Rima Das v Udemy Australia Pty Ltd
[2024] FWC 642
•12 MARCH 2024
| [2024] FWC 642 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rima Das
v
Udemy Australia Pty Ltd
(U2023/6316)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 12 MARCH 2024 |
Application for an unfair dismissal remedy – jurisdictional objection – Dispute as to whether Applicant covered by the Educational Services (Post Secondary) Award 2020 – Applicant not covered and therefore not a person protected from unfair dismissal – Application dismissed.
On 12 July 2023, Ms Rima Das (Applicant) applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from her employment with Udemy Australia Pty Ltd (Respondent) on 29 June 2023.
In the Form F3 – Employer response to unfair dismissal application (Form F3) filed by the Respondent, the jurisdictional objection that the Applicant’s annual rate of earnings was more than the high income threshold of $167, 500 was raised, with the accompanying assertion that she was therefore not a person protected from unfair dismissal when notified of her dismissal.
At the hearing in relation the jurisdictional objection, the Applicant sought permission to be represented by Mr Dircks and the Respondent sought permission to be represented by Mr Fawcett. Permission to be so represented was granted to both parties having regard to s.596(2)(a) of the Act.
Section 382 of the Act prescribes in what circumstances 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.”
There is no dispute that the Applicant had completed the minimum employment period (s.382(a)) or that her annual rate of earnings exceeded the applicable high income threshold of $167,500 (s.382(b(iii)). Nor is it claimed that an enterprise agreement applied to the Applicant in relation to her employment (s.382(b)(ii)). The issue in dispute is whether the Applicant was covered by the Educational Services (Post Secondary) Award 2020 (the Award) when notified of her dismissal on 29 June 2023. If I find that this was the case, s.382(b)(i) applies and the Applicant was protected from unfair dismissal.
There is no dispute that the Applicant held the position of Manager Emerging Markets at the material time pursuant to an employment contract dated 17 November 2021.[1] Clause 2 of the employment contract included the text:
“A modern award may apply to your employment. Modern awards may vary from time to time and are not incorporated into your contract of employment.”
Clause 5 of the employment contract stated:
“5. Remuneration
…
5.5 High income guarantee
A modern award which may otherwise apply to your employment will not apply to
you for any period during which the annual rate of this guarantee of annual earnings exceeds the high income threshold (as defined in the Fair Work Act 2009 (Cth)).
5.6 Application of awards
If a modern award applies to your employment, your total annual remuneration compensates you for all work performed, which includes all hours worked in excess of your ordinary hours of work, and is in satisfaction of, and may be set off against, all entitlements as a consequence of your employment, including but not limited to, minimum weekly wages and any overtime, weekend and other penalty rates, annual leave loading, shift loading and any other loading, allowances and entitlements which may be due to you under the modern award. Any entitlement under the modern award will be calculated by reference to the applicable rate of pay in the modern award.”
The Applicant described the Respondent as a commercial operation selling training packages to Australian and international employers for the use of their employees and asserted the employees undertaking the courses were typically adults who had exited the formal education system. The Applicant said that the core function of the particular part of Respondent’s operations in which she worked is to provide access to such learning materials/courses and asserted that they are not available through any other provider. The Applicant relied on her Manager Emerging Markets position description,[2] which included the claim that the Respondent is “the leading online training solution for high-growth companies”. The Applicant said that she managed the entire Emerging Commercial SMB function for the Asia Pacific region.
The Applicant characterised her role as providing administrative assistance and management oversight comprising reporting, managing people, reports, recruitment to the sales function/team of the Respondent that sells online learning courses to organisations with less than 200 employees. The Applicant also relied on references in her position description and asserted they were management functions:
a)managing a team of account executives;
b)coaching and developing employees through mentoring;
c)communicating job expectations;
d)forecasting new sales pipelines;
e)recruiting staff;
f)driving ‘best practice’ innovation; and
g)working with other departments to drive better service and sales.[3]
The Applicant also relied on promotional material of the Respondent as follows:
a)A webpage which outlined under the heading “What we do”:
·Enterprise wide training;
·Small team training;
·Tech team training; and
·Leadership development. [4]
b)A webpage that promotes ‘learning resources and over 17,000 online training courses.[5]
c)Google searches outlining that the Respondent provides ‘On-Demand Learning for Staff’ with in excess of 24,000 courses taught be global instructors’[6] and promotes it as an education technology company that provides an online learning and teaching platform and ‘corporate trainings.’[7]
The Applicant further relied on the Respondent having advertised for course instructors and claims they are engaged and paid as contractors. The Applicant said that marketing events took place in Melbourne and Hyderabad, where such instructors, acting as representatives of the Respondent, attended and spoke with customers. Further, the Applicant claimed the Respondent has a curation team that determines what is to be included in the business catalogue and what is not.
The Applicant argued that the training provided by the Respondent is relevant to the work situations of the employees undertaking it and posited that it does not lead to formal qualifications recognised by the AQF.
