Western Australian Industrial Gazette

76 W.A.I.G.WESTERN AUSTRALIAN INDUSTRIAL GAZETTE21. All of the five employees were members of the StateGovernment Employees Superannuation Fund administered by the Government Employees Superannuation Board.22. Membership of the fund is only available to employees of the State Government working in any of itsdepartments, agencies or instrumentalities (see p.17of Volume 6 Exhibit Book).23. A number of Workers Compensation claims weremade by the employees during the period of theiremployment. All such claims were processed withthe Main Roads Department being named as therelevant employer. The State Government InsuranceOffice accepted liability in all of the claims on behalf of the Main Roads Department (see p.32 ofVolume 3 Exhibit Book, p.23, Volume 2 ExhibitBook, P.53, Volume 1 Exhibit Book).24. Personnel files were kept by the Main Roads Department in relation to each of the five employees.Ms Shafto s file is numbered 6-1310,Ms Blewett s file is numbered 6-4078,Ms Gibson s file is numbered 6-4122V2,Ms Schrimpf s file is numbered 6-2648,Ms Lloyd s file is numbered 6-4194.All of these are located in Exhibit Books, Volume1 5.25. All of the five employees were recorded on the Government s Personnel Information Management System (PIMS). Each of them was allocated an Employee s Number on that system (see PIMSExtracts on Volume 6 Exhibit Book).26. All Group Certificates issued to the five employeeslisted the Main Roads Department as being the employer.27. The Statement of Termination Payment (Employer) provided by the employer to the Australian TaxationOffice on behalf of each of the five employees liststhe Main Roads Department as the Employer . Italso records the relevant commencement date foreach employee (see p.1 Volume 1, p.3 Volume2, p.1, Volume 3, p.1 Volume 4 and p.1 Volume 5).28. The provisions of the Western Australian Government Employees Redeployment, Retraining and Redundancy General Order were not applied to the 5employees. The contracts of employment of Mrs Patricia Jean Blewett,Mrs Patricia Traynor Shafto, Mrs Joan Margaret Gibson, MrsConnie Schrimpf and Mrs Dawn Lorraine Lloyd were terminated on 28th March 1994, after they had been advised on24th February 1994, that this was to occur.HISTORY OF EMPLOYMENT OF THE DISMISSEDEMPLOYEESThere is some history to this matter which I propose to gointo. Firstly, I will deal with the history of employment of thepersons according to their evidence.Mrs Blewett had originally been employed as a counterhandand later as a Manager of the cafeteria. She knew another ofthe employees, Mrs Shafto, who said she would keep her inmind if anything comes up in the Main Roads Department,(see TFI 53). The then Canteen Manager, Mr David Phillips,rang her, offered her the job, and she gave evidence that shefilled out a MRD form when she took the job. She gave evidence, too, that she understood from her interview with MrPhillips that the MRD was her employer. She always believedthat she was an MRD employee. She had been a member ofthe Government Employees Superannuation Board. Her wageswere paid by MRD payroll slips. She was never told that theSocial Club was her employer. However, she recalled that theSocial Club wrote to her and told her that she was employedon the same conditions as Mr Phillips, when she was appointedas manager. Mr Phillips had told her that he was employed bythe respondent. He directed her as to what she should do.Mrs Shafto was employed for 22 years and one month in thecafeteria. She was engaged by Mrs King, who was then the4861manager. She gave evidence that she thought her employerwas the respondent. No-one told her otherwise. No-one toldher that she was an employee of the Social Club. Indeed, shegave evidence that she took it for granted that she was not anemployee of the Social Club because of the pay slips, her longservice leave being approved by the MRD and service pay.Also, the workers compensation forms listed the MRD as heremployer. She was also in the Government Employees Superannuation Fund. The manager or manageress for the time being supervised her work. The managers or manageresses duringthe time of her employment were a Mrs King, Mr BrianHaffenden, Mr Phillips and lastly Mrs Blewett. The first timethat she realised that she was not employed by the MRD wason the day when she left. The original job advertisement whichshe answered was for a job in the MRD.Mrs Lloyd was employed for 12 years in the cafeteria. MrsKing, the manageress, offered her the job and Mrs King filledout a form. She gave evidence that it was the MRD by whomshe was employed and all the pay came down from head office. She joined the Government Employees SuperannuationFund in 1988. No-one told her that she was an employee ofthe Social Club. The manager for the time being, of the SocialClub, supervised her work.Mrs Schrimpf gave evidence that she had been employedfor 18 1/2 years as a counterhand in the cafeteria. She completed a form after an interview by Mrs King. She understoodright throughout her employment that her place was a government place . She took two lots of long service leave. Shehad that understanding throughout her employment. Her groupcertificates listed her as an MRD employee. She first realisedthat the