WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. The Civil Service Association of Western Australia Incorporated and Public Service Commission. No. PSA CR 59 of 1992. COMMISSIONER G.L. FIELDING. 30 November 1993. Order. HAVING heard Mr R. Grigoroff on behalf of the Applicant and there being no appearance on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— That the Applicant have leave to withdraw the application and that the application be and is hereby withdrawn. (Sgd.) G.L. FIELDING, IL.S.j Commissioner. Enrolled Nurses and Nursing Assistants (Private) Award No. 8 of 1978. 3466 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 73 W.A.I.G. INDUSTRIAL MAGISTRATE— Complaints before— IN THE INDUSTRIAL MAGISTRATE'S COURT HELD AT PERTH WESTERN AUSTRALIA. No. 192-3 of 1992. Heard: 8 & 9.9.93. Delivered: 23.9.93. BEFORE MR W.G. TARR ESQ. S.M. Graham McCorry, Department of Productivity and Labour Relations, Complainant, and World Enzymes Pty Ltd, Defendant. Reasons for Decision. THE complainant in these matters has made two complaints on behalf of Mason Trouchet ("Trouchet") an employee of the Defendant company alleging that he was not paid outstanding annual leave entitlements and reasonable expenses incurred in the course of the employment on termination of employment. It is claimed that the parties are bound by the Commercial Travellers and Sales Representative Award No. 43 of 1978 ("the Award"). There is no dispute that Trouchet was employed by the Defendant for several years until he resigned in April 1992. Although issue was taken with the actual date of resignation I find that Trouchet was employed until his last day of work, Friday 24th April 1992. The relevant clauses of the Award are as follows 3. Scope "This award shall apply to all workers employed in the callings listed in Clause 7.—Wages hereof by employers engaged in the industries set out in the schedule to this Award. Clause 7 includes a calling of Commercial Traveller/Sales Representative and it is in this calling that Trouchet claims he was employed. Commercial Traveller/Sales Representative is defined in Clause 6 as meaning "a worker who is employed: (a) away from or substantially away from his em- ployer's place of business; and (b) wholly or mainly for the purpose of soliciting orders or promoting business." Some irrelevant exceptions follow the definition. The industry in which it is claimed the Defendant was engaged in is the Chemicals, Manufacturers and/or Distrib- utors which is one of the headings in the Schedule of Respondents. The Defendant was not in existance in 1978 and is not therefore one of the Respondents named in the Award. Evidence was given that the Defendant manufactured a product called Endurazyme which was used to stabilize soils and had application in road making. Three other products were also manufactured, namely Agzyme, Bactozyme and Sodium silicates. All but sodium silicates have been described as "manufactured enzymes" and further de- scribed as specialty chemicals. Expert evidence was given that enzymes are proteins and can only be described as chemicals. Mr Trouchet gave evidence that he manufactured en- zymes, the Defendants name is World Enzymes Pty Ltd and the products names suggest they contain enzymes. The report prepared by Mr Trouchet refers to the product Endurazyme as being a road stabilization chemical and the word chemical is used in other parts of the report. While the onus of proof is on the complainant there was no evidence given by the defendant refuting the claim that the products manufactured where chemicals, neither was there any evidence disagreeing with the complainants evidence that the chemicals were manufactured and/or distributed by the defendant. On the evidence I find the product manufactured was a chemical and then it was manufactured and distributed by the Defendant. It is well established that an award should be interpreted as one would interpret a statute. The literal meaning of words should apply unless that would lead to a conclusion that could not be the intention of the legislators (parties). It seems to me on the evidence that the objects of the Defendant allows me to find that it is an employer bound by the Award in relation to its sales persons who are workers within Clause 6. The next matter for me to decide is whether the employee Trouchet was a Commercial Traveller/Sales Representative as defined by Clause 6. Commercial Traveller/Sales Representative is defined to mean "a worker who is employed: (a) away from or substantially away from his employ- ers place of business; and (b) wholly or mainly for purposes of soliciting orders or promoting business. It seems to me the award is intended to apply to an employee whose duties require him to be away from his employers place of business engaged in soliciting orders or promoting business. Someone who could typically be described as a travelling salesman. Because it is recognised that any employee of this type may at times be working at his employers place of business and at times not engaged in soliciting orders or promoting business the definition allows someone who is "substantially" away from his employers place of business and "mainly" for the purpose of soliciting orders or promoting business to come within the award. There can be no doubt that it is intended that the employees substantial duties should be soliciting orders or promoting business away from his employers place of business. Mr Trouchet claims that because of the nature of his employment with the defendant the award (43/78) applies to him. The broad thrust of his evidence is that he spent a substantial time away from the defendants place of business and 80% of his time was related to soliciting orders or promoting business. The defendant claims that Mr Trouchet's main duties were those of a Manager and the award does not apply to him. Two directors of the defendant company gave evidence. Firstly Miss Kelly said in evidence that her role in the company was "primarily financial management", she was "involved in that company and others within a generalised group and my responsibilities in relation