Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch

APPELLANT: Mr P M Kite SC with Mr S B Benson of counsel SOLICITOR: Mr N G Napper Deacons Graham & James

LEGAL REPRESENTATIVES: RESPONDENT: Mr J V Murphy of counsel INSTRUCTED BY: Mr A McDonald Federated Clerks' Union of Australia, New South Wales Branch

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Walton J, Vice-President Hungerford J Connor C DATE: Friday 6 July 2001

Matter No. IRC36 of 2000 KINGMILL AUSTRALIA PTY LIMITED T/AS THRIFTY CAR RENTAL v FEDERATED CLERKS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH. Application by Kingmill Australia Pty Limited t/as Thrifty Car Rental for leave to appeal and appeal against a decision of Justice Glynn given on 17 December 1999 in Matter No. IRC6472 of 1997. DECISION OF THE COMMISSION [2001] NSWIRComm 141 1 This is an application for leave to appeal and, if granted, an appeal by Kingmill Australia Pty Limited t/as Thrifty Car Rental ("the appellant") against a decision of Glynn J delivered on 17 December 1999. The decision of her Honour arose from a notification of a dispute under s130 of the Industrial Relations Act 1996 by the Federated Clerks' Union of Australia, New South Wales Branch ("the respondent"). 2 The respondent claimed that certain persons employed by the appellant as "Reservation Consultants" (RCs) and "Retail Sales Officers" (RSOs) ("the employees") were covered by the Clerical and Administrative Employees (State) Award ("the Award") and had not been paid in accordance with it. The sole question considered by Glynn J was whether the employees were covered by the Award. No relief was sought or granted. 3 The appellant conducted a substantial car rental business which operated at some 260 locations throughout Australia. The RCs involved in this dispute were employed at the appellant's national call centre in Sydney and dealt with prospective customers over the telephone. The RSOs were employed at the Sydney city office and at three counters at Sydney Airport and dealt with customers directly. 4 The coverage of the Award is set out in cl42, which relevantly provides: 42. Area, Incidence and Duration.

(ii) It shall apply to all persons employed in any clerical capacity whatsoever and, without limiting the generality of the foregoing, shall include telephonists, receptionists, cashiers, messengers, copy boys, persons employed on machines designed to perform or to assist in performing any clerical work whatsoever in the State, …(emphasis added) 5 The respondent argued that the employees came under the Grade 3 classification in the Award. A Grade 3 position is described in the Award as follows: (a) The employee may work under limited supervision with checking related to overall progress.

(b) An employee at this grade may be responsible for the work of others and may be required to co-ordinate such work.

