Two full-time caravan park managers seeking to be paid Award rates including overtime have won their case in SA’s Employment Court, though records of all the time worked had not been kept.

Both the managers claimed that their salaries of $55,000 and later $60,000 were below the minimum Award entitlements for their long hours of work at their employer’s holiday park

They also claimed payment for all the overtime they’d worked, including overnight on-call allowances and attendances, public holidays and weekend penalty rates, meal and travel allowances and annual leave loading for their work as managers over a two-year period from July 2020.

The employer responded that their roles were ‘Award free’ because no single Award classification fitted their roles, or alternatively, that they’d only worked limited overtime, with the paid salaries meeting the minimum Award entitlements for the same work.

The employer’s position was that both applicants – a married couple – were employed in managerial roles above and beyond the highest Award classification, as they managed the caravan park business and supervised a full-time assistant manager and a part-time employee, as well as casual cleaners.

The 13.5 acre site featured 250 accommodation options ranging from caravan spaces to cabins, and included a BMX track, mini golf course and heated outdoor pool.

The managers also claimed the unpaid balance of their eight week notice periods of resignation following their summary termination about four weeks into the periods.

The employer’s response to this was that the managers had unilaterally brought forward their resignations, in breach of their contractual obligation to give eight weeks’ notice.

Moreover, the employer asserted that the woman had likely resigned early rather than face the employer after he’d indicated he wished to raise an undisclosed disciplinary matter.

The case was heard in the South Australian Employment Court.


In court

The issues the court had to decide were whether the couple were covered by the Hospitality Industry (General) Award 2020, and if so which classifications; and whether the paid salaries were less than the minimum Award remuneration for the hours they’d worked, including penalty rates for weekends and public holidays, annual leave loading and allowances for attendance, overnight stays and meals.

In arguing that the applicants’ jobs were ‘Award-free’, the employer relied on three previous case rulings that earlier versions of this Award did not apply to designated ‘managers’ of accommodation businesses.

In each case, the Award was held not to apply because the managers’ functions did not fit neatly into one or another classification under the Award, either because the applicants performed duties in various different streams of the classification scheme, or did not include all the functions listed under particular classifications. 

On examining the managers’ actual duties against the Award’s classification scheme, Deputy President Stephen Lieschke rejected the employer’s submission that the previous rulings supported the proposition that employees who perform duties in different streams are excluded from the Award. He said that that approach disregarded the effect of cl 17 of the 2020 Award, which states that an employer may require an employee to perform duties across the different classification streams.

He also rejected the employer’s submission that the applicants were live-in managers, finding that the caravan park was not their home, with them constantly available to guests. They were only available when rostered for a day or overnight shift and were not always the sole point of contact for guests, distinguishing them from the situation in an earlier ruling. 

‘In my view, the significant distinguishing features of [the applicants’] claim are the relative size of the establishments, the holiday park’s integration with the [employer’s] much larger nearby business, its support role in accommodating hundreds of guests on weekends of programmed motor events, and the related rostering arrangements of four staff for the ordinary and overnight shifts, in a context of the applicants’ defined contracted obligations’, he said.

Deputy President Lieschke took the view that ‘the [managers’] primary operational duties need to be assessed against the classification structure, rather than starting by applying an essentialist notion of what a manager is’.

He also found that the Hospitality Industry (General) Award 2020 applied to both applicants, and that the correct classification was Front Office Grade 3.

There were also factual disputes over what overtime each of the managers had actually worked, which was not clear because records had not been kept of all the hours they’d worked. 

This matter had to be considered in the light of s 557C of the Fair Work Act 2009 – ‘Presumption where records not provided’. This provision states that where the employer was required to keep records but didn’t, the burden of disproving the allegation falls on the employer

The evidence included records of guests and bookings, phone calls, overnight activity forms, pool cleaning records, leave forms and the like, as well as a large number of emails and other communications between the managers and the employer.

Deputy President Lieschke also heard both parties’ assertions about their respective understandings and competing interpretations of those communications, in a context of increasing friction and mutual dissatisfaction with the interactions.

The circumstances of their resignations were that the employer instructed them to attend a meeting, under threat of dismissal, for reasons he declined to give. 

One of the managers confirmed she would attend by video link, which she preferred to do sometimes so she could also staff the front office. The other manager could not attend due to illness, of which the employer had been advised the previous day.

The employer interpreted her declining a face-to-face meeting as resignation with immediate effect, but Deputy President Lieschke formed the opinion that this was not the case – her preference for a video meeting was reasonable in the circumstances. He found that the managers did not bring forward their resignations, and the employer owed them the balance of the notice periods plus interest.

The Deputy President found that their claims of working an average of eight hours a week additional to the rostered hours were not disproven, but that the evidence did not support the claims of one of the applicants that he’d worked an extra hour a day in summer, not did it support his claim with regard to the amount of overnight callout work on guests.

A directions hearing will be held at a later date to program the submission of calculations of the sums to be paid, and for final orders and declarations of contraventions to be made.

 

What it means for employers

In the light of recent changes to the law making it a criminal offence to knowingly underpay workers, employers would be well advised to check that all required records are being kept and entitlements under applicable Award classifications covered, including superannuation and other relevant allowances under the Fair Work Act or industrial agreements.

 

Read the decision

Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024)