Department of Industrial Relations v Angela Bisson (nee Zavattin) trading as Angela's Silver Scissors [2005] QIRC 173 (2005) 180 QGIG 1139

[Extract from Queensland Government Industrial Gazette, dated 16 December, 2005, Vol. 20, No. 18, pages 1139-1143] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – wage recovery Department of Industrial Relations AND Angela Bisson (nee Zavattin) trading as Angela’s Silver Scissors (B/2005/1146) COMMISSIONER THOMPSON 1 December 2005 Unpaid wages – Classification – Hairdressers’ Industry Award – State and the Hairdressers’ Industry Award – State 2003 – Arbitrated matter – Witness evidence – Application granted. DECISION Background An application was filed by Mr David Cox of the Department of Industrial Relations on 1 September 2005 in which he sought an order under s. 278 of the Industrial Relations Act 1999 for the payment of unpaid wages on behalf of Ms Carla Boddington (nee Caminiti) (claimant) in the total sum of $4,162.52. The named respondent in the application was Angela Bisson (nee Zavattin) trading as Angela’s Silver Scissors. At paragraph (f) of the application, the wage claim was effectively broken down as: For work performed: $2,936.25 Unpaid pro rata annual leave: $1,226.27. Further, at paragraph (w) of the application, the Award rate for a Level 3 Hairdresser during the period of employment was identified as: 1 September 2002 – $525.20 per week ($13.82 per hour) 1 September 2003 – $542.20 per week ($14.27 per hour). At the commencement of the hearing, the applicant filed an amended application varying the amount claimed in wages downwards due to information that the claimant had given two, rather than three, days’ notice when exiting the employment relationship. The amended amounts were: For work performed: $2,797.48 Unpaid pro rata annual leave: $1,226.27 Total sum: $4,023.75. Applicant The case for the claimant relied upon evidence given by three persons, those being Mr Robert Jones, Mr David Inkley and the claimant herself, Ms Boddington. Jones Mr Jones, an Inspector appointed under the Industrial Relations Act 1999, gave evidence in respect of his investigation of a complaint lodged with the Department of Industrial Relations by Ms Boddington. At around 10.00 a.m. on 25 November 2004, he visited the respondent’s business premises and conducted an interview with Ms Bisson. Ms Bisson acknowledged the nature of the business and that the claimant had been employed in a part-time role as a “third/fourth year apprentice senior”. Tasks undertaken by the claimant included cutting hair and cleaning, and for that she was paid in accordance with the -- 1 of 7 -- 2 Hairdressers’ Industry Award – State and the Hairdressers’ Industry Award – State 2003 (the Awards). Ms Bisson had advised him that the claimant was not a qualified hairdresser, but held a Certificate III in Hairdressing. -- 2 of 7 -- 3 On the hours of work, Mr Jones was informed that the claimant worked Thursday, Friday (half day), Saturday (half-day) and Monday usually between 9.00 a.m. and 5.00 p.m. The employment arrangement had ceased by way of mutual agreement. Mr Jones stated that utilising the records provided by the respondent and the provisions of the Award, an assessment was conducted which identified an amount of monies being owed to the claimant. In November 2004, the respondent made an offer of $1,000.00 to settle the claim, which was initially accepted, but later declined, by the claimant. Inkley Mr Inkley, the District Manager for the Department of Employment and Training at Southport, gave evidence that he was aware that a dispute existed as to whether Ms Boddington had been engaged as an apprentice hairdresser or senior hairdresser. His evidence, at paragraphs 4, 5, 6 and 7 of his affidavit, provided requirements to be observed when engaging an employee as an apprentice or trainee: “4. Section 52 of the Vocational Education, Training and Employment Act 2000 states that the employer of a person who is to be trained by the employer as an apprentice or trainee must ensure that a training contract is signed by the parties before the probationary period ends. 5. Section 53 of the Vocational Education, Training and Employment Act 2000 states that the employer must send the signed training contract to the Training and Employment Recognition Council within 1 month after the end of the probation period for the apprenticeship or traineeship to which the contract relates. 6. The probation period for the apprenticeship calling of Hairdressing is set by the Training and Employment Recognition Council as 90 days. 7. For the purposes of these sections of the Vocational Education, Training and Employment Act 2000, the lodging of a training contract with a New Apprenticeship Centre is deemed to meet the requirements.”