(c) An employee at this grade applies knowledge with depth in some areas and broad range of skills. Usually, work will be performed within routines, methods and procedures where some discretion and judgement is required. 6 Her Honour concluded that the employees were covered by the Award. Grounds of appeal 7 The appellant set out ten grounds of appeal. Its central contention may be ascertained from the fourth ground of appeal which pleaded her Honour erred in not finding that the "primary function" of the employees was either sales and/or the renting out of vehicles "by utilising selling skills or skills of persuasion, which work does not fall within any clerical capacity whatsoever". The appellant also submitted her Honour's decision was contrary to the evidence and the weight of the evidence. 8 The other grounds essentially alleged that Glynn J erred in her characterisation of the work performed by the employees and in a number of factual determinations. The appellant challenged, in particular, her Honour's findings that: · "… The primary duty the respondent requires the employees concerned to undertake is that of documenting from beginning to end each occasion a car is rented out." · "… to the extent that I have found the RCs and RSOs are engaged in selling, such selling does not constitute the major and substantial part of their duties …." 9 The appellant also alleged her Honour erred in not giving sufficient weight to the fact the employees were required to use persuasion to obtain rental of vehicles, in finding the appellant had conceded that all of the tasks performed by the employees were clerical and in finding that, for more than half of the clients dealt with by the employees, the selling had already been done. The judgment at first instance 10 Glynn J began consideration of the issues by noting that whether the employees were covered by the Award was a question of fact to be determined by the Commission and regardless of the titles or labels used by the parties to describe the positions concerned. Her Honour noted also that there was very little, if any, factual dispute about the duties performed by the employees; the differences between the parties concerned the emphasis placed on those duties and, in particular, whether they should be characterised as involving "selling". 11 A substantial body of evidence was led in the proceedings below. This included company documents comprising position descriptions, daily checklists, staff recognition and award programmes, and call centre scripts. It included also evidence from witnesses, for both parties, describing the nature of the duties performed and the context in which the appellant and its employees operated. 12 The differences between the parties revolved around the claim by the respondent that the employees were employed in a clerical capacity in renting cars and the appellant's claim that the core activity of the employees, and the one for which they were employed, was selling. Her Honour described the contentious duties of the employees in the following way: There was no dispute that the RSOs and RCs try to secure a commitment from enquirers to rent a vehicle from Thrifty and in doing so will try to "upsell" product i.e. to get a potential client to rent a more expensive vehicle or to take out additional insurance or some other option. Success in doing so in the first place provides additional revenue to Thrifty and in the second, to the RCs and RSOs in the form of incentive payments. The RSOs and RCs try to secure bookings at the highest rental rate the prospective customer will accept, though that highest rate may be well below the nominal rate. The booking having been achieved the RSOs and RCs, in the light of the perceived needs of the client, advise the then committed customer as to other options available for a price relating to additional insurance and additional amenities such as baby seats and car phones, the acceptance of which either gives Thrifty additional revenue or claws back some of the dollars lost in dropping rates to secure the rental. 13 Her Honour then made a number of findings and observations in relation to the duties which, in summary, were as follows: · The generation of additional business and revenue for the appellant was not inconsistent with the work of clerical employees. · The employees did not engage in "cold selling" as they responded to enquiries from people who already had an interest in renting motor vehicles. · A large proportion (probably more than half) of car rentals had already been made before the customers dealt with the employees. · The "sales techniques" in which the appellant trained the employees were "in the main, just as applicable to the training in skills applied by persons employed in a clerical capacity". · The employees "provide information in depth to potential clients as a result of which those clients made an informed decision as to whether or not it is to their benefit to rent a vehicle from Thrifty or rent/buy any of the add ons such as insurance". 14 After "considerable hesitation", her Honour found that the activities of the employees in relation to insurance, and perhaps the petrol options, could be categorised as selling. Her Honour considered various dictionary definitions of the word "sell" and concluded (leaving aside the insurance and petrol options) that the employees' "provision of information to potential clients fell within certain definitions of the word sell". 15 Her Honour distinguished between the obtaining of rental vehicles, on the one hand, and the obtaining of the additional insurance and petrol options, on the other, in the following manner: The RCs and RSOs are using the same skills to inform a client of the additional insurance and petrol options as they do to try to obtain the rental in the first place. The outcome of that persuasion is different. Once rented the car is at the disposal of the client for the nominated period of time and then returned to Thrifty. The taking out of additional insurance is a discrete transaction, with no residuals returning to Thrifty at the completion of the hire. I do not consider, however, that the principal purpose for which either an RC or RSO is employed by Thrifty is to sell such additional insurance or petrol options. 16 Her Honour then considered the authorities which have discussed the phrase "employed in a clerical capacity". In that respect, her Honour adopted the approach of Sheldon J in Federated Clerks' Union of Australia, New South Wales Branch and Australian Workers' Union [1971] AR (NSW) 419 at 421 in which his Honour stated that the work of clerical employees included administrative duties and was not restricted to recording functions. The duties of the clerical employees in that case included negotiating with suppliers to obtain goods at the best possible price. 17 In so adopting the approach of Sheldon J, her Honour (following McCusker J in Re Clerks' (South Australia) Award (1988) 55 SAIR (Pt1) 598) rejected the narrower approach of Burt CJ in Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch v Cary and Cary t/as R. W. Cary Estates (1977) 57 WAIG 585 (Cary's Case). Her Honour adopted also the approach of Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18, which, by applying the "major and substantial test", held that the employees' duties were of a clerical character despite some minimal work involving sales. 18 Her Honour distinguished the case of Kingmill (Australia) Pty Ltd (t/as Thrifty Car Rental) v Marshall [1999] SAIRC 2 in which the Full Court of the Industrial Relations Court of South Australia determined that a Rental Sales Officer was not covered by the Clerks (South Australia) Award. Referring to the Full Court's conclusion, her Honour stated: … that Ms Marshall was not covered by the Clerks (SA) Award was made with "much hesitation" in the absence of evidence, or instance, as to sales targets (and which was adduced in these proceedings). The Full Bench upheld the appeal that the Award did not apply on the basis of the respondent's description of her duties: "I rent cars out, that's what I do", but did not indicate why it was thought that to "rent cars out" was not clerical work. 19 In concluding, her Honour stated she did not see "why rental work, as described in these proceedings and in Ware, is work that does not fall 'within any clerical capacity''' and the fact incentive payments were available for the employees did not change "the essential nature of the major part of their work, that being clerical in nature". 20 The ultimate ruling by Glynn J was expressed as follows: The primary duty the respondent requires the employees concerned to undertake is that of documenting from beginning to end each occasion a car is rented out. The fact that the employees concerned have, at some stage in the transaction/interaction with the customer the opportunity to "sell" additional insurance etc to the customer is an add on duty ...

