Armitage v Suncoast Wholesalers Pty Ltd trading as Sunshine Mobile Diners [2000] QIRC 56 (2000) 164 QGIG 246

246 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 July, 2000 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Lori Ann Armitage AND Suncoast Wholesalers Pty Ltd trading as Sunshine Mobile Diners (No. B1178 of 1999) COMMISSIONER BECHLY 27 June 2000 Application for reinstatement –Preliminary issue – Casual employee of less than 12 months standing – Determination of appropriate award coverage – Preparation of food and sale from mobile dinner on various industrial sites – Retail Take-Away Food Award – South-Eastern Division applicable award. DECISION A preliminary matter has been raised by the respondent in that it argues that the applicant is a casual employee of less than twelve months employment whose employment is either award free or, in the alternative, covered by the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division (“Hospitality Industry Award”). If the latter was the case access to the reinstatement provisions of the Industrial Relations Act 1999 (“the Act”) would be denied by virtue of ss. 72(1)(c) and 72(8) of the Industrial Relations Act 1999 because the definition of a casual in the above Award is such as to encompass the applicant because as it has no limit on the number of hours a casual may work in any week. The applicant argues that the appropriate Award is the Retail Take-Away Food Award – South-Eastern Division (“Retail Award”). That Award would exclude the applicant from being a casual employee because, each week, she worked beyond the maximum hours permitted for casuals. On average she worked approximately 44 hours each week and so is not a casual employee excluded by the Act. The work performed is the selling of take away food, snacks etc. from mobile vans to persons employed at commercial businesses, industrial sites and building sites. The food is prepared for sale by the applicant at a kitchen in a warehouse which also houses office and storage facilities. -- 1 of 3 -- 7 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 247 Hours worked are generally eight per day from Tuesday to Friday between 5.30 a.m. and 6.30 p.m. on Mondays and between 6.00 a.m. and 2.30 p.m. on Tuesday to Friday. Work is also performed on a Saturday, from 6.30 a.m. to 12.30 p.m. Employees are paid to 2.30 p.m., but it is said that they may leave earlier if work is completed. The Retail Award excludes from its application employees covered by the Hospitality Industry Award and the Hospitality Industry Award excludes from its application employees covered by the Retail Award or any other award. The Retail Award excludes from its operation employees employed by contract catering companies who work in, or in connection with, the preparation and sale of meals, snacks and/or beverages which are primarily sold to the public to be eaten on the premises or taken away. Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division In determining whether this Award has any application one must first go to the “Industry” provided in the Award title. This Award is intended to apply in the Hospitality Industry and to the operation of Restaurants, Catering and Allied Establishments within that “Industry”. Does the operation of the business conducted by the respondent fall within the Hospitality Industry? I think not. The Hospitality Award was first made on 10 January 1997. On that date also the Cafe, Restaurant and Catering Award – South Eastern Division (“Cafe Award”) was rescinded. But for the making of the Retail Award, the rescission of the Cafe Award would have left certain employees previously covered by the Award, but not covered by the Hospitality Industry Award, free of award coverage. Such employees fell within the following categories: • All persons employed in all work or in connection with the preparation and sale of meals, snacks and/or beverages which are sold to the public primarily to take away:– (a) where such work is carried out in shops or stores where this work is incidental to the primary role of the sale of consumer goods; (b) in food service establishments which primarily provide a take away service where no alcohol is served; • All persons employed and/or to be employed in food services trading as “Pizza Hut”; • Persons employed in the preparation and/or sale of take away food and/or beverages in food courts in shopping centres. The Retail Award was also made operative from 10 January 1997 to provide award coverage for all these employees who were not regarded as being employed within the Hospitality Industry. In the decision regarding the making of the Hospitality Industry Award Commissioner Bougoure described the establishments to be covered by the Award in the following terms:– “The proposed Award seeks to cover a wide range of establishments from “up market” licensed restaurants to small unlicensed restaurants providing light meals to unlicensed small cafes, coffee shops and takeaway operations in conjunction with such establishments.”