. The records of the Department indicate that no training contract had been lodged between Ms Boddington and the respondent. On the circumstances surrounding the employment arrangement, he stated that decisions of the Training and Employment Recognition Council provided only for full-time or part-time apprenticeships and did not allow for a person employed under casual arrangements to enter into an apprenticeship training contract. In respect of Ms Boddington’s qualifications (which he had sighted), he indicated that under the National Standards of the Australian Qualifications Training Framework that her qualifications entitled a person over the age of 21 to apply for immediate trade recognition in the calling of hairdressing. For a person holding the same qualification but employed as an apprentice under the appropriate Act, they are entitled to commence the apprenticeship at the Level 3 wage rate, however, no arrangement exists for a person who is not an apprentice to receive that rate of pay. Boddington Ms Boddington listed her current occupation as a student, having previously been a hairdresser. In respect of her hairdressing career, she provided details of her experience as:  Pre-apprenticeship introductory course (3 months duration) – Melbourne  Certificate III in Hairdressing through Australian Academy of Hairdressing (12 months) – Melbourne. At the completion of the Certificate III course, she received a Trade Certificate. In the period following, she worked for a number of businesses under the classification of a senior hairdresser. She obtained employment with the respondent on 22 May 2003 terminating the said employment on 28 February 2004. -- 3 of 7 -- 4 The business carried on by the respondent was that of a hairdressing salon. Employment had been obtained following a response to an advertisement in a local newspaper and by successfully completing both an interview and a trial. Her duties were those of a senior hairdresser, which included cutting, styling, colouring, general cleaning and reception duties. Whilst her hours of work varied from day to day, she generally worked between 4 and 8 hours a day on an average of 3 days per week. Instruction for both duties and hours of work were given by Ms Angela Bisson. The rate of pay received was that of $12.65 per hour with pay day being Saturday. During the course of employment, she did not take off any paid annual leave, nor was any pro rata paid upon her termination. Respondent Three witnesses were called on behalf of the respondent, those being Ms Bisson, Ms Robyn Burton and Ms Marilyn Zavattin. Bisson Ms Bisson, the proprietor of the respondent business, having purchased it from her mother (Ms Zavattin) on 1 July 2001, gave evidence on placing an advertisement in the Gold Coast Bulletin in or around May 2003. Whilst she had not retained a copy of the advertisement, she acknowledged that a copy tendered by Mr David Cox in the proceeding from the Weekend Bulletin on Saturday 3 May 2003 was the advertisement placed. The text of the advertisement was: “HAIRDRESSER Booming Broadwater area. Are you expd and looking for part-time/casual work? Are you a 3rd year + looking to become highly skilled in all aspects of hairdressing? Do you want to work in a fun active salon with great workmates and exciting clientele, growing by the day? For an appointment call Angela 0401 673 248 Monday 2-5pm ONLY Resume required.”. Ms Boddington applied for the position and, after initially being interviewed by Ms Burton and then herself, was offered employment as a third year apprentice for a 3 month period during which time her competency would be assessed. Ms Bisson’s evidence in respect of Ms Boddington’s qualifications, was that she had completed a “TAFE type course” in Victoria, but not served time as an apprentice. She had an awareness that Ms Boddington’s training was different to that undertaken in Queensland. Upon commencing employment, Ms Boddington worked “more or less regular days of work” with start and finishing times varying according to clients she had booked in for various services. In August 2003, she met with Ms Boddington and it was agreed that her skill level was not up to the standard of a senior hairdresser and that further training would need to be undertaken. Whilst training was provided, the performance of Ms Boddington failed to improve, with other staff expressing concerns at her level of work. Towards the end of January 2004, further discussions were had with Ms Boddington about the standard of her work, with the outcome of the meeting being that Ms Boddington decided to leave the employ of the respondent. In respect of the complaint lodged by Ms Boddington with the Department of Industrial Relations, Ms Bisson indicated that she had sought to resolve the matter by making a payment of $1,000.00 which was originally accepted, and then later -- 4 of 7 -- 5 rejected, by Ms