Joel Dragani v Peter W Beck Pty Ltd
[2016] FWC 1500
•18 MARCH 2016
| [2016] FWC 1500 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joel Dragani
v
Peter W Beck Pty Ltd
(U2015/15460)
COMMISSIONER HAMPTON | ADELAIDE, 18 MARCH 2016 |
Application for relief from unfair dismissal – jurisdiction – high-income earner – Commercial Sales Award 2010 – whether applicant covered by the modern award – National Sales Manager position – not employed as a Commercial Traveller – not protected from unfair dismissal – unfair dismissal application not properly made – application dismissed.
1. Background and case outline
[1] Mr Joel Dragani has filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). His former employer, and the respondent in these proceedings, Peter W Beck Pty Ltd (PWB) contends that Mr Dragani is not protected from unfair dismissal. This arises from Mr Dragani’s position and level of remuneration.
[2] Section 382 of the FW Act provides:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[3] It is common ground that Mr Dragani has completed the minimum employment period. It is also agreed that Mr Dragani was not covered by an enterprise agreement and that his annual rate of earnings exceeded the high income threshold. That is, Mr Dragani’s remuneration at the time of his dismissal included a “cash” component of $145,000 per annum (plus a motor vehicle payment and superannuation) and the high income threshold at the time was $136,700. As a result, Mr Dragani will not be protected from unfair dismissal, and not eligible to bring this application, unless he was covered by a modern award.
[4] PWB conducts a business which includes the manufacturing and marketing of wedding rings and associated precious metal services across the Australian and New Zealand jewellery industries.
[5] Mr Dragani was employed as the National Sales Manager - Retail and Precious Metals (National Sales Manager) and reported to the Managing Director. He was also responsible for a number of Client Service Managers (CSMs) who reported to him and who were, for the most part, engaged in each of the company’s regional sales territories to sell products to the retail jewellery trade.
[6] At times, Mr Dragani would cover for CSMs who were absent, and in late 2014 and during 2015, he was covering for the SA/NT CSM whose position was vacant. This was the situation at the time of Mr Dragani’s dismissal in late November 2015.
[7] Mr Dragani contends that at various times during his employment with PWB, including at the point of his dismissal, he was covered by the Commercial Sales Award 2010 (the Commercial Sales Award), specifically under the classification of a Commercial Traveller. This is disputed by PWB.
[8] The determination of this present matter requires a consideration of the nature of Mr Dragani’s position, both in general terms and when filling-in for the CSMs, and the purpose and degree of the travel involved with that position given the coverage terms of the Commercial Sales Award.
2. The evidence before the Commission
[9] Given that there were some factual disputes, this matter was the subject of a hearing as required by the FW Act. 1
[10] Mr Dragani provided a comprehensive witness statement and documentary evidence concerning the nature and extent of his travel. He also gave oral evidence in support of his case.
[11] PWB relied upon the evidence of the following managers, both of whom provided witnesses statements and gave oral evidence:
● Mr Peter Beck, Managing Director; and
● Ms Jessica Herraman, Human Resources Manager.
[12] The evidence of Ms Herraman mainly involved the collation of materials and evidence from the records of PWB. To the extent that her evidence went to the degree to which Mr Dragani physically worked from his office in the Adelaide headquarters of PWB, I note that whilst the evidence was genuine, it appeared to rely upon general impressions.
[13] I found the evidence of Mr Dragani to be generally reliable, however he was not convincing about his claimed lack of awareness of the terms of the position description applying to the role of National Sales Manager and had a tendency to exaggerate certain features of his evidence to suit his case. This included the extent of intrastate travel and sales activities during 2015 claimed by Mr Dragani, which was not consistent with the impression given by the overall weight and balance of the objective evidence on that issue.
[14] I also found that Mr Beck had a tendency to attempt to advocate what he saw as the case being advanced by PWB and this led to the impression that he was being evasive on some issues. This included the degree to which he initially resisted acknowledging Mr Dragani’s role with major clients and in covering for the absent SA/NT CSM. However, his ultimate evidence about the changes and additional responsibilities applying to Mr Dragani in late 2014 and during 2015 was generally credible.
