Modern award coverage

See Fair Work Act 2009 s.382(b)(i)

The Fair Work Act provides that a person may be protected from unfair dismissal if they have met the minimum period of employment AND they are covered by a modern award.

See Fair Work Act s.48

A modern award covers an employee if the modern award is expressed to cover the employee.

Each modern award contains a coverage clause (usually at clause 4) that defines who is covered by the award.

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.[1]

The Commission must make more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties.[2]

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.[3]

The words of award clauses are to be given their ordinary general meaning.[4]

The award’s history and subject matter may be considered to resolve ambiguity.[5]

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.[6]

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.[7]

Covered by a modern award

Cubillo v North Australian Aboriginal Family Violence Legal Service

Cubillo v North Australian Aboriginal Family Violence Legal Service [2011] FWA 6818 (Deegan C, 5 October 2011), [(2011) 211 IR 394].

The employee was the Chief Executive Officer of a not-for-profit community legal centre. She argued that she was covered by the Social, Community, Home Care and Disability Services Industry Award 2010. The employer argued that the employee's role was too senior to fall under a classification of the award.

The Commission found that the award made provisions in a number of classifications for employees at a managerial level, and therefore that it covered the employee. Because the award applied, it didn’t matter that the employee exceeded the high income threshold.

NOT covered by a modern award

McMillan v Northern Project Contracting T/A NPC; Norman v Northern Project Contracting T/A NPC

McMillan v Northern Project Contracting T/A NPC; Norman v Northern Project Contracting T/A NPC [2012] FWA 7049 (Gay C, 17 August 2012).

The employees' contract included a term that stated that the employee was covered by the Mining Industry Award 2010. However, it was held that the award on its terms did not actually apply to the employees. A contractual term cannot change the coverage of a modern award.

Oehme v Nilsen Resources Pty Ltd

Oehme v Nilsen Resources Pty Ltd [2012] FWA 1864 (Cloghan C, 8 March 2012).

The employee argued that he was a qualified electrical tradesperson and thus fell under the electrical tradesperson classification in the Electrical, Electronic and Communications Contracting Award 2010.

It was found that the principal purpose of his employment was to work as a manager, not as an electrical worker, so he was outside the coverage of the award.

Halasagi v George Weston Foods Limited

Halasagi v George Weston Foods Limited [2010] FWA 6503 (Lawler VP, 24 August 2010).

The employee argued that his university qualification brought him within a classification in the Professional Employees Award 2010.

It was found that his degree related to a different field of engineering than the role he was employed to do, and that the employee was not performing professional engineering duties within the meaning of the award.