In this case I find that to the extent that I have found the RCs and RSOs are engaged in selling, such selling does not constitute the major and substantial part of their duties and so does not take them outside the coverage of the Clerical Award. The appellant's submissions 21 The appellant, represented by Mr P M Kite SC and Mr S B Benson of counsel, submitted that leave to appeal should be granted for two reasons. The principal submission was that the reasoning of Glynn J was contrary to the decision in Kingmill v Marshall and there was a public interest in ensuring comity between the respective State industrial jurisdictions; the South Australian Full Court decision should therefore be followed unless this Commission was satisfied good reasons existed not to do so. Senior counsel argued that the issue of comity had even greater significance for an employer operating the same business in more than one State and, based on the South Australian decision, it was entitled to assume its employees in New South Wales were not covered by the Award. 22 Whilst the work of the RSOs and RCs had been performed in New South Wales for many years, the appellant submitted that leave should be granted as the decision under appeal was the first of its kind to consider the proper classification of those employees. 23 The appellant submitted also that the public interest test in s188(2) of the Industrial Relations Act did not provide a complete statement of the circumstances in which a Full Bench may grant leave to appeal. It argued that the Full Bench may, in accordance with s188(1), grant leave in other circumstances at its discretion. 24 Senior counsel said the nature of this appeal could not be determined on the basis of the principles applicable to the review of discretionary decisions. In accordance with the approach in Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231, so it was argued, the Full Bench was required to determine whether her Honour's decision was correct, rather than whether it constituted a proper exercise of discretion. The submission emphasised, since the case did not depend on resolving factual disputes or issues of credit, that the Full Bench was in as good a position as her Honour to determine the issues. 25 The primary purpose of the employment of RSOs and the RCs was, on Mr Kite's approach, "to provide services to customers so as to gain and retain sales" or "to persuade the customer to buy or to continue to buy the company's products". The appellant argued that, whilst it does not literally "sell" motor vehicles, it does sell products - primarily motor vehicle rentals, but also additional products including insurance, petrol and other "add-ons". 26 The highly competitive nature of the industry was particularly promoted in senior counsel's argument so as to demonstrate the key role played by customer service in differentiating the appellant from its competitors. In other words, the RSOs and RCs were the appellant's "frontline representatives" who employed a variety of sales techniques for which they were provided with sales incentives and significant training in sales technique and performance. 27 The appellant challenged her Honour's finding that the primary duty of the employees was to document "from beginning to end each occasion a car is rented out". Senior counsel argued that the employees' primary duty was to gain commitment from potential customers to enter into rental agreements and that the documentation of those transactions was a necessary but incidental part of that primary duty. 28 The distinction drawn by her Honour between the outcome of the persuasive skills used in relation to the additional petrol and insurance options and the outcome in relation to the rental of cars was put in issue. It was said the distinction was irrelevant, indeed confusing, as the appellant in fact sold the use of a motor vehicle for an agreed period under a rental contract. 29 The reasoning of her Honour that the "selling" had already been done for more than half of the clients was submitted not to be supported by the evidence. In relation to Reservation Consultants, in particular, the evidence did not permit the conclusion that more than 10 - 15% of clients had already been sold the rental products. 30 The "concession" made by the appellant's counsel during the hearing, to the effect that the range of jobs performed by the employees could be regarded as clerical if the wrong test was applied, was said to have been misunderstood by her Honour; the correct approach was the "dominant purpose" test which, properly applied, would lead to the conclusion the employees were not covered by the Award. 31 In determining whether the employees were covered by the Award, the essential task was to construe the actual words used and their plain, ordinary English meaning: see Bryce v Apperley (1998) 82 IR 448 at 452 per Hungerford and Schmidt JJ. In submitting that there was no distinction between the "major and substantial" test and the "primary purpose" or "principal function" test, Mr Kite said that both were simply aids to construction which looked at the substance of the employment rather than at a simplistic temporal analysis or a list of job activities. 32 An overall view of the authorities, whilst all depended on their own facts, appeared to show, as Mr Kite put, "that if the primary purpose of employment is selling, the work is not clerical". He referred in that respect to Ware and to Kingmill v Marshall and added: If the employee's role is a salesperson's role to persuade somebody to procure their product, that is not clerical.

