all customer queries/complaints regarding the storage of their vehicle during your shifts. Administration: • Initiate and complete all daily Parking agreements (R.A.'S). • All other activities maintaining the operation of Priority Airport Parking. General: • Attend work on time in neat business attire (Company supplied uniform after probationary period). • Be available to work weekend rosters. • Assist in washing/detailing of vehicles as required. • Ensure vehicle presentation is consistent with high standards of Priority Airport Parking. • Undertake duties as defined by manager and directors as required.". The Applicant's Evidence [4] In the course of his oral evidence Mr Anderson went to considerable pains to highlight that he primarily performed his duties in an office environment during which time he, inter alia: • used a computer and keyboard to record and/or alter customer details; • used a computer and keyboard to print customer invoices and parking agreements, after which he hand wrote a tag which recorded vehicle registration number; vehicle type and colour; vehicle collection date; vehicle collection time; and, the location of the vehicle within the Company's premises. This tag was then handed to a vehicle shuffler who, after parking the vehicle in the designated location, would return the vehicle keys and tag to the office whereupon Mr Anderson would place it on a key board according to the date when the vehicle was due to be collected; • used a telephone to converse with potential customers and customers about their bookings; • used a telephone to take customer bookings, which he then entered into a computer, using a keyboard, by completing requisite details; • used the two way radio to converse with a number of courtesy bus drivers in relation to the transport of customers to and from the Company's premises in Nudgee Road, Hendra to the International and Domestic Terminals, respectively; • used a computer and a printer to produce a number of reports, most particularly a manifest - which recorded details of vehicles scheduled to be "checked out" of the Company's premises on the following day; and • used a computer and keyboard to make corrections to the manifest as might be required (for example to correct a vehicle type or colour where it had been incorrectly recorded; to delete expired bookings where a customer had not turned up, and so on). [5] Mr Anderson also sought to downplay, or refute, suggestions put to him by Ms Taylor, who appeared for the Respondent, about the amount of time he may have worked as a car shuffler and/or courtesy bus driver. In doing so, Mr Anderson invariably asserted that "it wasn't his job" to undertake such roles. Mr Anderson also indicated that if he had performed those roles at any time it had only been because he was bored, in which case he had volunteered to do the work, or because he was a team player. -- 2 of 9 -- 3 The Respondent's Evidence Mr James Bell [6] Mr Bell is currently the General Manager of the Respondent having previously worked in the role of Operations Manager. In all, Mr Bell has worked for the Respondent for approximately six years. Mr Bell worked with Mr Anderson during the whole period of the latter's employment. [7] Mr Bell said the typical staffing at the Respondent was: • a maximum of three Customer Service Officers in the office, including the person running the shift (a full time employee), and a casual offsider who would "pick up the slack". Another casual was also engaged on some shifts; • between two and four courtesy bus drivers; and • between one and two car shufflers, depending on how busy it was at the time. [8] The role of the office offsider was mainly to assist the person who ran the shift by operating the two-way radio controlling the courtesy buses, answering the telephone and checking vehicles in to the car park as the need arose. In addition, the offsider would relieve the courtesy bus driver(s) during their breaks. A round trip from the Respondent's premises to the airport and return could take up to 40 minutes. Depending on the day of the week, the traffic conditions and how many drivers might need to be relieved, the offsider could spend up to two and a-half hours covering breaks for the courtesy bus drivers, as well as up to an additional hour relieving the car shufflers if they required a break. Because of the number of buses needed on the road at any given point in time it was not possible for the courtesy bus drivers to relieve each other. As such, it was necessary to pull the offsider out of the office to provide relief. That situation had not changed in six years. [9] Flight delays, traffic accidents and difficulties with the weather occurred relatively frequently and necessitated an "all hands on deck" approach to the management of the business. The spare person in the office (the casual) was always the person who jumped into the courtesy bus whenever the Company had to take delayed passengers to the airport or collect people from delayed flights or multiple flights landing after bad weather passed. [10] Indeed, Mr Bell said that he frequently became involved in the day-to-day operations himself (even in his role as General Manager) which