Much of the Respondent’s cross examination of the Applicant at the hearing constituted a rolling debate as to the characterisation of both her duties and the nature of the business conducted by the Respondent. While the Respondent proffered that it sells access to a platform, the Applicant maintained that what is sold are business training packages, or put another way, subscriptions to curated catalogues, accessed via a platform. Whereas the Respondent contended that the Applicant’s role was principally a sales role, the Applicant maintained it was managerial/administrative and she disagreed with the proposition that any administrative duties she performed were incidental to her principal duties. The cross examination also covered the terms under which the Respondent engaged instructors.[8]
Mr Stephen Kennedy, the Respondent’s Director – Commercial Sales gave evidence at the hearing. Mr Kennedy characterised the Respondent as a technology company which provides an online platform where an instructor can publish course content, and learners can access that content. He said the Respondent currently employs 50 people, comprising 37 people in sales and marketing, 11 in customer service supporting the Respondent’s revenue function, and 2 engaged in administration duties in office management and recruitment roles. Mr Kennedy also said the Respondent does not employ any teachers or instructors, is not involved in creating the content of the courses and nor does it own the underlying copyright in the content. Rather, Mr Kennedy said that the Respondent develops and maintains a technology infrastructure, which includes services such as video playback software, payment process, and marketing. He said the product the Respondent was putting to market at the time of the hearing comprises 22,000 courses, chosen based on ratings given for the courses.[9] Mr Kennedy also gave evidence that the Respondent does not itself have a curation team.[10]
Mr Kennedy said instructors are able to sign up to use the Respondent’s platform to offer content and when publishing, content must abide by the Respondent's Instructor Terms. He explained that instructors publish courses to the Respondent’s platform which learners can then access in exchange for payment of a fee. Mr Kennedy said the instructors are independent of the Respondent and that while they and the Respondent share in the revenue generated by the fee payments, in some cases particular organisations might pay a fee for multiple licences so that their personnel can access a menu of courses. Mr Kennedy also said that any instructor publishing content on the Respondent’s platform is responsible for the content and that they may also offer other training services, such as appraising users on learning outcomes. Under cross examination, he stated:
“We're not in the business of training, as we don't provide any training. We don't employ trainers. We offer access to a platform through licences where people can engage with learning, but none of this is – we don't own the data, we don't own the content, so therefore we do not teach anyone. We are a tech company that sells licences to a tech platform where there is learning content.”[11]
Mr Kennedy asserted that the role of Manager, Emerging Markets is not a professional role, in that it does not require any professional qualifications. He said the key selection criteria for the role relate to sales experience, teamwork and communication skills, and that its principal duties comprise leading a team of salespeople who identify and contact potential corporate customers and demonstrate the Respondent's platform. Mr Kennedy also said the Manager, Emerging Markets role targets companies globally with less than 200 employees with the objective of selling them licences granting access to their employees to access the Respondent's online platform. He outlined that most of the Respondent's corporate clients are bound by the terms of its Master Services Agreement (MSA),[12] which describes the service provided by the Respondent as being a "platform that allows Customer[s] to access online courses and any related services…that may be purchased".
Mr Kennedy opined that the Applicant’s work duties almost exclusively involved managing salespeople and developing sales strategies and argued that any clerical or administrative tasks undertaken were incidental to the primary function of sales. Mr Kennedy also said the Applicant's role did not involve providing technical support to customers.
Respondent’s Submissions
The Respondent submitted that the question to be resolved is whether it can be said to “provide education and training”, such that it is in the “post-secondary educational services industry” and that the relevant industry in which an enterprise operates is determined by asking “what is the substantial character of the industrial enterprise in which the employer and employee are concerned?”.
The Respondent rejected the proposition that it is covered by the Award by virtue of selling access to certain educational content. The Respondent submitted that the corporate group within which it operates is engaged in the technology services industry and posts an online platform and that other parties, the instructors, then publish content on that platform and subscriptions granting access to the content on the platform are sold. The Respondent acknowledged that much of the content on the Udemy Platform is instructive in nature and that the creators of the content design it to teach people new information and skills. The Respondent argued, however, that the fact content published on the Udemy platform may have educational value does not mean the Respondent itself provides education and training and is in the “post-secondary educational services industry”. The Respondent described its primary business as being to sell licenses to the Udemy platform. The Respondent proffered that the key distinction between it and the creators is that it does not create the content it hosts. Further, it argued that it does not employ teachers or instructors, nor does it assess students, take responsibility for learning outcomes, or issue qualifications. The Respondent referenced the Instructors Terms[13]and submitted these make clear that it engages the instructors to provide content that has already been prepared by the instructors, which differs from engaging instructors to generate content.
As to the distinction the Applicant sought to draw between the Respondent’s broader online platform and the ‘business catalogue’ of approximately 22,000 courses, the Respondent proffered that this was of no moment and that the distinction of significance is instead that the Respondent facilitates access to that content, as opposed to creating or delivering it.
