This extract from an unfair dismissal case before the Fair Work Commission deals with the issue whether the applicant’s employment was covered by a modern award or enterprise agreement.
“In assessing the question of what a managerial role is, I am mindful of the findings of Crawford C in Evans v Total Essential Services Group where the Commissioner stated as follows:
“I have difficulty in classifying Mr Evans’ role as wholly or principally managerial in circumstances whereby the evidence clearly establishes that no other TESG employee reported to him. I consider this evidence is more persuasive in understanding Mr Evans’ role than the label appearing in his employment contract.”21
[47]
I note that the Commissioner expressed a view that it was difficult to classify the applicant in his matter as a manager without any direct reports. However, I would not take this as support for the proposition that there are no circumstances where a job can be classified as management without direct reports. Given that managerial is properly regarded as meaning “of or pertaining to management”, I note that Dictionary .com provides the following definition of manage:
“to be in charge (of); administer
to manage one’s affairs
to manage a shop”
[48]
The same source defines manager as:
“a person who directs or manages an organization, industry, shop, etc”
[49]
It seems to me that there are situations where a person could be regarded as a manager without having reports. For example, a person might be engaged to be in charge of a small shop with no other staff and thus have no call for hiring, dismissing or disciplining employees. However, there would be other elements of control that such a person might have, in terms of presentation of stock, discounts and decisions on issues such as refunds. As such, I think each situation should be assessed on its merits.
[50]
In the case of the Applicant, she was operating as a labour hire employee in amongst direct employees of WSP. I accept that she had no direct reports and regard this as unremarkable given that her job description would not have appeared to have contemplated management of staff or dealing with issues such as discipline, dismissals and hiring. Further, she was not
21 Mark Evans v Total Essential Services Group Pty Ltd [2023] FWC 1822 at [42].
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employed by the same entity as the other employees she might have been managing and while in theory this might not be problematic, I suspect it would be an unusual scenario in practice.
[51]
I also accept that the Applicant had no control over finances or budgets and was not in a position to be able to exercise direct control over any operational activities. Given all of this, I am not satisfied that the Applicant can be reasonably said to have been in a managerial position. This then leaves the issue of professional.
[52]
In its submissions, the Respondent referred to the comments from the Full Bench of the then Australian Industrial Relations Commission with respect to the exposure draft of the Award when it was first handed down. It noted the comments of the Full Bench with respect to the classification structure being very general and carefully crafted. I note that the Full Bench also made the following comments in a later decision dealing with the handing down of the Award:
“Almost without exception employer representatives criticised the breadth of coverage in the exposure draft. They suggested that employees who have traditionally been excluded from award coverage, particularly professional and managerial employees, would be covered, including those deliberately excluded from modern award coverage in earlier stages of the modernisation process.
We have considered all of the submissions and decided to include an additional paragraph in the coverage clause which more closely reflects the terms of the consolidated request and the Fair Work Act. The paragraph also contains some greater definition of the types of employees excluded. It reads:
“4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.”22
[53]
The version of cl.4.2 as shown above appeared in the first version of the Award and it can be seen that it varies from the current version by virtue of an explanation of the reason for exempting managerial and professional employees. That particular part of cl.4.2 was removed by a Full Bench in 2020, with the relevant part of the decision being as follows:
“Starting with clause 4.2, it does not appear to us to serve any legal purpose. The first part of the clause (“The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards…”), as earlier discussed, repeats the terms of s 143(7)(a) and, in that respect, overlaps with the exclusion in clause 4.4. It cannot be said that this part of the clause assists in providing clarity and guidance to users of the award…
The second part of clause 4.2 (“including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public
22 Award Modernisation – Decision – re Stage 4 modern awards [2009] AIRCFB 945 at [151]-[152].
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relations and information technology specialists”) does not serve any legal purpose since, as already explained, the coverage of the award set out in clause 4.1, read with the classification structure, plainly does not include managerial or professional employees such that no exclusion of them from coverage is required. However we accept that it may serve a practical purpose of making it clear, for more abundant caution and without requiring an examination of the classification structure, that such employees are not covered by the Miscellaneous Award.”23
[54]
In summary, the Full Bench considered that the operation of the relevant section of the Act and the classification structure were sufficient to exclude managerial and professional employees but retained the current version of cl.4.2 to make it abundantly clear that such employees were excluded. This then raises the issue of s.143(7) of the Act, which is set out above at [34].