included driving the courtesy bus and car shuffling as might be necessary. If it was extremely busy everyone who could be spared, including Mr Anderson and himself, would drive vehicles from the office/reception area down to the shade cloth (parking) area, over 250 metres away from the office, after which they would walk back to the office and take the next vehicle down. [11] According to Mr Bell, at one point in time Mr Anderson had sought permission to leave the office whenever he had spare time and help the car shufflers, in addition to providing their meal break relief. Mr Bell said he didn't have a problem with Mr Anderson performing car shuffling duties and he did it on a regular basis. [12] Mr Bell also said that Mr Anderson, because he was a casual and requested additional hours, worked a number of extra shifts where he only performed courtesy bus driving duties or car washing and detailing duties. [13] Although the full-time staff were the persons who were rostered to open and close the premises, Mr Anderson had, from time-to-time, been rostered to fill the full-time persons' role in the evenings. On some occasions in the late evening, there might only be one or two customers still to land and the person in charge would send everyone else home, lock up the premises and take the courtesy vehicle themselves out to the airport to collect the delayed customer or customers. Mr Anderson had been in this situation many times. [14] The person who was closing would also help bring vehicles scheduled to be collected the next day from the parking areas to holding bays in the front section of the building so that all the preparation was done beforehand. Mr Anderson had performed this role from time-to-time on the occasions when he was rostered to stay until the end of the shift. [15] Mr Bell took particular issue with Mr Anderson's estimation that he only performed approximately 5% of his daily functions performing bus driving duties, providing additional support for the car shufflers and so on. He said "if you're on a bus for two and a half hours in a six hour shift, clear mathematics will tell you that that's not 5 percent.". [16] Mr Bell also questioned a number of Mr Anderson's statements about the nature of the duties he allegedly performed for the remaining 95% of his time. In doing so he said that a number of the assertions were simply untrue or were exaggerated. One example was Mr Anderson's statement concerning his involvement in filing and management of customer booking receipts and company forms. Mr Bell said the "filing system" involved -- 3 of 9 -- 4 placing the customer booking slip and parking agreement, after the customer had signed them, into a drawer with lever arch files marked "1 - 31" according to the date the customer was due to return to collect their vehicle. [17] Another example was the alleged "in person processing of vehicle rental contracts". Mr Bell said that Mr Anderson would never have processed a rental vehicle contract himself in the manner alleged. He may have processed the occasional out-of-hours vehicle rental customer but the contract would have been pre-prepared and Mr Anderson would only have been required to have the customer sign the pre-prepared contract and hand that person the keys to the vehicle. Ms Kylie McGhee [18] Ms McGhee is currently the Operations Manager for the Respondent. She commenced employment as a casual Customer Service Officer in October 2004, becoming a full-time employee in late 2005/early 2006. On a number of occasions she had worked on the same shifts with Mr Anderson, with Mr Anderson reporting to her after she became a full-time employee. [19] Ms McGhee said that the staffing levels comprised a full-time employee in the morning together with one or two casual Customer Service Officers and a full-time employee and one casual Customer Service Officer in the afternoon/evening. There would be some overlap in the middle of the day. [20] In addition to performing basic customer service duties (such as: dealing with customer arrivals and customer departures; telephone answering; taking phone bookings and phone enquiries; recording pick-ups for clients and things like that) the Customer Service Officers would cover breaks for the courtesy bus drivers, for car shufflers and anyone else rostered on the shift. "As a casual you were just instructed to do what was asked (of you) by your full-time staff member on duty", including jobs like cleaning and tidying up around the office. [21] Ms McGhee said that Mr Anderson would have been asked to undertake all of the duties described above in the normal course of a shift, in addition to which he would also have been asked to drive courtesy buses, move cars to the parking areas and bring cars from the parking areas up into the holding area if things were busy. He would also have been asked to help unload and load the courtesy buses, if required. [22] Ms McGhee also disputed Mr Anderson's estimation that only 5% of his time was spent relieving courtesy bus drivers and car shufflers. She said that to relieve two bus drivers would take a minimum of an hour to an hour and a-half, in addition to which there was a need to relieve car