Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman

UNDERPAYMENT 5 Complete Windscreens operates a mobile windscreen repair business. With some exceptions, its employees attend allocated tasks for customers off site. For much of the relevant period, Complete Windscreens kept track of the location of its employees in real time by fitting global positioning system (GPS) devices to the vehicles they drove. 6 It was the FWO's case at trial that the employees had been paid on the basis that they had been granted a one hour lunch break each day, that they had not in fact been granted a lunch break at all and that, accordingly, they had not been paid for one hour of work performed each day. This aspect of the FWO's case was only partially successful. The primary judge concluded that the employees had in fact taken lunch breaks of 30 minutes each day and that, as a consequence, they were entitled to be compensated for a half hour of unpaid work for each day in the relevant period: judgment [283] - [291]. 7 For Complete Windscreens it was submitted that the employees not only took lunch breaks, but that they took additional breaks throughout the day which equalled to or exceeded half an hour. As a consequence, it was submitted, the employees were not underpaid at all but were, in many instances, overpaid. In support of this aspect of its case, Complete Windscreens tendered: (1) extracts from a day book dated 7 July 2010 to 7 September 2010 in which Complete Windscreens recorded the jobs that had been allocated in the course of the business, the employee to whom each job had been allocated, the time of the allocation and the location of the job; and (2) print-outs of data produced by the GPS devices fitted to the employees' vehicles, comprising about 2,500 pages. 8 According to Complete Windscreens, these records together showed that the employees were frequently at places other than the locations of their allocated jobs recorded in the day book. At such times, it was submitted, the employees were engaged in "unrelated activities" and hence were taking breaks for which they were not entitled to be paid. 9 Reliance was also placed on the oral evidence of some employees who acknowledged in cross-examination that certain GPS records indicated that they were at times in places that did not coincide with the places recorded against their names in the day book, including for reasons that were not related to their work. 10 In the proceedings before the primary judge, Complete Windscreens initially placed particular reliance on GPS records and day book records for a limited period commencing on 8 August 2011 and ending on 12 August 2011. Some, but not all, employees were cross-examined in relation to that limited period. It was not squarely put to any employee witnesses that the period in question was representative of their working pattern for the whole of the relevant period of employment, and no notice was otherwise given during the course of the trial that Complete Windscreens would invite the primary judge to draw such an inference. 11 On the final day of the trial, Complete Windscreens produced an aide memoire that was said to summarise the effect of the evidence for a period commencing on 8 August 2011 and ending on 26 August 2011 (the sample records). It was submitted before the primary judge that the sample records were representative of the whole of the period to which the FWO's case was directed. The attention of the trial judge was not otherwise drawn to any particular portion of the GPS evidence, other than the sample records. The aide memoire relating to the sample records was not the subject of detailed submissions, and no evidence was adduced or analysis conducted so as to support the proposition that the sample records were truly representative of the whole. 12 The primary judge said, in considering the GPS records and the day book (judgment [57]): … I am not prepared to look beyond the records and material to which I was specifically referred to by counsel. Those records and material relate to 8, 9, 10, 11 and 12 August 2011 which were the topic of cross-examination and for which express submissions were made by counsel; the dates in April that Mr Priest was cross-examined about; and, to a lesser extent, the other dates between 8 August 2011 to 26 August 2011 which were the subject of the 'Summary Analysis' written submissions. 13 The following is a summary of the findings of the trial judge bearing on the question of whether the employees had been underpaid: (1) The GPS records could be relied on as generally accurate insofar as they showed the location of the employees' vehicles at particular times (judgment [49] - [50]). (2) However, it could not be inferred that the sample records were representative of each employee's working pattern for each day over the whole of the relevant period (judgment [62]). (3) The absence of an allocated task in the day book did not lead to an inference that the time was available for a break, nor that a break was actually taken (judgment [60]). (4) The absence of an "assigned job" in the day book did not mean that an employee was not working (judgment [62]). In that regard, his Honour said: When they were not at the workshop, the employees were at all times on the road and on call and there is nothing to suggest they were not. (5) The employees often had credible explanations for their whereabouts in the periods in which Complete Windscreens suggested that they were on breaks (judgment [60]). (6) From the commencement of their employment, the employees were not given any instruction about lunch breaks or other breaks, whether orally or in writing (judgment [285]). (7) Whilst there were periods when the employees were not busy, they had not been provided and did not take "structured breaks". His Honour said (judgment [292]): … By structured breaks I mean breaks at a fixed time each day and in circumstances where the employee was off duty and considered off duty by Complete Windscreens. Perhaps the former circumstance, that is, fixed times each day, may not need to be present in a case where the employees are on the road, but the latter circumstance certainly does. … (8) In relation to alleged late start times and early finish times, Complete Windscreens' own records showed that it had, in the course of its business, paid the employees on the basis that they had worked certain hours (judgment [62] - [63]) and it had, through its agent, told the FWO in correspondence that the employees "normal hours of work" were from 8 am to 5 pm. It was, his Honour said, "not open to it to go behind what it has done" (judgment [62]). 