David Morcom v Programmed Property Services Pty Ltd

[2020] FWC 2394

[2020] FWC 2394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

David Morcom
v
Programmed Property Services Pty Ltd
(C2020/2380)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 20 MAY 2020

Dispute regarding payments – question of modern award coverage – jurisdiction of the Commission to deal with the dispute – Jajoo.

[1] This decision concerns an application made by Mr David Morcom pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act).

[2] Programmed Property Services Pty Ltd (Programmed) contends that the Commission does not have the jurisdiction to deal with Mr Morcom’s application on the following basis:

(a) Mr Morcom’s role was not covered by a modern award or an enterprise agreement. His contract of employment did not contain a provision that permits the Commission to exercise any dispute resolution powers.

(b) Mr Morcom’s employment ended on 20 March 2020 prior to the application being made in the Commission on 15 April 2020. A dispute was not raised by Mr Morcom during his employment.

[3] For the reasons that follow, I have concluded that Mr Morcom’s application cannot proceed in the Commission for want of jurisdiction. Accordingly, Mr Morcom’s application is dismissed.

The application

[4] Mr Morcom was employed by Programmed from 15 July 2017, most recently in the position of Project Manager pursuant to an employment contract effective 1 April 2019. It is not in dispute that no enterprise agreement applied to his employment.

[5] Mr Morcom resigned from his employment on 9 March 2020. His final working day was 20 March 2020.

[6] Mr Morcom’s application alleges an underpayment in respect of his salary and asserts an entitlement to a bonus/incentive payment. Programmed refutes that any money is owed to Mr Morcom arising from his employment.

[7] The application is said to have been made pursuant to clause 33 of Mr Morcom’s employment contract. This clause states that the contract “is governed by the law applicable to the state in which you are employed.” Mr Morcom accepts that the employment contract does not otherwise contain a dispute settlement procedure, however he specified in his application that the Miscellaneous Award 2010 (Miscellaneous Award) applied to him in his employment. In submissions that supplement his application, Mr Morcom also raises the possibility that the Building and Construction General On-site Award 2010 (Building Award) applied to his employment with Programmed.

[8] In Programmed’s 15 April 2020 correspondence to Mr Morcom, it said that he was engaged under a common law contract not underpinned by a modern award or an enterprise agreement and no shortfall in wages arises. Further, it says that no entitlement to a bonus/incentive payment exists because Mr Morcom was not employed at the relevant time.

[9] Programmed filed submissions on 17 April 2020 in which it contended that Mr Morcom’s contract of employment does not contain a provision that permits the Commission to exercise any dispute resolution powers. It submits that the Commission does not have the jurisdiction to deal with the application and seeks that Mr Morcom’s application be dismissed.

[10] Directions were issued for the filing of written submissions addressing the question of whether the Commission has jurisdiction in respect of Mr Morcom’s application. The parties agreed for the matter to be determined on the papers.

Submissions

[11] Mr Morcom submits that on 20 March 2020 he queried by email to Programmed whether he would be paid a bonus/incentive. Mr Morcom contends that while his correspondence was limited to the bonus/incentive payment, in effect, “a dispute arose whilst he was still employed, relating to the terms and conditions of his employment.” Programmed is said to have responded on 1 April 2020 following the cessation of Mr Morcom’s employment. Further correspondence was sent by Mr Morcom on 2 April 2020, raising an alleged non-payment of the bonus/incentive and further claimed an underpayment of wages.

[12] Mr Morcom submits that while his employment with Programmed is at an end, there are components of his contract which continue to operate. He says that rights that have unconditionally accrued prior to termination, including wage entitlements, continue to have effect after termination. Mr Morcom contends that his minimum legal entitlements include the national employment standards (NES) and the “award that applies.”

[13] In response, Programmed contends:

(a) Mr Morcom was engaged under a contract of employment in the role of Project Manager. His tasks and responsibilities are contained in a position description, which do not align with the coverage of either the Miscellaneous Award or the Building Award, and accordingly his role was award free. Further, Mr Morcom was not covered by an enterprise agreement. Mr Morcom’s contract of employment does not include a term that provides a procedure for dealing with disputes. Accordingly, the Commission has no jurisdiction to deal with Mr Morcom’s application.

(b) A dispute was not raised by Mr Morcom during his employment. Rather, in the late afternoon on 20 March 2020, being Mr Morcom’s last day of work, he made an enquiry in relation to his eligibility for a bonus/incentive payment. Mr Morcom’s enquiry is insufficient to constitute a dispute during his employment. To that end, and consistent with ING Administration Pty Ltd v Jajoo, Ramsin (Jajoo), 1 the Commission lacks jurisdiction to deal with Mr Morcom’s application.