3. The coverage of the Commercial Sales Award 2010
[15] It is common ground that it is only the Commercial Sales Award that is potentially relevant here.
[16] The coverage clause of the Commercial Sales Award 2010 relevantly provides:
“4. Coverage
4.1 This occupational award covers employers throughout Australia with respect to Commercial Travellers, Merchandisers and Advertising Sales Representatives and those employees unless any other modern award contains classifications that apply to such persons, in which case the other modern award prevails.
4.2 The award does not cover employers and employees covered by the:
(a) Clerks—Private Sector Award 2010;
(b) Contract Call Centres Award 2010; or
(c) Graphic Arts, Printing and Publishing Award 2010.
4.3 The award does not cover an employee excluded from award coverage by the Act.
4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 This award covers any employer which supplies on-hire employees in classifications set out in clause 4.1 and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
4.7 This award covers employers which provide group training services for trainees engaged in any of the occupations set out at clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
[17] It is common ground that the only potentially relevant classification is that of Commercial Traveller. For completeness, I note that there were no suggestions that the other award classifications, Advertising Sales Representative or Merchandiser, applied to the Mr Dragani.
[18] Clause 3.1 of the Award defines the term “Commercial Traveller” as follows:
“Commercial Traveller means a person employed, substantially away from the employer’s place of business, for the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material for wholesale sale, for resale, or for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer.”
[19] The approach to be adopted to determining the coverage of an award has been set out in various decisions of the Commission and its predecessors. A Full Bench of the Australian Industrial Relations Commission (AIRC) in R Brand v APIR Systems Limited2used what may be described as the principal purpose test. That decision, in turn, cited the decision of the Full Bench of the AIRC in Carpenter v Corona Manufacturing Pty Ltd,3 which stated relevantly as follows:
“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.”4
[20] In Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting5 a Full Bench of the Commission also referred to the above authorities and observed:
“[37] We comment in this regard that consistent with the decision of the Full Bench of the Australian Industrial Relations Commission (as it then was) in Carpenter v Corona Manufacturing Pty Ltd, an own employee’s estimation of the quantification of their workload is not determinative of the classification, if any, in an award, into which they might fall. One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform. This is why the Full Bench articulated the task of ascertaining the principal purpose of the employment as requiring “an examination of the nature of the work [...] the employee is employed to do”.
[21] The intended coverage of the Commercial Sales Award was also considered by Lewin C in in Hallam v Sorin Group Australia Pty Ltd 6 where he found:
“[42] Typically a sales manager or business development role will be responsible for the oversight of the various sales activities and sales staff such as a number of Commercial Travellers and perhaps others and is distinguished as managerial in the relevant organisation. Often the remuneration for such roles will be around or exceed the high income threshold based on the overall performance of the division for which such managers are responsible.
[43] It is self evident, in my view, that the Full Bench authority referred to above arises from an interpretative approach to the coverage of the Award and like industrial instruments, which distinguishes classes of employees and effectively excludes persons who are truly employed as sales managers and business development managers from the coverage of the Award.”
[22] The question of coverage of the modern award is to be determined at the time of the dismissal and having regard to the circumstances applying at that time. 7
[23] In applying the award, the Commission should avoid an overly literal or technical approach. Rather, it should attempt to give the terms of the award meaning that is consistent with the apparent intentions of award makers. Award clauses are to be given their ordinary general meaning. 8
[24] The above approach has been applied to various matters of this kind by this Commission and I have also done so here having regard to the particular factual circumstances of this matter.
[25] It is also important to appreciate that the Commercial Sales Award is a modern award established and applying subject to the relevant provisions of the FW Act. Section 143(7) provides as follows:
“Employees not traditionally covered by awards etc.
(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.”
4. The contentions of the parties
4.1 Mr Dragani
[26] Mr Dragani’s position is that his primary responsibilities as the National Sales Manager, were to manage the sales department and obtain sales orders for PWB products. Mr Dragani contends that not only was he managing his sales team, but he was also servicing specific major allocated accounts by travelling to them to present his own product sample range with a view to soliciting orders from his client base. These major account customers were located in New South Wales, Victoria, Queensland, Western Australia and South Australia. Furthermore, Mr Dragani also had the responsibility of organising sales visits and product presentations to the industry buying groups, as well as attending every Trade Fair, Buying Day, Road Show, and Time Out Conference. He contends that these events took place multiple times a year and were located across Australia and overseas. The primary purpose for attending these events was to showcase the PWB range and solicit orders for wholesale sales.
