Matt Hallam v Sorin Group Australia Pty Ltd

[2014] FWC 49

[2014] FWC 49

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matt Hallam
v
Sorin Group Australia Pty Ltd
(U2013/8805)

COMMISSIONER LEWIN MELBOURNE, 3 JANUARY 2014

Termination of employment - jurisdiction - whether applicant is a person protected from unfair dismissal - whether applicant is covered by a modern award - appropriate characterisation of employment - assessment of principal purpose or primary function of employment.

Introduction

[1] This Decision concerns an application made by Mr Hallam under s.394 of the Fair Work Act 2009 (the Act). The application seeks an unfair dismissal remedy in relation to the termination of Mr Hallam’s employment by Sorin Group Australia Pty Ltd (Sorin Group). Mr Hallam was employed by Sorin Group between 18 January 2012 and 15 April 2013.

[2] Sorin Group has objected to the Commission dealing with the application on the ground that Mr Hallam was not a person protected from unfair dismissal when it terminated the employment relationship with Mr Hallam.

[3] The relevant statutory provisions are as follows:

“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.

Note: High income threshold indexed to $129,300 from 1 July 2013”

Preliminary Decision Required

[4] Section 396 of the Act requires that the Commission must decide the jurisdictional objection of Sorin Group before proceeding to consider the merits of Mr Hallam’s application. Those provisions are set out below:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[5] Mr Hallam was employed by Sorin Group in a position designated as Business Unit Manager - Cardiac Rhythm Management. There is no dispute that Mr Hallam’s annual rate of remuneration exceeded the high income threshold applicable at the time his employment was terminated by Sorin Group. Nor is it submitted by Mr Hallam that his employment was covered by an enterprise agreement within the meaning of the Act. Sorin Group do not suggest that the termination of Mr Hallam’s employment was a case of genuine redundancy as defined by the Act 1 for the purposes of the Commission’s jurisdiction to deal with Mr Hallam’s application. Sorin Group is not a small business within the meaning of the Act.

[6] Consequently, Mr Hallam will only be a person protected from unfair dismissal from his employment with Sorin Group if his employment was covered by a modern award at that time 2.

[7] Mr Hallam submits that his employment with Sorin Group was subject to the Commercial Sales Award 2010 (the Award).

The Commercial Sales Award

[8] In order to determine if the Award covered Mr Hallam’s employment with Sorin Group it is appropriate to commence with consideration of the provisions of clause 4 of the Award which prescribes the persons covered by the terms of the Award. The terms of clause 4 of the Award are set out below:

“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.”

[9] It may first be observed that Sorin Group is a corporate entity and consequently a national system employer that is covered by the Award in relation to the employment of Commercial Travellers, Merchandisers and Advertising Sales Representatives within the meaning of the terms of the Award. No submission was made that Mr Hallam was employed as a Merchandiser or as an Advertising Sales Representative.

[10] Accordingly, it is necessary to turn to the relevant terms of the Award which define or describe a Commercial Traveller.

[11] Clause 3.1 of the Award defines the meaning of the term Commercial Traveller for the purposes of its coverage 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”

Evidence

[12] Mr Hallam gave evidence of his role and the work he performed for Sorin Group. Ms Elise Hogan, who is the Managing Director of Sorin Group, was the person to whom Mr Hallam reported. Ms Hogan gave evidence likewise. The totality of the evidence is significant in breadth and particularity. I shall first approach the evidence broadly in relation to the factors which comprise the description of a Commercial Traveller in clause 3.1 of the Award.

Substantially away from the employer’s place of business

[13] It seems to me that this characteristic of a Commercial Traveller has a well understood meaning. Such a person may occasionally or with a limited degree of frequency attend or call into the relevant employer’s place of business such that he or she will spend the substantial part of their employment travelling from place to place where the customers of the business are located. Commonly such a person will have a defined territory or identified customer base to service. In this case Mr Hallam was responsible for the oversight of sales staff in several territories.