MRD was not her employer on the day she left.Mrs Gibson gave evidence that she was employed for threeyears in the cafeteria. When she was engaged, she completeda MRD form and handed the forms in at the pay office. Shedefinitely understood that her employer was the MRD. Shealso joined the Government Employees Superannuation Fund.She had been informed, she said, by Mrs Blewett that the position was a MRD position.RELEVANT HISTORY OF THE SOCIAL CLUB ANDCAFETERIAIn or about 1970, the MRD, whose permanent head is therespondent, or the occupant of the office of the respondent,relocated to premises at Waterloo Crescent which had beennewly constructed and included a cafeteria facility.In January 1969, whilst the premises were under construction, the Social Club had proposed to the Commissioner ofMain Roads (hereinafter referred to as the CMR ) that thecafeteria be leased to the Social Club for a nominal annualrent on the basis that the MRD would meet all of the establishment costs necessary to ensure that the cafeteria was fullyoperational (except for labour and food stocks) at the date ofthe Social Club taking over the premises. The MRD agreed tobe responsible for all the cleaning, power, light, maintenanceand equipment replacement costs in respect of the cafeteria.The premises were operated on that basis, except that the Social Club undertook responsibility for certain cleaning costs.A sub-committee called the cafeteria committee (hereinafter referred to as the cafeteria committee ) existed so as tooversee the functions of the cafeteria and to co-ordinate theday to day operations (see the evidence of Mr William JohnAllen, president of the Social Club from 1963 to 1973).The MRD had the right to nominate a representative on thecafeteria committee of the Social Club which was to run thecafeteria. Once that cafeteria was completed, the Social Clubcommenced to operate it in accordance with the conditionswhich I have just outlined. The cafeteria was not operated bythe Social Club as a commercial venture, but was operated toprovide a service to its members, the respondent s employees,at the least possible cost to them. Accordingly, the finances ofthe cafeteria were structured with the principal intention of itsincome balancing its expenditure.In May 1987, the clerk in charge of expenditure had listedthe wages of the cafeteria manager as being paid for by theMRD and the wages of other cafeteria employees as beingpaid for by the cafeteria .A cafeteria committee controlled the operation of the cafeteria from 1970 to March 1994, and was constituted by

4862WESTERN AUSTRALIAN INDUSTRIAL GAZETTEmembers of the Social Club and a representative appointedby the CMR.There was a change in government policy in 1990 whichled to the CMR withdrawing from his agreement to meet theemployment costs of the cafeteria manager, which he had doneto that time. What the Social Club paid after that was theequivalent of wages plus a payroll surcharge of 50 per cent inrelation to all of the employees. That payroll surcharge was tocover overheads such as annual leave loading, long serviceleave, workers compensation, superannuation, sick leave,public holidays and redundancy payments. All new employees were to be engaged under the Restaurant, Tearoom andCatering Workers Award, Award No R 48 of 1978 (see page171 (AB) and also the evidence of Mr Bryan Neil Manson).In a communication from the Social Club to the MRD dated30th July 1990 the Social Club indicated that the MRD thenmet the cost of wages and other employment related expenditure for the manager and other employees in the cafeteria. Thecommunication also indicated that the MRD then recoupedfrom the Social Club the cost of wages, but excluding those ofthe manager. The memorandum proposed that the cafeteriamanager s wages and employment related costs be met by theSocial Club in the future on a gradual basis, so that the totalwas met by the Social Club from January 1991 onwards.On 22nd September 1992, the employees were taken off theMRD s employment records and listed as no longer employed.There was, however, no evidence before the Commission thatthe employees were formally advised by the MRD of this having occurred, or, indeed, that they were ever advised of thishaving occurred. There was no evidence that contracts ofemployment were drawn or presented for execution or executedby the employees. Indeed, their evidence was that they believed that the respondent was their employer up until the daythat notice was given of the termination of their employment,and that was the evidence from all of the employees as to whatoccurred on 24th February 1994.The financial position of the cafeteria thereafter declined,and, as a result, the Social Club ceased to operate the cafeteriain March 1994. However, another person, a private businessperson, commenced to operate the cafeteria the week after itclosed.The appellant s case was that each of these persons was anemployee of the CMR and that that person engaged the othercafeteria staff as an agent of the CMR. Mrs King engaged MrsShafto, Mrs Schrimpf and Mrs Lloyd to work in the cafeteria.Mrs Blewett was engaged to work in the cafeteria as an employee by the then manager, Mr Phillips. Later she was promoted and appointed manager by the cafeteria