Consideration

[14] Mr Morcom’s tasks and responsibilities as Project Manager consisted of six components: asset management, compliance, customer management, operational management, safety environment and quality, and team leadership. Mr Morcom was tasked with overseeing the allocation of property and equipment (P&E) to operational staff and subcontractors. He was required to undertake regular audits of all P&E to ensure its safe operation. Prior to any works commencing, Mr Morcom was responsible for reviewing all health, safety and environment requirements to mitigate potential risks. He was required to ensure works were undertaken in a safe and timely manner, meeting budgetary requirements and client expectations. In addition to coaching operational staff, he was responsible for monitoring the health of employees and workplace conditions. His role also extended to building customer relationships with a view to cross selling opportunities and winning additional work.

Miscellaneous Award

[15] Programmed submits that the coverage clause to the Miscellaneous Award does not apply to Mr Morcom because his role is expressly excluded by clause 4.2, which provides that:

“The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.”

[16] Programmed further contends that Schedule B (classification structure and definitions) to the Miscellaneous Award does not capture Mr Morcom’s Project Manager position. On this basis, it says that the Miscellaneous Award does not apply.

[17] Having had regard to Mr Morcom’s position description, I am satisfied that in the performance of his duties he was a managerial employee. This is evidenced by Mr Morcom’s responsibility for a function of Programmed’s business and reflected in the six components of his role, summarised at [14]. The position therefore falls within the ambit of clause 4.2 with the result that the Miscellaneous Award did not apply to Mr Morcom.

[18] For completeness, I am satisfied that the classification levels contained in the Miscellaneous Award do not align with Mr Morcom’s role as Project Manager. This is because the most senior of the levels in the Miscellaneous Award covers an employee that has advanced trade qualifications and is carrying out duties requiring such qualifications, or is a sub-professional employee. Mr Morcom was not required to exercise advanced trade qualifications, notwithstanding that he previously held the role of a painter. Further, having regard to the position description, Mr Morcom’s position was not that of a sub-professional. Accordingly, Mr Morcom’s position was not captured by the coverage clause of the Miscellaneous Award in any event.

Building Award

[19] Mr Morcom’s submissions broadly contend that it is possible that the Building Award applied to his employment. It is submitted that his position falls within classification levels 2, 3 or 4 of the Building Award, but this submission is not particularised.

[20] Programmed rejects Mr Morcom’s contention that the Building Award applied to him in his employment. It submits that the Building Award expressly excludes site managers, departmental heads and the like, and to that end Mr Morcom’s Project Manager role was excluded.

[21] Taking Mr Morcom’s case at its highest, a level 4 classification under the Building Award does not include the role of a Project Manager. Rather, it contains non-trade and trade roles that directly operate and maintain plant and machinery (such as a mechanical tradesperson), and plan construction sequencing. The greater managerial qualities of Mr Morcom’s duties exceed the exercise of skill at this level.

[22] Mr Morcom’s submissions also contain an extract of the Building Award relating to a foreperson/supervisor. This is not accompanied by any submissions by Mr Morcom contending that his Project Manager role is equivalent to a foreperson/supervisor. To the extent that this submission is made, it is not accepted. There is no material before the Commission which supports a finding that Mr Morcom, consistent with the definition of a foreperson/supervisor under the Building Award was:

(a) appointed as a foreperson/supervisor or required to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by the Building Award; or

(b) appointed as a general foreperson/supervisor or required to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in (a) immediately above (excluding site managers, departmental heads and the like).

[23] Having regard to the above matters, I am not satisfied on the material advanced that Mr Morcom was covered by the Building Award.

Jurisdiction to deal with the dispute

[24] Mr Morcom’s contract of employment does not contain a dispute settlement procedure. Given my conclusion that neither the Miscellaneous Award nor the Building Award applied to Mr Morcom in his employment, and in the absence of a “term that provides a procedure for dealing with disputes between the employer and the employee” in Mr Morcom’s employment contract, the application cannot proceed under s.739(1) of the Act. This is because there is no term as referred to in s.738 of the Act, which requires or allows the Commission to deal with the dispute under s.739(1).

[25] Even if my conclusion on award coverage is incorrect, I would not be satisfied that Mr Morcom raised a dispute under a dispute settlement procedure during his employment. The high watermark of Mr Morcom’s case is that he sent an email on the last day of his employment enquiring about an entitlement to a bonus/incentive payment. The email raised a question unrelated to a modern award or the NES. I do not characterise this as a dispute such that the first step of the dispute settlement procedure (clause 9 of both the Building Award and Miscellaneous Award) was invoked. At the time of receiving Programmed’s response on 1 April 2020, and therefore before any dispute had arisen, Mr Morcom’s employment had ended.

[26] It is clear from Jajoo and the decisions that follow it, 2 that there is capacity for the Commission’s jurisdiction to be enlivened in a dispute involving a former employee, if there is compliance with an applicable dispute settlement procedure during the employment. Given that no dispute arose during Mr Morcom’s employment, the application cannot proceed for want of jurisdiction.

Conclusion

[27] Pursuant to s.587(1)(c) of the Act, Mr Morcom’s application is dismissed on the basis that it has no reasonable prospects of success.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   PR974301 (4 December 2006)

 2   see for example Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd[2017] FWCFB 269 in the context of the Fair Work Act 2009 (Cth)