[27] Mr Dragani contends that the above responsibilities required him to spend a considerable time away from the employer’s place of business, whilst conducting business with the sole purpose of soliciting orders for PWB. Mr Dragani contends that he spent between 35% and something over 37% of his employment period with PWB away from the employer’s place of business soliciting orders for wholesale sale. He suggested that this estimate did not take into account the extensive travel that was required within the Adelaide metropolitan area and surrounding suburbs and regional towns in South Australia.
[28] Mr Dragani also submits that not only did he have the role of National Sales Manager, but due to the retirement of the person that held the position, as of December 2014 he also absorbed the role of the SA/NT CSM. The extra responsibility gained by Mr Dragani also meant that his time away from the employer’s place of business increased, and resulted in him attending to local South Australian customers almost every day that he was available and not travelling interstate. Mr Dragani submits that some local customers would have him visiting them up to 3 times a week.
[29] Mr Dragani did concede that when his position was solely the National Sales Manager, he was not covered by the Commercial Sales Award. However, when he absorbed the SA/NT CSM position, or when he back-filled for other absent CSMs more generally, this essentially changed his responsibilities and meant that he was covered by the Award, as a Commercial Traveller.
[30] Mr Dragani also contends that he received a Car Allowance and not a company car and that this was the same approach that was being adopted to the employment of the CSMs. On that basis, there should be no distinction drawn between his position and the CSMs as far as award coverage was concerned.
4.2 Peter W Beck Pty Ltd
[31] PWB contends that Mr Dragani was a senior manager within its business and was not covered by the Commercial Sales Award. PWB submits that the definition of Commercial Traveller contains two parts; namely, that the employee be employed substantially away from the employer’s place of business, and that the purpose of employment is to solicit orders and sell goods. PWB contends that Mr Dragani fails on both aspects and that his former position as the National Sales Manager is excluded from coverage under the Commercial Sales Award.
[32] PWB does not dispute that the role of National Sales Manager required frequent or regular travel overseas, interstate and intrastate, but rather contends that he was not required to be “substantially away” from his employer’s place of business. That is, to meet the first element of the definition of Commercial Traveller the travel must be a “substantial” proportion of employment. PWB submits that the term “substantial” has to describe something that is a major or significant part of a whole. Whilst PWB does not contend that substantial should have a particular percentage, it suggested that the amount must be more than a mere majority and something approaching 75% or 80% of the employee’s time. PWB contends that Mr Dragani’s suggestion of being away for around 35% falls short of someone who is engaged “substantially away” from the employer’s place of business. In contrast, a CSM is required to travel daily throughout their territory visiting their clients, and their work is substantially away from the employer’s place of business.
[33] Furthermore, PWB disputes the amount of time that Mr Dragani spent away from the employer’s place of business. It contends that there is little evidence in Mr Dragani’s calendar or from sales being generated in Adelaide, suburban Adelaide or regional South Australia during 2015 to support his position. PWB notes that Mr Dragani had a habit of emailing staff when he proposed to be away and there were a limited number of such emails, thereby suggesting that his absences from the office were not substantial.
[34] PWB also contends that Mr Dragani does not meet the criteria that he was employed for the purpose of soliciting orders or selling goods. PWB submits that the role that Mr Dragani was performing can clearly be distinguished as a managerial role and a role that is responsible for the oversight of various sales activities undertaken by other staff rather than a direct selling role.
[35] The responsibilities of Mr Dragani’s position included the management of CSMs, each of whom directly reported to Mr Dragani in his role as National Sales Manager. Furthermore, the position description of CSMs is different to that of the National Sales Manager, in that the primary focus of CSMs is sales. An essential part of the CSMs role is that they do spend a substantial amount of their time on the road away from the employer’s place of business due to visiting clients and customers within their respective territories. In contrast, the important elements and responsibilities of the role of National Sales Manager go to the overall development, implementation and management of sales strategies, and the provision of leadership and management of the sales team and the business environment in which the manager and team are working.