14 The primary judge concluded (judgment [293]): I find that the employees were not paid for 30 minutes work each day. For example, for an employee who worked Monday to Friday from 8 am to 5 pm, that meant that the employee was not paid for an additional two hours and 30 minutes each week. 15 As to the amount of compensation payable to each employee, the primary judge accepted the evidence of an FWO inspector, Mr James Klousia. In his affidavit, Mr Klousia identified three categories of data relied upon to support his quantification of each employee's underpayments. Category 1 comprised time books showing the actual start and finish times each day for particular periods. Category 2 comprised "time sheets and/or payslips" showing the total number of hours worked in a week for particular periods. Category 3 comprised the oral evidence given by certain employees in respect of periods for which there were no time sheets or payroll records. There were different categories of evidence available in respect of different employees concerning different periods of time. 16 The Category 1 records enabled Mr Klousia to calculate the employees' entitlements by reference to their actual start and finish times. For the employees in respect of whom only records of the total weekly hours worked were available, the total hours were divided by five to calculate the daily hours worked. A start time of 8 am was then assumed for the purpose of calculating whether Complete Windscreens was liable to a penalty for failing to provide a break after five hours' work. Ultimately nothing turned on that particular assumption, the primary judge having found that a lunch break was provided within five hours of the employees' start time in any event. 17 For those employees and periods in respect of whom only Category 3 evidence was available, Mr Klousia assumed that the employees had commenced work at 8 am and finished work at 5 pm each day. The primary judge found that assumption to have been established by Complete Windscreens' own admission through its agent, together with the evidence of the employees themselves. It is noted that the Category 3 evidence relates to the period January 2011 to August 2011 and to three of the seven employees, namely Mr Joseph Nakhoul, Mr Gregory Shaw and Mr Warren Priest.

Ground of appeal 18 By its amended notice of appeal dated 5 July 2017, Complete Windscreens alleges that: 2. The learned Justice erred in fact and law in finding that employees were not paid for 30 minutes of work each day. This finding was based on employees working 8:00 a.m. to 5:00 p.m. with a half hour meal break (but were paid as if they had a one hour meal break), such that they were not paid for an additional 2 hours and 30 minutes each week. The Court should have found that the Fair Work Ombudsman had failed to prove that the employees were underpaid 2 hours and 30 minutes each week and erred by not taking into account: a. That the employees often started later than 8:00 a.m. b. That the employees often finished before 5:00 p.m. c. That the employees took breaks over and above their lunch break during the day. 19 In written and oral submissions this ground was expanded to include multifaceted and interrelated complaints, each of which is addressed below. Whilst expressed in terms of an error "in fact and law", the complaints primarily concern findings and inferences of fact made by the primary judge, particularly the hours of work undertaken by the employees and the hours for which they had in fact been paid. This Court on appeal should not interfere with those findings of fact "unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'": Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). 20 It is to be emphasised that the FWO bore the burden of proving each allegation of contravention against Complete Windscreens. At trial, the FWO sought to discharge that burden not by reference to the GPS records, but by reference to documents prepared in the course of Complete Windscreens' business and by the evidence given by the employees themselves. In particular, Mr Klousia's calculations were based on Complete Windscreens' payroll records as to the actual start and finish times (referred to as Category 1 evidence) and its own records of the total hours worked in each week (referred to as Category 2 evidence). For the periods and employees for which there were no contemporaneous records, the FWO relied on the evidence given by the employees themselves, together with the admissions made by Complete Windscreens through its agent, concerning the employees' ordinary working hours (referred to as Category 3 evidence). 21 Complete Windscreens submits that the failure of the primary judge to draw inferences from the GPS records in its favour indicates that the learned judge lost sight of the burden of proof. That submission is rejected. 22 It was for Complete Windscreens to establish at trial that the GPS records and day books rebutted the FWO's evidentiary case. Complete Windscreens bore an evidentiary burden in that respect. The question of whether the primary judge committed an appealable error in relation to the GPS records is to be determined against that background, having particular regard to the manner in which Complete Windscreens conducted its defence at trial. 23 Ultimately, the evidence advanced by Complete Windscreens did not assist its case at trial, not because the GPS records were considered by the primary judge to be unreliable, or even unrepresentative, but because the submissions made by Complete Windscreens in reliance on that evidence were founded on a wrong premise as to what should constitute an unpaid break.

