Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Hervey Bay RSL and Services Memorial Club Inc. [2001] QIRC 199 (2001) 168 QGIG 331

30 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 331 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Hervey Bay RSL and Services Memorial Club Inc. (No. W92 of 2001) COMMISSIONER ASBURY 19 November 2001 Clubs Etc. Employees’ Award – South East Queensland – Classification Structure – Meaning of the phrase “general cleaning duties” – Meaning of the phrase “specialised chemicals and equipment” – Insufficient evidence to determine whether employee used specialised chemicals – Employee used specialised equipment – Mixed functions – Effect of exclusion of casual employee from mixed functions clause – Comparison with classification structures in other awards and agreements – Application granted to the extent that payment ordered for work performed using specialised equipment. DECISION Background This is an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) (the applicant), alleging underpayment of wages to Mr Kenneth Sims, by the Hervey Bay RSL and Services Memorial Club Inc. (the respondent). The applicant contends that the underpayment has arisen as a result of the incorrect classification of Mr Sims under the relevant Award. Facts The uncontested facts in relation to this application are as follows:– • Mr Sims was employed by the respondent from 8 May 1996 until 7 October 1999; • Mr Sims was employed on a casual basis during this period; and • Mr Sims was classified as a Grade 1 House Attendant under the Clubs Etc. Employees’ Award – South East Queensland (the Award). Mr Sims performed cleaning duties using a variety of equipment including:– • a window cleaning pole capable of extending over a distance of two building stories known as a “Tucker Pole”; • a duplex floor scrubber known colloquially to staff as “Charlie” used to scrub floors; • a wet/dry vacuum cleaner known colloquially to staff as “Rex” used to clean carpets and upholstery on chairs and stools; and • a polishing machine known colloquially to staff as “Bertha” used for polishing and occasionally stripping floors, including a dance floor. -- 1 of 4 -- 332 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 November, 2001 The Case for the Applicant In addition to the equipment used and the duties which the parties agreed were undertaken by Mr Sims, the applicant contended that he performed the following work:– • handling and use of specialised chemicals, including emptying of drums and screwing taps into drums; • mixing and dilution of specialised chemicals; • use of a gherni for high pressure cleaning of concrete areas and a large industrial bin; • handyman duties such as repair of toilet seats, replacing screws in stools and chairs, repairing toilet roll holders and replacing tap washers; • cleaning and servicing of vacuum cleaners; and • training other staff in use of equipment. Evidence for the applicant was called from Mr Sims, and Mr David Pullen an organiser with ALHMWU. It was contended by the applicant that the chemicals and equipment used by Mr Sims were specialised. Accordingly Mr Sims should have been classified and paid as a House Attendant, Grade 2 under the Award. Further, Mr Sims said in his evidence that he spent at least half of his 30 hours of working time each week, using specialised chemicals and equipment. Mr Sims disputed evidence of the Club’s witnesses about the time spent by him performing various duties, saying that he had spent more time on the duties in question than estimated by the Club’s witnesses. The Case for the Respondent The case for the Club was essentially that the chemicals and equipment used by Mr Sims were not specialised. Accordingly, Mr Sims was correctly classified as a House Attendant, Grade 1. Evidence for the Club was called from the following persons:– • Helen Gay Marxsen, Human Resource Manager of the Club; • Rodney David Nipper, Director Sharman Property Services Pty Ltd, provider of contract cleaning services; and • Theresa Coral Young, Cleaning Supervisor at the Club. Ms Marxsen’s evidence related to endeavours to resolve Mr Sims’ claim for reclassification to House Attendant, Grade 2, and correspondence with ALHMWU and The Registered and Licensed Clubs Association of Queensland, Union of Employers in this regard. Ms Young’s evidence was that all staff had been instructed in the basic servicing of upright vacuum cleaners. Further, on commencing employment with the Club, Ms Young said that she was informed that only supervisors were to restock, decant and dilute chemicals. All cleaners would use some form of chemicals. Ms Young agreed that Mr Sims had conducted training of staff on operating various cleaning equipment as he had used the equipment the most and was familiar with it. Ms Young also said that she had expressed concern to Mr Sims that pursuit of his claim could be the deciding factor in management contracting out the