Boddington. The Department continued to seek the full amount claimed and did not refund the $1,000.00 originally offered until August 2005. Ms Bisson also gave evidence that Ms Boddington may have, during the course of the employment, provided a false declaration as to her employment status which impacted on the level of taxation deducted from her earnings. Burton Ms Burton, a former employee of the respondent, and a hairdresser of some 20 years standing, gave evidence that she had advised Ms Bisson in early 2003 as to her intentions to leave later that year to pursue other interests. In seeking to find a replacement for her, Ms Bisson placed an advertisement in a local paper and when Ms Boddington presented for an interview, she was the person who conducted the said interview. Ms Burton gave details of the interview and of her thoughts as to the qualifications held by Ms Boddington and how they would compare with those of someone who had completed a full apprenticeship with practical training. At paragraph 8 of her affidavit, she stated: “Ms Caminiti [Boddington] said that she knew her qualification was not the same as an apprenticeship and that she would not be able to claim wages as a senior hairdresser. She said she would be happy to work at the level of a third year apprentice so that she could start working in a salon and get the relevant experience.”. On the subsequent employment of Ms Boddington, she was advised by Ms Bisson that the engagement was to be as a third year apprentice on three months’ probation after which her skills would be reassessed. According to Ms Burton, the standard of Ms Boddington’s work was poor and that after the three month probationary period, it was decided to maintain her wages at the third year apprentice level. Zavattin The last of the respondent’s witnesses, Ms Zavattin, the mother of Ms Bisson, gave evidence of selling the business to her daughter in July 2001 and of a continued involvement in the business (as an employee) after the sale. Her evidence went to observations of Ms Boddington’s performance whilst in the employ of the respondent, and as a hairdresser with some 47 years experience, was of the view that Ms Boddington “was not as well qualified or able as a properly trained third year apprentice and certainly not of the standard of a senior hairdresser”. Further evidence was given as to the demeanour and appearance of Ms Boddington during her time of employment. This evidence did not portray Ms Boddington in a favourable light. Submissions Applicant Mr David Cox, in making submissions, stated that the basis of the dispute between the parties was whether Ms Boddington was employed as a third year apprentice or a qualified hairdresser. The evidence before the Commission from Mr Inkley is that there is no record of a training contract between the parties being lodged with the Department of Employment and Training, nor is there a record of any training contract being signed by the parties. Ms Boddington has submitted a Certificate III in Hairdressing issued by the State Training Board of Victoria which is a nationally recognised qualification and performed the duties of a hairdresser when in the employ of the respondent. The assessment (Schedule 2) tendered by the applicant had been undertaken by relying upon time and wages records of the business and using the appropriate industrial instruments. Ms Boddington’s evidence that she received no pro rata annual leave is confirmed by the time and wage records kept by the respondent. The issue of the offer to settle the matter for $1,000.00 was, in some respects, not handled in the best terms by his -- 5 of 7 -- 6 Department and, in particular, the time that elapsed before returning the payment to the respondent. However, when it comes to reaching a settlement on these matters, an Inspector does not have the authority to enter into any arrangement for amounts less than the full claim and had not entered into any such arrangement in this matter. Ms Boddington had performed hairdressing duties whilst not an apprentice and was entitled to seek an order for the full amount shown in the amended order. Respondent In summation, Mr Brian Cox stated that the position of the respondent was not to dispute the majority of the applicant’s case. He acknowledged that a training contract had not been entered into by the parties and, therefore, in this case, the claimant must be paid the senior hairdressers rate. The respondent took issue with the process and, in particular, an acceptance by the claimant to settle on the payment of $1,000.00, and then withdrew from that undertaking. The period of time taken by the Department of Industrial Relations to return the $1,000.00 to his client was outside what may be considered reasonable. The respondent did not take issue with the amount owing as a result of the