[36] PWB disputes that there was a change to the role of Mr Dragani when the SA/NT CSM left the business in December 2014. PWB submits that Mr Dragani continued to perform the role of the National Sales Manager and notes that he was not appointed to the CSM position.
[37] As a result, PWB contends that that Mr Dragani was employed as a Manager whose position did not fall within the scope of the definition of a Commercial Traveller in the Commercial Sales Award. On that basis, PWB contends that Mr Dragani was not protected from unfair dismissal and that his application should itself be dismissed.
5. Was Mr Dragani covered by the Commercial Sales Award 2010?
[38] Mr Dragani commenced employment with PWB in August 2011 in the position of National Sales Manager – Retail. In January 2015, he assumed the additional responsibility for precious metals and became the National Sales Manager – Retail and Precious Metals. The fundamental scope and nature of the role was established in the form of a position description, initially applying only to the Retail component.
[39] The role of National Sales Manager required Mr Dragani to directly report to the Managing Director of PWB, and the position overview contained the following:
“The management of Retail services is to be achieved through the leadership, supervision of Sales Consultants and a commitment to achieving key customer objectives.
Whilst the position has responsibility for achieving sales outcomes, the focus is on developing, strengthening and retaining quality business relationships with PWB’s retail accounts throughout Australia and New Zealand.” 9
[40] The core duties and responsibilities were outlined in the Position Description in the following terms:
“ Develop, implement and evaluate an sales management strategy to protect and enhance our market share of mass market jewellers;
● lead, inspire, motivate and develop the local, interstate and overseas based Sales Consultants;
● Provide purpose and structure to the way in which the Sales Consultants approach their role;
● Develop and implement customer retention strategies;
● Monitor and manage customer performance;
● Assist in the implementation of the Company’s strategic direction;
● Participation in and representation at national and international trade fairs or related industry events;
● Identify and expand opportunities for sale of products through industry associations/buying groups;
● Take a holistic view of the jewellery sector and PWB product range to recommend future product development;
● Sifts customer comments and uses experience/judgement to provide the Managing Director and Senior Management Team with relevant market place customer feedback so that the Company wide strategy can be adjusted;
● Maintain awareness in relation to market and industry trends and competitor activity;
● Interpret sales data so as to identify opportunities and potential threats. Will proactively use this sales data to implement short and longer term initiatives to deliver year on year growth;
● Actively contribute to the annual sales management planning process, including providing regular feedback to the Senior Management Team re: progress towards plans;
● Works closely with Marketing so that every sales management opportunity is captured and maximised.
● Works collaboratively with Marketing to develop and control promotional activities such as public relations and advertising;
● Be aware and advise the Managing Director of any signs relating to credit difficulties or risks;
● Show empathy, enthusiasm, knowledge, initiative and discipline at all times;
● Ensure quality and WHS standards are maintained as they relate to customers, the Company and self;
● displays initiative in identifying business opportunities and providing solutions;
● participate in self development and training opportunities and in the Company’s ongoing performance appraisal processes;
● Proactively contribute to a culture of continuous improvement.” 10
[41] In my view, this is a proper reflection of the nature of Mr Dragani’s role and consistent with its practical operation. This included the senior nature of the role and the need for experience in sales leadership and management which Mr Dragani brought to the position. 11
[42] Mr Gragani was based in the Adelaide head office of PWB and had clerical and administrative support in that role.
[43] Mr Dragani was directly responsible for the CSMs and some sales consultants who reported to him. The role of the CSMs had a number of key accountabilities including for key account and relationship management which involved the following performance measures:
“Key Account Management
● Make regular calls to clients to support clients & contribute to achieving sustainable revenue.
● Maintain and enhance existing client base through regular contact and use company reports to generate increased revenue.
● Identify potential new clients and adopt revenue strategies and cost-effective proposals to develop potential key accounts while complimenting company revenue strategies.
● Prepare product proposal reports and liaise with customers to create revenue opportunities.
● Timely and accurate completion of weekly activity reports to maintain competitive position.
● Prepare and deliver proposals to clients with an individual client solution focus.
● Demonstrate willingness and ability to provide quality service and products that create value for the client and the company.