work of the housekeeping department, and could cost jobs. From 30 June 2001, the Club had contracted out cleaning work, and Ms Young had been employed by the contractor at that time. Ms Young conceded that the breakdown of Mr Sims’ work prepared by the Club underestimated the time spent on window cleaning. However, Ms Young maintained that carpet cleaning had been performed by contractors and Mr Sims was required to perform spot cleaning and cleaning of small areas only. Mr Nipper also gave evidence about the contract cleaning industry in which his company is engaged, and the Certified Agreement applicable in that industry, between ALHMWU and Australian Building Services Association (ABSA). Mr Nipper gave evidence about the training provided in the cleaning industry. Further in Mr Nipper’s opinion vacuum cleaners, carpet spotting machines, upholstery cleaning units, polishing and scrubbing machines and water pressure units in simple applications are not specialised items. These machines and the chemicals used with them do not require extraordinary skills, and the tasks they are used to perform are basic. Award Classifications The classifications provided for in the Clubs Etc. Employees’ Award – South East Queensland relevant to this application are as follows:– “5.1.4 House (a) Wage Level 1 ‘House Attendant Grade 1’ shall mean an employee who performs any of the following: (i) laundry and/or linen duties which may include minor repairs; (ii) collection and delivery of guests personal dry cleaning and laundry, linen and associated material to and from accommodation areas’ (iii) general cleaning duties; (iv) parking guests vehicles. (b) Wage Level 2 ‘House Attendant Grade 2’ shall mean an employee who has not received the appropriate level of training and who is engaged on any of the following:– (i) servicing accommodation areas and cleaning thereof; (ii) receiving and assisting guests at the entrance to the establishment; (iii) driving a passenger vehicle of courtesy bus; (iv) cleaning duties using specialised equipment and chemicals; (v) providing basic food and beverage service with personalised guest service (room service).”. -- 2 of 4 -- 30 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 333 Conclusions The central point for determination in this case is whether the duties performed by Mr Sims can be termed “general cleaning duties” as provided in the definition of a House Attendant Grade 1 at clause 5.1.4(a)(iii) of the Award, or whether by virtue of the chemicals and equipment used, the work was “cleaning duties using specialised equipment and chemicals”, as provided in the definition of a House Attendant Grade 2 in clause 5.1.4(b)(iv). In my view, the argument put forward on behalf of the respondent, that equipment and chemicals are not specialised because they are used by almost all cleaners, misses the point. It is not the numbers of cleaners who use particular chemicals and equipment which is relevant, but rather whether those chemicals and equipment are specialised. The Award definitions do not require that an employee undertake the specified work for a majority of their working time. This can be compared with the definitions contained in the Australian Building Services Association – Queensland Division – Certified Agreement 1999 (CA409 of 1999), which require that a person be employed “for the greater part of their shift” on specified work, for the person to be classified at a particular level. There is no alignment in terms of relativities between the classification structure in that Agreement, and the classification structure contained in the Award. However, both structures provide for a Level 1 and a Level 2 and also have a level below Level 1. A number of duties performed by Mr Sims, would place him within Level 2, were he employed under the Certified Agreement, if those duties were performed for the greater part of his shift, e.g. carpet cleaning and operation of pressure washing equipment. This point was conceded by Mr Nipper who gave evidence about the Certified Agreement on behalf of the respondent. No evidence or submissions were put to the Commission by the parties, about the history of the classification structure in the Award or their intention with regard to the inclusion of “specialised chemicals and equipment” at Level 2. Further there is no definition of “specialised chemicals and equipment” in the Award. A perusal of the Commission’s files indicates that the classification structure was inserted into the Award by consent following a hearing before Fisher, C on 15 March 1993 (R12-3 of 1990 (1993) 142 QGIG 521). In my view, the phrase “specialised chemicals and equipment” should be given its ordinary meaning. The term “specialise” is defined in the Oxford Dictionary as to render special or specific; to invest with a special character or function. A reasonable approach to the distinction between “general cleaning duties” in Level 1 and use of “specialised