Soliciting orders

[14] The meaning of soliciting orders is to seek custom for the Commercial Traveller’s employer’s products by personally representing the employer, explaining the merits of the employer’s products and attempting to persuade or encourage the customer or potential customer to place an order for the supply of the employer’s products. On the evidence before me I am satisfied that Mr Hallam did perform this function. However, the extent to which he did so is not well developed in the evidence having regard to the circumstances of his employment as a Business Unit Manager with salespersons who reported to him and with whom he would often attend customers. In fact the evidence does not suggest the direct and detailed execution of this function on a very frequent basis. Indeed the evidence lacks particularity in this respect. One might reasonably expect some documentation or completed sales executed by Mr Hallam or a sales diary for example including records of transactions, which was not produced. Mr Hallam told the Commission that he retained in his possession, at the time of the hearing, the computer which Sorin Group provided for the performance of his duties.

Selling articles etc

[15] Sorin Group’s business is in the supply of products for medical practitioners and health service providers. It is a variety of such products that Sorin Group is in the business of selling. Such products are to be used by Sorin Group’s customers in the provision of health and medical services.

[16] Mr Hallam’s evidence identified instances where he did perform such functions as indentified above. However, the evidence is not confined to the instances of such activities by Mr Hallam. Ms Hogan’s evidence is that the performance of such activities by Mr Hallam was limited and not the role which Mr Hallam was engaged to perform for Sorin Group. Ms Hogan’s evidence is that the nature of Mr Hallam’s role was as a manager of sales and the growth of sales for Sorin Group and that in the management system he had the responsibility to manage sales employees in various territories and was responsible for the overall success of the sales team reporting to him. I accept this evidence.

[17] The evidence gives rise to consideration of how the characterisation of Mr Hallam’s employment should be arrived at given the mixture of instances of direct contact with customers and what Mr Hallam’s evidence would describe as involvement with what he referred to as the sales process.

[18] Ms Hogan gave evidence about the purpose of the employment of Mr Hallam and the managerial aspects of that role. Ms Hogan’s evidence was that Mr Hallam was responsible for the sales performance of the CRM business unit for the whole of Australia and New Zealand. Her evidence included that Mr Hallam lead a team of between six and seven sales staff and two agents as the Business Unit Manager of the CRM Division. Ms Hogan gave evidence that Mr Hallam was responsible for “managing and assisting them in their sales techniques and reporting to me” 3.

[19] Ms Hogan also gave evidence that business unit managers participate in various aspects of sales as part of their overall responsibility but do not have individual sales accounts. Moreover, Mr Hallam’s remuneration was determined by the sales performance of the business unit for which he was the manager rather than by reference to individual sales executed by him.

[20] It is relevant to refer to Ms Hogan’s evidence between PN85 and 92, where she was commenting on the contents of paragraph 8 of Mr Hallam’s witness statement. Contained within this evidence paragraphs PN87 and 91 are set out below:

“Do you have any comments on 8(d)?---Yes, promoting products and educating customers about products. We are all out there promoting our company and we are promoting it within our job description. For example in terms of educating customers our territory managers and clinical specialists undergo an accreditation process to deem them clinically proficient to educate and clinically support cases in our industry. Matt had not undergone that training or accreditation as it was deemed that this was not the primary responsibility of his role.

In respect to 8(e), is there any comment in respect of that?---Yes, it's I think one of the key business unit manager responsibilities to work with the individual sales reps that report to them to help them to structure customer commercial arrangements and negotiate specific commercial deals. Therefore I see that as one of the responsibilities of the business unit manager.

In respect to 8(f) are there comments regarding providing quotes?---Yes, I have all quotes that are approved at the business unit manager level, whether they are initiated by the sales representative or by the business unit manager they should all be authorised at the business unit manager level. The specific ones in question were quite significant commercial arrangements which were certain instigated by Matt in this case in conjunction with the local territory managers.

In respect to 8(g) do you have any comments regarding delivering orders?---Delivering orders. We are a small company, Mr Frieberg, and in some instances with the nature of our products we work with critical implants or medical devices which are used by very sick patients, sometimes in emergencies. If Matt was ever in the situation where he had to make a delivery of product it was as a contributor to the company as a whole to get over an emergency situation where devices may have been required in a hospital, it was not a primary responsibility of the position by any means.