● Comprehensive understanding of the impact the position has in creating value in the products and services that the client requires, in a profitable manner.
Relationship Management
● Develop productive relationships to facilitate the accomplishment of the objectives of the clients, while supporting the company strategies.
● Develop positive relationships with customers to become a trusted advisor.
● Pro-actively seek opportunities to value-add to the key account relationship, i.e., ‘going beyond’ benefits.
● Maintain integrity and professionalism at all times while interacting with clients.
● An ability to think ‘outside the square’ in creating and achieving revenue.
● Implement strategies to engage and retain key accounts.
● Focus on current and future business needs of both Peter W Beck Pty Ltd and key accounts.
● Identify and advise all clients how Peter W Beck Pty Ltd products will add value to their business and help them achieve their business objectives.” 12
[44] In addition, the CSMs had sales database and communications performance measures which emphasised the sales and customer focus of those positions. These measures were used by Mr Dragani, and others in senior management, to monitor sales performance and to manage the work of the CSMs.
[45] In general terms, the CSMs worked outside of the business in servicing their sales regions and some worked entirely without access to a company supplied office.
[46] Mr Dragani’s fundamental proposition is that during those times when he also undertook, in effect, the role of a CSM, in addition to his substantive position as the National Sales Manager, he was covered by the Commercial Sales Award. That is, during those times his role involved substantial time away from the office and involved additional responsibility for selling. This, he contends, meant that at the very least he was a Commercial Traveller during those periods.
[47] As would be clear from the earlier authorities, consideration of the scope of the modern award requires an assessment of the nature of the work performed and its context, in order to examine the principal purpose for which the employee was employed. This involves more than a quantitative assessment of the time spent in various duties. In this case, Mr Dragani appears to accept that his role as the National Sales Manager would not fall within the scope of a Commercial Traveller as defined by the award. In any event, this must be the case for the following reasons.
[48] A Commercial Traveller under the award is a person employed, substantially away from the employer’s place of business, for the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material for wholesale sale, for resale, or for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer. Leaving aside those elements of the definition that are not in dispute or are not relevant to the matter at hand, the question to be determined becomes whether Mr Dragani was employed substantially away from the employer’s place of business for the purpose of selling articles (for wholesale sale, for subsequent resale).
[49] Regular travel, particularly interstate and occasionally overseas, was an expected part of the national sales management role 13 and this was also reflected in the position description. Based on the evidence this travel would represent something marginally in excess of 35% of work time. I doubt that the extent of travel undertaken by Mr Dragani fits the description of him being employed substantially away from the employer’s place of business. “Employed substantially” in the context in which it is used within the definition of a Commercial Traveller is in my view designed to differentiate that classification from other sales roles that do not primarily involve sales activities being performed in the field. In that sense, the term is likely to mean that at least the majority of the (sales) work involves the required activities being performed away from the employer’s place of business.
[50] In any event, it is also the purpose of the travel which is important. In the case of the National Sales Manager role undertaken by Mr Dragani, the clear purpose of that role was to manage and lead the retail and precious metals sales team of PWB. This did involve some direct sales involvement with key clients and to lead and support the sales team at trade shows and other sales initiatives, however based upon the evidence, selling was not his principle or primary role.
[51] The fundamental nature and primary purpose of the National Sales Manager role was not in my view such that Mr Dragani was employed substantially away from the employer’s place of business for the purpose of selling articles as contemplated by the definition of a Commercial Traveller in the Commercial Sales Award. In that regard, I also note that Mr Dragani was a part of a senior management team 14 with broad responsibilities consistent with such a role. His salary package, and the fact that his remuneration was apparently not directly linked to his individual sales performance, also reflects the major responsibilities of his position.
[52] The question then becomes whether the nature of Mr Dragani’s role changed during those periods when he was, in effect, filling-in for the absent (vacant) CSM employees. This occurred for a period in 2014, involving a Western Australian CSM, and during 2015 in the case of the SA/NT CSM.
[53] There would be little doubt that during those periods, the degree of focus upon direct selling and the extent of travel away from the business would increase to some degree. The extent of that change is in dispute however I have found that there was some change in that regard. However, it would not be uncommon for a manager to fill in and to cover for the work of employees that report to them. More importantly, this does not change the fundamental nature of the position being undertaken by Mr Dragani.