chemicals and equipment” in Level 2, is whether the chemicals and equipment are commonly used in a general application, or whether they are used for more specialised purposes in the cleaning industry, by persons who require training. I am also of the view that chemicals and equipment commonly used in a domestic application would come within the meaning of the phrase “general cleaning”. Machinery or equipment which is multi-function, uses pressure or operates at high speed, is in my view specialised equipment. In contrast, general cleaning with a product and an implement such as a cloth, mop, bucket, broom, “squeegie”, brush or duster, is general cleaning. Similarly, the use of single function equipment such as upright vacuum cleaners or window cleaners attached to poles, is general cleaning. I am unable to be reasonably satisfied that the Tucker Pole is specialised equipment. The evidence, establishes that the use of the Tucker Pole requires very little if any training, and that any complexity associated with this piece of equipment is limited to the length of the handle. Similarly, there was no evidence of any training being required to use the upright vacuum cleaner, and I am also satisfied that it does not constitute specialised equipment. Further, both pieces of equipment are of a type commonly found in a domestic situation and do not operate at high speed, use pressure or have multiple functions. Performing basic maintenance and upkeep on equipment which is not specialised, does not constitute grounds for an employee to be classified at Level 2. There was no evidence that the maintenance performed on the upright vacuum cleaner was anything other than that ordinarily performed by an operator. There was no evidence to suggest that Mr Sims had not handled a number of chemicals in the manner he claimed, and I accept his evidence on this point. Cleaning products which require dilution may be utilised to perform general cleaning or they may be products which are specialised. I have no evidence before me as to the nature and composition of the chemicals used by Mr Sims. For reasons which appear below, this matter can be determined without a finding about whether the chemicals used by Mr Sims were specialised. However, the respondent’s own witness Ms Young gave evidence that she had been instructed that only supervisors, who were paid at Level 3 were to deal with chemicals and that supervisors were required to understand Material Safety Data Sheets relating to chemicals. I have reached the conclusion that some of the equipment used by Mr Sims was specialised. In my view, the wet/dry vacuum cleaner; the stripping/polishing machine, the duplex scrubbing machine and the gherni are specialised equipment. I am satisfied that each of these machines is either high speed, performs multiple functions or uses pressurised water. It is clear from the evidence that training in the use of this equipment is required and that Mr Sims provided that training to other employees, on the basis of his knowledge and experience. Further, this equipment was used to undertake specialised tasks such as carpet and upholstery cleaning and stripping and polishing a dance floor. Mr Sims also said that his duties differed from those of most of the other cleaners, who were engaged in cleaning and washing tables, cleaning poker machines and cleaning behind the bar, which Mr Sims considered to be general cleaning. I agree with this proposition. Under cross-examination, Mr Sims also said that his role was distinct from that of other cleaners, and agreed with Mr White’s proposition that he was required to do heavier work than that performed by the other cleaners. Finally, Mr Sims assertions about the maintenance and repair work he did were not challenged, and in my view such work is not general cleaning. I have also given consideration to the classification structure in the Award as a whole. That structure is based on a common framework which applies across classification streams for employees in the areas of Food and Beverage, Kitchen, Cooking, Leisure Activities and House Attendants. The framework provides for an introductory level with a relativity set at 78% of the tradespersons rate. Level 1 of the classification structure, which provides for a relativity of 82% of the tradepersons rate, incorporates the classification of House Attendant Grade 1, while Level 2 with a relativity of 88%, incorporates the classification of House Attendant Grade 2. The decision I have made about the equipment which would entitle an employee to be paid at the Level 2 rate, maintains consistency between the classifications under other streams in the Award, when a comparison is made between duties performed at Level 2 by employees in other streams. Given that the respondent referred me to the classification structure in the Australian Building Services Association – Queensland Division – Certified Agreement 1999 (CA409 of 1999), I have also