Daria Camera v New Medical Education Australia Pty Ltd
[2023] FWC 2816
•26 OCTOBER 2023
| [2023] FWC 2816 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daria Camera
v
New Medical Education Australia Pty Ltd
(U2023/7926)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 26 OCTOBER 2023 |
Unfair dismissal application – high income threshold exceeded – no award coverage
Ms Daria Camera has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Her former employer, New Medical Education Australia Pty Ltd (NMEA), objects to the application on the basis that Ms Camera was not a person protected from unfair dismissal. The application was listed for jurisdictional hearing on 24 October 2023.
Section 382 of the Act states that in order to be ‘protected from unfair dismissal’, it is necessary, among other things, that one or more of the following three circumstances apply: (a) the person’s annual rate of earnings was less than the high income threshold; (b) the person was covered by a modern award; or (c) an enterprise agreement applied to the person.
Ms Camera’s annual salary at the time of her dismissal on 22 August 2023 was $180,000, plus superannuation. Since 1 July 2023, the high income threshold has been $167,500. Ms Camera’s annual rate of earnings exceeded the high income threshold. No enterprise agreement was said to have applied to her. In order to be a person protected from unfair dismissal, Ms Camera would need to have been a person who was covered by an award. Ms Camera contended that she had been covered by the Higher Education Industry – Academic Staff – Award 2020 (Academic Staff Award). NMEA said that it was not covered by the award, and that Ms Camera did not fall within any of its classifications.
Clauses 4.1 and 4.2 of the Academic Staff Award state:
“4.1 This industry award covers employers throughout Australia in the higher education industry as defined and their academic staff in the classifications listed in clause 16 – Rates of pay to the exclusion of any other modern award.
4.2. Higher education industry means educational institutions providing undergraduate and postgraduate teaching leading to the conferring of accredited degrees and performing research to support and inform the curriculum.”
Mr Bob O’Connor, NMEA’s chief operating officer, gave evidence that NMEA is not a university, and that it cannot and does not teach students in Australia. He said that the goal of NMEA is to become a higher education institution that will provide a graduate entry medical degree, and that to do so it must first obtain registration and accreditation from the Tertiary Education Quality and Standards Agency (TEQSA) and the Australian Medical Council. NMEA hopes to obtain registration and accreditation in 2025, so that it will be able to receive its first intake of students in 2026. Mr O’Connor said that NMEA was currently developing a curriculum and taking all other necessary steps to obtain registration and accreditation. He said that NMEA employs eight employees who are all engaged in the task of enabling the company to become accredited and commence operations as a medical school.
NMEA submitted that it was not covered by the Academic Staff Award because it was not an educational institution of the kind set out in clause 4.2, and therefore it was not an employer in the higher education industry for the purposes of the award. It further submitted that in any event, Ms Camera’s position of director of curriculum did not fall within the classification structure in the Academic Staff Award. NMEA contended that for each of these reasons, Ms Camera had not been covered by the award and she was therefore not a person protected from unfair dismissal.
Ms Camera’s evidence was that her letter of offer had identified the Higher Education Industry – General Staff – Award 2020 (General Staff Award) as the award that would apply to her employment, but that this was evidently an error, and that the correct reference should have been to the Academic Staff Award. She said that at no time did anyone tell her that she was not in fact covered by an award. She said that the work she performed during her employment with NMEA demonstrated that she fell within the coverage of the Academic Staff Award. Prior to her employment with NMEA, she was employed by Oceania University of Medicine (OUM), a university based in Samoa, and also by EMed Pty Ltd, which acts as an agent for OUM. Both companies are associated entities of NMEA. All three entities had been working together on a project to develop a private medical school in Australia, and the curriculum that was being developed by NMEA was being tested at OUM. Ms Camera said that she had also undertaken teaching for the benefit of OUM in connection with the development of the curriculum.
Ms Camera submitted that, because the work of the three entities was intertwined, her work for NMEA was properly to be regarded as encompassing research to support and inform a curriculum of teaching for accredited degrees, as well as teaching of that curriculum. She contended that, in considering whether NMEA was covered by the Academic Staff Award, it was necessary to consider all of the work that she did, and its broader context. Ms Camera submitted that NMEA was an employer in the higher education industry as defined by clause 4.2, and that even if that was not the case, she was still covered by the award because her role fell within several of the classification descriptions in Schedule A.
In my opinion it is clear that NMEA is not an educational institution of the kind described in clause 4.2 of the Academic Staff Award, and that it is therefore not covered by that award, and neither therefore was Ms Camera. The coverage clause in the General Staff Award is relevantly identical. NMEA was not covered by that instrument either. I accept Mr O’Connor’s evidence about the work of NMEA. It is an entity that wishes to become an educational institution of the kind described in clause 4.2, namely one that will provide teaching leading to the conferring of accredited degrees and perform research to support and inform the curriculum. It does not have that status now. It is not a teaching institution. It has no students. NMEA is in the process of becoming such an institution. First however it must obtain the necessary accreditation and registration.