However, it was conceded that the two categories were not mutually exclusive, tasks may overlap both categories and there may be difficulties in determining on which side of the line certain tasks fell. 33 Mr Kite submitted that the application of either the major and substantial or the primary purpose tests would leave no doubt that the employees were not employed in any clerical capacity. 34 In promoting the usefulness of the decision in Kingmill v Marshall, senior counsel contended it was consistent with other authority, such as Ware. It was suggested that the reason the Full Court in Kingmill v Marshall expressed its conclusion "with much hesitation" was due to the absence of evidence in that case of sales techniques; such a deficiency was not a problem here where Glynn J had such material.

The respondent's submissions 35 The respondent, through its counsel Mr J V Murphy, denied the appellant had raised matters of public interest such that leave should be granted. It was submitted that Glynn J correctly applied the decision in Ware, a decision which has been followed on many previous occasions. It argued her Honour was correct to distinguish the decision in Kingmill v Marshall and that she properly formed her own conclusion on the basis of the evidence before her. 36 The respondent submitted that the Full Bench should apply the well-established principles to the review of factual findings and it should only substitute its own opinion if the trial judge had made an error of law or a finding of fact which was clearly wrong or not reasonably open. 37 Mr Murphy highlighted the key findings made by her Honour which led to her conclusion that the employees were covered by the Award. He submitted those findings were, on the evidence, not only open to her Honour but were, in fact, correct. 38 Mr Murphy challenged the appellant's submissions the decision in Kingmill v Marshall should have been of assistance to her Honour. He submitted that that decision concerned the work of one employee only and a union had not been a party to the proceedings. He said the Full Bench had not been taken to the extensive range of authorities reviewed by her Honour, particularly Ware and the Fairfax Demarcation Case (unreported, Cahill J, Matter No. 114 of 1977, 3 August 1977), and the decision in Kingmill v Marshall was inconsistent with long-standing authority so as to be incorrectly decided. 39 The appellant's approach, which Mr Murphy said "would exclude any employee who utilises skills of persuasion to conclude a transaction from the award", would, if adopted, remove from coverage by the Award many employees who had traditionally been regarded as engaged in clerical employment. 40 In response to questions from the Commission, Mr Murphy initially suggested that the word "whatsoever" in the phrase "any clerical capacity whatsoever" broadened the scope of the clause. Later in the hearing, however, counsel stated he had "been persuaded" that neither the words "any" nor "whatsoever" added anything to the phrase "clerical capacity". If they did, however, and if Glynn J had in fact based her decision only on the words "employed in a clerical capacity", then, from the respondent's perspective, her Honour asked a "more difficult question" but answered it in the respondent's favour in any case. Supplementary submissions 41 The parties were invited to make supplementary submissions on the decisions in Ware, Federated Clerks' Union v Australian Workers' Union and Cary's Case. The respondent referred to a number of decisions which, it submitted, applied or approved the approaches adopted by Sheldon J in both of those first two-mentioned cases. 42 As to the decision in Cary's Case, Mr Murphy sought to distinguish it on its facts from the present appeal. Counsel argued also: To the extent that the case approaches the interpretation of the term "clerk" on a narrow basis it has not received judicial acceptance and should not be followed. The more expansive approach of Sheldon J to the concept of clerical work continues to influence modern judicial thinking on the subject.