In respect to 8(h) any comments regarding attending clinics?---Yes, attending clinics and theatre sessions. I understand that on occasions Matt had conducted customer meetings in conjunction with his sales team in this environment. His attendance at these clinics and theatre session was in no way mimicking the role of our territory managers or clinical specialists that are there to provide clinical support and guidance during the implantation of our devices because Matt had not had the accreditation to do so.”

[21] Mr Hallam placed some reliance upon his business transactions with a distributor for Sorin Group. Mr Hallam gave evidence that he would make direct sales or business propositions, for example. Mr Hallam gave evidence of this relationship at PN380:

“Could you please comment on the accuracy of that paragraph?---In line 3 it says, "The applicant did not have any designated territory as it was his responsibility to supervise and manage these sales staff." There's only two tiers in the organisation, there are my direct report to me. Our biggest customer was Life Systems, the distributor and agent which had a third of the revenue, so I would be solely responsible for their performance and their sales, and any territory that didn't have a sales person on it at the time I would take responsibility for the sales in that territory.”

[22] I accept this evidence, however, I doubt that the relationship between a Sorin Group business unit manager and a licensed distributor as evidenced by Mr Hallam is properly characterised as the work of a Commercial Traveller. While I appreciate the breadth of the Award definition includes wholesale transactions, where the business relationship is of the kind involving Life Systems, the characterisation of the management of that relationship within the role performed by Mr Hallam, in my view, is of a higher and managerial nature than the role of a Commercial Traveller as defined by the Award.

[23] Mr Hallam’s witness statement 4, at paragraph 12 thereof, contained the following:

“If I wasn’t generating sales, I wouldn’t have had a job. I had to report on my sales along with my sales team. I discussed sales on a weekly basis with Ms Hogan. For reporting purposes we completed a monthly report and a quarterly financial report.”

[24] At PN113 Ms Hogan gave evidence in response to the above as follows:

“In respect of paragraph 12?---I have to agree with the first sentence, "If I wasn't generating sales I wouldn’t have a job," and I could reiterate that statement as the managing director of this company, if we weren't generating sales I wouldn’t have a job either. He had to report on sales along with the sales team. I refute that comment in that the sales were allocated to individuals within his team. He reported to me on the sales of the entire territory of Australia and New Zealand on a weekly basis. He did complete monthly reports and he was part of the management team which was involved with quarterly business reviews and forecasting.”

[25] Under cross-examination Ms Hogan gave the following evidence between PN304 and 306:

“Could I just ask you about the extent of the frequency of your communication and the reports you receive from Mr Hallam. Would that be on a daily basis, a weekly basis, a monthly basis?---We would speak sometimes on several occasions each day. Some days where we didn't communicate but on a monthly basis we reviewed the business performance and participated in monthly business management meetings which was with myself and business unit managers Mr Hallam and our other business unit manager and our financial controller.

What I am hearing your evidence to say to me is that on that basis you are unaware of the proposition that he was visiting these hospitals with the frequency described in his witness statement - do you have it in front of you?---Yes, correct.

In paragraph 8, you can't be satisfied from your experience that these visits and this sales solicitation occurred in the manner he described?---No, that's correct, in fact most of my knowledge of his visits and contacts with these hospitals were definitely done in conjunction with the local sales person.”

[26] Mr Hallam relied upon evidence of a sale he made in the North Sydney sales territory. The evidence of this sale is set out below:

“Could you tell me what this document is?---Yes, it's a quotation for some products we used to sell.

It's a quotation that you provided?---Yes.

Did you have - is this in a territory that you had responsibility for?---Yes.

What was that territory?---Northern Sydney.

After you provided this quote what happened?---They purchased the products and we were invoiced a few months later.

Was there any other sales representative involved in this process?---Not at the time, no.

Not at the time, did one later become involved?---We hired somebody into that territory later.

Were they involved in this sale?---No.”

