Nature of work decides award application: bench

Cases

Nature of work decides award application: bench

A full bench of the AIRC supported a ruling that an employee was not covered by a federal award applying to sales staff as the employee was found to be a management employee, not covered by the award.

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A full bench of the AIRC supported a ruling that an employee was not covered by a federal award applying to sales staff as the employee was found to be a management employee, not covered by the award.

VECCI issue

The original matter also confronted the issue of whether a certain category of VECCI members - ie subscriber members - was caught by federal award coverage arising from the membership of a respondent employer association. The commissioner ruled that such members were to be treated like ordinary members. This aspect of the commissioner's ruling was not challenged on appeal. The consequence is that there may be back claims for underpaid wages against those employers that failed to meet certain award standards.

Background to appeal

The matter before the commissioner was a jurisdictional objection that the employee was not employed under award conditions (Commercial Sales (Victoria) Award 1999) and that his remuneration exceeded the rate specified by Regulation 30BB of the Workplace Relations Regulations.

Decision on appeal

The full bench supported the commissioner's finding and found that the employee was a management employee and not within the scope of the award:

'At the time of the termination of his employment, the appellant [employee] was employed by the respondent [employer] 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. ...

'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.'

The full bench refused leave to appeal.

See: Leigh Carpenter v Corona Manufacturing Pty Ltd - FB of AIRC (Williams and Lacy SDPP and Tolley C) (PR925731 (16 December 2002).

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