Michelle Gray v Hamilton James & Bruce Pty Limited

[2011] FWA 4104

Note: An appeal pursuant to s.604 (C2011/5459) was lodged against this decision - refer to Full Bench decision dated 7 October 2011 [[2011] FWAFB 6884]for result of appeal.

[2011] FWA 4104

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Gray
v
Hamilton James & Bruce Pty Limited
(U2011/675)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 22 JULY 2011

Section 382 - award coverage - clerical work - principal purpose or function.

[1] The respondent to Ms Gray’s application for an unfair dismissal remedy, Hamilton James & Bruce Pty Ltd (the company), which operates a national recruitment firm, made a jurisdictional objection to the application. Relying on s.382 of the Fair Work Act 2009 (the Act), the company submitted that Ms Gray, being an employee who earned above the high income threshold, was not covered by either a modern award or an enterprise agreement and accordingly, was not a person who was protected from unfair dismissal.

[2] The jurisdictional objection was the subject of a hearing before me in Brisbane on 24 June 2011.

[3] Section 382 of the 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.

Note: High income threshold indexed to $118,100 from 1 July 2011.

[4] The applicant did not dispute the fact that she earned above the high income threshold. Nor did she contend that her employment was covered by an enterprise agreement. Thus, the only issue in dispute between the parties was whether a modern award covered Ms Gray at the time the company terminated her employment.

[5] Until her employment was terminated on 16 March 2011, Ms Gray was employed in the position of General Manager at the company’s Brisbane office. Her annual salary was in the order of $160,000. She had held the position since 1 July 2010. Prior to having been offered the role, Ms Gray had been employed by the company as an Associate Director since 1 March 2010.

[6] Mr R King, solicitor for Ms Gray, contended that Ms Gray’s employment had been within the Level 5 classification under the Clerks - Private Sector Award 2010 (the award) and that she was therefore covered by a modern award for the purposes of s.382(b)(i) of the Act. Mr J.W Merrell, counsel for the respondent, submitted that the duties and responsibilities involved in Ms Gray’s position went beyond those provided for in the modern award, and that consequently she was not covered by a modern award at the time of the termination of her employment.

[7] Clause 4 of the Award relevantly provides as follows:

“4. Coverage

4.1 This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees...”

[8] The level at which Ms Gray contended her position was classified reads as follows:

“B.6 Level 5

B.6.1 Characteristics

Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.

Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.

They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, including, scheduling workloads, resolving operations problems, monitoring the quality of work produced and counselling staff for performance and work related matters.

They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They would often exercise initiative, discretion and judgment in the performance of their duties.

The possession of relevant post secondary qualifications may be appropriate but are not essential.

B.6.2 Typical duties/skills

Indicative typical duties and skills at this level may include:

(i) Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

(ii) Application of computer software packages within either a micro personal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

(iii) Provide reports for management in any or all of the following areas:

• account/financial;

• staffing;

• legislative requirements; and

• other company activities.

(iv) Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

(v) Call centre principal customer contact leader is employed to:

• apply a significant range of fundamental principles and complex techniques across a wide and unpredictable variety of contexts in either varied or highly specialised functions;

• co-ordinate the work of a number of teams within a call centre environment; and

• have a number of specialists/supervisors reporting to them.

An employee who holds a Diploma—Front Line Management or equivalent is to be classified at this level when employed to perform the functions defined.

[9] Mr Merrell called the company’s Chief Operating Officer, and General Manager of the Melbourne office, Mr Steven J Brown who gave evidence about the role that Ms Gray had had as the Brisbane General Manager. In his affidavit of 12 May 2011 (R1) Mr Brown described Ms Gray’s position as follows:

“As General Manager Brisbane, Ms Gray was the manager-in-charge of the Brisbane office of HJB. She was the most senior executive of HJB in Queensland. Her position involved a high level or responsibility and required Ms Gray to perform purely managerial duties. For example her role required her to manage sales, marketing and communication [sic] team members, develop, implement and drive business plans and budgets (and be responsible for those plans and budgets), and manage human resources consultants and accounting staff.” 1

[10] In his second affidavit, of 21 June 2011 (R2), Mr Brown further detailed the nature of Ms Gray’s position as General Manager. Ms Gray reported directly to the company’s Chief Executive Officer, 2 and had direct responsibility for the Associate Directors and Principal Consultants.3

[11] Mr Brown claimed that the administrative functions contributed to approximately 10 per cent of the General Manager’s time. In his view, the General Manager would invest more time in developing sales skills of recruitment staff, direct sales and hiring new staff. 4

[12] Having previously held the position immediately prior to Ms Gray taking on the role, and given that from January 2011 Ms Gray reported directly to Mr Brown, it is clear that the witness was in a position to know what Ms Gray’s job involved. In any case, Mr Brown’s evidence was largely unchallenged.

