[2011] FWA 1767 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tucker
v
Digital Diagnostic Imaging Pty Ltd
(U2010/14258)
COMMISSIONER CAMBRIDGE |
SYDNEY, 24 MARCH 2011 |
Unfair dismissal - jurisdictional objection - s.382 (b) whether a Modern Award covers the applicant - application dismissed
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 18 November 2010. The application was made by Graeme Tucker (the applicant), and the respondent employer was identified to be Digital Diagnostic Imaging Pty Ltd (the employer).
[2] The application stated that the date of the applicant’s dismissal was 13 October 2010. Consequently the application was not made within the 14 day time limit prescribed by subsection 394 (2) of the Act.
[3] Freehills lawyers, acting on behalf of the employer, provided an employer's response to the application for unfair dismissal remedy which raised jurisdictional objections on the basis that the application was both out of time and that the applicant was not covered by a modern award or enterprise agreement and his annual rate of earnings exceeded the high income threshold, (the s.382 (b) objection).
[4] Conciliation of the claim was unsuccessful and the matter proceeded to a Jurisdictional Hearing before Fair Work Australia (FWA) conducted in Sydney on 25 February 2011. The Jurisdictional Hearing involved both the extension of time issue and the s.382 (b) objection.
[5] At the Jurisdictional Hearing the applicant was represented by Mr M Gibian, a barrister. The applicant was the only witness called in support of the application. The employer was represented by Mr D Perry, a solicitor from Freehills. The employer adduced evidence from one witnesses, Mr Matthew Bardsley the employer’s Managing Director.
[6] Although both the out of time issue and the s.382 (b) objection would need to be resolved in the applicant's favour in order to allow the matter to proceed to a determination of its merits, either one of these issues could operate to deprive the applicant of any potential unfair dismissal remedy. For the purposes of this Decision I have confined consideration to the s.382 (b) objection.
[7] Section 382 of the Act is in the following terms:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least 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.”
[8] In this instance there was no dispute that the applicant's annual earnings exceeded the high income threshold and that there was no enterprise agreement that applied to the applicant in relation to his employment. Therefore the nature of the s.382 (b) objection was confined to a determination as to whether a modern award covered the applicant.
The Applicant’s Case
[9] In summary, it was submitted by Mr Gibian that the applicant was covered by the Professional Employees Award 2010, [MA 000065] (the Award). Mr Gibian referred to clause 4 Coverage, of the Award. The relevant provisions of clauses 4.1 and 4.2 and Schedule B of the Award are set out as follows:
4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.
4.2 This award covers 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 B.”
“B.1.11 Level 4—Professional
(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.
(b) An employee at this level:
(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;
(ii) gives technical advice to management and operating departments;
(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;
(iv) coordinates work programs; and
(v) directs or advises on the use of equipment and materials.
(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.
(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.
(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.”
[10] There was no dispute that the employer was principally engaged in the information technology industry. Mr Gibian also referred to the definition of “professional information technology duties” contained in clause 3.3 of the Award. There was also no dispute that the applicant possessed tertiary qualifications and other accreditations as specified under the Award definition of “professional information technology duties”.
[11] The primary submission made by Mr Gibian was that the applicant's position aligned with the Award description of duties for a Level 4 - Professional. Mr Gibian made detailed submissions which referred to evidence of the duties undertaken by the applicant and which he said were duties described by the terminology contained in the Award as set out for the Level 4 - Professional classification.
[12] Mr Gibian referred to the “principal purpose” approach that had often been adopted on the question of award application. Various decided cases were referred to including; Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387; Brand v APIR Systems Ltd (2003) (PR938031); City of Wallaroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Kingmill Australia Pty Ltd T/as Thrifty Car Rental v Federated Clerks’ Union of Australia, New South Wales Branch (2001) 106 IR 217; and Halasagi v George Weston Foods Ltd [2010] FWA 6503.
