Richard Farland v Canon Information Systems Research Australia Pty Ltd T/A CiSRA
[2011] FWA 1913
•6 APRIL 2011
[2011] FWA 1913 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Richard Farland
v
Canon Information Systems Research Australia Pty Ltd T/A CiSRA
(U2010/15604)
COMMISSIONER MCKENNA | SYDNEY, 6 APRIL 2011 |
Unfair dismissal - jurisdictional objection - application dismissed.
[1] On 24 December 2010, Richard Farland (“the applicant”) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”). Canon Information Systems Research Australia Pty Ltd T/A CiSRA (“the respondent”) has taken objection to the application on a number of bases, including that the applicant’s income was above the high income threshold and the applicant was not otherwise the subject of coverage by a modern award. Having regard to its objections, the respondent declined to participate in conciliation proceedings; the file was allocated to me for consideration of the preliminary jurisdictional issue concerning award coverage.
[2] While it is agreed there was no relevantly applicable enterprise agreement and applicant’s annual base salary as an Associate Manager at the time of the termination of employment was above the high income threshold, the parties are in dispute as to whether the applicant was covered by the Professional Employees Award 2010 (“the award”).
[3] Given the nature of its operations, the respondent would be covered by the award, but the parties take issue about whether the applicant came within the award’s classifications such as to be covered by the award for the purposes of being a person protected from unfair dismissal pursuant to s.382 of the Act. In this respect, s.382 of the Act provides as follows as to when a person is protected from unfair dismissal:
“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.”
[4] Section 48 of the Act describes the circumstances when a modern award covers an employer or employee:
“48 When a modern award covers an employer, employee, organisation or outworker entity
When a modern award covers an employee, employer, organisation or outworker entity
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to coverthe employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, FWA orders or court orders on coverage
(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:
(a) a provision of this Act or of the Fair Work (Registered Organisations) Act 2009;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:
(a) a provision of this Act;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular employment
(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”
[5] As to its coverage, the award reads as follows:
“Coverage
4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B - Classification Structure and Definitions of the award and those employees.
4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”
[6] The relevant classification of the award relied on by the applicant as to coverage is contained in clause B.1.11 of Schedule B - Classification Structure and Definitions. That clause, which is of considerable breadth in its generality, reads:
“B.1.11 Level 4—Professional
(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.
(b) An employee at this level:
(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;
(ii) gives technical advice to management and operating departments;
(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;
(iv) coordinates work programs; and
(v) directs or advises on the use of equipment and materials.
(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.
(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.
(c) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.”
Consideration
[7] The applicant initially was employed by the respondent in July 2005 as a Principal Software Engineer, having previously worked for the respondent as a contractor for approximately six months. In February 2007, the applicant was promoted to a position titled Associate Manager, being a position he continued to hold until the employment relationship terminated in December 2010. Although the applicant was given a position description in connection with his initial appointment as a Principal Software Engineer, he was not given a position description when he was promoted to Associate Manager - albeit it appears the role of Associate Manager is typically the initial step to promotion to a full managerial role, with the associate managerial and full managerial positions sharing the same job description.
[8] The evidence of the applicant and that of Shane Youl, the respondent’s Deputy General Manager of Corporate Services, described the applicant’s role and responsibilities. Although there were some unresolved issues in dispute on the evidence as to the detail of applicant’s role and responsibilities, it seemed largely undisputed on the evidence adduced in the respective cases that the provisions of clause B.1.11 of the award would comprehend the role and responsibilities undertaken by the applicant. It was also common ground or not disputed that the descriptors in clause B.1.11 of the award could be used not only in relation to the applicant’s position, but also to at least one other employee who was acknowledged definitely to be a managerial employee.
[9] Given it was common ground that the descriptors in clause B.1.11 of the award would comprehend the role undertaken by the applicant, it is unnecessary to traverse in this decision the detail of the evidence as those matters - although I have considered such matters for myself. Both parties made reference to, and relied upon, the “principal purpose test” in their submissions as to whether the award covered the applicant - a test which, as noted by the Full Bench of the Australian Industrial Relations Commission in R. Brand v APIR Systems Limited (PR938031), is but one of the approaches that may be considered in assessing such matters (more particularly, it seems to me, given the quite broad statutory formulation in the present Act concerning whether a modern award covers the person):
“[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect.10 An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee.11 Another formulation requires that the principal purpose or purposes of the employment be identified.12 In some cases the formulations have both been referred to.13 In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation.14 A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were "engaged substantially" in the duties of the relevant occupation.15
[14] In this appeal both parties accepted that the "principal purpose" formulation as stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are content to decide this application on that basis. We should add, however, that we are satisfied that whichever of the formulations referred to might be applied, in this case the result would be the same.” [Endnotes not reproduced]
[10] Relevantly, the respondent’s case contended that, properly considered, the applicant was an award-free, managerial employee - even accepting that aspects of the applicant’s Associate Manager position overlapped with the award-based descriptors in clause B.1.11. That is, the respondent acknowledged the work undertaken by the applicant fell within the “generic and broad descriptors” in clause B.1.11 of the award and also accepted that much of the time taken in the applicant’s work could be so described - but submitted, nonetheless, that in substance the applicant was a managerial employee rather an employee who was award-covered. The respondent further submitted that the fact the applicant undertook tasks described in the award did not negate its proposition the applicant was manager; it was the principal purpose of the applicant’s employment which need be considered, not a “mere mechanical or mathematical exercise” to ascertain how much time was devoted to different responsibilities. The applicant’s submissions contended that the applicant, in his role as Associate Manager, performed duties typically undertaken by professional employees under the award, being employees who formed a class of employees that traditionally had been covered by predecessor industrial instruments to the award. Despite the applicant’s title of Associate Manager, he continued to perform many, if not all, of the functions normally performed by a Principal Software Engineer; and the principal purpose of his role should be considered to be predominantly technical and non-managerial.