[27] Of some importance is the evidence of Mr Hallam in relation to a list of duties submitted in the evidence of Ms Hogan at paragraph PN358:

“She has listed your duties. Could I ask you to comment on the accuracy of that list?---Sure. This is the standard job description, I did all of these as well as plenty of other things, creating processes that weren't in place, visiting customers, leveraging my existing relationships to solicit sales.”

[28] It is appropriate to note at this point that Ms Hogan’s evidence, referring to the list of Mr Hallam’s duties, is accepted as accurate by Mr Hallam. However, what seems to be in dispute is the extent to which and the manner in which Mr Hallam participated directly in the selling process. If I am correct in this the dispute in the evidence, for the purposes of this decision, concerns the principle or primary purpose of Mr Hallam’s employment for reasons which will become clearer below.

[29] Mr Hallam was asked whether the primary purpose of his role was at PN359. He answered “To get sales”.

[30] It may be observed that the answer may be compatible with the role of a Commercial Traveller and/or the role of a Business Unit Manager as described by Ms Hogan.

Consideration

[31] It is necessary to have regard to relevant authority determined when evaluating the evidence of Mr Hallam’s employment. This is because the issue raised by the evidence has been dealt with in relation to the characterisation of an employee’s employment at a general level and in circumstances highly particular to the work of Commercial Travellers and sales persons employed under industrial instruments. I consider I am bound by that authority, at the very least as a matter of comity.

[32] In the case of Carpenter v Corona Manufacturing Pty Ltd 5the Full Bench of the Australian Industrial Relations Commission was required to consider the approach to the characterisation of an employee’s employment to determine if that employment was covered by the Commercial Sales (Victoria) Award. The conclusions of the Full Bench are contained and explained between paragraphs [8] and [11] thereof:

“[8] At the time of the termination of his employment, the appellant was employed by the respondent 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. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of “soliciting orders”, “obtaining sales leads” or “promoting sales”, such tasks formed a minor part of the work he was required to perform.

[9] 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.

[10] For that reason, it is not necessary for us to consider whether, on the evidence before the Commissioner, the appellant was “employed away or substantially away from the employer’s place of business” or conducted “such duties via telephone or other electronic means or any combination thereof”.

[11] Whilst the Commissioner appears, in her decision, to have placed some emphasis on the requirement of Clause 6.1 that the employee be “employed away or substantially away from the employer’s place of business”, we consider that, on a proper reading of her decision, she had regard to the principal purpose for which the appellant was employed. At paragraph [110] of her decision, the Commissioner concluded -

I am satisfied that the purpose for which the applicant was engaged was to manage the employer’s sales functions at a national level. Those functions involved, in part, activities designed to promote the respondent’s products. The applicant was however not employed away or substantially away from the employer’s place of business.”

[33] The same or a substantially similar approach was followed by the Full Bench (majority) of that Commission in the case of Layton v North Goonyella Coal Mines Pty Ltd 6. That case involved consideration of employment as a “Clerk” for the purposes of an industrial instrument. In the course of that decision the majority stated as follows:

“[25] Full Bench decisions have held that the proper approach to determining whether an employee is covered by an award requires an assessment of the principal purpose for which the employee was employed. This test has also been referred to as the primary function test. Indeed, Justice Gray of the Federal Court applied such a test in relation to the interpretation of the term "clerk” in Joyce v Christoffersen 26 FCR 261. In that case, His Honour said at [270-1]:

“The Oxford English Dictionary, 2nd ed, 1989, defines ‘clerical’ relevantly as ‘of or pertaining to a clerk or penman’. The appropriate definition of ‘clerk’ is ‘one employed in a public or private office, shop, warehouse, etc., to make written entries, keep accounts, make fair copies of documents, do the mechanical work of correspondence and similar ‘clerkly’ work. Among the definitions of ‘clerk’ is ‘of or belonging to an office clerk’.

