Employment law; which award applies?

There are many areas of employment law which depend upon assessing whether and if so which modern award or enterprise agreement applies to the employment of an employee. Here are some of the legal principles explained in a recent unfair dismissal case.

“Employment under award conditions is a question of fact in each case, requiring an examination of the terms of the award against the tasks and responsibilities.

Commissioner Deegan in her decision cited the authority of Carpenter v Corona Manufacturing Pty Ltd,13 where the Full Bench observed that when determining if an award applies it requires more than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances the employee is employed to do the work to ascertain the principal purpose.

The relevant reasoning by the Full Bench of the Commission in Carpenter v Corona Manufacturing Pty Ltd was:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.”14

Also relevant, is the observation of the Commission in Kaufman v Jones Lang LaSalle (Vic) Pty Ltd:

“the question of award coverage is not determined by the person’s title – it is the duties performed that will be of significance.”15”

Quinlivan v Monash House Private Hospital Pty Ltd (2020) FWC 6681 delivered 14 December 2020 per Yilmaz C