[55]
As per the provisions of this section of the Act, in assessing the issue of “professional”, I need to be guided by the fact that the Award cannot cover a role that due to its nature or seniority has not traditionally been covered by awards. I note that despite this matter appearing in the Respondent’s submissions, the Applicant did not seek to address it in her own either in writing or at hearing. Nevertheless, it is an important constraint on the breadth of coverage of the Award.
[56]
The issue to resolve then is what the Applicant’s role and Site Senior Health and Safety Advisor actually entailed. Between the position description provided and various submissions and evidence, there is little by the way of consensus between the parties. However, in my analysis I am mindful of the decision of Commissioner Harper-Greenwell in Peteranna v Adco Construction (Vic) Pty Ltd (Peteranna).24
[57]
In that matter, the employee, who was remunerated at a level far beyond the Award and engaged as a Senior Project Manager, claimed to be covered by the Award. In her analysis of how his job should be classified, the Commissioner paid close attention to the actual duties the employer required the employee to perform in his role. I note also that I previously adopted this approach in Brink v BG&E Pty Limited [2026] FWC 1939.
[58]
I am therefore inclined to in the first instance examine the position description provided by WSP and the extent to which the Applicant concedes she performed such duties. I note that the summarised version of the position description which appears at [41] above was put by the Applicant to Ms Kaczmarek when the latter was being cross examined. The Applicant asked Ms Kaczmarek if she believed that the duties were at the managerial level.
[59]
The Response was that Ms Kaczmarek believed that the duties were, if not managerial, then professional. I note that Ms Kaczmarek gave the same answer when I provided her with selection of duties from the list in the position description which was in evidence. I note also that Ms Kaczmarek confirmed that the position description was provided directly by the client firm WSP.
23 4 yearly review of modern awards – Miscellaneous Award 2010 [2020] FWCFB 754 at [41]-[42].
24 Peteranna v Adco Construction (Vic) Pty Ltd [2025] FWC 2401 for example see [51].
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[60]
Under cross examination the Applicant delivered what could only be described as a masterclass of obfuscation and evasiveness. However, she did admit after some prompting that the copies of qualifications included in the court book – such as a Diploma of Occupational Health and Safety – were hers and she also agreed the work experience in her resume was an accurate reflection of her career.
[61]
When it came to being questioned regarding roles in the position description, the Applicant was particularly difficult. So much so that I am inclined to agree with the submission made by the Respondent that in answering – or by not answering – questions the applicant has thought not of the truth but what she perceived suited her jurisdictional arguments in this matter.
[62]
Without seeking to traverse the entirety of her evidence, it is sufficient to say that the Applicant gave very guarded answers to questions about the various tasks she performed and was very careful – to the point of openly admitting she was doing so – not to give any answer that might have suggested she was operating in a “corporate” role. Clearly, the Applicant viewed this as sufficiently analogous to “managerial” or “professional” so as to be avoided at all costs.
[63]
In her closing submissions, the Applicant submitted that the FWC should be careful not to confuse what was in her resume and her qualifications with what she actually did on site. She claimed that her actual duties were “basic health and safety tasks” such as inspections and reporting. She claimed she had no ability to make decisions and again stressed that she had no managerial authority.
[64]
It is appropriate here that I provide some indication of my thinking on what is actually meant by “professional”. Clearly, the definition in cl.4.2 of the Award is not designed to be comprehensive, given the use of “such as”. I am therefore not bound by the various occupations contained in that clause. In terms of a definition of the term profession, I note the following:
“a vocation requiring knowledge of some department of learning or science”25
“an area of work in which advanced and special knowledge of a subject is needed”26
[65]
Given this, I think it is reasonable to adopt a position whereby a professional is someone who has some specialist knowledge in a particular area and who is engaged to provide advice and / or services which require that particular area and level of knowledge. It is important also to retain the caveat that the definition for the present purpose should not encompass a role that was traditionally not covered by an award. I should also make some comments about the relevance of the principle drawn from Peteranna that it is necessary to look to the job the employer requires the employee to do.