shufflers and provide other assistance to help move cars from the reception area to the parking sheds or to bring vehicles up for collection. A casual employee, like Mr Anderson, provided support to whoever asked for it. [23] Under cross-examination Ms McGhee opined that "probably 30-40%" of her shift was spent performing "clerical work" when she was a casual Customer Service Officer. For the rest of her shift she would be doing things like driving the courtesy bus; parking or moving cars; dealing with enquiries from people being picked up from the airport; organising stationary; cutting up maps (which showed collection points at the airport); cleaning and tidying; and, "doing whatever you can to be busy". Clerical Employees Award - State 2002 [24] Clause 1.4 - Coverage, of the Clerical Employees Award - State 2002 (the Clerical Award) relevantly provides: "This Award applies to persons employed wholly or principally as a clerk as defined within the State of Queensland ...". [25] Clause 1.6 - Definitions, of the Clerical Award relevantly provides: "1.6.2 'Clerk' means any person employed either exclusively or principally in the pursuit or vocation of writing, engrossing, typing, or calculating, whether by ordinary means or by means of any process calculated to achieve a like result, and/or in invoicing, billing, charging, checking, or otherwise dealing with records, writings, correspondence, books, and accounts of any person, firm, company, association, corporation, or Local Authority, whether employed in trading, law, insurance, manufacturing, buying, selling, forwarding, receiving and recording. The term 'Clerk' also includes any person engaged exclusively or principally in attending to telephone switchboards, receiving and answering calls, and manipulating any apparatus to enable people to converse, as well as manipulating any keyboard or other apparatus to facilitate communication, or in any other clerical capacity whatsoever, but does not include persons engaged solely in collecting money out of doors. -- 4 of 9 -- 5 1.6.3 Notwithstanding clause 1.6.2 for the purposes of this Award, the term 'Clerk' includes any person engaged exclusively or principally in any or all of the following: (a) facilitation of the sale of goods and/or services by the receipt, recording and/or processing of information via the telephone or other apparatus; (b) routine collection of information via the telephone or other apparatus for the purposes of surveys, opinions polls, etc.; (c) promotion and recording of lottery ticket sales or other goods or services via the telephone or other apparatus; (d) seeking and recording of donations to any organisations or association via the telephone or other apparatus: Provided that clause 1.6.3 does not apply to those employees subject to the Retail Industry (Interim) Award - State clause 1.2(2).". Submissions on behalf of the Applicant [26] Mr S. Clayer, of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees, who appeared for Mr Anderson initially submitted that the Clerical Award was "a far more relevant Award" in relation to Mr Anderson's employment than the Award the Respondent had adopted, namely the Motoring Services Award - South-Eastern District 2003. Later, after the Respondent's submissions (below), he indicated that the Clerical Award "was the more relevant Award, (the) more appropriate Award and the applicable Award based on the definition of 'clerk' and how that fitted into the role and functions that (Mr Anderson) performed.". [27] In support of his contentions that the Clerical Award applied, Mr Clayer referred me to Re Application by Prichard; Re Federated Clerks' Union of Australia (S.A. Branch)1 in which Gray J considered whether a person elected to a vacant Branch Secretary position was engaged in "a clerical capacity" prior to that time. [28] In referring to that case, Mr Clayer said that Gray J had held (at 78) that the test to be applied was whether the primary functions of the person concerned were directed to the recording, processing and disseminating of information. Mr Clayer also said "in the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary functions.". [29] It was submitted that the duties Mr Anderson performed as a Customer Service Officer on a daily basis were clerical in nature and that the Respondent had wrongly concluded that customer service staff, because they are customer-facing roles, were not performing clerical duties. [30] Mr Clayer also submitted that the differing testimonies from the witnesses about how much time Mr Anderson spent driving the courtesy bus or moving vehicles was irrelevant to the question of Award coverage. The decision depended upon the nature of Mr Anderson's key duties. Mr Clayer said that on the basis of the information in Mr Anderson's application, as well as his testimony, "his duties fall within an administrative stream, a clerical stream and, clearly, not under the conditions required to fall under the Motoring Services Award - South-Eastern District 2003.". Submissions on behalf of the Respondent [31] In opening her case, Ms Taylor highlighted that the onus of proof in these proceedings rested with the Applicant to establish, on