Re Nicol v Mr Holiday Pty Ltd T/As Sherlock Pastoral Company [1991] FCA 379 (16 August 1991)

FEDERAL COURT OF AUSTRALIA

Re: NICOL
And: MR HOLIDAY PTY LTD T/AS SHERLOCK PASTORAL COMPANY
No. WA I1 of 1991
FED No. 465
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Olney J.(1)

CATCHWORDS

Industrial Law - Pastoral Industry Award 1986 - alleged breaches of award - parties bound by award - definition of 'domestic cook' and 'station cook'.

Industrial Relations Act 1988

Pastoral Industry Award 1986 clauses 3, 6, 9, 55(b), 60(a), 61, 62(b)

HEARING

MELBOURNE
16:8:1991

Counsel for the applicant : Mr H.J. Rigby

Solicitor for the applicant : Australian Government Solicitor

The respondent appeared in person by leave of the Court.

ORDER

The application be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant seeks declarations that the respondent has committed breaches of clauses 55(b), 62(b), 60(a) and 61 of the Pastoral Industry Award 1986 and further seeks an order that the respondent pay appropriate penalties for such breaches.
THE PARTIES

2. The applicant is a person appointed as an inspector under subsection 84(2) of the Industrial Relations Act 1988 (the Act) and pursuant to paragraph 178(5)(a) has standing to sue for a penalty for a breach of a term of an award.

3. The respondent is a company duly incorporated in Western Australia and carries on the business as a pastoralist at Roebourne under the name of Sherlock Pastoral Company.
THE AWARD

4. The Pastoral Industry Award 1986 (PIA) is an award made pursuant to subsection 143(1) of the Act and is binding on the respondent by reason of the respondent's membership of The Pastoralists' and Graziers' Association of Western Australia (Incorporated) (PIA clause 5(a)(ii)).

5. The PIA applies to employees employed by respondent employers in connection with the management, rearing or grazing of sheep but does not apply to overseers and domestic cooks (PIA clause 6(a), (b)).

6. The term 'domestic cook' is defined to include any cook who cooks for less than 4 station hands, other than the cook herself, and any cook who cooks for less than 6 employees engaged for shearing or crutching operations (PIA clause 3).

7. 'Station hand' means an employee to whom the award applies including station cooks but excepting employees engaged for shearing and crutching operations to whom Section I of the award applies (PIA clause 3). Section I of the award does not apply to any employee engaged to work on a weekly basis under Section II (station hands) during any time the employee is employed in shearing and crutching operations unless he is a station hand engaged by the week who works in the employer's shearing shed and who has been engaged during the period commencing one week before the actual shearing or crutching begins and who is discharged during the week after the shearing or crutching actually ends (PIA clause 9).

8. The term 'station cook' is not specifically defined, however Section II of the award contains provisions which refer to 'station hands (other than station cooks)' and to 'station cooks'. Subclause 55(b), which is headed 'Station Cooks' prescribes minimum rates to be paid to various classifications of station cooks. The classification relevant to these proceedings is that applicable to a female cook who cooks for 4 to 13 persons per week on the average. As a matter of construction of the award, I conclude that a person who is within the definition of 'domestic cook' cannot be properly classified as a 'station cook'.

9. Clause 55(b) of the award prescribes a weekly rate of pay for station cooks. The rate for a female cook who cooks for 4 to 13 persons on the average per week during the period relevant to these proceedings was $226.50 up to 30 April 1989 and $234.50 from 1 May 1989.

10. Although there is no limitation of hours of work for station cooks, such employees are entitled to one and a half days off each week (PIA clause 56(c)(i)) and a cook who is required to work for more than 6 full days in any one week is entitled to be paid overtime equal to 3/22nds of the appropriate weekly rate (PIA clause 56(c)(ii).

11. Clause 62(b) provides that an employee who leaves or is discharged before completing a year of service shall be paid an amount equal to one twelfth of the pay earned for ordinary time for the period of service plus, in the case of an employee engaged "with keep", the value of the "keep" deducted for the relevant period.

12. Clause 60(a) requires the employer to keep or cause to be kept a wages record showing the name and occupation of each employee and other prescribed details.

13. Clause 61 provides for payment at the rate of double time for work performed on any of several named public holidays, including inter alia Anzac Day.
THE PLEADINGS

14. It is common cause that the applicant is an inspector appointed under subsection 84(2) of the Act; that the respondent is a company incorporated in Western Australia; that at all material times the respondent was a member of the Pastoralists and Graziers Association of Western Australia and as such was bound by the award; that the respondent carries on the business of a pastoralist at premises known as Sherlock Station at Roebourne in W.A. and that at all material times Denis Henry Norriss (Norriss) was a director of the respondent.