The concept of a "break" 24 Among the relief sought on this appeal is an order that the judgment and orders of the primary judge "be varied to take into account the Court's findings on the appeal, and for compensation and penalties to be [re-assessed] accordingly". In effect, Complete Windscreens invites this Court on appeal to substitute findings of fact made by the trial judge as to the "breaks" in fact taken by each employee each day, including findings as to late start times and early finish times said to be evidenced by the GPS records and day books. 25 Of central importance to Complete Windscreens' case is the contention that the primary judge erred in determining that employees not tasked to a particular job could not properly be regarded as being on a "break" because they remained on call by Complete Windscreens. In reasoning to that conclusion, the primary judge rejected evidence given by Mr Lindsay Dean to the effect that he had explained to each employee at the commencement of their employment that they had a 30 minute meal break and other breaks totalling 30 minutes, which it was their responsibility to take: judgment [253]. His Honour further rejected the evidence of Mr Haydn Dean to the effect that the employees were told about their entitlement to take breaks during an organised induction process: judgment [279]. His Honour further noted that it had not been put to any of the employees in cross-examination that they took structured breaks totalling more than 30 minutes, in the sense that they were "off duty and considered off duty by Complete Windscreens": judgment [292]. 26 The evidence, his Honour held, did not demonstrate that the employees were off duty at the times during which, on Complete Windscreen's case, they should be regarded as being on "breaks". Whilst the primary judge referred to the absence of "structured breaks" it is clear from the reasons, extracted at [13(7)] above, that the principal concern was whether the employees understood themselves to be off duty and were regarded by Complete Windscreens to be off duty at the relevant times, such that they were not entitled to be paid. 27 No appealable error is shown in the approach of the primary judge, whether as to fact or as to legal principle. Indeed, the submissions made on behalf of Complete Windscreens on this appeal only served to reinforce the correctness of his Honour's approach. 28 At the hearing of the appeal, Complete Windscreens relied on a document said to be in the nature of a further, more detailed, aide memoire. The aide purports to summarise the evidence given at trial as to the whereabouts of the employees' vehicles between 8 August 2011 and 12 August 2011 inclusive. The defects in the document may be demonstrated with one illustration. In relation to the employee Mr Priest, the aide states that at 3.07 pm on 8 August 2011, Mr Priest travelled for 12 minutes from a completed job (the location of which is not stated) to an "unauthorised" address, being a Shell service station in Gawler South, where it remained for four minutes. Mr Priest then drove to an allocated job, also situated in Gawler South. On the basis of that evidence, Complete Windscreens argues that the learned judge ought to have found that Mr Priest took a 16 minute break for which he was not entitled to be paid when driving to, and stopping at, the service station. The same process of reasoning is urged in respect of every highlighted entry in the aide. 29 Critically, however, Complete Windscreens did not adduce at trial the day book extracts for every day to which the GPS records related. Even more critically, Complete Windscreens did not adduce evidence at trial to demonstrate that the destination of the employee in each instance was "unauthorised". The statements in the aide that the destinations are "unauthorised" are merely assertions having no source in the evidence adduced at trial. The same flaw affected the presentation of Complete Windscreens' case at trial. It simply was not possible, on the basis of the GPS data and day books alone, for the learned judge to perform any meaningful analysis of the "unauthorised" whereabouts of the employees over the whole of the relevant period. As has been mentioned, the day book extracts tendered at trial covered only a portion of the relevant period in any event. 30 Whilst it is to be acknowledged that some evidence was adduced from some employees in relation to isolated incidents, in the overwhelming number of examples, the employees were not asked in their evidence to explain their activities in the times now claimed by Complete Windscreens to constitute their "breaks". 31 The trial judge properly concluded that the mere absence of an allocated task to an employee in the day book in respect of a particular time did not mean that the employee was not working at that time. It has not been shown that the diminished significance placed by the trial judge on the day book evidence was affected by appealable error. 32 A further difficulty arises in respect of the suggested extrapolation of the limited period specified in the aide memoire to the whole of the period to which the FWO's claim related. Complete Windscreens complained that the primary judge failed to find that the sample records were representative (as to which see below), and yet it attended on the appeal with no analysis to demonstrate that an employee's hours of work, as identified in the sample record period, should properly be multiplied to calculate that employee's entitlements across the whole period. 33 Furthermore, it is not immediately apparent how a four minute stop at a service station made by an employee tasked with driving from job to job throughout the course of a day should give rise to an inference that the employee was at an "unauthorised" location or engaged in an "unrelated activity" and therefore not entitled to be paid for those four minutes. The same reasoning applies to other entries where it is said that a stop at a lunch venue was "unauthorised", particularly in circumstances where it would appear that no later occasions for a lunch break arose in the course of the day in question. The conclusion that the employee is on a "break" and thus not entitled to be paid must depend upon other evidence. The other evidence is lacking. 