Modern awards and enterprise agreements in the fair work system

The issue of whether a modern award, or for that matter an enterprise agreement,  covers the terms of employment of an employee is often very important to the carriage of an unfair dismissal case because an employee will be protected from unfair dismissal under the provisions of the Fair Work Act even if his or her earnings exceed the high income threshold in such a case. It might also be particularly pertinent to a general protections case in determining whether an employee’s conduct constituted the exercise of a workplace right.

How, then, does one approach the task of determining whether an employee’s employment is covered by such an instrument. The normal method is to start with the coverage and classification clauses of the award as follows.

“In Mr Shane Layton v North Goonyella Coal Mines Pty Ltd 56, the majority of the Full Bench said:

“… the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical – notwithstanding that the role involves various recording and ordinary administrative office functions.” 57

In Michelle Gray v Hamilton James and Bruce Pty Limited (Gray) 58, a Full Bench said:

“In our view, a proper reading of his Honour’s decision indicates the Senior Deupty President regarded Layton’s case as establishing that he should use a principal purpose or primary function test to determine whether Ms Gray’s position was covered by the Clerks Award 2010 and used that test in deciding whether Ms Gray was covered by the Clerks Award 2010. His Honour did not rely on the coverage of the NAPSA or the facts in Layton’s case to conclude Ms Gray was not covered by the Clerks Award 2010.” 59

In Gray, the applicant was the most senior position in the Brisbane office of a company, and that office was responsible for providing recruitment services predominantly to Queensland and Western Australian clients. She was responsible for 23 staff, eight of whom directly reported to her. She had other responsibilities.

In Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL 60, the Commission said that there was nothing in the evidence before the Commission which showed that the applicant’s duties “…could properly be described as ‘managerial’”.61 In that matter, a number of claims were made, and documents tendered, but there was little or no evidence of actual managerial duties. In that decision, the Commission found that the ‘principal purpose’ of the role fell within an award classification.62”

Westall v BWX Limited  (2018) FWC 2042 delivered 8 May 2018 per Hamilton DP