15. The applicant pleads that during the period 1 April 1989 to 5 May 1989 (inclusive) the respondent employed one Shirley Smith-Pratt (Smith-Pratt as a station cook at Sherlock Station and that during that period Smith-Pratt performed the duties of a station cook. It is said that on or about 5 March 1989 in a telephone conversation between Norriss and Smith-Pratt, Norriss (on behalf of the respondent) offered -

(i) to employ Smith-Pratt as a station cook
(ii) to pay Smith-Pratt the relevant wage for a station
cook in a lump sum at the conclusion of shearing then
being undertaken at Sherlock Station; and
(iii) to pay Smith-Pratt $50 per week for the purchase of food for
each of the station hands for whom Smith-Pratt was to cook
and that Smith-Pratt accepted such offer. The respondent denies
that any offer of employment or offer of payment of wages
was made but said that Smith-Pratt agreed to take $50 per
week to provide food for certain Aboriginal employees being
their entitlement for "keep".

16. The applicant pleads that Smith-Pratt was entitled to wages and annual leave payments pursuant to the award and that after shearing was completed she demanded payment of same from the respondent. The respondent denies any liability for wages or overtime on the grounds that Smith-Pratt was not an employee and denies that any demand was made as alleged.

17. No facts are pleaded in connection with the alleged breach of clause 60(a).
THE EVIDENCE

18. Apart from documents tendered to prove formal matters, the evidence comprised the testimony of 4 witnesses called on behalf of the applicant, and one witness for the respondent. The evidence is summarised below.

19. Daniel Anthony Nicol, the applicant, is an inspector appointed pursuant to section 84(2) of the Act employed by the Department of Industrial Relations. In about late May 1989 he received a written complaint from one Shirley Faye Smith-Pratt (Smith-Pratt) who claimed that she had worked at Sherlock Station from 8 March 1989 to 4 May 1989 cooking for workers on the station and had not received any payment. The complaint named 6 persons for whom she said she cooked.

20. Nicol first interviewed Smith-Pratt and some of the persons named in the complaint and later in approximately September 1989 he spoke to Norriss by telephone. Norriss referred him to Mr John Whittle, an employee of the Pastoralists and Graziers Association. On 30 October 1989 a letter was sent to the respondent alleging breaches of the award in relation to Smith-Pratt's claimed employment and on 1 December 1989 Nicol interviewed Norriss and Whittle. In the course of the interview Nicol asked Norriss if Smith-Pratt had been employed as a station cook during the period 8 March to 4 May 1989 and Norriss replied that Smith-Pratt had never been employed as a cook. Nicol then asked if Smith-Pratt did in fact cook for employees at the station to which Norriss replied in the affirmative. In response to further questions Norriss said that Smith-Pratt had been employed by the Aboriginal station hands on the station. When asked by Nicol if he recalled a telephone conversation on or about 5 March 1989, Norriss at first said he could not recall it but after more details had been suggested by Nicol, Norriss agreed that he recalled an occasion when he spoke first to Smith-Pratt's husband Robert Smith (Smith) and then to Smith-Pratt. Norriss said that in this conversation an arrangement was made whereby Smith-Pratt would cook for the employees and he (Norriss) would pay her $50 per week per man for the cost of food. Norriss denied that the question of wages was mentioned. Norriss agreed that Smith-Pratt had in fact cooked for Smith (her husband), Adam Pratt (her son), Charlie Alec, Thomas Hubert, Kevin George, James Fredericks and Ross Livingstone.

21. Shirley Faye Smith-Pratt said that she had worked at Sherlock Station as a cook for the period 8 March to 4 May 1989. She had gone to Sherlock Station in January 1989 with her husband Robert Smith when he was employed there as an overseer. She recalled that around about 5 March 1989 Norriss had telephoned from Perth "about Robert (Smith) hiring some more men for shearing" and after first speaking to Smith, he had spoken to her. Her evidence concerning the conversation was as follows:

COUNSEL: Please advise the court if you've ever worked at
Sherlock Station before?---Yes, I have, as a cook.
And when was that?---That was from the period of 8 March to 4 May.
What year was that?---That was - that's a good question; 89,
I think it was.
1989. When did you first become aware of this job?---Dennis
Norriss rung up Robert around about 5 March; the
conversation was about Robert hiring some more men for
shearing or something - - -
........
COUNSEL: Now, you mentioned that Mr Norriss - who you've
identified - telephoned your husband Robert?---Yes.
And did you speak to Mr Norriss?---After the phone was
handed to me, yes.
And what was discussed?---He asked me if I would cook for
the men and I said yes.
Okay. The men, who were they?---At the time there was
Charlie Alec and Adam Pratt was there - which is my son.
HIS HONOUR: ........
What were they doing there?---They were just station-hands
at the time.