The respondent supported this approach by referring to the analysis of McCusker J in Re Clerks' (South Australia) Award (at par[8]). 43 In its submissions on Cary's Case, the appellant made it clear it did not rely on that case to support a narrower approach than that adopted by Sheldon J in Federated Clerks' Union v Australian Workers' Union and also in Ware. The appellant submitted that: … a proper application of Sheldon's [sic] test to the facts in the present case would lead to the conclusion that the work of Rental Sales Officers and Reservation Consultants, other than some ancillary clerical duties, was not work which could be said to be or form part of general office administration but rather [sic] the occupation of Rental or Sales Officers. Consideration 44 We have considerable hesitation in granting leave to appeal in this matter. As earlier noted, no specific relief was sought nor granted at first instance, other than an expression of opinion by Glynn J as to the applicability of the Award to the employees concerned. However, we consider that leave should be granted given the general significance of the operation of the Award and the issue of comity raised in the proceedings. 45 The question raised in this matter is whether the employees performed work "in any clerical capacity whatsoever" within the meaning of that phrase in the Award. 46 The meaning of the phrase "in any clerical capacity" has been considered on many occasions by the Commission and its predecessors. In Federated Clerks' Union v Australian Workers' Union, Sheldon J was required to determine a demarcation dispute as to whether one or other of the competing unions had the right to represent certain persons employed as "purchasing officers" in light of their respective constitution rules. His Honour stated (at 421): This phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and the mind are now part of clerical stock-in-trade. So is the acceptance of responsibility and the exercise of discretion. The conception is fluid and progressive and recourse to a dictionary gives only partial help. It is impossible, and in any event it would be undesirable, to attempt to devise a code as to what in the setting of industry today can fairly be regarded as clerical work. But too fine a toothcomb should not be used in solving this question in particular cases. Obviously all employees in an office are not engaged in a clerical capacity. It is clear that professional employees are not nor are those who are truly and basically executive officers. But an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non-recording functions. No doubt there are cases near the border which would be difficult to determine but in general, and subject to some special categories, those who are in a subordinate position but are engaged in the ordinary work of office administration are, in my opinion, prima facie covered by this constitution rule. [emphasis added] 47 His Honour continued (at 421 - 422): Although it is not decisive, it would be unreal to ignore the categories of work which for many years have been covered by the many awards relating to clerks. These categories are very varied indeed and have been described in a number of judgments. I will quote as an example the general nature of the work on which the wage rates in the Clerks (State) Award were fixed by a Full Bench of the Commission as far back as 1949 (In re Clerks (State) Award (No. 2) [1949] AR (NSW) at pp. 456-457).

The work involved was: a) Providing the basic records of production, stock, etc. b) Computing orders, quantity and quality of production. c) Arranging and supervising despatch and receipt of commodities. d) Recording, calculating and analysing labour times, preparing and paying wages and bonuses. e) Costing production - analysing successive operations. f) Buying, selling and programming company's products. g) Attending to shipping, traffic insurance, compensation, etc. h) Preparing accounts and financial statements of the company's operations. i) General clerical recording and computations.