the balance of probabilities, that it was "more probable than not" that the Clerical Award applied to Mr Anderson's employment (Miller v Minister of Pensions)2. [32] Ms Taylor agreed with Mr Clayer's submission to the effect that the quantum of time spent performing duties was not the relevant test to determine Award coverage. Rather, the test required one to look at the principal purpose for which the person had been engaged. In this regard, Ms Taylor said that the evidence showed that the exclusive or principal purpose of Mr Anderson's engagement was for him "to provide a multi-functional customer service function in the provision of car parking services.". She said that the duties he performed which could possibly fall within the definition of "clerk" (above) were incidental to his primary function. [33] In support of her submission that the "principal purpose" test was the appropriate test to determine Award coverage, Ms Taylor referred me to a decision of a Full Bench of the Australian Industrial Relations Commission 1 Re Application by Prichard; Re Federated Clerks' Union of Australia (S.A. Branch) (1985) 12 FCR 66 2 Miller v Minister of Pensions [1947] 2 All ER at 372 -- 5 of 9 -- 6 (AIRC), Carpenter v Corona Manufacturing Pty Ltd3 in which the Full Bench (Williams SDP, Lacy SDP and Tolley C) stated (at page 389): "In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. (Ware v O'Donnell Griffin (Television Services) Pty Ltd)4" [34] I was also referred to another AIRC decision involving appeals by Mr Layton and North Goonyella Coal Mines Pty Ltd against a decision of a single Member of the Federal Commission (Layton and North Goonyella Coal Mines Pty Ltd)5. In a decision handed down by a Full Bench of that Tribunal, the majority (Watson VP and O'Callagan SDP), after citing Clauses 1.4 and 1.6 of the Clerical Award (above), stated: "[25] Various Full Bench decisions have held that the proper approach to determining whether an employee is covered by an award requires an assessment of the principal purpose for which the employee was employed.6 This test has also been referred to as the primary function test. Indeed, Justice Gray of the Federal Court applied such a test in relation to the interpretation of the term 'clerk' in Joyce v Christoffersen 26 FCR 261. In that case, His Honour said at [270-1]: 'The Oxford English Dictionary, 2 nd ed, 1989, defines 'clerical' relevantly as 'of or pertaining to a clerk or penman'. The appropriate definition of 'clerk' is 'one employed in a public or private office, shop, warehouse, etc., to make written entries, keep accounts, make fair copies of documents, do the mechanical work of correspondence and similar 'clerkly' work. Among the definitions of 'clerk' is 'of or belonging to an office clerk'. There are many authorities dealing with rule 2 of the Union’s rules. In a now famous passage, in Re Federated Clerks' Union of Australia, New South Wales Branch, and Australian Workers' Union (1971) 71 AR (NSW) 419, at p 421, Sheldon J. said, in reference to the phrase 'clerical capacity': 'This phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and the mind are now part of clerical stock-in-trade. So is the acceptance of responsibility and the exercise of discretion. The conception is fluid and progressive and recourse to a dictionary gives only partial help. It is impossible, and in any event it would be undesirable, to attempt to devise a code as to what in the setting of industry today can fairly be regarded as clerical work. But too fine a toothcomb should not be used in solving this question in particular cases. Obviously all employees in an office are not engaged in a clerical capacity. It is clear that professional employees are not nor are those who are truly and basically executive officers. But an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non-recording functions. No doubt there are cases near the border which would be difficult to determine but in general, and subject to some special categories, those who are in a subordinate position but are engaged in the ordinary work of office administration are, in my opinion, prima facie covered by this constitution rule. ... But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system. That is why I deprecate dividing office functions too strictly by attempting to quantify the recording done by different members of the team and using this as the test'. That passage has been quoted with approval in this Court in Voigtsberger v. Council of the Shire of Pine Rivers (1980) 49 FLR 391, at pp 398-399, Re Application by Prichard; Re Federated Clerks' Union of Australia (S.A. Branch) (1985) 12 FCR 66, at pp 77-78 and Re Federated Clerks Union of Australia; Ex parte Tanner (1986) 70 ALR 79, at p 84. As Sheldon J. indicated, and was recognised in Prichard's case, a person may be engaged in a clerical capacity or performing clerical work, whilst having other functions as well. In Prichard's case, at p 78, the test applied was whether the primary functions of the person concerned were directed to the recording, processing and disseminating of information. In the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary functions.' 