34 In short, the summary of evidence relied upon by Complete Windscreens is not truly in the nature of an aide memoire. It is a document riddled with questionable factual assertions having no connection to the evidence adduced at trial before the primary judge. It does not assist Complete Windscreens to demonstrate appealable error. 35 The primary judge did not err in approaching the task by reference to the question of whether the employees were told they could take breaks and by reference to whether they were in fact on call. His Honour's factual findings on those questions should not be disturbed.

Sample not representative 36 It is to be recalled that the submission that the sample was representative was rejected by the primary judge not only because of the limited time covered by the sample records, but also because it had not been put to the employees that the sample records evidenced a pattern of behaviour from which inferences affecting the whole period of their employment might be drawn. It has not been demonstrated on this appeal that the reasoning adopted by the primary judge in that important respect was erroneous, nor that the ultimate conclusion reached by the trial judge would have been any different had his Honour proceeded on the basis that the sample was representative. As has been mentioned, the conclusion of the primary judge rested not on an examination of the minutiae of each employee's day, but on the finding that if the employees had times when they were not attending to work related matters, they were not relevantly on structured breaks disentitling them to be paid.

Start and finish times 37 Complete Windscreens placed particular emphasis on the alleged late start times and early finish times of the employees. It was submitted that the employees had been paid on an assumption that they had in fact commenced work at 8 am each day and completed work at 5 pm, whereas the GPS records demonstrated they often started late and finished early. Any underpayment in relation to "breaks" during the day should, it was contended, be offset by the alleged overpayments arising out of the start and finish times. 38 It may be accepted that the FWO's claim that the employees had been underpaid depended upon proof that the employees had been paid in accordance with the assumptions relied upon by Mr Klousia. It is, at least theoretically, available to Complete Windscreens to argue that the compensation award should be calculated by reference to the actual hours of work performed, multiplied by the applicable hourly rate in each instance. The actual hours of work performed was a question of fact, determined by the learned judge according to the categories of evidence available in respect of each employee. 39 As has been observed, the Category 1 evidence showed that Complete Windscreens paid the employees in question for the hours they had in fact worked, such that if they in fact commenced work "late" at 8.30 am on a particular day they were paid accordingly. The employees subject to that evidence were not overpaid by reason of their "late" start time. The compensation awards to the employees in respect of the periods covered by that evidence have not been shown to be incorrect. 40 The Category 2 evidence enabled the FWO to ascertain the total hours worked each week by the relevant employees in the periods to which that evidence related. Again, the assertion that those employees had been paid more than the actual hours worked by reason of their "late" start or "early" finish times simply does not accord with the evidence. 41 Further in this respect, the day books relied upon by Complete Windscreens include notations showing the occasions upon which the employees started late or finished early, and the corresponding objective records (where available) indicate that the employees were in fact paid less in respect of those days or weeks. 42 Any erroneous assumption that the employees commenced work at 8 am and left work at 5 pm could only have affected the limited employees and the limited periods for which no objective contemporaneous records were kept by Complete Windscreens. It was in that limited respect that the compensation awards were based on the "Category 3" evidence, namely the evidence of the relevant employees, together with the admission made by Complete Windscreens that the employees' ordinary hours of work were between 8 am and 5 pm. The primary judge was correct to conclude that Complete Windscreens should not be permitted to run a case at trial founded on assumptions it had not in fact made in the day to day operation of its business. 43 Finally in respect of this issue, it is appropriate to mention that the aide memoire relied upon on by Complete Windscreens on this appeal records an instance where the GPS records indicated that an employee commenced work one minute late. The effect of its submission is that this Court should interfere with the compensation awards by performing calculations that would descend to the same trifling level. It has not been shown that the trial judge was invited to quantify the employees' compensation by adopting any such hair-splitting approach, nor was there evidence adduced at trial to the effect that the employees were ever made aware that a one minute incursion would give rise to an entitlement in Complete Windscreens to later seek to offset an "overpayment" for such a small period, whether in the context of this litigation or otherwise. The submission that an unpaid "break" could be retrospectively formed by the piecing together of short "absences" of such a kind should be rejected as a matter of fact, law and common sense.