This list of course was not exhaustive and no doubt the passage of a further 20 years has wrought many changes. But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system. That is why I deprecate dividing officer functions too strictly by attempting to quantify the recording done by different members of the team and using this as the test. There are also a number of specialist awards covering clerks which again deal with a varied range of work. The matter, however, is a question of fact to be decided in each case and having examined the work done by these purchasing officers, I am satisfied that they are employed "in a clerical capacity" as that phrase is to be understood in 1971. 48 The above analysis by Sheldon J has been cited and applied on many occasions: see, for example, Re Interpretation of an Award, Clerks' (South Australia) Award (1988) 55 SAIR (Part 1) 598 at 607 - 609 per McCusker J; Re Tanner; Re Armstrong; Re Inquiry into Election in Federated Clerks' Union of Australia (1986) 16 IR 210 at 213 - 214 per Gray J; Joyce v Christofferson (1990) 33 IR 390 at 397 - 398 per Gray J; Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v Bunnings (unreported, Western Australian Industrial Relations Commission, Full Bench, 20 February 1992); and Welsh and Tasman Asia Pacific Pty Ltd (unreported, Australian Industrial Relations Commission, Deegan C, Print P9068, 25 February 1998). 49 We too shall adopt Sheldon J's general approach to the interpretation of the phrase "in any clerical capacity". We consider that, to the extent the decision in Cary's case represents a narrower approach, it should not be followed. 50 It should be noted that Sheldon J commented on the undesirability of attempts to codify any fixed description of clerical work and that it must be judged in the context of contemporary industrial conditions. His Honour noted also that there had been many changes in the nature of clerical work in the twenty years preceding his decision. Finally, his Honour emphasised that the question was always one of fact to be determined by an examination of the work performed in each case. With these qualifications in mind, his Honour's analysis represents an appropriate starting point for the consideration of whether the employees in this case were employed "in any clerical capacity whatsoever". 51 Another judgment of Sheldon J was the subject of considerable attention by the parties in the proceedings. In Ware, his Honour determined an appeal from a decision of the Chief Industrial Magistrate in relation to an allegation that the employee, Ms Ware, had not been paid in accordance with the Shop Employees (State) Award. His Worship found that Ms Ware was employed "primarily and essentially for the major and substantial portion of her duties in a clerical capacity" and that, as a result, she was not covered by the Shop Employees (State) Award. That award did not apply to persons employed in, or in connection with, a shop "in any clerical capacity whatsoever". His Worship found instead that Ms Ware was covered by the Clerks, &c., In Retail Shops (State) Award, which award did apply to persons within that description. 52 Sheldon J stated that the Chief Industrial Magistrate's finding (at 18): … raises two questions: firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was. 53 His Honour continued (at 19): It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which if taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration. I bear those considerations in mind in considering whether the Chief Industrial Magistrate came to a correct conclusion in this case. If, applying this test, his findings of fact is [sic] supported by the evidence, then the Shop Employees (State) Award did not apply at all to this work and the question whether, if it did apply, the work or any part of it would have attracted the male rate does not arise. 54 After reviewing the facts as found, his Honour concluded Ms Ware was employed in a business connected with television rentals and, whilst she was responsible for minor sales transactions (totalling $223 over a year), "the major and substantial part of the duties … were of a clerical character". His Honour found, therefore, that since those duties were performed in a shop, the Chief Industrial Magistrate was correct in concluding that the applicable award was the Clerks, &c., in Retail Shops (State) Award. 55 It may be noted that his Honour's application of the major and substantial principle seemed to be guided, at least to some extent, by the approach adopted by the Chief Industrial Magistrate. It should also be noted that his Honour stated that the case was not an appropriate one to discuss the application of that "test". 56 Reference was made also in this appeal to the primary purpose or principal function test, which is generally traced to the decision of Ludeke J in J Fenwick & Co Pty Ltd v Merchant Service Guild of Australia (1973) 150 CAR 99, in which his Honour stated (at 101 - 102): To ascertain the course of the calling of particular employees, it is not enough merely to make a quantitative assessment of time spent in carrying out various duties. In my opinion, not only should the nature of the work done by the class of employees be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if a worker is required by his employer to carry out diverse duties, the inquiry should be directed to ascertaining the principal purpose for which the worker is employed. … It may well be that an employee who spends twenty-five per cent of his time fulfilling the principal purpose for which he is employed qualifies by reason of that circumstance alone to be classified in the particular calling identified with that purpose. 57 The approaches in Ware and Fenwick were considered by a Full Bench of the Commission in Court Session in Softplay Pty Ltd v Department of Industrial Relations (1999) 94 IR 175 concerning an appeal from a finding of the Chief Industrial Magistrate that the employer had failed to pay two employees in accordance with the Shop Employees (State) Wages Adjustment Award and the Shop Employees (State) Award ("the Shop Awards"). The employer had been paying the employees in accordance with the Theatrical Employees Recreation and Leisure Industry (State) Award. 58 The Shop Awards applied, relevantly, to all persons employed "in or in connection with a shop". The employees worked at a centre in which 60 per cent of the area was devoted to a play area for children. Some retail items were sold behind a counter in the centre. The question on appeal was whether the Chief Industrial Magistrate was correct in his finding that the employees were covered by the Shop Awards. 59 Glynn and Hungerford JJ both concluded, in separate judgments, that leave to appeal should be granted and the appeal allowed; Wright J, President, dissented. Glynn J considered it appropriate to adopt the approaches in Ware and Fenwick. Her Honour concluded (at 192): Whether the activities of the employees of Softplay are examined on the basis of either their major and substantial employment or of the purpose of the employer's business the conclusion must be reached the Shop Awards are not generally applicable to the work of the employees whose activities were considered by the CIM.

Hungerford J reached a similar conclusion by applying the approach in Ware and Fenwick (see at 197). 60 Their Honours rejected the observation of Macken J in San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 at 294 that the test in Ware could not have the same force where the issue was not which of two awards applied but rather whether an award applied at all. Their Honours indicated that the approach in Ware was appropriate to cases where the question concerned whether one particular award applied. (See at 191 per Glynn J and at 194, 196 per Hungerford J). 61 In dissenting, Wright J, President, held that leave to appeal should have been declined. His Honour stated that the approach of Sheldon J in Ware was "a principle which has largely developed as a practical response to determining questions which would otherwise have a potential for inappropriate complexity and technicality and, as such, involved an application of, perhaps, more of a rule of thumb than a principle". His Honour observed also that the "principle" had been developed largely in judgments of single judges and had not been the subject of attempts by a Full Bench to state, or perhaps restate, it "in a completely coherent form" (at 177). 62 The President considered the limited issues which were before Ludeke J in Fenwick and stated that, despite its "apparent similarity" with the approach in Ware, there was "some doubt" whether it provided "a useful point of reference to the development of the principle" in Ware. His Honour said the application of the approach in Fenwick "in the present context has the potential for awards to be interpreted inconsistently with their plain words and thus unnecessarily restrictively" (at 177). 63 The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce. Hungerford and Schmidt JJ stated there (at 452): In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: "The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light." 64 Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd , 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said:

"It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties." In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless. 65 The principles stated in Bryce have been applied on a number of occasions by this Commission: see, for example, Kellogg (Aust.) Pty Limited v National Union of Workers, New South Wales Branch (1998) 89 IR 391 at 392 - 395; Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 255 - 256 per Wright J, President and Schmidt J; ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited [2000] NSWIRComm 122 at [40]-[42] per Boland J; Australian Workers' Union, New South Wales v New South Wales Technical and Further Education [2001] NSWIRComm 25 at [15] and [17 - 19] per Schmidt J. 66 We consider that Hungerford J was correct in observing, in Kellogg (at 395), that the passages cited by the majority in Bryce represented a "long-standing and settled approach" to the task of award interpretation. 67 The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (at 518)

(See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351).