committee. MrsBlewett, as manager, appointed Mrs Gibson. Mr Harris, acting on behalf of the Social Club, appointed Mrs Blewett tothe position of manager of the cafeteria. This, however, wasnotified to the MRD and obviously approved by them. MrHarris had engaged the two managers who had preceded her.The CMR is the head of the MRD. The MRD s employeesare eligible to be members of the Social Club. From the ranksof those members came the members of the committee responsible for management of the Social Club.In the course of the administration of the cafeteria by thecommittee, departmental forms and processes were certainlyused. Other employees in the course of their duties also dealtwith the cafeteria as administrators.The Commission at first instance found that there was not astrongly discernible separation between the roles of membersof the cafeteria committee as such and their roles as employees of the MRD. Indeed, there was very little difference inthose two roles, on the evidence.There was no power in the rules of the club to permit theCMR to directly appoint a person to the cafeteria committee,nor for the Social Club to permit it.There were a number of matters about the operation of thecafeteria committee which I should mention. From the beginning there was a departmental representative on the cafeteriacommittee. Mr Allen said in evidence that that person had alistening brief only. However, even from the beginning themanager was paid for by the MRD. Mr Allen answered76 W.A.I.G.questions put to him at page 119 of the transcript at first instance (hereinafter referred to as TFI ) which I record as follows Q: What control did Main Roads have over the manager, the cafeteria manager? A: Administrative control only, not the day-to-day operations. Q: What sort of administrative control would that be? A: Well, I suppose discipline, ensure that he compliedwith the normal requirements of staff in the MainRoads. The manager controlled cafeteria personnel and was responsible for day-to-day operations.From 1984 to 1994, Mr George Richard Harris, the PublicRelations Co-ordinator of the MRD, was the Chairman of theCafeteria Committee. He said that he saw the manager as hisemployee as Chairman of the cafeteria committee. He saidthat he saw the MRD representative on the cafeteria committee as being there in a counselling role. He referred to theMRD s investment in the facility. He referred to it as being alarge section of the first floor with a lot of equipment, and itwas prudent to have their support . He said that the SocialClub had no staff (see page 125 (TFI)), and so an arrangementwas made for them to be paid using MRD facilities. ThenMRD would recoup that amount about every three monthswith a cheque written out by the manager and counter-signedby Mr Harris. There was no MRD involvement in hiring staffor in the retrenchment of Ms Dorothy Allen, for example. Hesaid that he employed the last three managers, including MrsBlewett. However, he conceded that the letter of appointmentof Mrs Blewett was written by Mrs Terry Byett, an officer ofMRD. He said that it would appear from that letter that MrsBlewett was an employee of the MRD. Mr Haffenden washired by him, but paid for by the MRD.The role of the MRD representative on the cafeteria committee was explained by the most recent incumbent, namelythe manager administration of the MRD, Mr Brian NeilManson. He described the role as looking after MRD interests, namely equipment, floor space, power and ensuring safetyproceedings were in place suitable to the MRD, and makingsure that our internal procedures within the Main Roads arefollowed . It was clear from his evidence that it was for theMRD to approve the repair of the equipment as their equipment was necessary for the cafeteria committee to comethrough the departmental channels to have equipment repairedand to obtain MRD approval to foot the bill . The SocialClub or the cafeteria committee could make no alterations tothe building without MRD approval. Mr Manson said thatno-one else in MRD had day-to-day involvement with thecafeteria committee. He said that there was no commitmentby the MRD to pay wages other than the manager s.He explained that matters such as applications to defer longservice leave, of which there was an example in evidence inrelation to cafeteria staff, were dealt with by the MRD because they went through the system automatically with all theother personnel matters. He said that members of the cafeteriacommittee who were MRD officers were not operating in aMRD capacity as members of the cafeteria committee.There were reports about the total operations made to theCMR. Mr Manson said in evidence that the CMR certainlyhad an interest in these matters, particularly in the assignmentof clerical duties to the finance branch and in carrying out thatfunction. Mr Manson was asked about the government s functional review committee s comments about government canteens and cafeterias as follows Q: Is the staff cafeteria at Main Roads Department considered to be a government cafeteria? A: If we were putting money into it we would havesome control or some seem to be have some function. (see page 158 TFI)It is quite clear on the evidence that the cafeteria was regarded as a government cafeteria.