3 Carpenter v Corona Manufacturing Pty Ltd [2002] IR 387 at 389 4 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; and Others 5 s. 120 appeal against decision ([2007] AIRC 487) by Shane Layton and North Goonyella Coal Mines Pty Ltd [2007] AIRC FB 713 6 Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 -- 6 of 9 -- 7 [26] It is clear from both passages and the definition of 'clerk' in the Queensland Clerical NAPSA, that the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical - notwithstanding that the role involves various recording and ordinary administrative office functions (Joyce v Christoffersen 26 FCR 261, 271-3).". [35] Ms Taylor said Mr Anderson's primary purpose was to facilitate the parking of vehicles by customers. While he may have performed certain clerical tasks in undertaking that role (such as using a telephone, a computer and handling paperwork) the performance of those tasks was a means to an end to allow him to perform his primary role namely, the parking of vehicles by customers. Findings and Conclusions [36] The Respondent operates a large, 850 to 900 vehicle, car parking operation at the corner of Nudgee Road and Hedley Avenue, Hendra. The business caters for customers who wish to park their vehicle at a relatively inexpensive location in reasonable proximity to the Brisbane Airport. The Respondent provides free airport transfer for its clients using a number of shuttle buses. Clients are dropped at four designated locations at the domestic and international terminals and are collected from the same drop off points upon their return to Brisbane. The Respondent employs a number of clerical staff (designated as such) in relation to the conduct of its business. Two of those persons are employed in what is described as a "Call Centre". Those persons receive telephone and internet bookings from corporate customers and individuals wishing to utilise the Respondent's car parking facility and enter them into a computer. [37] Persons wishing to park at the Respondent's car parking facility either pre-book their vehicle over the telephone or internet, in which case they generally pre-pay, or simply pull into the car park unannounced. From the evidence presented, it seems that the vast majority of clients who use the Respondent's facility make prior bookings. [38] Upon arrival at the Respondent's car park, the client (or customer) would proceed to the office and approach a four metre long bench, about waist high, on which are located three computer screens and an eftpos terminal. Behind the desk are several printers, a single filing cabinet and a facsimile machine. A Customer Service Officer (CSO) behind the desk would greet the customer and ask for their name. Using the name as a prompt, the CSO would bring up the client's booking and check the client's details, including: vehicle registration number; vehicle type and colour; return date; return flight number. After verifying this information and making any necessary corrections, a randomly selected key tag number would be produced. The CSO would then select "arrive" on the computer screen followed by "enter", to record that the customer had arrived at the car park. [39] Once that had been done the screen would automatically proceed to a payments screen to allow the CSO to finalise the transaction. If the customer had pre-paid no action would be required. If the customer had not pre- paid, the CSO would process their payment using the eftpos machine on the counter. After payment had been confirmed or completed the CSO would hit the "print" button and a small printer behind the counter would produce a tax invoice/receipt. One side of this document contains two copies of the tax invoice/receipt and the other side contains two copies of the car parking agreement. The document would be cut in half and the customer asked to sign the car parking agreement on the reverse of one copy of the document. The signed copy is retained by the CSO (and filed in a draw containing the lever arch files "1-31") and the other copy is handed to the customer. A copy of any eftpos receipt (if applicable) and a map of the drop off/collection points at the airport is attached to the customer's copy. The customer is then directed towards the courtesy bus to be taken to the airport. [40] The CSO would then affix the key tag to the vehicle keys and place it to the side to allow the car shuffler to move the vehicle from the arrivals area of the car park to the storage sheds. [41] Ms McGhee estimated the whole process would take 45 seconds if the customer had pre-booked. If the customer had not pre-booked it might take 2-3 minutes. [42] Customers returning to the Respondent's car parking facility (by courtesy bus or other means) approach the CSO's bench, identify themselves and are handed their car keys. However, if the customer is returning later than originally scheduled the CSO may need to process an additional charge, by cash or eftpos. If the customer is returning early, the CSO would take their details for Mr Bell to process a credit the following day. -- 7 of 9 -- 8 [43] Using Exhibits 5, 6 and 7 as the reference, the CSO's employed by the Respondent are rostered to various shifts covering