Cox v Aussie Country (Down Under) Pty Ltd [2003] QIRC 100 (2003) 173 QGIG 494

494 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 ###################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages David Francis Cox AND Aussie Country (Down Under) Pty Ltd (No. W6 of 2003) COMMISSIONER EDWARDS 2 June 2003 Unpaid wages – Evidence – Revised Award – Application Granted. DECISION This is an application by David Francis Cox, Inspector, Department of Industrial Relations, Southport on behalf of Mrs Dorothy Margaret Henderson for an order under s. 278 of the Industrial Relations Act 1999 for payment of unpaid wages. By leave of the Commission the application was amended at the hearing on 13 May 2003. -- 1 of 2 -- 496 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 Mrs Henderson was employed by Aussie Country (Down Under) Pty Ltd (the respondent/Company) as from 15 May 1995. The parties agreed the relevant Award is the Miscellaneous Workers’ Award – State and 70% of her work was cleaning duties. The respondent operated a Theme Park business with the theme as a day out in the Australian countryside. Attached to the Theme Park is a homestead in which some visitors did stay for short periods. It was agreed that the main business was the provision of entertainment, barbeque luncheons and a small aspect being accommodation. During Ms Henderson’s period of employment there were two separate awards. Initially there was the Miscellaneous Workers’ Award – State (MWA 84) effective as from 21 May 1984 until 6 April 1997. The revised Miscellaneous Workers’ Award – State (MWA 97) applied as from 7 April 1997. A number of provisions in each remained identical except for significant differences in two provisions. Even though the applicant had been employed since 15 May 1995, s. 278(4) of the Industrial Relations Act 1999 restricts claims beyond six years. Accordingly, the period covering the application before the Commission is from 22 January 1997 to 20 February 2001. The original time and wages records were submitted as Exhibit 6 with copies of certain parts as Exhibit 7. By clause 2(9)(b) of the MWA 84 “ ‘cleaner’ means a person employed for the greater part of his or her working time in cleaning work of any description on any premises or in bringing into or maintaining premises in a clean condition, whatever may be the nature of his or her other duties”. The same definition appears in MWA 97 at clause 5.1.1(b)(ii). The Commission accepts the overall assessment compiled by the investigating officer, Inspector Carroll, which where possible allowed for a meal break of thirty minutes each day where Ms Henderson worked more than six hours. Mrs Henderson was initially employed as a casual employee. Clause 2(4) of the MWA 84 defines “ ‘casual employee’ shall mean an employee who is employed for less than thirty-two hours in any one week under this Award”. Clause 35 provides for a loading for casual employees of 19% of the ordinary rate. Clause 28(1) of the MWA 84 allowed that every employee (other than a casual employee) be entitled to annual leave on full pay. However the third paragraph stated, in part, “provided any female cleaner who works less than forty hours per week and who has been in the service of an Employer for not less than twelve months shall be allowed four weeks’ paid holiday per year”. This matter was the subject of a decision, 53 QGIG 81-82, wherein Acting President B.J. Jeffries determined that all female cleaners, whether permanent or casual, would be entitled to paid annual leave and paid pro rata annual leave. The assessment based on Schedule 2B of the MWA 84 provided an amount of pro rata annual leave assessed for the three weeks of her employment covered by the Award before it was rescinded. This is the minimum amount that could be provided. Under the MWA 97 the provision of annual leave for casual female cleaners was removed. Clause 1.7 of the MWA 97 provided “that no employee shall suffer a reduction in wages for ordinary hours of work in the course of the employee’s normal duties as a result of the coming into operation of this Award”. The second paragraph of this clause stated “as a result of the introduction of this Award the provision of Annual Leave to casual female employees was removed. The parties are committed and it is a term of this Award that wherever possible employees in receipt of such a condition shall be made part- time employees so as to retain annual leave entitlement”. By virtue of the MWA 97, Mrs Henderson became a part-time employee as from 7 April 1999. The Commission acknowledges the submissions of the respondent that Mrs Henderson’s employment arrangements could not be covered by the definition of part-time as she worked less than 7.6 hours. So be it, she was employed under the MWA 97 with certain entitlements which were not available to a casual under the revised Award. As such clause 1.7 pre-existing has application and entitles Mrs Henderson to receive the entitlement of a part-time employee even though her employment does not satisfy all aspects of the definition. In view of such clause the Commission has considered the term “whenever possible” within the framework. The Commission therefore determines that Mrs Henderson is entitled to the benefits of a part-time employee and accepts the evidence of Inspector Carroll in relation to the calculation of the amount outstanding. Annual leave entitlement as a part-time employee has been calculated in accordance with s. 7.1 of the MWA 97. The application also provides for overtime and penalties for working on a public holiday where the employer’s records show that she did so work. The provisions of both Awards concerning these two aspects of the claim remain the same. Overtime is to be paid at time and one-half for the first three hours and double time thereafter Monday to Saturday and double time on Sunday (clauses 24 and 6.3 respectively). Where Mrs Henderson worked on a public holiday she was entitled to double time and one-half with a minimum of 4 hours (clauses 33 and 7.6 respectively). In the assessment using the provisions of the MWA 97 work on Saturday, other than overtime, attracted a penalty of time and one-half (clause 6.5.1). The application as amended is granted. The respondent is to pay to Mrs Henderson the amount of $2,595.38 within twenty-two (22) days from the date of release of this decision. Dated 2 June 2003. K.L. EDWARDS, Commissioner. Hearing Details 2003 12 February and 13 May Appearances: Mr D. Cox of the Department of Industrial Relations on behalf of the applicant. Ms M. Cobbing-Tanabe on behalf of the respondent. Ms H. Yanagisawa, Interpreter. -- 2 of 2 --