[13] Mr Gibian acknowledged that a portion of the applicant's duties involved the exercise of managerial functions. However he said that the exercise of some managerial functions such as the supervision and direction of employees was clearly contemplated by the Level 4 - Professional Award description. According to these submissions, Mr Gibian asserted that it was erroneous to adopt some abstract division between management functions and technical functions as a basis to determine the issue of award coverage. Mr Gibian said that the possession and exercise of technical, specialist IT knowledge was central to the position that the applicant held. Consequently, according to the submissions of Mr Gibian, these requirements meant that the work of the applicant clearly fell within the scope of the duties described as a Level 4 - Professional classification contained in the Award.
The Employer’s Case
[14] Mr Perry made submissions on behalf of the employer which strongly opposed the claim that the applicant was covered by the Award. These submissions commenced by reference to the application of the Award definition of professional information technology duties to the Level 4 - Professional classification. Mr Perry submitted that the duties performed by the applicant did not require the qualifications and experience which were prerequisites to the Award classification of Level 4 - Professional. According to these submissions made by Mr Perry, even though the applicant held the prerequisite qualifications and accreditations relevant to the Level 4 - Professional classification, these qualifications and accreditations were not required in order to perform the work undertaken by the applicant but operated only as assistance to the applicant in the discharge of his duties.
[15] The submissions made by Mr Perry asserted that the principal purpose test was apposite to the proper determination as to whether the applicant was covered by the Award. Mr Perry referred to various matters which he said should compel FWA to conclude that the principal purpose of the applicant's role involved the performance of strategic management functions as opposed to the performance of any of the technical services roles contemplated by the Award classification of Level 4 - Professional.
[16] Mr Perry mentioned various matters as being relevant to the determination of the principal purpose of the position held by the applicant. Mr Perry stated that the applicant’s earnings were more than three times the maximum Award rate and that this distinction in the level of remuneration reflected that the applicant was engaged to do work distinctly different to that contemplated by the Level 4 - Professional classification in the Award.
[17] According to Mr Perry the professional work contemplated by the Award classification involved something that he described as an “active doer”. Mr Perry submitted that the Award applies to people who are doers of a particular kind of work whereas the primary purpose of the applicant's role involved the exercise of management responsibilities. Although the evidence revealed that the applicant performed some technical IT work Mr Perry said that this was limited and overshadowed by the management functions that the applicant was required to undertake. Mr Perry submitted that the work of the applicant had only limited hands-on components and the Award classification was directed towards individuals who primarily performed hands-on technical IT duties with some limited supervision of other professionals and the exercise of similarly limited authority in that regard.
[18] In summary Mr Perry submitted that the proper application of the principal purpose test would lead to a conclusion that the applicant was a person actually employed to conduct management functions with very limited hands-on duties and therefore not covered by the Award.
Consideration
[19] In this instance, the determination of the question of modern award coverage for the purposes of subsection 382 (b) of the Act has involved application of what is described as the principal purpose test. That test has focused upon an examination of the Award Level 4 - Professional classification because, by virtue of clause 4.2 of the Award, the Award covers “...employees who are covered by the classifications in Schedule B”. It seemed therefore that to be covered by the Award the work of the applicant needed to be covered by one of the classifications in schedule B, specifically Level 4 - Professional. Although not the subject of submissions from either side, it would also appear to be necessary to undertake such an analysis in order to satisfy subsection 48(5) of the Act.
[20] Consequently the approach of the parties to the question of award coverage was one that involved an examination of the duties performed by the applicant and a determination as to whether those duties could be aligned with the description provided in the Award for the Level 4 - Professional classification. It appeared to be accepted that the principal purpose test was the appropriate means by which to determine whether the applicant was covered by the Level 4 - Professional classification. Other definition provisions contained within clause 3.3 of the Award were also relevant and provided assistance to enable the correct conclusion to be drawn as to the nature of work contemplated by the classification.
[21] The evidence of the work performed and the position held by the applicant must then be assessed as to whether the principal purpose for which the applicant was engaged would be comprehended by the Level 4 - Professional classification. I believe that the principal purpose assessment should include consideration of a variety of factors none of which are singularly determinative of the outcome. Thus the principal purpose test can be distinguished from the concept of the substantive role or function of an individual which involves an examination of the actual time that an individual may be occupied performing different tasks and ultimately arrives at a determination of the nature of the work based upon that which is performed for the largest portion of time worked.