MR FLYNN'S RATE OF PAY 44 This issue concerns the hourly rate of pay applicable to Mr Flynn. The primary judge held that the rate payable to Mr Flynn was $12.50 per hour between 2000 and 2012 and thereafter $18.00 per hour: judgment [122]. 45 By ground 3 of the amended notice of appeal it is said that: The learned Justice erred in finding that Mr Flynn was paid only $12.50 per hour. The Court ought to have found that having regard to the actual hours of work, verified by GPS records, that Mr Flynn was paid in excess of the minimum entitlements. The Court ought to have found that the Fair Work Ombudsman had failed to prove that Mr Flynn worked the hours he claimed that he was underpaid. 46 Argument in support of this ground of appeal proceeded as follows: (1) Complete Windscreens had paid Mr Flynn on the basis that he had commenced work at 8 am and finished work at 5 pm each day; (2) Mr Flynn had not in fact commenced work at 8 am and finished work at 5 pm each day, as evidenced by the evidence given by Mr Flynn at trial and the GPS records; (3) the evidence of Mr Flynn was that he left work at 4.30 pm two nights each week for a significant part of the year, including for the purpose of attending football training; (4) although payroll records prepared by Complete Windscreens indicate that Mr Flynn was paid at the rate of $12.50 per hour, his actual rate of pay was higher because he had in fact worked for fewer hours than that for which he had been paid, even after taking into account the conclusion of the primary judge that he had been underpaid by half an hour each day by virtue of the lunch break issue; and (5) accordingly, the primary judge wrongly held that the FWO had discharged its onus of proving that Mr Flynn had been wrongly paid at the rate of $12.50 per hour. 47 This argument differs from the case advanced by Complete Windscreens at trial in respect of Mr Flynn. The case at trial was that Mr Flynn was not underpaid because he was not covered by the industrial instrument upon which the FWO relied. The argument on the appeal is nonetheless consequential upon the complaint concerning the use to which the learned primary judge put (or, more accurately, refused to put) the GPS records and other evidence. The argument should be determined on its merits. 48 The primary judge held that Mr Flynn was not paid by Complete Windscreens on the basis that he worked between 8 am and 5 pm each day, irrespective of the hours in fact worked. The available payroll records in respect of Mr Flynn indicate that he worked, and was paid for, shorter days and weeks: judgment [294]. His Honour's conclusion is fairly based on the evidence of Mr Flynn to the effect that at the times when he worked a 40 hour week, he was paid $500.00, but at times when he worked a shorter week, he was paid at the rate of $12.50 per hour for the hours he in fact worked: judgment [121], [139]. 49 Any arrangement by which Mr Flynn left work early to attend football training or for any other purpose was, the evidence showed, reflected in the reduced payment Mr Flynn received. That is consistent with the practice of Complete Windscreens to keep a record in its day book of the late arrival or early departure of its employees, and to reduce their payments accordingly. The assumptions upon which Mr Flynn's unpaid entitlements were calculated are clearly established on the objective documentary evidence, which showed the hours he actually worked and the payments he had received.