There are many authorities dealing with rule 2 of the Union’s rules. In a now famous passage, in Re Federated Clerks’ Union of Australia, New South Wales Branch, and Australian Workers’ Union (1971) 71 AR (NSW) 419, at p 421, Sheldon J. said, in reference to the phrase ‘clerical capacity’:

‘This phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and the mind are now part of clerical stock-in-trade. So is the acceptance of responsibility and the exercise of discretion. The conception is fluid and progressive and recourse to a dictionary gives only partial help. It is impossible, and in any event it would be undesirable, to attempt to devise a code as to what in the setting of industry today can fairly be regarded as clerical work. But too fine a toothcomb should not be used in solving this question in particular cases. Obviously all employees in an office are not engaged in a clerical capacity. It is clear that professional employees are not nor are those who are truly and basically executive officers. But an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non-recording functions. No doubt there are cases near the border which would be difficult to determine but in general, and subject to some special categories, those who are in a subordinate position but are engaged in the ordinary work of office administration are, in my opinion, prima facie covered by this constitution rule.... But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system. That is why I deprecate dividing office functions too strictly by attempting to quantify the recording done by different members of the team and using this as the test’.

That passage has been quoted with approval in this Court in Voigtsberger v. Council of the Shire of Pine Rivers (1980) 49 FLR 391, at pp 398-399, Re Application by Prichard; Re Federated Clerks' Union of Australia (S.A. Branch) (1985) 12 FCR 66, at pp 77-78 and Re Federated Clerks Union of Australia; Ex parte Tanner (1986) 70 ALR 79, at p 84. As Sheldon J. indicated, and was recognised in Prichard's case, a person may be engaged in a clerical capacity or performing clerical work, whilst having other functions as well. In Prichard's case, at p 78, the test applied was whether the primary functions of the person concerned were directed to the recording, processing and disseminating of information. In the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary functions.”

[26] It is clear from both passages and the definition of "clerk" in the Queensland Clerical NAPSA, that the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical - notwithstanding that the role involves various recording and ordinary administrative office functions.”

[34] Mr Hallam drew my attention to the decision of Senior Deputy President O’Callaghan in the case of Cook v Blue Hygiene Pty Ltd T/A Blue Hygiene & Cleaning 7in which the Senior Deputy President determined that Ms Cook, the applicant, was a person protected from unfair dismissal as her employment by the Respondent was covered by the Commercial Sales Award 2010.

[35] I see two difficulties with Mr Hallam’s reliance on this decision. The first is that the relevant passage of the decision to which reference was made is inconclusive on the point before me. It is necessary to quote paragraph [32] of the Senior Deputy President’s decision to establish the basis upon which the Senior Deputy President’s conclusion that Ms Cook was a person protected from unfair dismissal:

“[32] I consider it most likely that Ms Cook was covered by the terms of the Commercial Sales Award 2010 but, in any event, her salary was below the high income threshold.”

[36] It will be observed that the Senior Deputy President did not arrive at a definitive finding of jurisdictional fact in relation to the coverage of Ms Cook’s employment by the Commercial Sales Award 2010.

[37] Rather, the operative finding, in the relevant circumstances, was that Ms Cook’s salary as an employee was below the high income threshold under the Actat the relevant time.

[38] Moreover, nothing in the Senior Deputy President’s decision indicates other than that the approach to the characterisation of an employee’s employment under a modern award is a qualitative assessment of the primary purpose of the employment concerned as stated in the relevant Full Bench authority cited above.

[39] It is clear from the authorities referred to above that should I be satisfied that Mr Hallam’s employment was conducted “substantially away from” Sorin Group’s place of business it would not be sufficient for a finding that Mr Hallam’s employment was covered by the Award. It would also be necessary for me to find that Mr Hallam did solicit or obtain orders or sell Sorin Group’s products to customers.

[40] Moreover, most importantly, it would be necessary to find that this was the principle or primary purpose of Mr Hallam’s employment in order to conclude that Mr Hallam’s employment was covered by the Award.

[41] It is well understood I think (certainly to the Commission as an expert tribunal of employment in industry) that corporate entities of some substance commonly employ sales personnel such as Commercial Travellers and that persons are also employed in positions often designated as sales managers, marketing managers or sometimes business development managers to manage the overall sales and marketing functions of an organisation.

