Mr Jean-Noel Jarnet v Esri-Australia Pty Ltd T/A Esri Australia

[2016] FWC 2923

[2016] FWC 2923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jean-Noel Jarnet
v
Esri-Australia Pty Ltd T/A ESRI Australia
(U2016/5197)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 31 MAY 2016

Application for relief from unfair dismissal; jurisdictional objection; applicant not covered by modern award and an enterprise agreement did not apply to him; applicant’s income exceeded high income threshold; application dismissed.

Introduction

[1] Immediately prior to his dismissal, which took effect on 24 February 2016, Mr Jean-Noel Jarnet (Applicant) was employed by Esri-Australia Pty Ltd t/a ESRI Australia (Respondent) in a position described as “Manager, Business Development – Retail”.

[2] At the time of his dismissal and since 1 April 2015, the Applicant was paid an annual salary of $148,092.27, together with superannuation contributions and potential commissions under the Respondent’s commission scheme.

[3] Between 30 March 2014 and 1 April 2015, the date on which the Applicant commenced in the position he occupied when dismissed, he was paid an annual salary of $145,188.60 together with the other benefits earlier mentioned.

[4] By application lodged on 7 March 2016, the Applicant has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). The Respondent says that the Applicant cannot apply for an unfair dismissal remedy because the Applicant is not within the class of persons protected from unfair dismissal under the Act. Specifically, the Respondent maintains that at the time of the dismissal, the Applicant was not covered by a modern award nor did an enterprise agreement apply to him and that the Applicant’s annual rate of earnings was in excess of the high income threshold.

[5] There is no dispute that there was no enterprise agreement that applied to the Applicant at the time of his dismissal.

[6] At the time of the Applicant’s dismissal, the high income threshold was $136,700.00 per annum. There is no dispute that the Applicant’s annual rate of earnings at the time of his dismissal exceeded this amount.

[7] The controversy relates to the question whether a modern award covered the Applicant at the time of the dismissal.

Consideration

[8] The Applicant contends that he was, at the time of the dismissal, covered by the Commercial Sales Award 2010 (CS Award) or alternatively by the Miscellaneous Award 2010 (Miscellaneous Award).

[9] As s.48 of the Act makes clear, a modern award covers an employee if the award is expressed to cover the employee.

[10] Ascertaining whether the Applicant was covered by a particular modern award necessarily involves examining the position and duties required of the position occupied by the Applicant and assessing whether, having regard to the scope and coverage of a particular modern award, an employee occupying the position is covered by the award.

[11] The Job Description for the Applicant’s position of “Manager, Business Development – Retail” sets out in clause 1.1, the objective of the position as follows:

“ Lead the sales activity required to create a sustainable retail-focussed business unit within Esri Australia.

• To lead the sales activity required for entry into the retail sector and the on-going growth of revenue from new clients in this market.



• As appropriate, build and create a business development team that is client focused, well planned and highly disciplined in following the Esri Australia sales process.” 1

[12] The Job Description also sets out a list of fourteen duties/responsibilities in clause 1.3 including:

“1. Work with Industry Solutions and Marketing to establish and execute overall strategy for entry and on-going success in the retail sector.
2. Working with industry specialists (as required) to define and establish the sales strategy that will be executed for the retail sector.
3. Actively participate and be aware of global initiatives in the broader Esri community aimed at growing the retail sector.
4. Identify target clients and opportunities and manage the pursuit of these clients/opportunities.
5. Oversee, and where appropriate, manage the creation and execution of account plans for target clients in the retail sector.
6. Research and build relationships with key target clients in the retail sector.
7. Work with other Esri Australia divisions to create a sustainable business unit in the retail sector.
8. As required, work with the local Business Development and Professional Services teams to manage client relationships and deliver on projects.
9. Contribute to the ongoing development of Esri Australia’s account management practice.
10. Utilise sales forecasting to identify sales priorities; creating clear direction for presales and marketing activities to align to the sales processes, and report as required.
11. Together with the Alliances and Partners, work with the Business Partners to create innovative solutions and jointly target and pursue new opportunities.
12. Work with technical staff to define solutions to meet the needs of our clients in the retail sector.
13. Attend industry events and conferences to gather information on the latest trends and technologies and develop professional network in the retail sector.
14. Represent the Esri Australia brand in the retail sector.” 2

[13] It seems to me that, on the face of it, the Applicant’s role was a combined sales and business development role. It is not in contention that the Applicant was the only person engaged in the business sector (retail) to which his role was assigned or that sales activities were part of the role undertaken by the Applicant. 3

[14] The Job Description indicates that the office status for the position is “Mobile”. 4 This status was explained by Mr Stephen O’Shanassy, the Respondent’s Executive Manager, Business Development, as indicating a requirement to travel to interstate offices of the Respondent because the business was a national business.5 This explanation was not challenged by the Applicant and I accept it.