to World Enzymes was to monitor the bank accounts of the company with the funds available, etcertera." The other director Mr Wamer gave evidence that he also was involved with other companies and in respect of the defendant company the managing director. His involvement with the defendant would have been in the vicinity of up to 3 hours every two weeks "but quite often just every month in terms of reconciling actual orders takes in respect to budgets previously submitted; sales programs—how effec- tively they worked; employee training programs, whether somebody was coming up to expectations or not; problems that were being addressed in terms of non-performance of product in the field. So I was brought up to date on a formal basis, sort of bi-monthly at best but most often monthly." There seems to be no doubt on the evidence that Mr Trouchet was responsible for the day to day activities of the defendant company. That also included to some extent the employment of sales staff and their general training supervision and control. Mr Trouchet admitted that he was involved in the manufacture of the defendant's products which included the purchasing of ingredients. It was he who knew the formula and who physically made up the mixture. He was involved in the establishment of agencies and the setting up of a branch in Brisbane. Mr Trouchet produced a document "World Enzymes Report" which could be described as a blue print for the defendant company's future. It appears from the evidence that Mr Trouchet saw himself in the Managers role. There is evidence that he signed letters as "Manager", "General Manager" and "Sales Manager". He was considered to be the Manager by Mr Greeney who was employed as a Sales representative by the company and who later took over Mr Trouchet's position when he resigned. An advertisement for a salesperson was produced (Exhibit E3) which offered a salary in the vicinity of $27,000 including car allowance plus commission. This advertise- ment invited prospective applicants to contact Mr Mason Trouchet Sales Manager. The evidence before me is that Mr Trouchet's salary was $35,000 including car allowance plus commission on any sales he made and a commission on any sales made by the sales staff. The onus is on the complainant to prove on the balance of probabilities that Mr Trouchet was a Commercial Traveller/Sales Representative within the definition of the Award. While it could be argued that if the business of the defendant was to sell its product then any activity performed in furtherance of that objective is for the purpose of soliciting orders or promoting business. I think that would be giving too wide an interpretation to the test. It is my view the complainant has not proved to the required standard that Mr Trouchet's employment and duties are such that the award should apply. In fact the evidence is overwhelming that the defendant duties were of a managerial nature and only a period well below "wholly or mainly" was spent soliciting orders and promoting business. Having found that the award does not apply to Mr Trouchet I have no alternative but to dismiss both complaints. In fairness to the complainant and to some extent the defendant I believe I should make a finding on the substance of the complaints which were also in issue and I refer to the failure to pay annual leave entitlements on termination and the failure to pay the reasonable expenses incurred in the discharge of his duties. It seems to me there is no argument by the defendant that when Mr Trouchet resigned he was entitled to 5 weeks annual leave which had acrued. The Notice of Answer And Counter Proposal filed in IRC action 711/92 sets out the true position in relation to the amount owing which is in relation to annual leave $2999.95 including tax payable. There is likewise no argument by the defendant that an amount would have been owing to Mr Trouchet for expenses incurred in the discharge of his duties with the company although the quantity is in dispute. As was the practice, all supporting documentation was submitted to Miss Kelly and is therefore in the defendants control. Again in the Notice of Answer the defendant from its records of expenditure has arrived at a figure of the expenses due. That figure is $4583.69. In Mr Trouchet's letter terminating his employment dated 24th April 1992 (Exhibit B) he claimed the amount of $4542.31 as the amount owing by the company for outstanding expenses incurred. If it was necessary for me to make a finding as to the amount outstanding I would have no problems with doing so based on those two figures. LONG SERVICE LEAVE— Appeals Committee- Government Wages Employees— LONG SERVICE LEAVE APPEAL COMMITTEE FOR STATE GOVERNMENT WAGES EMPLOYEES Stephen Beeton and Australian Coastal Shipping Commission File No. 30 of 1993. MR T J POPE (CHAIRMAN). MR L BEECH (EMPLOYEE'S REPRESENTATIVE). MR A S CACCAMO (DEPARTMENT OF PRODUCTIV- ITY AND LABOUR RELATIONS). Perth, 26th day of November 1993. Decision. Mr Beeton wants service as from 11 January 1982 to be deemed continuous for long service leave qualifying purposes. The facts of this matter are set out below: 1 Mr S Beeton commenced employment with Fremantle Hospital on 11 January 1982 as a shift engineer. 2 He left this position on 18 August 1988. 3 He commenced with Stateships on the 22 August 1988. 4 Whilst in the employ of Stateships, Mr Beeton's long service leave conditions are covered by the Marine Engineers (Seagoing and Offshore Indus- tries Long Service Leave Award 1988). Clause 15—claims of the award provides for rejected long service leave claims to be appealed to the Australian Industrial Relations Commis- sion. 5 A close examination of this award did not reveal any jurisdiction for the Long Service Leave Committee as constituted by the General Order of the Western Australian Industrial Relations Com- mission reported at 66 WAIG 319, to hear and determine the matter. T J POPE, Chairman. Filed in my office this 26th day of November 1993. J G CARRIGG, Registrar. 14061—6 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 73 W.A.I.G. UNFAIR DISMISSAL/ CONTRACTUAL ENTITLEMENTS-