[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.

[44] Likewise, in my view, the authority distinguishes the approach to the characterisation of the two classes of employees as between an approach which weighs the incidence of the performance of particular activities (the quantitative method) and the nature and purpose of the role in which an employee is engaged (the qualitative method).

[45] Accordingly, the approach I am required to apply to consideration of all of the evidence is not simply a calculation of the number of times and incidents during Mr Hallam’s employment when Mr Hallam directly solicited orders from customers for Sorin Group’s products, so as to arrive at a sum of the times and/or occasions of such activity and determine, according to my judgement, whether the weight of such times or incidents constitutes the true nature of the employment.

[46] Nevertheless, on the evidence before me while Mr Hallam said in his evidence he was involved with sales virtually all the time I am not satisfied that the greater part of his time in the employment was devoted to travelling between Sorin Group’s customers as a Commercial Traveller soliciting orders. Moreover, on the evidence before me, I consider that such a proposition could not be made out, certainly not with any particularity. Rather, in my view, the activities of a Commercial Traveller, as defined by clause 3.1 of the Award, formed some but certainly not the only measurable activities of Mr Hallam.

[47] In fact, to the extent that it is relevant for my consideration of the proper characterisation of Mr Hallam’s employment, I conclude that such activities and actions were not entirely insubstantial. They occurred with some frequency but did not occupy the time of Mr Hallam’s employment such that his responsibilities for arranging the overall sales and business development function of Sorin Group, in the various sales terrorities under his supervision and reporting to the Managing Director Ms Hogan, were a minor or limited aspect of his employment.

[48] On the contrary, I find that to the extent that Mr Hallam engaged occasionally and not entirely infrequently in the actions and activities of a Commercial Traveller he did so as incidental to or as an adjunct of his role as a sales manager with broad responsibilities for business development, sales team management and marketing products according to particular circumstances as required, for Australia and New Zealand.

[49] On my evaluation of the evidence the principal or primary purpose of Mr Hallam’s employment was to take responsibility for the sales of the Sorin Group’s Cardiac Rhythm Management division and the development of that division of the Company’s business, which was achieved by himself and others in various sales territories. From time to time Mr Hallam would occasionally solicit orders directly from customers such as for instance when there was limited availability of staff for particularly territories or as a matter of convenience when he chose to do so in support of the achievement of the total sales budget.

[50] In my judgement, Mr Hallam was not a Commercial Traveller who was misdescribed as a Business Development Manager or Sales Manager. More accurately, I would characterise Mr Hallam’s employment as a national sales and business development manager for a portfolio of Sorin Group’s products in Australia and New Zealand, who from time to time solicited orders for Sorin Group’s products on an occasional but not entirely infrequent basis according to particular circumstances. This broader and supervisory role in the management hierarchy of Sorin Group’s business operations was the fundamental and inherent purpose for which Mr Hallam was employed and was the role which he performed in the employment.

Conclusion

[51] This conclusion therefore leads to a finding that the principle and primary purpose of Mr Hallam’s employment is not properly characterised as that of a Commercial Traveller within the meaning of the Award. Accordingly Mr Hallam’s employment was not covered by the Award during his employment or at the time of the termination of the employment by Sorin Group.

[52] In this circumstance Mr Hallam was not a person protected from unfair dismissal in respect of the termination of his employment by Sorin Group.

[53]
The application is not within the jurisdiction of the Commission and therefore must be dismissed. An order will issue accordingly.

Appearances:

M. Kennedy for the Applicant.

A. Frieberg for the Respondent.

Hearing details:

2013.

Melbourne and Brisbane (video hearing):

August 16.

October 25.

Final written submissions:

Respondent, 29 November 2013

Applicant, 13 December 2013

 1   Section 382.

 2   Section 382(b)(i)

 3   Transcript, 16 August 2013, PN83

 4   Exhibit A1

 5 (2002) 122 IR 387

 6 (2007) 166 IR 394

 7   [2013] FWC 1641

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