AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision issued by
Commissioner Deegan on 19 June 2003
PR933272
R. Brand
(C2003/4543)
s.170CE application for relief in respect of termination of employment
R. Brand
and
APIR Systems Limited
(U2003/1005)
JUSTICE GIUDICE, PRESIDENT |
|
SENIOR DEPUTY PRESIDENT MARSH |
|
COMMISSIONER THATCHER |
MELBOURNE, 16 SEPTEMBER 2003 |
Appeal - leave to appeal - termination of employment - whether application within jurisdiction - whether applicant employed under award conditions - whether applicant employed in a classification in the relevant award - Workplace Relations Act 1996, ss.170CC, 170CD(3), 170CE - Workplace Relations Regulations, reg.30B - leave not granted.
DECISION
[1] This is an appeal, for which leave is required, by Richard Brand against a decision given by Commission Deegan on 19 June 2003.1 In that decision the Commissioner dismissed an application by Mr Brand under s.170CE of the Workplace Relations Act 1996 (the Act) for relief in respect of termination of his employment by APIR Systems Limited (the respondent). The Commissioner concluded that Mr Brand was within a class of employees excluded from the operation of s.170CE and therefore the Commission had no jurisdiction to deal with his application.
[2] Section 170CE, which is in Subdivision B of Division 3 of Part VIA of the Act (Subdivision B), provides for an application to be made to the Commission for relief on the ground that a termination of employment was harsh, unjust or unreasonable. Section 170CC(1) provides that the regulations may exclude specified classes of employees from the operation of particular provisions of Division 3 of Part VIA. Section 170CC(2) provides that the regulations may specify as a class employees not employed under award conditions and to whom ss.170CC(3) or (4) apply. Sections 170CC(3) and (4) refer to employees to whom no award applies but whose rates of remuneration at termination exceeded a rate specified by regulation (the specified rate). Mr Brand's rate of remuneration at the time of termination of his employment exceeded the specified rate and s.170CC(3) applied to him.
[3] The expression "employed under award conditions" is dealt with in s.170CD(3) which reads:
"(3) For the purposes of this Division, an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated by awards, certified agreements or AWAs, that bind the employer of the employee."
[4] The Workplace Relations Regulations specify the classes of employees to be excluded from Subdivision B:
"30B. Certain employees excluded from requirements for termination of employment
(1) For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:
...
(f) an employee:
(i) who is not employed under award conditions; and
(ii) to whom subsection 170CC (3) or (4) of the Act applies.
...
(4) For subparagraph (1)(f)(i), an employee is taken not to be employed under award conditions unless the employer is bound, in relation to the employee's wages and conditions of employment, by an award, a certified agreement, an AWA or an old IR agreement."
[5] As we have indicated, because his rate of remuneration exceeded the specified rate at the relevant time, s.170CC(3) applied to Mr Brand.
[6] It is clear that s.170CE is within Subdivision B. It follows that, if he was not employed under award conditions within the meaning of reg.30B(1)(f)(i), Mr Brand's application pursuant to s.170CE is beyond jurisdiction and invalid. Regulation 30B(4) provides, so far as relevant that, an employee is employed under award conditions if the employer is bound by an award in relation to the employee's wages and conditions of employment. (It was not suggested that the employer was bound by "a certified agreement, an AWA or an old IR agreement.")
[7] Mr Brand was employed by the respondent in Canberra in the Australian Capital Territory. In the proceedings before the Commissioner the respondent properly conceded that it was bound by the Information Technology Industry (Professional Employees) Award 2001 (the award) which applies as a common rule in the ACT.2 It submitted, however, that Mr Brand's employment was not within the incidence of the award and that he was not employed in any of the classifications listed in the award. Mr Brand's case was to the contrary on both issues. The Commissioner upheld the respondent's case and found that Mr Brand was not employed under award conditions. The corollary of that finding was that the application was beyond jurisdiction because of s.170CC(1) and reg.30B(1)(f)(i).
[8] There were two separate questions before the Commissioner. The first was whether Mr Brand's employment was within the incidence of the award. The second was whether he was engaged in one of the classifications set out in the award. In order to be employed under award conditions it is necessary that both the employee's wages and conditions be regulated by (relevantly) an award: s.170CD(3).3 Since the award prescribes wages only for employees in one of the award classifications, in order for Mr Brand to succeed it would be necessary to show that he was engaged in one of those classifications. It was therefore not sufficient to demonstrate that his employment was within the incidence of the award. For our purposes it is only necessary to deal with the second of the two questions we have identified which were before the Commissioner, that is, whether Mr Brand was engaged in one of the award classifications.
[9] It was submitted to the Commissioner and to us that Mr Brand was engaged in the classification Professional Information Technology Employee - Level 4. That classification is defined in clause 4.4.4 of the award. The definition reads:
"4.4.4 Professional Engineer - Level 4
Professional Information Technology Employee - Level 4
4.4.4(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 his/her organisation's technical reference authority) in, a particular field of professional engineering or professional information technology field.
An employee at this level:
initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional information technology policies and procedures within an overall program;
gives technical advice to management and operating departments;
may take detailed technical responsibility for product development and provision of specialised professional engineering or professional information technology systems, facilities and functions;
coordinates work programs; and
directs or advises on the use of equipment and materials.
4.4.4(b) 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.
4.4.4(c) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.
4.4.4(d) The employee supervises a group or groups including Professional Engineers or Professional Information Technology Employees and other staff, or exercises authority and technical control over a group of professional staff. In both instances, he/she is engaged in complex professional engineering or professional information technology applications."