assessment undertaken by the Department, but strongly objected to the application being granted on the grounds that an offer made to settle by the respondent had been accepted by the claimant. Conclusion The application had sought the payment of wages and unpaid pro rata annual leave on behalf of the claimant during a period of employment from 23 May 2003 to 28 February 2004. In essence, the argument advanced by the applicant was that the claimant performed the duties of senior hairdresser whilst being paid at the rate of $12.65 per hour, a rate applicable to a person employed as an apprentice hairdresser. Further, that upon the cessation of employment, pro rata annual leave was not paid. The advertisement which acted as the catalyst for the claimant’s employment had sought a person of “3rd year +” and whilst their exists competing positions between the claimant and the respondent as to the level of employment offered, I am of a view to accept the evidence of Ms Burton (who conducted the initial interview) and Ms Bisson that the employment on offer was that of an apprenticeship level. The time and wages records tendered (Exhibit 3) identified the applicable Award/Agreement as “Level 4 P/time”. An examination of that rate when compared with the Award clearly rules out any argument that the “Level 4” was that of a hairdresser which is at 102.5% in the Award and it is reasonable to conclude that the rates paid were those of the apprenticeship classification. However, with the choice of an employer to offer employment as an apprentice, there come a number of statutory obligations which were detailed in Mr Inkley’s evidence and related to parties entering into a training contract before the expiry of the probationary period. There was no contest offered by the respondent to evidence that no such contract had been entered into and, in fact, evidence was given by Ms Bisson that she was ignorant of such a requirement at the time of the employment. With no training contract and evidence that the claimant had performed the duties of a hairdresser, then there is little option for the Commission other than to determine that the appropriate rates of payment for the claimant are the rates identified in “Schedule 2 – The Assessment Information” tendered in the proceedings by the applicant. The ignorance, or otherwise, by the respondent of their obligations is not a defence in the circumstances. On the qualifications of the claimant, the Commission feels compelled to offer some comment, as much has been made of the level of competence of the claimant in her ability to perform satisfactorily the duties of a hairdresser. The claimant, in the traditional sense, was not a “time served person”, however, had completed a Certificate III in Hairdressing (Trade Certificate VET Act 1990) under the auspicious of the State Training Board of Victoria. -- 6 of 7 -- 7 The Certificate III is recognised within the Australian Qualifications Framework 1995 and, on the evidence of Mr Inkley, entitled the claimant (who was over the age of 21 years at the time of engagement) to apply for immediate trade recognition in the State of Queensland. For “time served” persons such as the three witnesses for the respondent, it is not difficult to understand that their acceptance of what is a different system of training might not be so readily embraced and that the criticisms of the claimant’s level of competency may have had some relevance. Nevertheless, that does not have any bearing on the minimum rate of pay that must be paid to a person performing the duties of a hairdresser in accordance with the provisions of the Award when that person is not an apprentice. On the subject of the offer firstly accepted by the claimant to settle the matter and then the withdrawal from the arrangement, it must be said that whilst the actions of the claimant may have been “in bad form”, they have no bearing on the considerations by the Commission of the application. Having considered the evidence, material and submissions before the proceeding, I find that the applicant, in respect of both unpaid wages and pro rata annual leave components, has established that, on the balance of probabilities, the applicant is lawfully owed the monies subject to the claim. The respondent is therefore ordered to pay the gross amount of $4,023.75 to the applicant within twenty-two days of the release of this decision. In respect of taxation, the deduction of such an amount, in accordance with Australian Taxation Office provisions, should be made by the respondent. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2005 28 November Released: 1 December 2005 Appearances: Mr D. Cox, Department of Industrial Relations, Applicant. Mr B. Cox, of The Hairdressing Federation of Queensland - Union of Employers, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 7 of 7 --