22. The witness said it was not unusual for payment to be made after shearing although she said she had asked Norriss after almost 3 weeks when she would be paid and he again said after shearing. The reason for asking at that time was that she "just wanted to make sure that (she) would be paid." Norriss paid to her from time to time, either weekly or fortnightly as was convenient, $50 per week for each man for whom she cooked.

23. Robert Anthony Smith testified that he had been employed as manager/overseer of Sherlock Station and that Smith-Pratt, his de facto wife, had lived with him there in the station homestead. Originally Smith-Pratt had cooked for him and their 2 sons Daniel and Adam but a few weeks after their arrival she was asked to cook "for the remainder of the team", which at the time comprised only one other person, a station hand. The circumstances whereby this came about were that Norriss had telephoned him to ask him to get a lady named Lillian to leave the station. It appears that Lillian was the wife of a former employee and had prior to the Smiths' arrival, cooked for the station hands. Norriss then asked Smith to go to town to employ more hands for mustering which he agreed to do, and then Norriss said "Will Shirley take over from Lillian with the cooking?", to which Smith replied that Norriss would have to talk to Shirley about that. On the first occasion Norriss had returned to the station after the telephone conversation he had given Smith-Pratt a cheque made out in her name for the expenses associated with cooking for the men. Due to his concern that this money might be regarded as wages and thus be taxable, Smith asked Norriss to make future payments to cash, a suggestion to which Norriss agreed and subsequently complied with. Smith says that in this conversation with Norriss he (Smith) had said "The wages don't come till after the end of shearing", to which Norriss replied "That's correct." Smith said in re-examination in the context of questions about the telephone call, that he had been told by Norriss to employ more people to help with mustering and shearing.

24. By reference to his diary Smith was able to give fairly precise evidence as to the dates the various station hands were employed over the relevant period. This aspect of the evidence revealed the following:

8 March 1989 : Lillian left the station.
Charlie Alec commenced.
Smith-Pratt commenced cooking.
16 March 1989 : Charlie Alec terminated.
28 March 1989 : James Fredericks and Tom Hubert started.
1 April 1989 : Adam Pratt terminated.
Shane Livingstone started.
18 April 1989 : Kevin George started.
May 1989 : Shearing finished.
3 May 1989 : Shane Livingstone terminated.
4 May 1989 : James Fredericks, Tom Hubert and Kevin George
terminated.
Smith-Pratt finished cooking.

25. Shane Richard Livingstone said he worked at Sherlock Station as a station hand for about 1 month from 1 April 1989 during which time Smith-Pratt cooked for him other than on Sundays when he did for himself. During this period Smith-Pratt also cooked for 3 other station hands who he identified as Thomas and James and Adam, Smith-Pratt's son.

26. The only witness called on behalf of the respondent was Maree Ursula Norriss, the wife of Denis Norriss, and herself a director of the respondent. The thrust of Mrs Norriss' evidence was that Smith-Pratt had telephoned one Sunday saying that one of the Aboriginal station hands who had just been engaged had worked with them (the Smiths) previously in the Carnarvon area and she asked if it would be possible to cook for him. Mrs Norriss' reply was in substance that it would not be a good idea to cook for just one of several station hands but if she wanted to do so that was up to her. Having said this she (Mrs Norriss) passed the phone to her husband who spoke with Smith-Pratt. When such a conversation was put to Smith-Pratt in cross-examination, she was unable to remember any such telephone call.
THE ISSUES

27. In general terms, the issues which fall for determination are first, whether the respondent entered into a contract of service with Smith-Pratt and second, if there was such a contract, whether the award applied to the employment.

28. As to the second issue, it will be necessary to address the question of whether or not Smith-Pratt worked as a domestic cook (as defined). The award will not apply to her employment if she was a domestic cook and she will be so classified if she cooked for less than 4 station hands or for less than 6 employees engaged for shearing or crutching operations.