[15] The Applicant contends that he would be out seeing customers as the main part of a normal weeks work 6 which, in his oral evidence was clarified as predominantly out on the road in the Melbourne CBD.7 He also submitted that he was employed “as a salesperson going out on the road to sell or solicit goods (in the way of computer software) and services to business customers”.8 In my view, and without rehearsing all of the evidence I am satisfied that the evidence establishes the following:

(a) The Applicant was employed in a role that necessarily combined business development of a new area of the Respondent’s business and sales to customers or clients in that area of business. 9

(b) The Applicant was the only person responsible for business development and sales in the area of business. 10

(c) The Applicant had no reports. 11

(d) Revenue targets were established for the business area and could only be achieved through the work of the Applicant. 12

(e) If business in the Respondent’s retail business unit grew sufficiently to justify further employment, other persons may in the future have become employed by the Respondent in the unit for whom the Applicant would have become responsible. 13

(f) The Applicant’s sales and business development activities involve him attending to customers or prospective customers, predominantly in the Melbourne CBD. 14

(g) The Applicant’s work location was in the Melbourne office of the Respondent at 100 Franklin Street, Melbourne. 15

(h) At that location, the Applicant was allocated a desk and would attend regular management meetings. 16

[16] The CS Award is an occupational award that 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.” 17

[17] There is no dispute that the Applicant was not employed by the Respondent as a “Merchandiser” or as an “Advertising Sales Representative” within the meaning of the CS Award. Clause 3.1 of the CS Award defines a “Commercial Traveller” as follows:

“Commercial Traveller means a person employed, substantially away from the employer’s place of business, for the purposes 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.” 18

[18] There are three elements to this definition. First, the person must be employed “substantially away from the employer’s place of business”. Secondly, that employment must be for “the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material”. Thirdly, the solicitation of orders for, or selling of articles etc must be “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] In the context of clause 3.1, “away” is used as an adverb and carries its ordinary meaning, namely to be away “from this or that place; to be ‘absent from a place’.” 19 Clause 3.1 requires that the person be “employed, substantially away” from the employer’s place of business. It is not in dispute that, for present purposes, the Respondent’s place of business is 100 Franklin Street, Melbourne. In order to come within the definition, a person must, as a term of the employment, be substantially away from the employer’s place of business. There is little doubt that the Applicant travelled to meet with, lunch and entertain existing and prospective customers, albeit predominantly within the Melbourne CBD. However, he was employed to be located in the Melbourne office, assigned a desk and attended regular meetings at that office. He was employed at the Respondent’s place of business. He was not employed substantially away from that location. That was his location; that in carrying out some of his duties he met or had lunch with, actual and prospective clients in the CBD, away from 100 Franklin Street, does not have the result that the Applicant was “employed, substantially away” from the Respondent’s place of business.

[20] As the Applicant does not meet the first limb of the definition of “Commercial Traveller”, it is unnecessary for me to consider the other elements of the definition. In the circumstances, I am satisfied that the CS Award did not cover the Applicant at the time he was dismissed from his employment.

[21] The Applicant also contends in the alternative that he was at the relevant time covered by the Miscellaneous Award. The coverage clause of the Miscellaneous Award sets out that it “…covers…employees in the classifications listed in clause 14….who are not covered by any other modern award.” 20

[22] Clause 4.2 of the Miscellaneous Award contains an exclusion as follows:

“4.2 The award does not cover those classes of employees who, because of the nature of 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.” 21

[23] The Applicant submits that clause 4.2 does not exclude him because the work he performed for the Respondent was traditionally covered by the Commercial Sales (Victoria) Award 1999 and previous Victorian state award’s made by former Victorian industrial tribunals. 22

[24] Under the Commercial Sales (Victoria) Award 1999, coverage was as follows:

