Unfair dismissal and award coverage

 

 

It is often important when calculating an employee’s right to protection from unfair dismissal to determine whether the employee’s employment is covered by a modern award or an enterprise agreeent. This is how to approach the issue and the text is taken from the Fair Work Comssion’s unfair dismissal bencbook.

“Principal purpose test

To determine whether an employee is employed under a classification within a modern award the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed.98

The Commission must make more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties.99

This test is applied to the work performed at the time of the dismissal, not at some earlier time as an employee may prefer performing certain duties, which are not necessarily the ones directed to be performed by the employer.100

 

 

Interpreting coverage clauses

The words of award clauses are to be given their ordinary general meaning.101

The award’s history and subject matter may be considered to resolve ambiguity.102

Courts and tribunals should avoid an overly literal or technical approach. They should attempt to give the terms of the award meaning that is consistent with the intentions of the parties.103

Interpreting awards involves looking at the meaning intended when drafting the document. This may involve going to effort to give an interpretation that avoids inconvenience or injustice. This does not mean disregarding the words of the instrument. Where simple or common words are used they must be given their ordinary meaning.104”