[10] The operative part of the Commissioner's decision contains the following passage:
"[44] The applicant held a senior position with the Company. Until his salary was reduced (by $25,000 per annum) early in December 2002 he earned almost three times the award wage for a Professional Information Technology Employee Level 4. The fact that an employee receives remuneration in excess of award rates does not, of itself, preclude the operation of the award4.
[45] Whether an employee is employed under award conditions is a question of fact in each case, requiring an examination of the terms of the award and the employee's tasks and responsibilities.
[46] The Full Bench in Carpenter v Corona Manufacturing Pty Ltd5 dealt with the correct approach to determining whether a particular award applies to an applicant's employment. The matter before that bench was similar, in many respects, to the circumstances of this matter. The Full Bench considered the nature of the work performed by the applicant in the matter on appeal and then set out the manner in which the determination of the question should be approached:
"[8] At the time of the termination of his employment, the appellant was employed by the respondent as National Sales Manager. The agreement under which he was employed stated that the "function and responsibilities of the employee will involve sales and management duties throughout Australia". The appellant's job description identified his duties in a way that, in our view, can only be described as principally managerial in nature. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of "soliciting orders", "obtaining sales leads" or "promoting sales", such tasks formed a minor part of the work he was required to perform.
[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.6 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." (my emphasis added)
[47] Applying this approach to the work performed by the applicant it is clear, on the evidence, that he was principally engaged, at the time he was given notice that his employment would terminate, in the preparation of applications for funding relating to concessional loans or grants. He may have utilised technical expertise in the performance of this task but I accept the evidence of the witnesses for the respondent that technical input to the task was provided by another staff member. I have no doubt that the applicant possessed the necessary skills and experience to provide much of the technical input required but I find that the duties of his principal task (that is, preparation of applications for funding and general corporate planning and business development) could have been adequately discharged without the possession of the qualifications and experience referred to in the definition of "professional information technology duties" on examination of Clause 4.3.1(b) of the award.
[48] Having considered the definition of the classification of Professional Information Technology Employee - Level 4 at clause 4.4.4 of the award I have reached the conclusion that the position responsibilities of the role performed by the applicant were of a less "hands -on" technical nature than those of a Level 4 employee. I accept the evidence of Mr Hutchings Brosco that the role taken on by the applicant from August 2002 was "a corporate or business development role" and not "a technical role"7. I also accept the evidence that the applicant was still performing this role at 20 December 2002.
[49] I accept the applicant's evidence that he performed a "technology transfer" function post August 2002 passing on his technical knowledge of the system he had been involved in developing to the staff who continued to work on it. I also accept that this role intensified immediately prior to his leaving his employment, at the request of his employer. I do not, however, find that this technology transfer function was the principal purpose for which the applicant was employed at the time notice was given of his termination. The applicant's principal purpose was the development of the business of the company including business planning marketing and sales planning. The applicant's role also was one that went far beyond the responsibilities of a Professional Information Technology Employee Level 4. It was his evidence that from August 2002 he was to be part of a four member executive committee for the company - although that committee never met8.
[50] It was also his evidence that his duties included promotion of information technology (already developed) to other markets and development of business plans. The applicant's role, as described by all three witnesses, does not fall within the classification definition of a Level 4 employee (or any other classification) in the award, as claimed on the applicant's behalf.9
[11] Having heard all of the submissions on the appeal and having considered the evidence and material to which we have been referred we do not think this is a case in which we should grant leave to appeal. The Commissioner's conclusion that Mr Brand was not engaged in the classification of Professional Information Technology Employee - Level 4 was correct for the reasons she gave. On the material and evidence before her the Commissioner was right to conclude that Mr Brand was not employed in that classification. It was not suggested that he was employed in any other classification provided for in the award.
[12] Much of the argument advanced on Mr Brand's behalf in the appeal was directed at whether his employment was within the incidence of the award. As we have indicated above, even if his employment was within the incidence of the award, his application was not within jurisdiction unless he was employed in one of the award classifications.
[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect.10 An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee.11 Another formulation requires that the principal purpose or purposes of the employment be identified.12 In some cases the formulations have both been referred to.13 In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation.14 A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were "engaged substantially" in the duties of the relevant occupation.15
[14] In this appeal both parties accepted that the "principal purpose" formulation as stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are content to decide this application on that basis. We should add, however, that we are satisfied that whichever of the formulations referred to might be applied, in this case the result would be the same.
[15] We decline to grant leave to appeal.
BY THE COMMISSION:
PRESIDENT
Appearances:
M. Long, of counsel, for the appellant.
A. Grinsell-Jones, of counsel, for the respondent.
Hearing details:
2003.
Canberra.
September 9.
Printed by authority of the Commonwealth Government Printer
<Price code C>
3 Deane v Paper Australia Pty Ltd 2 April 2003, PR929820 at para [14].
4 [Christie v Qantas Airways Ltd (60 IR 17)]
6 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 (Sheldon J); Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99, 101-102 (Ludeke J); Robinson v Roxburgh & Alexander Pty Ltd t/as Power Price (1988) 25 IR 1, 5-7 (Miller CIM); Re The Australian Workers' Union Construction, Maintenance and Services (W.A. Government) Award 1987 1991/12 CAR 68, Print K0748 (Peterson J, Keogh DP and Johnson C); Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 (Maidment J); Logan v Otis Elevator Co Pty Ltd, Unreported, Industrial Relations Court of Australia (Moore J), 20 June 1997.
11 Ware and O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
12 Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99 at 101-2.
13 Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 at 462; Logan v Otis Elevator Co Pty Ltd, Unreported, Industrial Relations Court of Australia (Moore J) 20 June 1997.
14 Re The Australian Workers' Union Construction, Maintenance and Services (WA Government) Award 1987 1991/12 CAR 68 at 72.
15 Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and another (1988) 29 IR 263 at 275.