considered the Award which underpins that Agreement, which is known as the Contract Cleaning Industry Award – State. That Award has a classification of cleaner which has a relativity of 87.4% for a cleaner and which is defined as follows:– “ ‘Cleaner’ (relativity to trade equivalent – 87.4%) means a person employed for the greater part of their working time in cleaning work of any description on any premises or in bringing into or maintaining premises in clean condition, whatever may be the nature of such employee’s other duties. -- 3 of 4 -- 334 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 November, 2001 For the purposes of this Award, ‘cleaner’ shall be deemed to mean a domestic worker engaged to perform work in a private residence that is of a household nature, including but not limited to cleaning and washing.”. The next classification level in the Award is a Building Service Employee – Grade 1, with a relativity of 92.4%, which is defined as follows:– “ ‘Building Service Employee – Grade 1’ (relativity to trade equivalent – 92.4%) means an employee performing duties of a Cleaner, who is in addition is (sic) engaged for the greater part of each day or shift on any of the following tasks, or a combination of such tasks:– • Ordering supplies and receiving deliveries and/or the responsibility for the distribution and maintenance of toilet and other requisites and cleaning materials in buildings or establishments and/or employee performing customer or public relations or other duties as required. • Carpet cleaning: Operating equipment used in any or all of the following methods – powder systems of liquid shampoo systems or hot water injection and extraction systems (commonly called ‘steam cleaning’). • Cleaning windows on the exterior of multi-storied buildings from swinging scaffolds, bosun’s chairs, hydraulic bucket trucks or similar devices. • Operating ‘Ride On’ powered sweeping machines. • Operating steam cleaning and pressure washing equipment on the exterior of buildings.”. I am also of the view that the approach I have adopted with respect to the Award which covered Mr Sims, is consistent with the classification structure applicable in the Contract Cleaning Industry Award – State. I am not prepared to accept the respondent’s evidence on the issue of the time spent by Mr Sims undertaking various tasks, because it was conceded by Ms Young when giving evidence for the respondent, that the estimates appended to Ms Maxwell’s statement, did not accurately reflect the time spent by Mr Sims using the Tucker Pole. On the evidence available to me, I am reasonably satisfied that Mr Sims spent one third of his working time on cleaning using specialised equipment and chemicals. The final issue for determination is whether Mr Sims has been underpaid in terms of the Award. As previously noted, the Award covering Mr Sims provides that employees are to be classified at a particular level if they perform any of the work at that level. There is no minimum or proportion of working time specified. It is also the case that clause 4.2 Mixed Functions, excludes casual employees. Further, there are no legislative provisions in relation to mixed functions or higher duties. I do not accept Mr Martin’s argument for the applicant, that clause 4.2 is rendered obsolete by the inclusion in the Award of a skills based classification structure. To accept this argument would be contrary to established principles of statutory interpretation, to the effect that an award provision must not be read so that it has no effect or is rendered void. I am of the view that when the Award is read as a whole, casual employees are employed on an hourly basis, and are entitled to be paid for each hour worked at the appropriate rate applicable for work performed. Where casual employees perform work at a higher level, they are entitled to be paid for that time, at the higher rate. Casual employees are excluded from the provisions of clause 4.2 which requires payment to an employee who works more than two hours on a grade of work attracting a higher rate, to be made at the higher rate, for the entire period worked on a day. The exclusion from what is in effect a minimum payment at the higher rate, does not mean that a casual employee is not entitled to be paid for each hour spent performing work attracting a higher rate, at that higher rate. I have found that Mr Sims spent one third of his working time performing the work of a House Attendant Grade 2. Accordingly, Hervey Bay RSL and Services Memorial Club Inc is to pay to Mr Kenneth Sims the amount of $1068.00. The amount is to be paid within twenty-one days of the date of release of this decision. I order accordingly. I.C. ASBURY, Commissioner. Released: 19 November 2001 Appearances:– Mr J. Martin, for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr R. White of the Registered and Licensed Clubs Association of Queensland, Union of Employers for the Respondent. -- 4 of 4 --