CLASSIFICATION 50 It was the FWO's case at trial that the employees were not paid wages calculated in accordance with the industrial instruments which governed the terms of their employment. In the relevant time period, the applicable instruments were the Vehicle Manufacturing Repair Service and Retail Award 2010 [MA000089] (Modern Award), the Vehicle Industry (South Australia) Repair Service and Retail Award [AN150167] (State Award) and the Australian Pay and Classification Scale derived from the Vehicle Industry - Repair, Services and Retail Award 2002 [AP824308 - Fed] (Federal APCS). These instruments prescribe the rates of pay applicable to workers falling within various bands of classification and otherwise occupying specified positions. 51 The FWO's allegations are conveniently summarised in this table, extracted from the judgment at [25]: 52 The primary judge concluded that the employees named in the first column were entitled to be paid on the basis that they should be classified at various times at the levels specified in the fourth column: judgment [37]. In relation to junior employees, the fourth column is to be understood as a claim that they be paid, according to their age, prescribed percentages of the Level 1 adult wage for one month, and thereafter prescribed percentages of the Level 4 adult wage. 53 The ground of appeal relating to this issue is expressed as follows: 5. The learned Justice erred in accepting the Fair Work Ombudsman's argument that … the employees should have been paid at 'level 1' for only one month before becoming 'level 3' (and in the case of juniors 'level 4'). The finding was contrary to the evidence. 54 In written submissions, this ground of appeal was confined to the classifications given by the primary judge to Mr Priest (an adult employee) and Mr Mathews, Mr Moala and Mr Waretini-Rewita (junior employees). The distinction between adult and junior employees assumes some importance for the disposition of the appeal. 55 It is convenient to deal first with the findings concerning Mr Priest's entitlements as an adult employee.

Adult employees 56 Complete Windscreens' challenge is directed not only to findings of fact, but also the construction of the applicable industrial instruments adopted by the primary judge. The point of construction will be determined with reference to the terms of the Modern Award as it applied to Mr Priest. The other instruments are not relevant to him. 57 The starting point is cl 33.1. It provides that all adult employees are to be classified according to the structure set out in cl 33.4, which establishes weekly and hourly rates of pay for employees falling within different wage group levels. To identify the applicable wage group level, it is necessary to apply the skill level definitions set out in Sch B. 58 Schedule B describes various levels of employees by reference to (among other things) the amount of formal or informal training the employee has undertaken, the degree of skills the employee possesses and the extent of supervision to which the employee is subject. In respect of an adult employee's degree of supervision, according to the Modern Award: Level 1 employees work to defined procedures under direct supervision; Level 2 employees are responsible for the quality of work subject to routine supervision; Level 3 employees work with only general supervision of daily duties and are otherwise responsible for the quality of work subject to routine supervision; and Level 4 employees work under general supervision, either individually or in a team environment, exercise discretion within their level of skills and training and understand and are responsible for the quality of their work. 59 The opening words of each classification describe the nature and amount of training in the following terms: Level 1: An employee at Level 1 is an employee who has undertaken little or no formal or informal training. A Level 1 employee may be undertaking up to 38 hours of induction training. The induction training may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance. Level 2: An employee at Level 2 is an employee who has completed up to three months structured training to enable an employee to attain/possess job skills relevant to tasks performed at this level and to the level of their training. Level 3: An employee at this level has completed eight modules of a nationally accredited RS&R Certificate or equivalent training and uses skills above that of an employee at Level R2. Level 4: An employee at this level performs work above and beyond the skills of an employee at Level R3 and would normally have completed 16 modules of a nationally accredited RS&R Certificate or equivalent training. 60 Each level contains lists of qualitative criteria and, in places, references to particular positions are made. Relevantly, there is a reference to the position of "windscreen fitter" within the Level 4 description of the Modern Award. That occupation is not referred to in the skills definitions for Level 1, 2 or 3 employees. 61 It was submitted that the primary judge misconstrued the Modern Award in that, it was said, an employee could not progress from Level 1 and then, after just one month, to Level 3 or Level 4. The Modern Award, it was submitted, requires the incremental progression of an employee from one level to the next, with each progression determined by the amount of formal or informal training identified in the opening words of each classification. On this construction, Mr Priest could not progress from Level 1 to Level 3 without first being classified for a period of time at Level 2 and undertaking the training referred to in the opening words of that definition. 62 That construction should not be accepted. To interpret the instrument in that way would be to enable an employer to avoid increases in pay rates by withholding fair opportunities for "structured" training, irrespective of the actual attainment of skill or experience of the employee, irrespective of requirements that may be imposed upon an employee to work under little supervision or no supervision at all, and irrespective of express or implied requirements that the employee take responsibility for the quality of his or her work. 63 In cases such as the present, there are no available "modules of a nationally accredited certificate" and no provision was in fact made by Complete Windscreens for equivalent training, such that an employee could never, on the suggested construction, advance from Level 2 to Level 3. 