[22] There are notable factors which are often relevant to the principal purpose assessment. These factors are not universally applicable but in most cases have some level of significance. Some of the factors which appear to regularly contribute to the determination of the principal purpose for which an employee was engaged include:
[23] The applicant was employed in a position described as IT manager. The job advertisement (Exhibit 4), used terminology such as; “...a leader with demonstrated management skills and strong business acumen”; “...understand the business and drivers and be able to align IT strategy with business strategy”; and “...a doer and a leader...”.
[24] The applicant was paid remuneration levels significantly above the highest rates of pay contemplated by the Award.
[25] A substantial proportion of the applicant’s time at work was occupied in performing managerial functions as opposed to the amount of time he devoted to hands-on IT technical advice and assistance. Although there was some dispute about precisely how much time the applicant was involved in handling direct IT enquiries, on any assessment direct IT enquiries represented an incidental or peripheral aspect of the applicant's role.
[26] The applicant was engaged at a senior level within the organisation reporting directly to the managing director. He was one of eight individuals occupying this level in the Australia-wide structure of the employer. He had approximately 21 individuals in “his team” who reported to him and there were approximately 200 staff in total within the applicant’s area of responsibility.
[27] The applicant possessed tertiary qualifications and National IT accreditation as contemplated by the Award definitions of “professional information technology duties” and “Professional information technology employee”. These qualifications and accreditations and the skills and knowledge that they represented, did appear to be integral to the role performed by the applicant and this factor represented perhaps the strongest basis in support of linkage to the Award classification.
[28] The applicant held and exercised authority and direction over members of “his team” and this included the exercise of promotional and disciplinary authority. The applicant made decisions about employee management issues such as salary increases within fixed parameters, disciplinary actions and probationary periods. These decisions may have been made in the context of recommendations to the managing director.
[29] The applicant occupied a position of significance within the organisation and was broadly responsible for the maintenance and delivery of a wide range of important IT functions across the “Group” corporate area of the organisation. These IT functions were fundamental to the employer’s business operation and consequently the applicant obtained a high-level of decision-making capacity.
[30] At times the applicant exercised a role as representative of the employer in negotiations and other communications with third parties. The applicant had some responsibilities in respect to supplier and vendor relations.
[31] Following a careful consideration of the various factors that are mentioned above, including the balance provided by, inter alia, that aspect of the job advertisement (Exhibit 4) which sought “The right person will be a doer...”, and the Award linkage of the qualifications and accreditations held by the applicant, I am nevertheless compelled to a conclusion that the primary purpose for which the applicant was engaged was that of an IT manager as opposed to the work comprehended by the Award Level 4 - Professional classification. Although some of the duties and functions that the applicant performed were clearly aligned with the Award classification of Level 4 - Professional, these were the “doer” components of the applicant's position as mentioned in the job advertisement (Exhibit 4).
[32] The primary purpose of the applicant's role was that of a manager. There would have been little, if any, contemplation by the parties at either the time of engagement or subsequently that the applicant’s role was in any way linked to an industrial instrument such as the Award. Following a careful application of the principal purpose test the instinctive contemplation of the parties about the nature of the role of the applicant has been confirmed.
[33] Consequently the applicant was not covered by the Award. It was not suggested that any other modern award covered the applicant. Further, an enterprise agreement did not apply to the applicant and his annual rate of earnings exceeded the high income threshold. Therefore the applicant is not a person protected from unfair dismissal. The s.382 (b) objection raised by the employer must be upheld and the application for unfair dismissal remedy must be dismissed.
COMMISSIONER
Appearances:
Mr M Gibian, barrister for the applicant.
Mr D Perry, solicitor, from Freehills for Digital Diagnostic Imaging Pty Ltd.
Hearing details:
Sydney, 25 February 2011.
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