[66]
It is my view that this principle makes practical sense when assessing a job to determine its character for a purpose such as award coverage. To illustrate by way of extreme example, if a person engaged to do the job of managing director at a lucrative salary were to simply spend his or her time engaged in award-level tasks would that mean they were award-covered? I would
25 See Dictionary.com.
26 See Macquarie Dictionary.
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think not. There may be some circumstances where a job may be misrepresented by its description but unless this were the case, it would be the employer paying the salary who would determine what the employee actually did.
[67]
In this matter I need to make a decision about the level at which the Applicant operated. Putting the opposing arguments simply, I find that they are as follows. On one side, being the scenario as submitted by the Respondent, we can have regard to the Applicant’s resume and her qualifications, and the position description provided by the host employer who was controlling her activities. In doing so, we in the first instance see a person highly qualified and experienced in the WHS/HSE field. We then turn to the job as described by the organisation paying for the work.
[68]
Drawing a small sample from the position description, we find duties such as ensuring compliance with applicable legislation, client requirements, and internal HSEQ and environmental management systems. We find duties such as providing senior-level advice and support to project teams, contractors and leadership on HSE risks, controls, and performance. The evidence of Ms Kaczmarek was that she regarded these as tasks as if not managerial then certainly professional. I agree.
[69]
The position description also sets out qualifications and experience requirements. In both cases the requirements are, in my assessment, clearly those of a professional. For example, the required qualifications include tertiary level studies. Experience requirements include senior level WHS advisory roles in the mining industry. These are indicative of a role that requires a professional person, being one with a high level of knowledge about WHS/HSE, to provide reasonably high level advice, monitoring and reporting about that matter.
[70]
On the other side, the submission of the Applicant at hearing is that her job was, to use her words, just basic health and safety tasks with no decision making, albeit that I note she admits to being required to provide advice, prepare reports and monitor compliance in her witness statement27. Now, as to the tasks from the position description that she was actually required by WSP to do, I find that whether or not she actually did them, her evasive approach to answering questions about that position description and its contents leaves me uneasy about accepting her “basic tasks” proposition. It is thus my inclination that the position description is likely to be the more accurate reflection of what WSP required of the Applicant in the performance of her role.
[71]
That is not to say that I accept the position description at face value. However, if I look to the totality of the scenario, I note that the Applicant does not appear to cavil with the educational and experience requirements for the position, nor that she possessed them. I also note that she was paid a significant salary to perform the work. Although the Applicant might link this to the industry, it is still the case that the amount of money paid at the very least suggests that there was some component for specialist – professional – knowledge and services. I am thus satisfied on balance of probabilities and considering all of the above that the role was one where the requirement was for a professional employee.
27 See Court Book page 52 second paragraph.
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[72]
I therefore cannot see how the classification structure of the Award can be in any way said to stretch to encompass the Applicant’s role. I find my view on this supported by the s.143(7) requirement that if it was to be covered, it could not be a role that was traditionally not covered by awards. I have commented on and rejected the Applicant’s bald assertion – see [31] above – about WHS/HSE roles ordinarily being covered by the Award. The Applicant has offered nothing by way of evidence to suggest that a senior WHS/HSE role, requiring the qualifications and experience and encompassing the duties set out in the position description, has ever fallen within the scope of that or any other award.
[73]
While there is of course the Professionals Employees Award 2020, that award has a very specific scope that restricts it to a small number of clearly defined professions. I am satisfied that it does not cover the Applicant’s role. Given all of this, I am satisfied that the Applicant’s position was not covered by an award.”
Byrne v CXC Corporate Services Pty Ltd – [2026] FWC 2751 delivered 21 July 2026 per O’Keeffe DP