. The take away food operation, the subject of the matter now before me, is not conducted “in conjunction” with such an establishment. The decision reports that evidence in the matter was called from the following: “1. Mr R. McInnes, Chief Executive of Sunshine Plantation Pty Ltd of Nambour, which conducts the “Big Pineapple”. 2. Ms G.J. McCosker, proprietor of Two Faces of Eve Cafe at Annerley Junction. Ms McCosker said her establishment provides coffee and light meals, is unlicensed and employs 10 staff and has seating for 70 to 80 people. Ms McCosker gave evidence to the effect that there exists a significant difference in the level of skill and responsibility which has to be exercised in hotels compared with cafes such as the one operated by her. She also referred to the differing environment in which employees work. 3. Mr D. Martin, a working Director of Angies Pizzeria and Tratoria. Mr Martin has extensive experience in the industry and is also a business consultant to the restaurant industry. His establishment is unlicensed and seats 85 persons and in addition to himself and his wife, employs only a limited staff. Mr Martin says it is very difficult to compare hotels and restaurants and outlines the reasons for his views. 4. Mr J.H. Kilroy, proprietor of Wanganui River Gardens Centre at Yeronga. Mr Kilroy has extensive experience in both hotels and restaurants and gave evidence of the difference between the operation of hotels and restaurants and the differing staff requirements. 5. Ms H.M. Sandells, Human Resources Manager for Collins Foods International, which conducts Sizzlers and the Italian Oven.”. It is obvious from a consideration of this material the respondent’s business does not fall within the category of Hospitality Industry as intended to be covered by the Hospitality Industry Award. Retail Take-Away Food Award – South-Eastern Division The area of application of this Award is in the same terms as set out above for employees who would have been made award free by the rescission of the Cafe Award. The most relevant sections of that material, as presently contained at clause 1.4 of the Award are: 1.4.1 This award shall apply to all employees:– (a) employed in all work in or in connection with the preparation and sale of meals, snacks and/or beverages which are sold to the public primarily to take away:– (i). . . ; (ii) in food service establishments which primarily provide a take away service where no alcohol is served. The Macquarie Dictionary relevantly defines “establishment” as “a place of business or residence and everything connected with it (as furniture, fixtures, grounds, employees)”. That definition aptly describes the activities of the respondent from the fixed operations conducted from the warehouse to the mobile sales activities conducted from vans. -- 2 of 3 -- 248 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 July, 2000 The daily activities of the applicant readily fall within the classifications contained in the Food and Beverage Stream and the Kitchen Stream within that Award. In reaching this conclusion I have formed the view, on the material before me, that the major part of the employee’s duties involved the selling of the food from the van, including setting the food up in the van and unloading and cleaning the van at the end of the day. This work would seem to fall squarely within the term “food service establishments which primarily provide a take away service”. Retail Industry Interim Award – State An alternative award which would have application if it was held that this type of operation was not that envisaged to be encompassed within the Retail Take-Away Food Award – South-Eastern Division would be the Retail Industry Interim Award – State. The principal activity of the respondent is the retailing of prepared food to the public. The Retail Industry Interim Award – State has classification coverage for such duties as well as cooking and preparation of food for sale. The definition of a casual employee in this Award is similar to that contained in the Retail Take-Away Food Award – South-Eastern Division in that the hours that an employee may work to fall within the definition of a casual are limited to less than those ordinarily worked by a full-time permanent employee. Contract Catering and Industrial Services Award – South-Eastern Division In reaching these conclusions I have taken into account the provisions of the Contract Catering and Industrial Services Award – South-Eastern Division. That Award appears to have no relevance to the respondent’s business. The respondent does not provide catering services on a contract or fee for service basis. I determine that the applicant is not award free and is not covered by the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division. This matter will be listed for further hearing on application. R.E. BECHLY, Commissioner. Released: 27 June 2000 Appearances:– Mr G. Diehm of Counsel, instructed by Butler McDermott and Egan, Solicitors, for the Applicant. Ms B. Callaghan of Counsel, instructed by Boyce Garrick, Solicitors, for the Respondent. -- 3 of 3 --