[13] Mr Brown’s evidence was the extent of the evidentiary material relief upon by the Company.

[14] Ms Gray’s evidence of the nature of her position as General Manager was, for the most part, consistent with the responsibilities and duties as explained by Mr Brown. In her witness statement she provides a comprehensive list of her duties. These duties included:

• Checking on the monthly financial performance of the various teams against financial targets set by management;



• Authorising payment of business-related expenses for the Brisbane office up to $1,000;



• Managing aged-debtors report;



• Looking for new team members for the company;



• Coaching, training, and mentoring staff members;



• Performance counselling and discipline;



• Finding recruitment roles for clients with established relationships;



• Programme mapping yearly client and candidate events;



• Networking and attending or organising relevant industry events;



• Assisting with bids and tenders for Queensland;



• Attending client visits with Associate Directors;



• Managing client/candidate complaints;



• Dealing with body corporate/building managers;



• Dealing with office suppliers/cleaners etc;



• Liaise for ordering stationery and other office goods;



• Purchasing items for office;



• Attending to cleanliness and order of office premises. 5

[15] Even on Ms Gray’s evidence I find it difficult to see how her role could be classified as that of a Level 5 clerical worker.

[16] In his closing submissions, Mr Merrell submitted that the appropriate test for determining award coverage is to apply the principal purpose test. The test “requires assessment of the principal purpose, or primary function, for which the employee was employed”. 6 This test has traditionally been applied by courts and tribunals in determining award coverage. I accept Mr Merrell’s submission that s.48 of the Act does not displace this test, nor does the Explanatory Memorandum give any indication that parliament intended it to do so.

[17] The principal purpose test has been applied in relation to clerical work. Citing Justice Gray in Joyce v Christoffersern (1990) 26 FCR 261, the majority of the Full Bench in Layton concluded:

... 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. 7

[18] Although Layton has distinguishable facts and dealt with a slightly different definition of ‘clerk’, it is a persuasive guide to the resolution of the point in dispute in this case.

[19] Ms Gray held a senior position with the company. She was the most senior of 23 employees in the Brisbane office and of those employees approximately eight reported to her directly. Ms Gray had significant responsibilities that are normally associated with people employed in managerial roles, such as attracting new clients, managing and training staff, monitoring the company’s financial performance and acting as the face of the company’s Queensland operations.

[20] In his closing submissions, Mr King contended that the emphasis should be placed on what Ms Gray did in performing her duties, rather than the purpose of those duties. On this view, he submitted, the fact that a significant part of Ms Gray’s work required her to perform a wide range of administrative tasks was a persuasive indicator that she was employed as a clerical worker for the purposes of the award.

[21] Whilst many of her duties were administrative in nature, of which some can be seen to correspond to those described in the Level 5 classification under the Award, I am satisfied that Ms Gray’s duties as the General Manager went significantly above and beyond the duties of an employee subject to a Level 5 classification. It is unhelpful, and contrary to the established authorities on this point, to look at an employee’s job functions in isolation for the purpose of determining award coverage. The primary purpose of Ms Gray’s job was that of a person employed in a managerial position with a great deal of authority as to how the company’s business is to operate.

[22] Accordingly, I find that Ms Gray was not engaged wholly or principally in clerical work and that her employment was not covered by a modern award. Given that the other requirements in s.382(b) of the Act do not apply, her application for relief fails for want of jurisdiction.

[23] I uphold the company’s jurisdictional objection and the application for relief is hereby dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

R. King, solicitor on behalf of Ms Michelle Gray.

J.W Merrell, counsel,on behalf of Hamilton James & Bruce Pty Limited.

Hearing details:

2011

Brisbane

June 24.

 1 R1 at [4]

 2 R2 at [4]

 3 R2 at [7]

 4 R2 at [8]

 5   A2 at [22]

 6   Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394 at 25

 7   Layton at 26

Printed by authority of the Commonwealth Government Printer

<Price code C, PR510967>