Cox v Impress Enterprises Pty Ltd t/a Old Time Photos, Surfers Paradise [2004] QIRC 39 (2004) 175 QGIG 1002

1002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 Released: 27 February 2004 ########################################################################################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for arrears of wages David Francis Cox AND Impress Enterprises Pty Ltd t/a Old Time Photos, Surfers Paradise (No. W1 of 2003) COMMISSIONER BROWN 3 March 2004 INTERIM DECISION This decision relates to an application by David Francis Cox of the Department of Industrial Relations (the applicant) on behalf of Madelyn Anna Petch pursuant to s. 278 of the Industrial Relations Act 1999 (the Act) for an order that Impress Enterprises Pty Ltd t/a Old Time Photos, Surfers Paradise (the respondent) pay Ms Petch the sum of $1,360.63 to compensate for wages allegedly owing. -- 1 of 4 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1003 In essence, the differences between the parties stem from a belief on the part of the applicant that the business of the respondent is a photographic establishment and that the work performed by Ms Petch is that of an operator pursuant to the then Photographic Employees’ Award – State (the Award). The respondent on the other hand believed the business (Old Time Photos) is not a photographic establishment and is Award free, a view formed some years ago subsequent to consultation with an inspector attached to the Department of Industrial Relations. Old Time Photos uses a digital camera to capture the images and produces the picture for the customers via a bubble jet printer. Evidence for the applicant was given by Ms Petch and Mr Clement Williams an inspector of the Department of Industrial Relations at Southport. Evidence for the respondent was given by Andrew Norman Eggleston (Director of the respondent), Elizabeth Anne Berghuis (part-time employee of the respondent), Kimberley Anne Gees (casual employee of the respondent) and Gabriel Patricia McDonald (bookkeeper previously engaged by the respondent). The Commission was shown samples of the pictures which form the finished product sold to customers (Ex4), an extensive range of pictures of props, set and costumes (Ex10) and a flow chart setting out the various phases of the operation of Old Time Photos (Ex9). The evidence was that employees greeted/welcomed potential customers, assisted customers to choose a setting in which to be photographed, then further assisted in the choice of costume to be worn for the photo. On occasions the employee would assist the customer to dress in the costume. The employee would then organise the customer/s into various poses and capture the image/s by way of use of a digital camera. Following this, and while the customer changed back into their own cloths, the employee would down-load the images onto a computer for perusal by the customer/s and print the selected image/s chosen by the customer/s and receive monies for the service/photos. Mr Eggleston in evidence stated that the business (Old Time Photos) was acquired by Impress Enterprises Pty Ltd as a going concern in 1998. He claimed to have formed the view that the work performed by employees was Award free following consultation with Industrial Inspector Barnes, soon after the acquisition of the business. He stated that Ms Petch worked primarily in the business (Old Time Photos) but had at times worked for other entities owned by the respondent namely, Paparazzi Press and the tattoo business. In evidence, Mr Eggleston claimed that the purpose of Old Time Photos was not to sell photos and further that patrons paid for an “experience”. He stated in Ex 12: “All my business is about fun, make believe and the things people do spontaneously.”. (Paragraph 39) and further “We do not sell photographs. The purpose of our establishment called Old Time Photos is not the print, it is the fun in choosing the backdrop, then some costumes, then the right accessories, dressing up and having some fun in style. Then it is recorded for posterity on the print that the individual or group walk away with. We do not sell photographs we sell prints of the time people have had in dressing up, a record of a bit of fun. The print is the minor part of the process.”. (Paragraph 40) He drew a comparison with photographs taken at theme parks stating: “The operator of a ride photo booth in a theme park is not involved in a photographic establishment. The purpose of the ride for the participants is the ride and the fun they have on that ride and not the print they may or may (not) decide to purchase at the end. Even if the person decides to go on the ride because they want a print of themselves on a roller coaster or whatever the specific ride happens to be it is a desire to have a print of themselves having a particular experience, the print and the experience, not just the print.”