I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 68 The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. 69 Those principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award. 70 It should be noted that the application of aids to construction, such as the "major and substantial" or "principal purpose" tests, should be approached with caution. The automatic adoption of such an approach may, depending on the terms of the award, have the potential for awards to be interpreted inconsistently with their plain words and, therefore, unnecessarily restrictively. This potential may be greatest when the scope of the award's coverage clause is expressed in broad and inclusive terms. 71 However, these tests provide no particular difficulty, in our view, for the present matter. We are satisfied that no appellable error has been demonstrated in relation to her Honour's conclusion here that the employees in question were "employed in any clerical capacity whatsoever". That conclusion may be reached comfortably whether the question be approached upon ordinary and general rules of interpretation or by relying upon other approaches to the construction of an instrument, such as the "major and substantial" test described above. 72 The decision of her Honour, in our view, does not demonstrate an error of fact warranting appellate intervention or, to the extent questions of mixed law and fact arise, no relevant errors in that respect. 73 The Award here applies to any person employed in any clerical capacity whatsoever. So expressed, its scope is directed to a wider class of employee than persons engaged as a "clerk" per se. This much is reasonably clear from the form of the words used in cl42(ii) of the Award and amply supported by the current form of the classification structure of the Award (see cl5) which gives a very broad description of the classes of employees affected. We note too that the description of the work of employees under the Award, which is provided by the description for each classification of employee (and the description of their duties and skills), has undergone significant changes from the work described in the version of the award considered by Sheldon J in Federated Clerks' Union v Australian Workers' Union. The classification structure now is considerably more expansive in the work covered. This consideration has significance for the scope of the Award and tends to indicate a wider and more diverse coverage, albeit still within the phrase "clerical capacity". 74 It is apposite, in this respect, to observe that the industry in which the Award operates has continued to experience considerable change since the time of decisions discussed earlier in these reasons. This is a significant consideration as the phrase "in any clerical capacity whatsoever" is, in our view, ambulatory in nature and will generally reflect changes in the nature of the work of persons performing clerical and administrative functions in the workplace. 75 As to the factual issues in the proceedings, it should be noted, as Glynn J observed at first instance, the actual duties undertaken by the employees were not in dispute. Mr Kite similarly noted that the appeal depended not so much on the resolution of factual issues as to the construction of the Award in light of the agreed material. 76 Further, there was no dispute between the parties that the subject employees were engaged in what may be described as clerical or administrative duties. In this respect, it follows they are engaged in a clerical capacity. 77 The proper characterisation of the business of the appellant, in our view, is the rental of vehicles. However, the mere characterisation of the business of the employer in this manner does little, of itself, to assist in the resolution of the issues arising in this appeal. The description of the business does, however, serve to emphasise that the appellant does not sell vehicles. Its employees are likewise confined in their duties. The appellant does not provide a service in the sense of professional or community services. It provides access to a vehicle for its customers upon specified conditions and a price (specified within a range for each such vehicle). It is the actual duties of the employees engaged in the process of renting vehicles which must be assessed in order to determine this appeal. 78 The essential task of the employees is the provision of information and assistance to the customers of the appellant as to rental options and then, upon the customer deciding to rent such a vehicle, to undertake the transaction on behalf of the appellant by means of the giving of advice and the completion of the necessary paperwork. The fact the employees may, by exercise of their skills and demeanour, enhance the prospects of a rental contract being entered into (or renewed at some later time) is a by-product of carrying out their duties in a proper manner. The fact the employees may engage in persuasion of customers as to some aspects of the transaction does not detract from this finding. Nor is the fact that the employees engaged in some limited activities, which her Honour found to be in the nature of "sales" work, inconsistent, of itself, with the conclusion that the employees are engaged in a clerical capacity. We note the duties of the employees do fit within the classifications found within the award. This, for reasons we have earlier discussed in relation to the principles for the interpretation of the Award, is not an immaterial matter in the consideration of the scope of the Award. 79 The appellant submitted that considerations of comity demanded that her Honour place greater weight upon the decision of the Full Court of the Industrial Relations Court of South Australia in Kingmill v Marshall. We do not accept this submission. 