[11] The evidence and submissions advanced on behalf of the applicant and the respondent highlighted and gave different emphases to aspects of the applicant’s role and responsibilities. For instance, the applicant’s evidence emphasised matters including the preponderance of technical delivery-related responsibilities and the differences in his role when compared to and contrasted with the role and responsibilities of other employees within the respondent’s managerial structure, e.g., the applicant considered himself to be more appropriately characterised as a team leader - as he had been described in certain communications. On the other hand, the respondent’s case emphasised those matters which, it was contended, would lead to the conclusion the applicant was, both in name as an Associate Manager and in substance, a managerial employee rather than an award-covered employee - submitting, for example, that the applicant’s position had not been considered to be award-covered and nor had it been treated as being award-covered.
[12] Counsel for the respondent, referring to s.143 of the Act concerning coverage terms of modern awards, submitted that the award and its antecedent instruments had not traditionally been understood to cover managerial employees; rather, as to occupational classifications, it was submitted the award (relevantly) covers professional engineer-type classifications, such as the Principal Software Engineer position the applicant held before his promotion to the position of Associate Manager. The submissions indicated there was some significant history to the present award classifications, but I was not taken in any detail to that history. It suffices to say that it was not suggested by either party that if the applicant were appropriately characterised as a managerial employee he would have been a person covered by this award; in my consideration of the threshold issue, I have proceeded on the basis advanced by the parties as to this matter.
[13] While I consider each party had an arguable case as to the matter in contention concerning managerial status, I nonetheless also consider, on balance and not without reservation, the more persuasive characterisation of the applicant’s role was put forward by the respondent. In reaching the conclusion the applicant was a managerial employee, I have considered those matters relied on by the applicant which were said to delineate his role as being award-covered and, in essence, non-managerial. It is true the evidence indicated the applicant’s day-to-day role was, by and large, concerned with undertaking technically-focussed work and that the award’s descriptors aptly may be ascribed to aspects of his work. It is equally true, however, that the evidence indicated the applicant had responsibilities and functions which were exercisable exclusively by the respondent’s managers rather than by non-managerial employees. That is, while it may be accepted on the evidence that the managerial-type responsibilities undertaken by the applicant constituted what seemed to be a small percentage or otherwise intermittent part of the applicant’s day-to-day work relative to the more technically-focussed aspects of his work, those managerial responsibilities were, when exercised by the applicant, qualitatively nonetheless within the exclusive domain of responsibilities of the respondent’s managerial employees. Shortly stated, if the applicant was not a properly a managerial employee, he would not have had the authority to undertake some of the roles or responsibilities he in fact undertook, such as initiating briefs to the respondent’s in-house counsel and signing certain documents that appropriately could be signed only by managerial-level employees. Other matters supportive of the conclusion the applicant was integrated within the respondent’s operational hierarchy as a managerial employee included Mr Youl’s evidence as to the applicant’s involvement in managerial-level meetings and presentations, as well as the applicant’s managerial-level access to document management systems and the like. The lines of reporting, at least to the date of termination of employment, were also consistent with the applicant being a manager (albeit it may be noted, without the necessity for further detail in this decision concerning only the threshold issue of award coverage, it was a proposed change to managerial reporting lines which formed part of the fabric of the substantive application).
[14] While it cannot be concluded that any one matter, in and of itself, demonstrably leads to the conclusion that the applicant was a managerial employee, the evidence and submissions, taken collectively, lead me to the opinion that applicant’s role was, as the respondent contended, managerial not just in name but also in substance. The applicant’s position title described him as an Associate Manager and his remuneration well-exceeded the award minima, but those matters, as the parties agreed and as I fully accept, would not, without more, be determinative of whether the applicant was an award-covered employee rather than a managerial employee who was not covered by the award. But matters such as these, when considered in conjunction with a range of other matters (including the applicant’s position within the formal organisational structure of the respondent’s managerial hierarchy, the evidence as to aspects of the applicant’s role as it related to project management responsibilities, the applicant’s exercise of functions that could be undertaken only by managerial-level employees, and the applicant’s managerial-type interaction with third parties such as contractors) tend to weigh in favour of the respondent’s contentions on the threshold issue. To the limited extent, if any, it may be relevant in determining the issue of whether the applicant was a managerial employee, it may be noted the applicant appears personally to have considered himself to be a manager, given his expressed concerns about proposed changes to inter-managerial reporting lines as they concerned his managerial status. While the applicant, in the ways described in his evidence (such as not having a department with direct staff to manage), had a field of managerial responsibilities narrower than some of his managerial peers, he was, it seems to me, a manager nonetheless. Approached another way, given the applicant undertook certain functions that, on the evidence, could be undertaken only by the respondent’s managers, it would be contrary to the evidence and weight of evidence to accept that he was not a managerial employee - albeit, I accept, an employee whose managerial position had a technical implementation orientation.
[15] Having regard to the fact the applicant’s remuneration exceeded the high income threshold and given my conclusion there was, as the respondent contended and contrary to the applicant’s submission, no relevant award coverage, the applicant is not a person who is protected by the Act from unfair dismissal. As such, an order dismissing the application has been issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Mr N Napper, solicitor, for Richard Farland.
Mr S Prince of counsel for Canon Information Systems Research Australia Pty Ltd T/A CiSRA
Hearing details:
2011.
Sydney
25 March 2011
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