. (Paragraph 43) He then stated: “The purpose of Old Time Photos is not to take photos but to give people an opportunity to indulge in some fantasy, using high quality settings and effects, and they walk away with a memento of that”. (Paragraph 46) The sworn statements of witnesses for the respondent supported broadly the view of Mr Eggleston. However, some of the evidence of Ms Gee in cross- examination was contradictory. Ms Gee stated in response to a question where Ms Prior (for the respondent) asked “at the time of posing do you find there’s much frivolity and people frolicking around? – Yes – Unfortunately there is. (My emphasis). Ms Gee further stated that while it is a good thing for people to “:get into the character” as it adds to the experience and the photo, she also said importantly “it can be bad for us when it’s really busy because it takes up time and you’ve got to adjust them and get them to stop playing around”. (my emphasis) The evidence of witnesses for the applicant was that the service provided was a photographic service primarily. The Business Name extract (Ex2) from the Queensland Government lists the nature of the business of Old Time Photos as “Photos”. Mr Eggleston acknowledged that it had never occurred where an individual or group wanted the experience of dressing up only, and not the photograph. (Transcript page 72, lines 5-8) The “experience” of role playing and horseplay is, in my view, incidental to primary the purpose of the business (the provision of images resembling old photos) and indeed in busy times the role playing experience is suppressed by staff, according to the evidence of Ms Gee which I accept. I have considered the evidence regarding the time spent on each phase of the Old Time Photos operation. -- 2 of 4 -- 1004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 Only twice in the memory of all witnesses had patrons left without a picture and it was a very regular occurrence that patrons purchased extra photos at a cost of $12.00 each. I reject the respondent’s contention that the “experience” is the primary function and agree with the submissions of the applicant that if there were no photos there would be no business. I find that the primary function of the Old Time Photos business is the recording and sale of digital images to customers. Samples of the pictures sold to patrons shown to the Commission (Ex4) appear to be a good quality product, which to the Commission’s untrained eye resemble old photographs in what is know as sepia colours. The respondent conceded that should the Commission determine the business of Old Time Photos was a “photographic establishment” there was no contest regarding the assertion by the applicant that Ms Petch was an operator within the definitions of the Award and after some discussions between the parties there was agreement that there would be no opposition by the respondent to the amended amount claimed. The Award as it then was is identical to the Award as it currently stands (2003). Both Awards at clause 2 states: “This Award shall apply to employees in Photographic Establishments throughout the State of Queensland.”. The definition of “Operator” as contained in both Award is: “An “operator” shall mean an employee who is capable of efficiently executing the taking of studio or outdoor photographs by any process and who may be responsible for the development and completion of the work.”. The words “by any process” were added to the “Operator” definition in 1966. Given that digital photography is a recent phenomena, I am satisfied that the amendment was not one designed to accommodate the digital process and thus unhelpful and in any event the term remains linked to the production of a “photograph”. There is no definition provided for the term “photographic establishment”. Mr Cox (representing the applicant) in submissions at line 14, page 106 of the transcript stated: “Common sense dictates that it (a photographic establishment) must be a place where photographs are taken and/or processed to the finished image.”. Mr Eggleston in evidence (Ex12, paragraph 19) stated: “I also take issue with the description of the images as a photograph from a technical perspective. They are certainly printed images however the definition of a photograph universally describes the image of a person or persons or a scene on light sensitive material. The images we print are not on light sensitive material. They are printed on gloss paper. The same gloss paper used in every day office administration. The process is not dissimilar to downloading material from the internet. However this image is downloaded from a digital device that has image capturing capability. The images are not of photograph standard. As the same way as a photocopy of a photograph is not photograph standard and could not be called a photograph. Technology has created a range of methodologies that produce a range of images that we did not have many years ago. That does not mean the range of printed images are photographs.”. The definition of “operator” referred to above is in 2 parts. The first, the ability to take photographs, is a mandatory requirement. The second, the ability to develop and complete work is not. In the view of the Commission the term “taking of photographs” should be further examined. In the context of the definition of “operator” the term “taking of photographs” refers to the capturing of the image in a camera. The photograph (noun) does not exist until it is developed or completed. I accept that the printing process used to make the image is not developing in photographic terms. In this light the Commission’s view is similar to that of the paries i.e.that a person employed in a “photographic establishment” capturing images on a digital camera would, in all likelihood, be an “operator” for the purposes of the Award. As agreed by the parties, the task for the Commission is to determine whether or not the Old Time Photos business can be correctly described as a “photographic establishment”, therefore it is necessary to examine the definition of the word “photographic”. The Macquarie Dictionary defines “photographic” as: “of or pertaining to photography.”