80 In that case, Ms Marshall, who had been employed as a Rental Service Officer by Thrifty in Adelaide, claimed she had not been paid in accordance with the Clerks' (South Australia) Award. The Industrial Magistrate dismissed the claim, finding that the award did not apply to her. That conclusion was reversed on appeal by a single judge and the appellant then appealed to the Full Court. 81 The Clerks' (South Australia) Award applied to "the industry of the occupations of persons employed as clerks and other clerical and office workers whose classifications are set out herein …". A "clerk" is defined in cl1.5.1 as "any person covered by this Award". Schedule 1 detailed the classification criteria to determine "the appropriate classification level of persons employed pursuant to this Award". 82 The Full Court adopted the approach of McCusker J in Re Clerks' (South Australia) Award in which his Honour rejected the submission that the applicability of the award was to be determined by reference to the classifications contained within it. The Full Court therefore considered whether Ms Marshall was covered by the award by asking "whether she was employed as a clerk or other clerical or office worker". 83 The Full Court decided the matter on the basis of the "largely undisputed evidence" which had been presented to the Industrial Magistrate and said: The only evidence that was placed before the learned Industrial Magistrate was that of the respondent and much of her evidence suggested that her duties were essentially clerical. She said that when contacted by telephone she would provide information as to the range of cars and rates (tr.7). She said that if a customer wanted to make a reservation she would either write down the request or if the computer facility was available, she would record it immediately on the computer (tr.8). In respect of her work at the airport booth, she said that she would complete the necessary documentation to create a binding arrangement between the appellant and the customer, by recording all relevant information (tr.9), and that she would hand over the keys and take relevant details such as the current address, local contact and mobile phone number and authorise the customer's credit card (tr.13-14). She said that when cars were returned, she would complete a receipt and would make enquires as to the amount of kilometres used and that she would ask the customer whether the car was filled with petrol. She said that she would then record and collate these details. Moreover there was no evidence indicating that the respondent was actively involved in the sale of the appellant's products or indicating that she had undertaken courses or been given instructions about ways to promote the products of the appellant or that budgetary targets or expectations as to the number of completed sales had been set for her. Such evidence might have demonstrated a sufficient sales orientation to make it clear that the Award did not apply. But absent such evidence the position is not so clear and we accept that there might be legitimate differences of opinion as to whether or not the Award applies. In the end we think that the respondent's description of her duties tips the balance against a finding that the Award applies. She said `I rent cars out, that's what I do' (tr. p. 23). That statement encapsulates the respondent's primary role and it is this essential aspect of the employment which determines her status. There were certainly significant clerical aspects to her duties but these were essentially a means to an end, that end being the hiring of cars. Her clerical duties did not stand alone, they supported and were subsidiary to her essential function. See: F.C.U. v. Cary and Cary (1977) 57 W.A.I.G. 585 and Pritchard v. Krantz and Another (1983) 5 I.R. 437. That conclusion suggests to us that the Award did not apply to her. 84 The Full Court therefore concluded, "not without much hesitation", that the award did not apply to Ms Marshall and the appeal was allowed. 85 It is apparent to us that the Full Court did not address the same issue which is before us in this appeal. Their Honours were required to consider whether Ms Marshall was employed "as a clerk or other clerical or office worker". The question in this case is whether the employees are employed "in any clerical capacity whatsoever". 86 The definitions of the word "capacity" cited in the Macquarie Dictionary (3rd ed.) include "power, ability, or possibility of doing something" and "position; function, relation". It is clear, we are satisfied, that the scope of the coverage clause in the South Australian award was considerably narrower than the clause in the Clerical and Administrative Employees (State) Award which is the subject of the proceedings before us. 87 We should add, as did her Honour, that the Full Court indicated its conclusion was made "not without much hesitation", and relied substantially upon Ms Marshall's own description of her duties. The principle of comity obviously does not require the application of a decision based on a substantially different award clause and on a factual basis restricted to consideration of one individual's employment. Indeed, the finding by the Full Court was based largely upon the concession by the subject employee that she was engaged essentially in the rental of vehicles; that fact, standing alone but in the context of the facts in the matter before us, we regard as being inconclusive of the issues raised in this appeal. 88 In these circumstances, we have determined that the appeal should be dismissed. 89 We order:

1. Leave to appeal is granted. 2. The appeal is dismissed.

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