76 W.A.I.G.WESTERN AUSTRALIAN INDUSTRIAL GAZETTEFINDINGS OF COMMISSIONThe Commission at first instance made a number of findings (1) That the CMR did not intend to, nor did he, or someagency acting on his behalf, employ the several managers of the cafeteria.(2) The CMR s association with the position of manager was limited to meeting the employment cost ofthe appointed person by means of a subsidy to theSocial Club.(3) Although the MRD paid the manager s wages it didnot do so as the employer.(4) The MRD paid the wages of all staff employed inthe cafeteria. It was done early by way of administrative assistance to the Social Club and that expenditure was recouped from the Social Club.(5) The Social Club employed several managers andthrough their agency the subordinate cafeteria staff.(6) Whilst it was a most unsatisfactory state of affairsthat various documentation issued by the MRD identified the five women as employees of the MRD,that did not alter the fact of the employment, nor didit warrant the Commission in finding on the beliefsof the five employees that they were employed bythe CMR.ISSUES AND CONCLUSIONSI should observe that it was an agreed fact that, if these employees were employees of the Commissioner of Main Roads,then the provisions of the Western Australian GovernmentEmployees Redeployment, Retraining and Redundancy General Order should have been applied to them. There is onlyone point to this appeal, although it is covered by severalgrounds. It is really this Did the Commission err in failingor refusing to find that the subject employees were employeesof the respondent?There was, as I have indicated, a great deal of evidence. Themore important period was after the events of 1990 when theSocial Club was given the responsibility of paying all of thewages of the employees in the cafeteria.There was evidence that the managers, prior to 1990, wereemployees of the MRD by whom they were paid. There wasevidence that some of the subject employees completed MRDforms when they commenced their employment in the cafeteria, and that all regarded themselves as MRD employees, neverhaving been told that they were not until the termination oftheir employment was announced.Further, since ministerial directions in relation to government canteens or cafeterias were complied with, there wasevidence that the MRD regarded it as a government canteen.That evidence was not considered or rejected.There was evidence that the manager, who was said to be anMRD employee, exercised the right to engage and dismissemployees. There was evidence that the manager exercisedday-to-day control over employees. There was evidence thatthe employees were, particularly after 1990, regarded as being bound by public sector awards and orders. Indeed, it wasan agreed fact, as I have said above. Further, at all materialtimes, including post-1990, the respondent represented himself as their employer on group certificates (including groupcertificates in 1993 and 1994), in respect of workers compensation claims and forms, on the statement of terminationforms delivered to the Australian Taxation Office, and on payroll slips. Further, the workers compensation claims were conveyed to the State Government Insurance Commission by therespondent and the Commission handled them on behalf ofthe respondent. All of those were agreed facts.After 1990, also, there was the 50 per cent surcharge arrangement to which I have referred above. Personnel files weremaintained by the MRD in the names of the employees. Thenames of all of the employees were also recorded on the Government s Personnel Information Management System (PIMS),and each was allocated a number on the system. That was anagreed fact. The employees were paid by the respondent whatever other arrangements might have been put in place betweenthe employer and the cafeteria committee. The employees wereall members of the State Government Employees Superannuation Fund, membership of which is only available to State4863government employees under the appropriate Act. That wasan agreed fact. Applications to defer the taking of long service leave were approved by the respondent s department. Theprovisions of the Long Service Government Wages Employees General Order wer

76 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4859 Western Australian Industrial Gazette PUBLISHED BY AUTHORITY Sub-Part 8 FRIDAY, 27TH DECEMBER, 1996 Vol. 76—Part 2 4859 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:Š 76 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF .