This decision of the Fair Work Commission deals with how to determine whether a person’s employment is covered by the Professional Employees Award.
“1 Issue and outcome
[1]
Mr Mark O’Sullivan (the Applicant) has made an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Applicant is a former employee of Servicenow Australia Pty Ltd (the Respondent), having worked there as a ‘Enterprise Account Executive – WA State Government’ during the period of 5 May 2025 to 6 February 2026.
[2]
The Respondent provides information technology related services and specialises in cloud computing platforms for the creation and management of automated business workflows. Whilst the Respondent acknowledged that the Applicant’s employment contract referred to the applicability of the Professional Employees Award 20201 (PE Award), it objected to the application on the basis that the Applicant was not protected from unfair dismissal because his employment was not covered by a modern award, particularly the PE Award, and his annual rate of earnings exceeded the high income threshold of $183,100.00. It was uncontroversial that the Applicant’s earnings exceeded the high income threshold and that an enterprise agreement had not applied to the Applicant in his former employment with the Respondent.
[3]
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of their dismissal:
(a)
the person is an employee who has completed the minimum employment period; and
(b)
one or more of the following apply:
i.
a modern award covers the person;
ii.
an enterprise agreement applies to the person in relation to the employment;
iii.
the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
1 MA000065.
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DECISION
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[4]
It was not disputed and I am satisfied, that the Applicant had served the minimum employment period and had been dismissed.
[5]
Therefore, the primary question to be determined was whether the Applicant’s employment was covered by the PE Award at the relevant time. I have found that this was not the case, and as the Applicant’s annual rate of earnings exceeded the high income threshold of $183,100.00 and an enterprise agreement did not apply to him in his former employment, the jurisdictional objection is upheld. As the Applicant is not a person protected from unfair dismissal, his application is dismissed and, accordingly, an Order2 issues to that effect.
2 Protection from unfair dismissal
[6]
The phrase ‘protected from unfair dismissal at a time if, at that time…’ in s 382 of the Act, means that an employee must show that, at the time of their dismissal, their employment circumstances (i.e. coverage by a modern award, applicability of an enterprise agreement or sum of rate of earnings) met the criteria in s 382 of the Act.
4 Modern award coverage
[7]
The PE Award extends coverage to both industry and occupational groupings as follows:
4.1 This industry and occupational award covers employers throughout Australia as follows:
(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A —Classification Structure and Definitions of the award and those employees.
(b) Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A —Classification Structure and Definitions.
(c) Employers throughout Australia principally engaged as medical research institute s with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B —Medical Research Employees and those employees.
(bold for emphasis)
[8]
Of relevance to the Applicant’s contention is clause 4.1(b) of the PE Award. The Applicant contends that the Respondent was principally engaged in the information technology industry and that his occupation was such that it fell within the classifications in Schedule A – Classification Structure and Definitions.
[9]
The PE Award defines the term ‘information technology industry’ as follows:
2 PR813231.
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Information technology industry means:
(a)
the design and manufacture of computers and computer peripherals;
(b)
the design and manufacture of telecommunications equipment;
(c)
the design and manufacture of computer software;
(d)
computer system installation, repair and maintenance;
(e)
computer consultancy services;
(f)
computer programming;
(g)
system analysis services;
(h)
the design, development and maintenance of online internet architecture and the facilitation of online content management; or
(i)
activities which are incidental, ancillary or complementary to the activities set out in this definition.3
[10]
‘Schedule A – Classification Structure and Definitions’ sets out that an employee performing ‘professional information technology duties’ must be classified in one of the classifications within that schedule provided that the employee is not employed in a wholly or principally managerial position.
[11]
Thereafter the Schedule A provides four levels within the classification structure at A.1:
a)
Level 1 Graduate information technology employee
b)
Level 2 Experienced information technology employee
c)
Level 3 Professional
d)
Level 4 Professional
[12]
The PE Award, at clause 2.3, defines a ‘Graduate information technology employee’ to mean a person who:
(a)
holds a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or
(b)
has sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
[13]
At clause 2.3 of the PE Award, an ‘Experienced information technology employee’ is defined as a ‘professional information technology employee’ with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:
(a)
that they have graduated with a university degree, with a science or information technology major (3, 4 or 5 year course) and had 4 years’ experience on ‘professional information technology duties’ since graduating; or
(b)
that they, not having so graduated, have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society plus a further 4 years’ experience on ‘professional information technology duties’.
3 PE Award (n 1) cl 2.3.
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[14]
At clause 2.3 of the PE Award, the definition ‘Professional information technology employee’ refers to an adult person qualified to carry out ‘professional information technology duties’ as defined. The term professional information technology employee includes graduate information technology employee and experienced information technology employee as defined.
[15]
The latter two definitions contain with them the defined term of ‘professional information technology duties’ as does the opening paragraph of Schedule A (the chapeau). This term refers to duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to:
(a)
hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or
(b)
have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
4.1 Construction of the PE coverage terms
[16]
The Full Bench in Kestral Coal Pty Limited v Lennox (‘Kestral’), succinctly explained that the determination of whether an employer or employee is covered by a modern award is likely to involve questions concerning the construction of its coverage terms as well as a factual question as to the application of those terms in the circumstances of the particular employment at issue.4 The Full Bench in Kestral drew upon the following explanation in Gourabi v Westgate Medical Centre:
… For relevant purposes, each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” that are covered by it. The determination of whether a particular employment falls within the “coverage” clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.5
[17]
As noted in Kestral, like a statute, construing an award begins with the text.6 The essential task is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve.7 Relevant context may include the whole of the text of the document,8 the circumstances in which the instrument was made, its history and the legislative background.9 An overly strict or literal approach to the
4 [2025] FWCFB 114, [9].
5 Ibid, citing [2019] FWCFB 3874, [26].
6 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, 438–9, [53] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638, [28] (Katzmann J).
7 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246 [2], 249 [13] (Gleeson CJ and McHugh J), 270 [96] (Kirby J) (‘Amcor’); Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449, 455 [22].
8 Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd (1993) 178 CLR 379, 386–7.
9 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503–4; Short v FW Hercus Pty Ltd (1993) 40 FCR 511, 518.
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construction of awards is rarely appropriate. It is justifiable to read an award so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression.10 Meanings that “avoid inconvenience or injustice may reasonably be strained for”.11
[18]
The Respondent does not grapple with the contention that it is engaged in the ‘information technology industry’ as referred to in the coverage clause of the PE Award at clause 4.1 and defined at clause 2.3 of the PE Award. However, it asserts that for the Applicant’s former position to be covered by the PE Award, the Applicant must have been engaged to perform work that could be described as:
(a)
satisfying the definition of ‘professional information technology duties’; and
(b)
fall within one of the classifications of the PE Award (provided that the Applicant is not employed in a wholly or principally managerial position).
[19]
The Applicant submits that his employment contract stated that his employment is covered by the PE Award, that he performed ‘professional information technology duties’, that ‘…extended significantly beyond traditional software sales activities’; and that he was required to utilise ‘…professional knowledge concerning enterprise software platforms, workflow technologies, governance structures, digital transformation programs and technology-enabled models’.
[20]
The Applicant otherwise does not identify in his written materials the classification under the PE Award which he asserts applies to him. However, at hearing, when asked, the Applicant identified Level 3.
[21]
Turning first to what the Applicant refers to as the contractual recognition of coverage by the PE Award, at clause 5.2 of the Applicant’s employment contract, the following is stated:
As your employment is covered by the Professional Employees Award 2020 (PE Award), you agree that your base salary identified in this Agreement compensates you for, and has been fixed taking into account, any and all entitlements under the PE Award, including but not limited to the following entitlements under the PE Award….
[22]
The Applicant submitted, accurately, that his employment contract then identified the specific PE Award entitlements which the Respondent asserted were absorbed into the Applicant’s salary, including overtime, call-back arrangements, work performed outside ordinary hours and weekend work.
[23]
The Applicant added that the at no stage had the Respondent advised him that the reference to the PE Award in his employment contract was incorrect, mistaken or included in error.
[24]
The Respondent submitted, correctly in my view, that the fact that the Applicant’s employment contract referred to the PE Award or that the Respondent prepared the employment
10 Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J) (‘Kucks’); United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18, 26 [51]–[52].
11 Kucks (n 10) 184; Amcor (n 7) 270 [96] (Kirby J).
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contract, is irrelevant for the purposes of determining whether the Applicant’s role was covered by the PE Award.
[25]
Section 48(1) of the Act specifies that a modern award covers an employee if the award is expressed to cover the employee. The award applies to an employee if the modern award covers the employee, the award is in operation and no provision of the Act provides, or has the effect, that the modern award does not apply to the employee.12 Whether the Applicant’s employment referred to him being covered by the PE Award is not determinative of the issue at hand.
[26]
Returning to Schedule A of the PE Award, the chapeau of the Schedule premises the classification structure upon the employee performing ‘professional information technology duties’. In Jain v Portland Group Pty Ltd, in reference to the term ‘professional information technology duties’, Bell DP stated that an applicant would need to be performing ‘professional information technology duties’.13
[27]
The Respondent, however, pressed that for the Applicant’s position to be covered by the PE Award, the Applicant must demonstrate that he was engaged to perform work that could be described as satisfying the definition of ‘professional information technology duties’.
[28]
The Respondent referred the Commission to the decision of Short v Immutable Pty Ltd14 (‘Immutable’). In Immutable, the Deputy President had extracted the submissions of the respondent that addressed that the two applicants were not covered by the PE Award. At paragraph [74] of the decision in Immutable, the following passages, in addition to others, were extracted from those submissions:
28. Schedule A.1 of the Award (‘professional responsibility levels’) gives definitions ‘for the performance of professional duties’. The ‘chapeau’ to Schedule A provides: ‘For employment involving the performance of professional duties … the following classification definitions apply’ (emphasis added).
29. While the terms ‘professional duties’ is not defined, in order to be covered by the PE Award, the employee must meet the stream specific definition provided in cl 2.3. It is not sufficient for the role to meet one of the broadly expressed Schedule A definitions, but not the definition of ‘professional information technology duties’.
[29]
It is observed that Immutable considered previous wording in the chapeau to Schedule A. By Determination PR760322, a Full Bench of this Commission made the following amendment:
9. By deleting the words “For employment involving the performance of professional duties except professional medical research duties, the following classification definitions apply:” appearing below the heading in Schedule A and inserting “An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.”
12 Fair Work Act 2009 (Cth) s 47.
13 [2025] FWC 309, [11].
14 [2023] FWC 1201
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[30]
Reference was also made by the Respondent to Afzal v Orange Business Services Australia Pty Ltd,15 where, at paragraph 28, Walkaden C explained that ‘the only employees covered by Schedule A are those performing professional engineering duties (or professional scientific duties, professional information technology duties or quality auditing)’. The Commissioner considered that this was clear from the introductory paragraph in Schedule A and reinforced by the indicative tasks, skills and experience of each of the 4 levels, and the title of some of those levels.16
[31]
Having considered the previous decisions, with regard to the turn of phrase ‘professional information technology duties’ as referred to in the opening paragraph of Schedule A, to establish PE Award coverage, the Applicant would need to show he was performing ‘professional information technology duties’. This in turn, would require the Applicant to draw upon evidence supporting the contention that he had duties in employment, where the adequate discharge of those duties required him to hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or to have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
[32]
In addition, it is incumbent upon the Applicant to show that he fell within one of the classifications of the PE Award. To ascertain whether the Applicant fell within one of the classifications in Schedule A, the principal purpose test is to be applied to identify the principal purpose for which the employee is employed. That is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor.17 The application of the principal purpose test was explained by the Full Bench in Zheng v Poten & Partners (Australia) Pty Ltd18 in the following terms:
[44] The “principal purpose” test as stated in Carpenter was as follows:
“[9] 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. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘employed in the process, trade, business or occupation of … soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’ and was not, therefore, covered by the Award.” (footnote omitted)
[45] It is to be noted that the “principal purpose” test was utilised in Carpenter to determine whether the employee in question fell within the incidence of the relevant award, which was described in terms of the specific work function of the employee, and not to determine whether the employee fell within a particular classification in the award. It appears to us, however, that
15 [2025] FWC 1968.
16 Ibid [28].
17 Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 3478, [47].
18 Ibid.
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the “principal purpose” test is singularly ill-suited to determine whether a person falls within one of the classifications in the PE Award (or indeed the IT Award). That is because the classifications, including but not limited to the Level 3 classification considered in Ms Zheng’s case, are expressed in highly generic terms and do not describe with any specificity the job functions required to be performed at each level. It appears to us that the classification descriptors have been drafted primarily in order to determine, by reference to the degree of skill and responsibility being exercised, in which classification a person otherwise covered by the award will fall, rather than to identify whether a person is covered by the award at all. In respect of Level 3, for example, the classification descriptor begins by referring to “An employee at this level…”, and the subsequent criteria do not describe any function particular to the job of an engineer, IT specialist or scientist but merely uses broad expressions such as “mature professional knowledge”, “scope for individual accomplishment”, “coordination of more difficult assignments” and “modify established guides and devise new approaches”. The only language which appears to attach to work which might be performed by an engineer, IT specialist or scientist are the words “professional” and “technical”, but these are used only in the most general way. We consider that the main function of the Level 3 descriptor is to distinguish that classification from the other classifications above and below it. Identifying the “principal purpose” of an employee’s employment and then attempting to determine whether that purpose fits within such a generically defined classification descriptor seems to us to be an inchoate task likely to produce difficulty in rendering a clear answer.
[46] However, Ms Zheng did not submit that Brand, as applied to the PE Award by Halasagi, was wrongly decided and, in any event, we consider that the Brand/Halasagi approach is now too well entrenched to alter. Numerous first instance decisions have applied that approach, and it has been confirmed in Full Bench decisions including in the relatively recent Full Bench decision in McFarlane v SRG Civil Pty Ltd (McFarlane). It would destabilise the operation of the PE Award if we enunciated a different approach now.
[47] It remains necessary to consider what the application of the “principal purpose” test requires. As was stated in Carpenter, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor. Thus, in Brand, the approach taken by the member at first instance and endorsed by the Full Bench on appeal was to identify the principal purpose of the relevant employee’s employment as being that of “the development of the business of the company including business planning marketing and sales planning manager”, and then to determine that this did not fit within the Level 4 classification descriptor. MacFarlane confirmed that, in determining coverage under the PE Award, this two-step process was necessary:
“[21] It was necessary for the Commissioner to apply the principal purpose test in this case to decide whether Mr McFarlane was covered by one of the classifications in Schedule B to the Award.
[22] The Commissioner set out the relevant legal principles and proceeded to inquire as to the nature of Mr McFarlane’s role. At paragraphs [32] and [33] he made findings about what he considered to be the principal tasks of Mr McFarlane’s role, including that the principal purpose of the role was not one of “engineer”. In doing so, the Commissioner had regard to previous decisions of the Commission including those dealing with whether particular project managers were covered by the Award. He considered the extent to which actual engineering work was part of Mr McFarlane’s role. He dealt, at paragraph [35], with the nature and extent of Mr McFarlane’s
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responsibility for engineering design work including in relation to the anchor works and his accountability for design and technical issues. We discern no arguable case of appealable error in the Commissioner’s analysis of the nature of Mr McFarlane’s role and circumstances.
[23] However, the principal purpose test also directs attention to the nature of work covered by the Award. Only once that is understood can the purpose of an employee’s role be properly assessed through the lens of whether it is of the same or a different character or quality to the type of work covered by the Award.”
…
[53] The correct approach which should have been taken was to determine the principal purpose of Ms Zheng’s employment based on the nature and circumstances of her work, and then analyse whether the identified principal purpose bore a meaningful relationship with the classification criteria in clause A.1.9 of Schedule A, without that analysis being conducted through the lens of any requirement that “professional engineering duties” constitute the principal purpose of the employment or a majority of the duties being performed. This did not occur. Although Ms Zheng, being self-represented, did not postulate appealable error in precisely these terms, we consider that it is adequately encompassed by appeal ground 3.
[33]
When applying the principal purpose test, the first step then is to examine the nature of the work of the Applicant and the circumstances in which the Applicant is employed to do the work for the purpose of ascertaining the principal purpose for which the Applicant is employed. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor.
5 Factual findings and background information
[34]
The parties accepted, correctly in my view, that the Respondent is engaged in the ‘information technology industry’, as referred to in the coverage clause of the PE Award. It follows that my focus turns to the Applicant’s experience, the duties and responsibilities of his former role, and the experience and qualifications necessary to hold the role.
[35]
The Applicant’s background and experience is set out in his witness statement and a curriculum vitae. Whilst the Applicant acknowledged that the curriculum vitae (CV) in the materials was his, he appeared uncertain as to its currency or date when questioned. Notwithstanding, given the CV appears to have been submitted to the Respondent when he applied for his former position, on conservative estimates, the CV was relatively current. The CV set out, amongst other things, that the Applicant was a corporate executive with over 20 years’ experience covering senior business, client management and large deal making roles in Tier 1 technology companies, including IBM, Telstra, Oracle Corporation, DXC Technology and SAS Institute. In respect of specific experience, the CV set out the following:
I was a Client Executive in IBM’s high-performing Financial Services Sector (FSS) team, responsible for developing and executing account strategies for global banks and local insurance companies. Within five years at IBM, I was promoted to the role of Client Services Executive, the most senior deal-making role within the company. Within two years of joining Telstra, I’d personally directed from development, the fastest growing product line and lead revenue generator across Telstra’s Multi-Cloud portfolio (Private Cloud). Over the last 8 years, I held a transformational leadership role within the Oracle ecosystem, a Digital Transformation
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leadership role for enterprise accounts targeted by DXC Technology, and most recently, I have been focussed on rebuilding the SAS Institute business in WA, a global software leader in Analytics ML and AL.
With team leadership and extensive consultative selling experience, I have a proven ability to create and open new markets, build and manage profitable new lines of business and develop sales execution strategies. I have mentored sales staff for over two decades and managed channel partner relationships extensively. My approach is founded on three key principles: building trust, establishing clear communication and building reciprocal value.
[36]
The Applicant’s Offer of Employment with the Respondent of 16 April 2025, set out an offer for the position of ‘Enterprise Account Exec – WA State Gov’. The Offer of Employment provided that the Applicant would be eligible to participate in the ‘Company’s Sales Commission Plan (the “Commission Plan”)’, the Applicant’s ‘on-target commission’ had been set at AUD $195,925.00 (base salary was $195,925.00). As to duties under the Applicant’s employment contract, they were set out in general terms, albeit it was stated that the precise description and nature of the Applicant’s job (including job title) may be varied from time to time by the Respondent and that the Applicant may be required to carry out other duties as necessary to meet the needs of the Respondent.
[37]
The Respondent referred the Commission to the position description for the role, ‘Enterprise Account Exec – WA State Gov’. The ‘Job Description’ provided a role overview in the following terms:
In this role, you will drive new business sales revenue from a SaaS license model specifically targeting the Western Australia State Government within both existing customers and prospects. You will achieve this by strategically planning accounts, researching potential customers, utilizing business development strategies, and engaging in field-based sales activities within a defined territory of the Western Australian Government sector.
[38]
Regarding what the Applicant would do in the role, the Job Description set out:
What You Get to Do in This Role:
•
Build and nurture relationships with key C-suite personas (e.g., CFO, CIO, COO, CDO) within the Western Australia State Government.
•
Lead the mapping of client relationships, collaborating with a broad virtual team (including Solutions Consultants, Solutions Specialists, Success resources, Partners, and Marketing) to develop and execute account strategies.
•
Act as a trusted advisor to your government clients, deeply understanding their business needs and advising on how ServiceNow can enhance their IT roadmap.
•
Identify and engage the right specialists and support resources at the right time to drive deal success.
•
Manage and expand existing relationships within the Western Australian Government, ensuring ongoing growth and value deliver
[39]
In respect of qualifications relevant to the role, the Job Description set out what the Applicant should have to be successful in the role:
•
Experience in leveraging or critically thinking about how to integrate AI into work processes, decision-making, or problem-solving. This may include using AI-powered tools,
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automating workflows, analyzing AI-driven insights, or exploring AI’s potential impact on the function or industry.
•
7+ years of experience in software of solutions sales, ideally within the public sector or government space.
•
Proven ability to build and maintain trusted relationships with both current and prospective clients, as well as cross-functional teams.
•
Demonstrated success in generating new business, negotiating deals, and maintaining relationships at the C-level.
•
A track records of consistently meeting or exceeding sales targets.
•
Strong understanding of IT strategy and the broader business context, especially in government organisation.
•
Experience fostering a “win as a team” mentality, promoting a customer-centric approach to sales and success.
[40]
The ‘Selection Criteria’ for the role, referred to various ‘Competency Theme(s)’. Essential themes included ‘1. New Business Sales Performance’. These theme required the following evidence:
•
5+ years of software/SaaS sales experience with a consistent record of quota attainment
•
Demonstrated ability to generate pipeline, progress deals and close net-new business
•
Experience negotiating and closing deals with C-level stakeholders (CIO, CFO, COO, CDO)
•
Mid-market focus across resources, utilities and heavy asset industries (ANZ)
[41]
Under the theme of ‘2. Strategic Account Management & C-Suite Engagement’, another ‘Essential theme’, the following evidence was required:
•
Ability to map and manage relationships across multiple C-suite personas within an account
•
Experience orchestrating a virtual team (SCs, specialists, partners, marketing) toward a common account strategy
•
Trusted advisor capability — understanding customer business and connecting ServiceNow to their IT roadmap
•
Ability to identify and engage the right internal resources at the right point in a deal cycle
[42]
Under the theme of ‘3. Territory Planning & Business Development’ (again an Essential theme) the following evidence was required:
•
Experience developing and executing a territory and account plan to generate pipeline
•
Ability to research and qualify prospects and translate business intelligence into targeted outreach
•
Understands the ‘bigger picture’ — connects customer IT strategy to broader business goals
•
Comfort using field-based and digital sales strategies to build a healthy pipeline
[43]
Theme 4, ‘AI Fluency & Customer Success Mindset’ was considered ‘[i]mportant’ and included that the employee had explored or applied AI tools in sales workflows, decision-making or customer conversations. In addition, it referred to demonstrating curiosity about AI’s potential impact on the industry and customer environment. Also included under this theme was the requirement that the employee approaches selling with a ‘win as a team’ ethos.
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[44]
It is the case that the Applicant was assigned particular customer accounts to manage and the predominant the customer account assigned to the Applicant to manage, was the Western Australian government and all entities that fell within it. The Applicant owned the customer relationship and was responsible for all revenue associated with the accounts allocated to him – including existing revenue and future growth opportunities. It is uncontroversial that an increase in revenue would occur in circumstances where a customer of the Respondent bought a licence for a product from it or renewed a licence for an existing product.
[45]
The Applicant explained that his duties included executive stakeholder engagement, business discovery workshops, transformation planning, procurement engagement, business case development, governance discussions and commercial solution shaping. At hearing, when it was proposed to the Applicant that business discovery workshops involved coming together with a counterparty or the with the client to understand what they need and what they want to make sure that he could deliver, the Applicant agreed that was a fair statement. In respect of procurement, the Applicant noted that was about engaging with the customer to develop a procurement strategy as opposed to engaging with the Respondent (about procurement).
[46]
Elaborating on his former role further, the Applicant explained that in some respects, his former role required him to understand how the organisations of his customers operated, for example, their governance arrangements, commercial and procurement environment, their business processes, and their transformation objectives. The Applicant consulted with all senior stakeholders across an organisation, provided them with strategic advice and recommendations so as to enable them to develop commercial and transformational pathways. The Applicant led the complex customer engagement before any technology was considered. It was the Applicant’s evidence that success of the territory (presumedly the one allocated to him) depended heavily on his ability to engage executive stakeholders, understand organisational challenges, identify transformation opportunities and align the Respondent’s capabilities with customer outcomes.
[47]
I find that the Applicant’s evidence is not significantly dissimilar to that of Alexandra Masters, Head of State, Local and Higher Education, of the Respondent (Masters). Whilst the Applicant was not a direct report of Masters, I considered Masters well positioned to speak to the Applicant’s former role given she currently managed a team of ten sales executives (officially referred to as ‘Enterprise Account Executive’, the role itself somewhat akin to that of the Applicant albeit the ‘territory’ differed).
[48]
Masters explained that the Applicant’s former role was classified as a ‘sales’ role at the Respondent and sat within the Enterprise Account function of the business. That Enterprise Account team is responsible for selling the Respondent’s products to prospective and existing customers and as such, said Masters, the team is client-facing and not involved in the development of the Respondent’s products or in providing deployment services. Masters said that the Applicant was assigned a quota that he was expected to meet (presumedly in sales) and that 50% of his total remuneration was commission based and varied depending on the sales that he achieved .
[49]
Masters described the Applicant’s former role in the following terms with regard to its primary responsibility and how that was to be achieved:
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(a)
Mark’s primary responsibility as an Enterprise Account Executive was to sell ServiceNow products to customers in a specific industry sector being the Western Australian Government. He was required to do this by identifying problems that the customer had, considering what solution (product) ServiceNow could offer, and then presenting appropriate products to address the customer’s needs.
(b)
To achieve this, Mark needed to have sales related experience and skills in matters such as account planning, client research, business development (including by identifying customer problems and potential solutions for particular clients), managing stakeholder interests, and engaging in client relationship mapping and management.
[50]
According to Masters, and where her evidence differed significantly to the Applicant’s, she considered that his duties did not require him to hold IT qualifications or formal technical experience in IT in order to perform his former role. It was not the case that the Applicant was required to deliver or supervise technical IT work as part of his former role. Furthermore, he was not required to understand the technical workings of the Respondent’s products in order to sell the products. Masters explained that the role was to build trust as part of the sale process by having a strong understanding of the Respondent’s product and how it could help to solve a customer’s problems. That is, the Applicant was required to understand the Respondent’s products from a sales perspective, to be able to discuss what a specific product did and its practical use for a client. Expanding upon this point, Masters stated that if, during the sales process, the customer required a deeper technical understanding of how the product worked, then a separate team would become involved to support that conversation. The role did not require the Applicant, and it was not expected, that he have technical understanding or have those types of conversations.
6 Consideration
[51]
Returning to Schedule A of the PE Award, to fall within the coverage of the award, the Applicant must be an employee who performed ‘professional information technology duties’. As detailed, that term refers to duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to hold the requisite university degree, as referred to in clause 2.3 of the PE Award, which the Applicant did not hold, or to have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
[52]
Regarding that latter point, included in the Respondent’s materials was a document tiled ‘ACS Certification Guidelines 2024 Version: 4.6” (ACS Guidelines). The parties did not indicate that this was not an appropriate document to have regard to when considering whether the Applicant had sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
[53]
The Certification Scheme in the ACS Guidelines describes ‘streams’ of ‘Certified Professional’, ‘Certified Technologist’ and that of ‘Certified Practitioner’. The parties engaged with the document in a limited manner, and when directly questioned about the requirements to qualify as a Certified Professional, it was apparent that the Applicant’s evidence fell short of explaining how it was that the Applicant could demonstrate, for example:
•
They can operate effectively at SFIA level 5 generic capability
•
They can demonstrate in-depth competence in at least one specialism at SFIA level 5
•
They have demonstrated a breadth of knowledge of ICT
[2026] FWC 3087
14
•
They have an understanding of and commitment to the ACS codes and standards
•
They are committed to undertaking 30 hours of CPB each year, to maintain certification …
•
have been actively practising in the profession required number of years in accordance with 4.2.8 and provide two referees who can attest to their professional activity. In the case of a specialism certification the practice must have been in the specialism.
[54]
Briefly stated, the Applicant’s evidence amounted to him referring to the accumulation of knowledge over more than 25 years, that he had mature professional knowledge, and referring to the past businesses that he had worked for and the responsibilities held within those businesses. It was excruciatingly evident that the Applicant had not previously engaged with the ACS Guidelines in a meaningful way and was ill equipped to assist the Commission in understanding how his duties in his former role required that he held sufficient qualifications and experience to be a ‘Certified Professional’. Whilst willing to accept that the Applicant had a demonstrated breadth of knowledge in ICT for the purpose of selling high-quality IT solutions to clients, on balance, I am unable to find that the former duties carried out by the Applicant, required him to have for their adequate discharge, qualifications and experience sufficient to be a Certified Professional of the Australian Computer Society when regard is had to the ACS Guidelines.
[55]
For completeness, I have addressed whether the Applicant fell within one of the classifications of the PE Award. This requires me to have regard to the principal purpose of the Applicant’s former role of ‘Enterprise Account Executive – WA State Government’. As noted above, I did not consider there to be significant disparity between the evidence of the Applicant and Masters in respect of the duties, responsibilities and scope of his former role. Neither party took issue with the Job Description as accurately detailing what was required of the role.
[56]
As to the principal purpose of the Applicant’s role of Enterprise Account Executive, I find that it was to engender sales of the Respondent’s products whether through clients renewing existing licences or purchasing of new licences by developing strategic relationships with those clients. This was achieved through garnering sufficient detail about the structure of their organisations, workflow assessment, governance frameworks, problems to be addressed, business requirements, commercial and procurement environments, business processes and the like. To garner this information, the Applicant would involve himself in workshops with clients and consult with clients, with the end purpose being to develop and deliver strategic advice, business cases and recommendations to the client, with a view to selling to the clients the Respondent’s products. I am not persuaded that the strategic advice and recommendations would expand to broaching products unrelated to those that the Applicant was charged with selling and for which he earned a commission.
[57]
From the Applicant’s written submissions, it was somewhat unclear as to the classification the Applicant considered he fell under. At hearing, when asked, the Applicant clarified that it was Schedule A Level 3. However, to fall within the Level 3 classification, the Applicant was required to be performing ‘professional information technology duties’, which he was not. Whilst some of the descriptors in Level 3 adopt general language and speak to performing duties requiring, for example, the application of mature professional knowledge, which the Applicant likely did, perhaps telling are the following descriptors in the Level 3 classification:
[2026] FWC 3087
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The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.
The employee outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.
[58]
The evidence does not support a finding that the Applicant was involved in the development of equipment and products. And, in respect of the use of the word ‘technical’ in this setting, that is ‘technical accuracy and adequacy’, that turn of phrase derives its meaning from the fact that an employee who was covered by the PE Award would be performing ‘professional information technology duties’. The work then outlined or assigned by the employee, or the work reviewed by the employee for technical accuracy and adequacy, would be work which required the employee to have those qualifications and experience sufficient to be a Certified Professional. I therefore do not accept that the Applicant was engaged in outlining and assigning work or reviewing work for technical accuracy and adequacy when consideration is given to the principal purpose of his former role.
7 Conclusion
[59]
For the reasons explained above, I have concluded that the Applicant is not a person who was covered by the PE Award. It follows that the Applicant is not a person protected from unfair dismissal.”
O’Sullivan v Servicenow Australia Pty Ltd [2026] FWC 3087 delivered 14 August 2026 per Beaumont DP