64 The opening words of the Level 4 classification reinforce that the completion of training is not an essential requirement in any event. The emphasis in that level is upon the attainment of skill and the ability to work without supervision, and the completion of accredited or equivalent training is qualified with the word "normally". 65 The primary judge correctly took into account that the Modern Award identified the particular position of "Windscreen fitter and/or repairer" within the Level 4 classification, and the Federal Award similarly identified such workers as falling within both Level 3 and Level 4. That, his Honour said, offered "practical guidance" to the task of classifying the employees in circumstances where the application of the more generalised criteria set out in each classification raised "questions of degree which are not otherwise easy to resolve": judgment [29]. 66 The learned judge rejected Complete Windscreens' submission that the employees should be classified according to whether they were good at their jobs, whether they could be trusted to work on more complex jobs and the number of jobs they could carry out in a day. His Honour favoured an approach that focussed on a matter of practical reality: the employees were required to, and did in fact, work without direct supervision. 67 As to the period of time before which it could be said the employees in fact worked without direct supervision, his Honour said, more generally (judgment [33]): All the employees, other than Mr Mathews, gave evidence that they were on the road by themselves doing jobs involving the replacing of windscreens within a month or months of commencing employment. That, to my mind, is the critical matter because by then whatever training by others they received was over and they were working unsupervised or, at most, subject to general supervision. They had moved from Level 1, and Level 2 was not appropriate because they did not work under direct supervision, either individually or in a team environment. 68 With particular regard to Mr Priest, his Honour said (judgment [35]): … [Mr Priest] said that he was out on the road by himself after a month or two. Having regard to the evidence of a number of other employees, I think it is appropriate to interpret his rather general evidence as meaning that after about a month he was out on the road by himself, and the approach of the FWO in classifying him at Level 1 for the first month of his employment and thereafter at Level 3 is correct. 69 These findings are criticised on two bases. 70 First, it is said that the primary judge ought to have accepted the submission that the task of classification should have as its focus the comparative skill and speed of the employees and the complexity of the work they undertook. No appealable error is demonstrated in this respect. Quite apart from its failure have regard to the position-specific provisions of the Modern Award that apply to junior employees (as to which see [78] - [81] below), the approach urged by Complete Windscreens fails to recognise that the Modern Award is extremely broad in its coverage, affecting not only the position of a windscreen repairer (referred to in Level 4) but positions inherently involving lesser and higher degrees of skill, such as driveway attendant (referred to in Level 1), tyre fitter (referred to in Level 2), body-shop assembler (referred to in Level 3) and first class radiator repairer (referred to in Level 5). The particular emphasis placed by the primary judge on Mr Priest's occupation as a windscreen fitter was consistent with an orthodox interpretation of the award, which included a reference to that occupation in Level 4 of the Modern Award but not in the lower levels. 71 On this appeal the finding that Mr Priest should be classified at Level 3 after one month has not been demonstrated to be wrong by "incontrovertible facts or uncontested testimony": Fox v Percy (2003) 214 CLR 118 at [28]; Robinson Helicopter at [43]. Once it is accepted that Mr Priest was required to, and did, work unsupervised as a windscreen fitter and repairer after one month, any question as to his comparative skill and speed in comparison to other employees must diminish in significance. 72 The second aspect of the complaint is that the primary judge wrongly took a global approach toward all employees when determining the period of time that passed before each of them worked without direct supervision. Particular emphasis was placed on his Honour's expression "within a month or months", which, it was said, evidenced a failure to evaluate the sufficiency of the evidence adduced on the FWO's case. 73 Reliance was placed on evidence given by Mr Haydn Dean and Mr Lindsay Dean as to how long each of the employees required supervision after they commenced their employment and the inability of some of them to perform complex work or work for crash repairers. 74 Mr Haydn Dean was described by the primary judge as "very argumentative" and "not a satisfactory witness": judgment [276], [279]. His evidence on the topic of supervision was not accepted. His Honour found that parts of the evidence given by Mr Lindsay Dean to have been tailored to suit the case of Complete Windscreens. His evidence concerning the time at which the employees were on the road doing jobs by themselves was not accepted. These observations concerning the reliability of the evidence of Mr Haydn Dean and Mr Lindsay Dean were made by his Honour upon a careful consideration of the whole of their evidence and the impression of each witness. 75 The primary judge described the evidence of Mr Priest on this issue as "rather general". His Honour nonetheless interpreted the evidence to mean that Mr Priest was out on the road by himself after about a month. In doing so, his Honour had regard to the evidence given by other employees: judgment [35]. His Honour's conclusion was one that was fairly available, having regard to the subject matter of the enquiry. The subject matter in and of itself did not lend itself to precision. The conclusion that Mr Priest was on the road unsupervised after a period of one month from the commencement of his employment was clearly available and should not be disturbed. To the extent that his Honour made earlier generalised comments in respect of the issue, they do not reveal error in respect of Mr Priest's classification. The learned judge did not fail to make specific findings concerning Mr Priest.