29. It is unfortunate that in the presentation of the application those representing the applicant did not address the issues raised by the definitions of 'domestic cook' and 'station hand' or the effect of clause 9. However, in order to give a sensible meaning to the definition of 'domestic cook' it is necessary to construe the terms 'station hands' and 'employees engaged for shearing or crutching operations' as being mutually exclusive.
FINDINGS OF FACT

30. Telephone conversation:

(a) I am satisfied that a telephone conversation took place
between Norriss and Smith-Pratt sometime at about the time
of commencement of shearing operations on Sherlock Station
in the early part of March 1991. It is immaterial who
initiated the call.
(b) Having regard to Nicol's evidence of his conversation with
Norriss on 1 December 1989 and Smith-Pratt's evidence, I
find that the content of the conversation was substantially
as stated by Smith-Pratt. Accordingly, I find that Norriss
asked Smith-Pratt to cook for station employees employed
during shearing operations and that he agreed to pay her for
her services and to pay $50 per week per employee cooked for
to cover the cost of food.
(c) The subsequent conduct of both Norriss (in paying $50 per
man per week for the cost of food etc.) and of Smith-Pratt
(in cooking for the men employed during shearing) was
consistent with the arrangement as described by Smith-Pratt.
(d) I accept the evidence of Smith-Pratt and of Smith that on
different occasions each questioned Norriss as to when
Smith-Pratt would be paid and on each occasion Norriss
replied, after shearing.
(e) I further find that in a telephone conversation with Smith
which immediately preceded the conversation with Smith-Pratt
Norriss asked Smith to employ further station hands
to assist with shearing operations and that all of the hands
for whom Smith-Pratt later cooked for engaged for that purpose.

2. The work undertaken:

(a) Prior to the telephone conversation, Smith-Pratt cooked for
Smith and her 2 sons including her son Adam Pratt who for at
least part of the relevant period was an employee of the
respondent.
(b) Smith-Pratt owed no obligation to the respondent to cook for
Smith at any time either before or after the telephone
conversation.
(c) Smith-Pratt cooked for the following employees during the
respective periods set out below:
8.3.89 to 16.3.89 : Charlie Alec.
28.3.89 to 31.3.89 : James Fredericks
Tom Hubert.
1.4.89 to 17.4.89 : James Fredericks
Tom Hubert
Shane Livingstone.
18.4.89 to 3.5.89 : James Fredericks
Tom Hubert
Shane Livingstone
Kevin George.
4.5.89 : James Fredericks
Tom Hubert
Kevin George.
(d) There is no evidence as to when Adam Pratt was employed but
as he terminated prior to Shane Livingstone commencing the
number of employees being cooked for during the period of
his employment would never have exceeded three.
(e) During the period 8 March 1989 to 4 May 1989 (inclusive)
Smith-Pratt worked six full days each week Monday to
Saturday and also on Anzac Day. She did not work on any
Sunday.

3. The engagement of the station employees:

(a) There is no evidence as to when shearing operations
commenced but I infer from Smith's evidence as to
instructions Norriss gave him, and the dates of the
engagement of the various employees, that in all probability
shearing commenced shortly after the telephone conversation
on or about 5 March 1989.
(b) All of the employees referred to above were engaged for
shearing operations and I infer from the evidence that they
worked in the respondent's shearing shed.
(c) I infer from the fact that the respondent paid Smith-Pratt
$50 per week per man for food that 'keep' was deducted from
their pay that all the employees were employed by the week.
(d) None of the employees referred to above continued in
employment for more than a week after shearing actually ended.

CONCLUSIONS
1. On or about 5 March 1989 the respondent, through Norriss, employed

Smith-Pratt to work as a cook at Sherlock Station.

2. Smith-Pratt's duties were to cook for employees employed by the

respondent in connection with shearing operations conducted at
Sherlock Station.

3. The terms of the employment were not specified in the agreement

except that
(a) the respondent would pay Smith-Pratt $50 per week for each
person cooked for to cover the cost of food; and
(b) wages would be paid in a lump sum after shearing.

4. Smith-Pratt cooked for varying numbers of employees during the

period 8 March 1989 to 4 May 1989. At no time did she cook for
more than 4 employees at any one time. All of the employees for
whom Smith-Pratt cooked during the period 8 March to 4 May 1989
were employed "for shearing or crutching operations".

5. During the whole of the period 8 March 1989 to 4 May 1989 Smith-Pratt

was a domestic cook as defined by the award and was
therefore not a person to whom the provisions of the award
applied.

6. As the award did not apply to the employment of Smith-Pratt, no

breach of the award provisions can be found against the
respondent.

31. The application will be dismissed.