[54] Even when these additional duties are factored in, I do not consider that Mr Dragani was employed substantially away from the employer’s place of business for the purpose of selling articles for wholesale sale (for subsequent resale) as contemplated by the definition of Commercial Traveller. Rather, he was at all relevant times employed to manage and lead the retail sales team and his primary responsibilities were the developing, strengthening and retaining of quality business relationships with PWB’s retail accounts throughout Australia and New Zealand. As outlined above, this did involve some selling to, and the servicing of, major clients, and some other clients particularly when filling-in for the CSMs, however this is consistent with the national sales management role occupied by Mr Dragani.
[55] The extent of travel, particularly when Mr Dragani was filling-in for a CSM, remained significant, but this included travel to undertake various roles that were consistent with the management role. For reasons explained earlier, given the definition of a Commercial Traveller in the award, it is also not appropriate to consider the extent of travel in isolation from the purpose of the position, including when undertaking some additional work to cover for one of the CSM’s. Further, and in any event, the extent of travel involved does not in my view mean that Mr Dragani was employed substantially away from (the business) for the purpose of selling. Rather, he was employed to be the National Sales Manager and this involved a degree of selling and significant travel, which increased to an extent during those times when he was filling-in for a CSM. This does not however make him a Commercial Traveller within the meaning of the Commercial Sales Award at any time.
[56] I also do not consider that an approach which would mean that Mr Dragani would fall in and out of award coverage - depending upon the degree of actual selling and travelling from time to time - when his fundamental position and role did not change, was intended by the coverage provisions of the Commercial Sales Award.
[57] In addition, as would be clear from the earlier decisions surrounding the scope of a Commercial Traveller set out in this decision, sales managers with genuine management responsibilities for teams of salespersons have traditionally not been covered by awards. Given the import of s.143(7) of the FW Act, coverage of a role of the nature performed by Mr Dragani by the Commercial Sales Award was in my view not intended.
[58] Although not decisive, the level of remuneration paid to Mr Dragani ($145,000 “cash” salary per annum), compared to the minimum wage rates payable to a Commercial Traveller under the Commercial Sales Award (approximately $40,000 for a 38 hour week) is indicative of the different character of the position contemplated by the award. In the same vein, although it is feasible for a Manager and his/her direct reports to be covered by the same modern award, it would be very unconventional for a Manager in a genuine management position and their direct reports to be covered by the same classification.
6. Conclusions and orders
[59] I am not satisfied that Mr Dragani was covered by the Commercial Sales Award at any relevant time. Given the other (agreed) circumstances of his employment (including his remuneration), he was not therefore protected from unfair dismissal as provided by s.382 of the FW Act. As a result, his unfair dismissal application is not properly before the Commission and must itself be dismissed.
[60] An order 15 to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
J Dragani, the applicant on his own behalf.
D Miller, of the Australian Industry Group, for Peter W Beck Pty Ltd.
Hearing details:
2016
Adelaide
March 9.
1 Section 397 of the FW Act.
2 PR938031 per Giudice J, Marsh SDP, Thatcher C, 16 September 2003.
3 PR925731 per Williams SDP, Lacy SDP, Tolley C, 17 December 2002.
4 Carpenter v Corona Manufacturing Pty Ltd PR925731 per Williams SDP, Lacy SDP, Tolley C, 17 December 2002 at [9].
5 [2012] FWAFB 7184.
6 [2014] FWC 49.
7 Carpenter v Corona Manufacturing Pty Ltd at [8].
8 See the discussion of the authorities in City of Wanneroo v Holmes [1989] FCA 369 at [43].
9 Exhibit R1 – Witness statement of Jessica Herraman, Attachment JH-4.
10 Exhibit R1 – Witness statement of Jessica Herraman, Attachment JH-4.
11 Exhibit R1 – Witness statement of Jessica Herraman, Attachment JH-3.
12 Exhibit R2 – Witness Statement of Peter Beck, Attachment PWB-3.
13 Confirmed by exhibits A2, A3 and A4.
14 Exhibit R2 – Witness Statement of Peter Beck, Attachment PWB-1.
15 PR578064.
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