I reject Ms Camera’s contention that the Academic Staff Award applies to agents of educational institutions that develop academic curricula but are not themselves teaching institutions. Although clause 4.1 is an industry coverage provision, in the sense that it is expressed to apply to employers in the higher education industry, clause 4.2 defines that industry by reference to a particular type of institution, rather than a particular industry or sector. It states that the higher education industry means educational institutions providing teaching leading to accredited degrees and performing research to support and inform the curriculum. It is clear that NMEA is not an educational institution providing such teaching. Further, while NMEA could be said to be performing research to support and inform a curriculum, clause 4.2 plainly contemplates that the curriculum is one that is actually being taught by the institution in question. This is clear from the context, including the classification descriptions in Schedule A. It is also clear from the use of the definite article (‘the curriculum’) rather than an indefinite article or no article at all. The definite article connotes that what follows is known to the reader, which implies that it is connected to the teaching referred to earlier in the sentence. Clause 4.2 is not concerned with institutions that may wish to become universities, or that are in the process of developing a curriculum for themselves or for others. Moreover, unlike industry coverage provisions in other instruments, clause 4 does not extend coverage to institutions or employers that work ‘in or in connection with’ the prescribed industry. It applies only to institutions of the kind referred to in clause 4.2. NMEA is not such an institution.
Ms Camera submitted that, based on her professional experience, NMEA was an entity that would generally be regarded as an institution in the higher education sector, and that in her opinion TEQSA’s view was that the sector travelled beyond universities and could include entities such as NMEA. But what is important is the definition of the higher education industry in the award, not some general industry understanding about the boundaries of the sector.
Ms Camera contended that she could be covered by the Academic Staff Award even if NMEA was not covered, because clause 4.1 states that it applies to relevant employers and their academic staff, and this should be read disjunctively. This is wrong. An employee cannot be covered by an award if their employer is not covered. The point of awards is to create minimum conditions of employment for employees of employers who are covered by them. On Ms Camera’s argument, she could be covered by the award despite not having any entitlements under it. The decision of the Federal Circuit Court in Foulsham v JJ Corbett Plumbing and Gasfitting Pty [2015] FCCA 1290 does not assist Ms Camera’s contention on this point.
Ms Camera said that it was misleading for NMEA to have stated in her contract that an award applied to her. She suggested to Mr O’Connor that NMEA must at some point have thought that an award did apply. He said it was just a mistake. But in any event, the question is whether as a matter of fact the Academic Staff Award covered Ms Camera, not whether one or more of the parties thought that it did so.
Ms Camera contended that the wording of clause 4.1 was broad enough to extend to employers that aspired to be institutions of the kind referred to in clause 4.2. I reject this. There is simply no textual basis for such an argument. She contended that it was enough if the institution was ‘performing research to support and inform the curriculum’, even if the institution did not teach. I disagree. Again, ‘the curriculum’ can only mean the curriculum for the teaching leading to the conferring of accredited degrees. And there is no basis to read the word ‘and’ disjunctively.
I understood Ms Camera also to contend that because the work of the three entities was ‘intertwined’, they should somehow all be considered to be covered by the awards. This was essentially a contention that the Commission should lift the corporate veil. I reject it. The fact that several entities collaborate on particular work is of no consequence to the question of whether any or all of them are covered by an award. An award covers persons if the award is ‘expressed to cover’ them (see s 48(1)). Whether an award covers particular employers and employees depends on the coverage clause in the award and whether those persons fall within it. It is clear that NMEA does not fall within the coverage of either award. If the employer is not covered by the award, neither are its employees.
In my view, even if NMEA had been covered by the Academic Staff Award, Ms Carera was not an academic staff member covered by the classifications in the schedule. She was the director of curriculum for a commercial venture that wishes to establish a private medical school. In her employment with NMEA she was neither an academic teacher nor an academic researcher falling within any of the classifications in the award. She was certainly qualified to be these things. But that was not her job. The position description for her role as director of curriculum does not correlate with any of the classifications in the Academic Staff Award or the General Staff Award.
Ms Camera was not covered by an award. No enterprise agreement applied to her. Her annual rate of earnings exceeded the high income threshold. She was therefore not a person protected from unfair dismissal. The Commission may only award an unfair dismissal remedy to a person who is protected from unfair dismissal (see s 390(1)(a)). The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
T. Joseph counsel for the applicant
T. Zahara for the respondent
Hearing details:
2023
Melbourne
24 October
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