“6. Coverage of Award

This award shall apply in the State of Victoria in respect of the employment of any person or persons or classes of persons, whether members of the Union or not, employed in the process, trade, business or occupation of:

6.1 Soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials:

6.1.1 In quantity for re-sale; or

6.1.2 To be used by the purchaser in the manufacture, production, preparing, or distribution of commodities for sale; or

6.1.3 To be used by the purchaser or by the person from whom the order was solicited in this business, trade or occupation, or (in the case of a public or semi-public body) for the purpose of its undertaking:

● where the employee is employed away or substantially away from the employer’s place of business or where the employee conducts such duties via telephone or other electronic means or any combination thereof;

6.2 Soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for, or selling:

6.2.1 Advertising space or time of any kind; or

6.2.2 Services of any kind including, without limiting the generality of the foregoing, technical or commercial services, the freighting or transportation of persons, animals, articles, goods, wares, merchandise or materials, services of planning, invoicing, computing, cleaning, safety, catering, cafeteria or of a maintenance nature, but not including any persons engaged in any capacity in or in connection with selling goods by retail whether in a shop or elsewhere.

6.3 Introducing drugs and medical supplies and/or instruments to medical, veterinary and/or dental practitioners and/or hospitals.

[6.4 substituted by PR967138 ppc 09Dec05]

6.4 Promoting products, re-ordering stock and preparing display units and gondola ends:

6.4.1 where the employee is employed substantially away from the employer’s place of business; and

6.4.2 where the employer is a manufacturer, wholesaler, importer, third party merchandising company or agent/broker, or other than a seller by retail but not including any persons engaged in the trade business or occupation of a demonstrator or a person employed by a manufacturer or wholesaler to demonstrate the firm’s wares or merchandise in a retailer’s establishment.

6.5 Conducting market research and inquiry.”

[25] It seems clear for the reasons earlier given that the Applicant would not have fallen within the coverage set out in clause 6.1 or 6.4 because of the precondition that the person be employed “away” or “substantially away” from the employer’s place of business.

[26] However, given the Applicant’s business development and sales function, it seems to me readily the case that his duties fell within clause 6.2 of that Award. These duties were not merely ancillary to his role, they were fundamental given the start up nature of the business unit and the Applicant’s sole role in it. He had no “managerial” responsibilities to speak of and that he was given the title “Manager, Business Development - Retail” and a commensurate salary does not change that fact. Furthermore, that the Respondent aspired for the business in the retail sector to grow and that more junior sales staff would be employed does not change that which the Applicant was doing and was required to do at the time of his dismissal.

[27] I therefore agree with the Applicant’s submission that he is not excluded from the Miscellaneous Award by reason of clause 4.2 of that Award. But that is not the end of the matter. A person will only be covered by the Miscellaneous Award if the person is employed in a classification listed in clause 14.

[28] Clause 14 sets out minimum wages and describes classifications by reference to Levels 1 to 4. Schedule B of the Miscellaneous Award contains descriptions of the various levels of classification. It is not contended that the Applicant falls within the classification descriptions for Levels 1 to 3.

[29] Level 4 of Schedule B of the Miscellaneous Award describes the classification as follows:

“An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.”

[30] It is not contended that the Applicant’s role fell within the first part of the Level 4 classification descriptor. The relevant question is whether the Applicant was “a sub-professional employee”.

[31] If the Applicant’s job is regarded as that of a professional employee, then it would follow that he did not fall within a classification provided for in the Miscellaneous Award and so was not covered by it.

[32] The phrase “a sub-professional employee” is not defined. A useful and perhaps authoritative guide to determining whether a person is employed in an occupation that is a “professional” occupation is the Australian and New Zealand Standard Classification of Occupations, jointly produced by the Australian Bureau of Statistics and Statistics New Zealand (ANZSCO). 23

[33] Table 1 of ANZSCO sets out major groups of occupations. The second major group in that table is that of “professionals”. 24 Table 2 of ANZSCO breaks down the major groups into sub-major groups so that a sub-major group within the professional group is “Business, Human Resources and Marketing Professionals”.25

[34] Table 3 contains the major, sub-major and minor groups and within the professionals major group and business etc sub-major group is a minor group described as “Sales, Marketing and Public Relations Professionals”. 26

[35] The Respondent develops and sells Geographic Information Systems (GIS). In simple terms, it uses computer based software which is tailored to a client’s business and needs to deliver that which it describes as valuable location based intelligence to its clients to enable clients to see and do more with their information. 27 In essence, its business is the provision and tailoring of information technology to clients. That business is one which would be described as within the Information and Communications Technology (ICT) sector.

