Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] Ms Madeline Doe and her former employer, AIS Group Pub Group Pty Ltd T/A Paddy Malones (Paddy Malones), disagree over what was her correct classification during the time she was employed. This dispute was raised under the dispute resolution term of the Hospitality Industry (General) Award 2020 (Award).

• [2] Ms Doe was employed as a Duty Manager. Paddy Malones classified Ms Doe under the Award as a Food and Beverage Attendant Grade 3. Ms Doe says that her correct classification under the Award was Food and Beverage Supervisor.

• [3] The parties have consented for the Fair Work Commission to arbitrate the dispute. There is no dispute that I am empowered under s 739 of the Fair Work Act 2009 (Act) to do so.

• [4] I conducted a determinative conference on 13 June 2024. Ms Doe gave evidence in support of her case. Mr Stewart Alexander, Director, represented Paddy Malones and gave evidence.

• [5] Having considered the facts of the matter and the submissions of the parties, I find that the correct classification for the Applicant was Food and Beverage Supervisor.

2. What are the different classifications in the Award?

• [7] The relevant classifications to this dispute are set out in Schedule A of the Award and are as follows:

Food and Beverage Attendant Grade 2 (Wage Level 2) (F&B Grade 2)

Food and Beverage Attendant Grade 3 (Wage Level 3) (F&B Grade 3)

Food and Beverage Supervisor (Wage Level 3) (F&B Supervisor)

Means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

• supplying, dispensing and mixing liquor, including selling liquor from the bottle department;

• undertaking general waiting duties for food or beverages or both, including cleaning tables;

• taking reservations, greeting and seating guests.

Means an employee who, in addition to the tasks performed by a F&B Grade 2, is engaged in any of the following:

• attending a wagering terminal, electronic gaming terminal or similar terminal;

• having full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

• training food and beverage attendants of a lower grade; and

• supervising food and beverage attendants of a lower grade.

Means an employee who has the appropriate level of training, including a supervisory course, and who has responsibility for the supervision, training and coordination of food and beverage staff or for stock control for one or more bars.

• [8] A Food and Beverage Attendant Grade 4 (tradesperson) means an employee who has completed an apprenticeship or has passed the appropriate trade test and carries out specialised skilled duties in a fine dining room or restaurant. This classification does not apply in Ms Doe's situation.

• [9] Paddy Malones is a bar in Joondalup, Western Australia. Paddy Malones initially employed Ms Doe as casual bar staff (Wage Level 2) in October 2023. Ms Doe has over a decade of experience in hospitality, which has included supervisory roles.

• [10] Shortly after starting her employment, Mr Gunnings - the Venue Manager - approached Ms Doe and asked her if she would like to step up to the role of Duty Manager. Ms Doe accepted the offer and commenced in her new role as Duty Manager on 18 November 2023.

• [11] In January 2024, Ms Doe asked for a pay rise. In February 2024, Mr Gunnings informed Ms Doe that she would be reclassified from F&B Grade 2 to F&B Grade 3.

• [12] Ms Doe submits that her duties as Duty Manager went beyond F&B Grade 3. She says her duties included:

(a) Supervisory and training duties: Ms Doe supervised and trained not just food and beverage staff, but also new Duty Managers.

(b) Coordinating staff: Ms Doe was responsible for assigning duties to employees for their shifts. She also coordinated staffing levels to ensure there was adequate staffing at the venue depending on the level of trade and implemented the weekly cleaning checklist. She also created user logins for staff.

(c) Management of the venue: Ms Doe would open and close the venue; deal with internal and external complaints; and be the point of contact for liquor licence visits.

(d) Management of money: Ms Doe would count the tills and safe; send sale reports to accounts; and pay the bands booked for the venue.

(e) Liaising with external parties: Ms Doe would search for quotes for the venue's various needs; book bands; and promote and organise events.

(f) Stocktake and ordering: In the last few months of her employment, Ms Doe had the responsibility of stocktake and ordering for three weeks.

• [13] Ms Doe's evidence is that other staff do not perform the above responsibilities unless they are the rostered Duty Manager.