the spread of hours from 5.00 a.m. to midnight. By contrast, the spread of hours of car shufflers was 4.30 a.m. to 11.00 p.m., with the spread for courtesy bus drivers between 4.00 a.m. to 11.00 p.m. Mr Anderson invariably worked an afternoon/evening shift with these shifts having a commencement time of either 2.00 p.m. or 3.00 p.m. with ceasing times of 8.00 p.m., 9.00 p.m. and midnight. On those occasions where Mr Anderson worked until midnight (generally two days per week) he appears to have replaced a full-time person in the roster, either because that person was absent or the role was vacant. [44] As is readily apparent from the evidence (above), there is a considerable degree of disagreement about the nature of the duties performed by Mr Anderson, especially tasks undertaken outside the office environment involving driving the courtesy bus and/or car shuffling. In order to resolve this difference it is necessary to say something about the evidence of each of the witnesses and my conclusions in relation to the evidence given. [45] Mr Anderson was not a very impressive witness. He was inclined to be flippant in his answers and, from time to time, sarcastic in his responses. My general feeling during the course of his evidence was that he was going to great pains to enhance the nature or importance of any clerical-type duties he might have performed in his role as a CSO and the amount of time he might have spent in the performance of those tasks. He also seemed to deliberately downplay his involvement in other, non-clerical duties, such as driving the courtesy bus and/or car shuffling. In responding to propositions put to him about the fact that he had performed such work, Mr Anderson, somewhat grudgingly, only admitted to performing such tasks "infrequently" and/or when he "was bored". [46] Such evidence is to be contrasted with that given by Mr Bell and Ms McGhee, respectively. They both indicated (in clear and uncertain terms) that the role of the CSO was a varied one and included such tasks as: • relieving the courtesy bus drivers to allow them to take their meal breaks; • relieving the car shufflers to allow them to take their meal breaks; • driving the courtesy bus during periods of high demand (such as when road accidents, flight delays and the like caused disruptions to the usual routine); • driving vehicles from the reception area to the holding sheds during busy periods; • driving vehicles from the holding sheds to the front reception area during busy periods; • helping load or unload the courtesy bus when required; and, • on late shifts - o helping to bring vehicles from the holding sheds to the front of the building for collection in the early part of the next morning; o driving the courtesy bus to the airport to collect a customer or customers from late flights. [47] Having considered the evidence of Mr Anderson, Mr Bell and Ms McGhee I unhesitatingly prefer the evidence of Mr Bell and Ms McGhee over that of Mr Anderson. The Respondent's witnesses were adamant that casual CSO's were, in essence, expected to work in whatever role they were assigned to, depending on how busy it was at any given point in the day. Far from people having clearly delineated roles, their evidence suggested that all staff members, especially the casuals CSOs were expected to "pitch in" to service the customers' needs or, as Mr Bell put it, "to pick up the slack". [48] That is not to say that Mr Anderson did not perform clerical duties. He certainly did. However, any clerical duties he performed were generally undertaken in the course of checking customers' vehicles into or out of the car parking station (including by telephone) and/or making variations to previously recorded details. The whole reason for his employment was: • to facilitate the timely checking in of customers' vehicles to his employer's parking station; • to assist in the transportation of customers to the airport; • to assist in the collection of customers from the airport upon their return to Brisbane; and, • to assist to ensure the customers' vehicles were ready for immediate collection upon their return to the parking station. [49] Everything Mr Anderson did in the course of his employment at different points during each shift was related to the achievement of one or more of those four objectives. Given my findings in this respect, it is abundantly clear, using the primary function test, referred to in the authorities that Mr Anderson was not employed wholly or principally as a clerk, as that term is defined in the Clerical Award. [50] Accordingly, on the evidence presented in these proceedings by, and on behalf of, Mr Anderson I conclude that he is not a person who is covered by the Clerical Employees Award - State 2002. As such, I dismiss application number B/2009/86. -- 8 of 9 -- 9 [51] The Commission determines and orders accordingly. A.L. Bloomfield, Deputy President. Hearing Details: 2010 21 April 2010 Released: 10 June 2010 Appearances: Mr S. Clayer of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees for the Applicant. Ms N. Taylor of Livingstones (Australia) instructed by Mr P. Challen of Hawthorn Cuppaidge & Badgery for the Respondent. -- 9 of 9 --