[36] Table 4 contains the major, sub-major, minor and Unit Groups and within the Sales, Marketing and Public Relations Professionals minor group is the Unit Group description of “ICT Sales Professionals”. 28

[37] Table 5 relevantly breaks down the various Unit Groups into occupations. For the Unit Group “ICT Sales Professionals” the following occupations are listed:

• ICT Account Manager;



• ICT Business Development Manager; and



• ICT Sales Representative. 29

[38] It seems, therefore, that the occupations ICT Business Development Manager and ICT Sales Representative are both regarded, at least for the purposes of ANZSCO, as professional occupations. Absent any other persuasive indicator as to the correct classification of the Applicant’s job, I adopt the ANZSCO occupational classification descriptor.

[39] Either of these occupations are apt to describe the job in which the Applicant was employed immediately prior to his dismissal. The Respondent would contend that the Applicant occupied a more senior role but that is something I need not determine. It is sufficient for me to observe that the Applicant’s role combined sales and business development. His employer was in the ICT sector and the Applicant sought to sell the Respondent’s ICT product to potential clients within the retail sector, and to develop business in that sector. The Applicant was, in my view, a professional employee when he was dismissed.

[40] It follows that, as the Applicant was not at the time of his dismissal a “sub-professional” employee he did not fall within a classification provided for in clause 14 of the Miscellaneous Award and so was not covered by the Award.

Conclusion

[41] For the reasons given above, the Applicant was not at the time of his dismissal, protected from unfair dismissal. Consequently, the application is dismissed. An order giving effect to this decision is separately issued in PR581022.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks for the Applicant.

Ms Ansell, Solicitorfor the Respondent.

Hearing details:

Melbourne

2016.

April 29.

Further written submissions:

Supplementary Submissions on behalf of the Respondent, 4 May 2016.

Applicant’s Outline of Submissions – Further Submissions, 6 May 2016.

 1   Exhibit 2, Annexure SS-5.

 2   Exhibit 2, Annexure SS-5.

 3   Transcript PN250; Transcript PN259.

 4   Exhibit 2, Annexure SS-5.

 5   Trancript PN224- PN230.

 6   Exhibit 1 at [26]-[27].

 7   Transcript PN160 – PN163.

 8 See Applicant’s Outline of Submissions – Jurisdiction (No Award or Agreement – Applicant’s Annual Earnings Exceed High Income Threshold) dated 27 April 2016 at [12].

 9   Transcript PN123 – PN151; Transcript PN249 – PN251.

 10   Exhibit 3, Attachment SS-A; Transcript PN295.

 11   Transcript PN277 – PN278.

 12   Exhibit 2, Attachment SS-4.

 13   Transcript PN306 – PN307.

 14   Transcript PN158 – PN163.

 15   Transcript PN153.

 16   Transcript PN154 – PN156.

 17   Commercial Sales Award 2010, clause 4.

 18   Commercial Sales Award 2010, clause 3.1.

 19   See Macquarie Concise Dictionary, 5th Edition.

 20   Miscellaneous Award 2010, clause 4.

 21   Miscellaneous Award 2010, clause 4.2.

 22 Applicant’s Outline of Submissions at [17].

 23   By email dated 24 May 2016 I invited the parties to make submissions in relation to the ANSZCO classifications. The Respondent filed submissions on 27 May 2016. The Applicant did not file any submissions. I have taken the Respondent’s submissions into account but I diverge in the analysis of the appropriate classification descriptors that should be applied.

 24   Table 1, ANZSCO Version 1.2 Major Groups, Item 2.

 25   Table 2, ANZSCO Version 1.2 Major and Sub Major Groups, Item 21,

 26   Table 3, ANZSCO Version 1.2 Major, sub-major and minor groups, Item 225.

 27 Exhibit 2 at [4].

 28   Table 4, ANZSCO Version 1.2, Major, sub-major, minor and Unit Groups, Item 2252.

 29   Table 5, ANZSCO Version 1.2, Major, sub-major, minor and Unit Groups and Occupations, Items 225211, 225212 and 225213.

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