Junior employees 76 In respect of the junior employees, the primary judge said (judgment [36]): … In the case of the junior employees, as with the adult employees, it is appropriate to allow a one month period at Level 1. Thereafter, the appropriate classification for the junior employees is a percentage of the Level 4 rate based on the age of the person. 77 It is important that this conclusion be understood in its proper context. 78 Subclause 33.7(c) of the Modern Award provides: (c) The minimum weekly rate for a junior employed in the classifications as set out in clause 33.7(d), will be the following: Age % of Level 4 rate 16 years and under 47.5 17 years 50.0 18 years 62.5 19 years 75.0 20 years 87.5 79 Subclause 33.7(d) contains a list of occupations. The primary judge concluded that the nearest indicative occupation was that of "assembler, accessories" and "automotive parts, salesperson". There is no challenge to that finding, nor to the finding that the nearest occupations identified by his Honour were contained in subcl 33.7(d) and so determined the junior employees' rate of pay in conjunction with subcl 33.7(c). Although Mr Mathews was employed as a tinter, it was not argued on this appeal that the nearest indicative occupation was the same as that for the other junior employees. 80 As the primary judge identified, the wage payable to a junior employee is to be identified not by classifying the employee in accordance with the skill descriptions in Sch B to the Modern Award, but by the direct application of cl 33.7. The classification process is one that focusses upon the position in fact occupied by the junior employee, irrespective of the degree of skills, training or supervision. Where it is intended that a person in a particular position be paid according to their degree of experience (calculated in time), subcl 33.7(d) together with a counterpart provision in subcl 33.7(a) (concerning less skilled workers), make specific provision for it: for example "salesperson, first six months' experience", "storeperson - more than 12 months experience", "vehicle salesperson … up to six months' experience", "vehicle salesperson … after six months experience". 81 On the proper construction of the award, the junior employees were entitled, from the commencement of their employment, to be paid the percentage of the Level 4 rate prescribed in subcl 33.7(c) in accordance with their age by virtue of the fact that they were employed in an occupation falling within subcl 33.7(d). The cross reference in the Modern Award to the Level 4 rate of pay prescribed in cl 33.4 is an arithmetic convenience: it does not require any separate assessment to be made of the junior employee in relation to the skill descriptions in Level 4 of Sch B, nor to any other skill description contained in that Schedule. Accordingly, to the extent that Complete Windscreens complains of findings concerning the degree of supervision exercised over its junior employees at various times, the complaints are misdirected and misconceived. 82 The primary judge was alive to the critical differences in the provisions of the Modern Award in their application to adult and junior employees. His Honour clearly identified that the wage payments to the junior employees turned not on the training, skill or supervision factors referred to in Sch B, but on the identification of the nearest indicative occupation. 83 His Honour's conclusion that it was "appropriate" to compensate the junior employees on an assumption that for the first month they should be paid in accordance with Level 1, is to be read in a context in which the FWO had itself framed its case in that way. In the result, the compensation paid to the junior employees fell slightly short of their actual entitlements: each was in fact entitled from the commencement of employment to be paid the applicable percentage of the Level 4 adult wage according to his age; irrespective of his skills or degree of supervision. 84 Accordingly, it is unnecessary to determine whether the learned judge impermissibly drew global conclusions about the supervision of all of the junior employees without having specific regard to the evidence of any one of them. As has been said, the issue of Mr Priest's classification did require an evaluative judgment of his particular circumstances (which was done), but the issue of the junior employees' classification did not. 85 If there be an error in the classification of the junior employees, it is an error resulting in those employees being undercompensated. There is otherwise no merit in this ground of appeal. 86 The appeal should be dismissed. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Collier and Charlesworth.