• [14] Ms Doe explained that during her time at Paddy Malones there were two other Duty Managers. There was only ever one Duty Manager rostered on at a time, and they reported to Mr Gunnings as the Venue Manager. The Duty Managers supervised the bar staff.[1]

• [15] Mr Stewart mostly agreed with Ms Doe's evidence of her duties. However, Mr Alexander disputed the level of responsibility that Ms Doe had for coordinating staff duties and numbers. His evidence is that staff movements were generally posted in the management group chat that Mr Gunnings oversaw.[2] Ms Doe's position is that there were times when it was her sole responsibility to manage rosters due to demand at the venue.[3] Ms Doe came across as a credible and open witness during her evidence and during questions from Mr Alexander and myself. I accept Ms Doe's evidence not just on this point, but overall.

• [16] Mr Alexander submitted that there is a large difference between running the venue and managing the staff. Mr Alexander said that Ms Doe was never involved in the actual running of the business beyond counting the tills and completing bank deposits. Mr Alexander further says that Mr Gunnings was responsible for the payment of wages and supplier payments.[4] Mr Gunnings receives a pay rate that is "based" on F&B Supervisor but is paid in excess of the Award rate.[5]

• [17] Paddy Malones' position is that F&B Supervisor requires the supervision, training and coordination of staff. Paddy Malones says that Mr Gunnings coordinates staff and develops the weekly roster.

• [18] I disagree. Based on Ms Doe's evidence I am satisfied that she supervised staff that were rostered on; trained bar staff and Duty Managers; and coordinated staffing levels and duties. The fact that she reported to Mr Gunnings and he was responsible for staffing overall does not change that she also had a certain level of responsibility that meets the requirements in the Award.

3. What is an Approved Manager and does it satisfy the requirement for an "appropriate level of training"?

• [19] In Western Australia a liquor licenced venue must always have an Approved Manager on their premises when business is conducted. The Approved Manager must ensure compliance with the Liquor Control Act 1998 (WA). Approved Manager licensing is the jurisdiction of the WA Department of Local Government, Sport and Cultural Industries.[6]

• [20] To be licenced as an Approved Manager, an applicant must complete the Course in Management of Licenced Premises (Course), which is comprised of a core unit and two elective units. The minimum requirement to complete the Course is to pass the core unit.[7]

• [21] The content of the course covers the legislative responsibilities for the sale, supply and service of liquor.[8] The website for Access All Areas Training - the RTO that Ms Doe completed the Course through - states that the Course is suitable for people who are experienced within the industry and wish to move into management roles.[9]

• [22] Ms Doe completed the Course on 1 November. She received her unrestricted Approved Manager licence on 17 November 2023. Ms Doe relies on this training in support of her argument that she has completed a supervisory course and has the appropriate level of training for a F&B Supervisor.

• [23] Paddy Malones essentially submits that the Course is not sufficient training to qualify for a F&B Supervisor. Paddy Malones provided Mr Gunnings' certification records for comparison, which show that he has a Bachelor of Business Sport Management.

• [24] Clause 2 of the Award defines "appropriate level of training"[10] for an employee to mean:

(a) the completion of an appropriate training program that meets the training and assessment requirements of a qualification or one of more appropriate units of competency forming part of a training package; or

(b) the employee has been assessed by a qualified skills assessor as having skills at least equivalent to those attained in an appropriate training program; or

(c) as at 30 June 2010, had been doing the work of a particular classification for a period of at least three months.

• [25] I find that the training required to obtain an Approved Manager's Licence is an appropriate training program that meets the training and assessment requirements of a F&B Supervisor. Ms Doe has completed the appropriate level of training for F&B Supervisor.

• [26] I find that Ms Doe had the appropriate level of training and had responsibility for the supervision, training and coordination of food and beverage staff. This means that from 1 November 2023 when she completed the training for her Approved Manager's Licence, her correct classification was Food and Beverage Supervisor (Wage Level 5) until her employment with Paddy Malones ended.

[6] Approved manager lodgement guide | DLGSC

[7] Mandatory training (dlgsc.wa.gov.au)

[9] WA Approved Manager Course Online | MLPLCA001 - AAAT - Access All Areas Training

[10] For Award-covered employees other than a casino gaming employee.

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