. and “photography”: “the process or art of producing images of objects on sensitised surfaces by the chemical action of light or of other forms of radiant energy , as X- rays, gamma rays, cosmic rays etc.”. Applying this definition the image produced by way of a bubble jet printer attached to a computer is not a photograph. The image is produced by the application of tones directed by electronic impulses and not by the chemical action of light and is not a photograph. However, the Macquarie Dictionary (later edition) provides a further definition of “photographic” being: “suggestive of a photograph”. Considering this further definition and the fact that the images shown to the Commission might be suggestive of a photograph, it could well be that my interpretation of clause 2 (Application) of the Award is that the business of the respondent is a “photographic establishment”. -- 3 of 4 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1005 However, at this point, I am not prepared to make that determination as I believe it could affect the hitherto accepted interpretation of the Award. A decision that this business, utilising digital imaging methods, is or is not covered by the Award could have wide reaching ramifications affecting, in a significant way, individuals or enterprises not represented in these proceedings and who may have interpreted clause 2 in a fashion contrary to the decision being sought by the applicant. A Practice Note (PN 7) relating to Wage and Superannuation recovery applications was issued effective from 15 August 2003 (173 QGIG 1165) states inter alia: “An application for the recovery of wages may involve an interpretation of an award. Where a Member considers that an interpretation being contended for could disturb the accepted interpretation of the Award, major Award parties may be heard by the Member in a manner so determined by the Member. In deciding whether to hear from the major Award parties, the Commission Member may take into account such factors as the time and cost implications for the parties to the s. 278 application.”. Whilst the Commission is not bound to follow the Practice Note, I have decided to call for submissions from appropriate organisations on the following issue: “Does the Application Clause of the Photographic Employees’ Award – State mean that Award coverage extends to establishments where the primary function is capturing and providing for sale images captured on a digital camera and printed through a computer printer?”. In the mean time the parties should consider, as the Commission has, the evidence provided with respect to the range of duties performed by employees which, in the view of the Commission, could attract Award coverage. They are: • cleaning; • laundry (minimal); • first point of contact with customers/explanation of service (reception. • capturing images on a digital camera; • downloading data to a computer; • retrieving data from a computer; • printing material using a printer connected to a computer; • selling the material/service to customers; and • accounting for monies/preparation of banking records. Considering this range of duties, it is possible that a number of Awards could apply such as the then Miscellaneous Workers’ Award – State for cleaning or the then Clerical Industry Award – State for receipting monies, recording sales and banking preparation. However, whilst this is not a finding and acknowledging that the parties have not made any detailed submissions with respect to Award coverage (other than the then Photographic Employees’ Award – State), the Commission is of the view that if the then Photographic Employees’ Award – State does not apply, it is highly probable that both the business (Old Time Photos) and the work performed there by employees would have been regulated by the then Retail Industry Interim Award – State. Clause 1.2(2) of that Award states: “This Award shall apply to all employees engaged in the reception and/or preparation and/or hire and/or sale and/or delivery (excepting any employees engaged solely in the delivery of newspapers) and/or installation of any goods and/or services by retail, and applies to persons employed wholly or principally as a clerk as defined herein.”, If Mr Eggleston is right then a strong argument exists that the employees of the Old Time Photos business are engaged in the sale of goods (printed images) by retail and the sale of a service (the “experience”) by retail. I encourage the parties, in light of the above, to enter further discussions regarding Ms Petch. In that an appealable finding has been made in this decision with respect to the primary function of the business of Old Time Photos, I do not intend to re- list the matter until after a period of 22 days has elapsed. In the absence of an appeal the Commission will seek the views of the parties as to the method to be adopted to notify potential interested organisations and regarding how those organisations should be heard. I do not propose to take further submissions from the parties, however, should the parties agree, it may be appropriate for the Commission to be assisted by way of expert evidence. D. K. BROWN, Commissioner. Hearing details: 2003 4 January 13 November Appearances: Mr D. Cox for the Department of Industrial Relations. Ms K. Prior of Prior & Associates for Impress Enterprises Pty Ltd. Released: 3 March 2004 -- 4 of 4 --