The Respondent also addressed its marketing material by conceding that at a superficial level, some of it could suggest that the corporate group within which it operates provides teaching, education and training services. However, the Respondent argued that to do so would be to misunderstand the purpose of that marketing. The Respondent asserted that such marketing is not intended to describe what its business in Australia is because that is not of interest to an end-user. The Respondent argued the marketing material is intended to advertise the content its service makes available, and the people reading the materials are those who might seek access to the platform for the purpose of obtaining the content. The Respondent submitted the true character of its business is a technology service selling subscriptions to its online proprietary platform and allowing clients to access material created by people independent of it. The Respondent characterised itself as being akin to a publisher, submitting that while it may facilitate the provision of educational services, it cannot properly be said to be providing educational services itself.
The Respondent argued that even if it was covered by the Award, the Applicant does not fall within any of the Award’s classifications. The Respondent submitted that the principal purpose of the Applicant’s position was to increase and maintain sales of licences to its platform and ultimately maintained she was in a sales role because she would forecast sales and was accountable and rewarded for the sales produced by her team. The Respondent rejected the propositions that the Applicant’s role was primarily administrative in nature or, alternatively, that administrative duties formed the key part of what she was employed to do. As to the general staff classifications in the Award, the Respondent proffered that while they are couched broadly, none of them are apt to describe a sales manager. The Respondent contended that the word 'sales' does not appear in the Award and nor are any of the other duties within the Award classifications reflective of the principal purpose for which the Applicant was employed. In this regard, the Respondent argued there was no reference to managing salespeople or identifying customers or developing sales strategies. To the extent the Award references 'managing employees' in a broader sense, the Respondent submitted that this was in the context of employees performing certain functional duties of an administrative, technical or professional capacity and did not describe either what the Applicant or the team she managed did. The Respondent argued that it cannot be accepted that coverage extends to anyone who occupies a managerial role and the Commission must analyse the principal purpose for which the Applicant was employed before proceeding to look at the classification definitions in the Award.
The Respondent also asserted it cannot be accepted that someone in the Applicant’s position earning $179,500 a year, with a bonus opportunity of more than $100,000, would be someone who was principally employed to perform administrative work. The Respondent accepted that remuneration of itself is not determinative but argued, however, that these conditions were highly indicative of someone who does not occupy the sort of role contemplated by a modern award of this kind.
Applicant’s submissions
The Applicant asserted that the Respondent is covered by the Award by virtue of clause 4.2(f) because it is in the business of providing training to post‑secondary school people that does not lead to qualification under the AQF. The Applicant argued that Mr Kennedy is not a credible witness because his testimony was contrary to what is claimed by the Respondent in various pronouncements it published. The Applicant also relied on what it submitted was the product provided to employers and an article it tendered with the title “Udemy experiences high growth across Asia-Pacific region and Melbourne Hub”.[14] The Applicant asserted that an employer whose business is to sell training packages is bound by the Award and argued that the real business of the Respondent was the provision of training. The Applicant challenged the Respondent’s characterisation of itself as a publisher and argued instead that this premise was akin to contending that the Respondent is comparable to an owner of a toll road, only selling toll passes, when, in reality it provides the road.
The Applicant submitted that while the Respondent denied the trainers are contractors, it imposes a requirement that they sign a contract and they are paid for the work they perform. The Applicant also relied on the existence of a curation team within the Respondent, arguing that it monitors and controls what is offered to the businesses to whom it markets.
As to the provisions of the Award, the Applicant submitted that the Clause 4.2(f) definition of “community and adult education teaching not leading to qualifications recognised by the AQF” is applicable to the business model of the Respondent. In support of this proposition, the Applicant asserted there is no suggestion that the training programs marketed by the Respondent lead to qualifications accredited or certified by the Australian Qualifications Framework (AQF).
The Applicant further asserted that employees of businesses who sign up for the Respondent’s training “services” would by definition have exited the school education system and no longer be secondary students. The Applicant then postulated that ‘adult education’ is generally understood as a practice in which adults engage in systematic and sustained self-educating activities in order to gain new forms of knowledge, skills, attitudes, or values. The Applicant relied on what it cited as the UNESCO Institute of Statistics definition of Adult Education:
“Education specifically targeting individuals who are regarded as adults by the society to which they belong to improve their technical or professional qualifications, further develop their abilities, enrich their knowledge with the purpose to complete a level of formal education, or to acquire knowledge, skills and competencies in a new field or to refresh or update their knowledge in a particular field. This also includes what may be referred to as ‘continuing education’, ‘recurrent education’ or ‘second chance education’.”[15]
The Applicant otherwise suggested ‘adult education’ is not a term of art and proffered that as the definition of post-secondary educational services industry in clause 4.2 of the Award includes the provision of education and training, a business supplying training materials to persons over the age of 16, so as to provide additional knowledge and skills, engages in education and training and therefore falls within the coverage of the Award. The Applicant relied on her evidence that employees of businesses undertaking the courses purchased from the Respondent were typically adults in employment who had exited the formal education system. The Applicant submitted the provision of training courses in the manner described is at least consistent with adult education and therefore part of the post-secondary educational services industry.
On the question of whether she was covered by the Award, the Applicant made the submission that the Award that is defined by the nature of the business of the employer, and apart from some specific exclusions “covers everybody”. The Applicant relied on having been offered a role as a manager and what she said was the very wide definition of ‘general staff member’ in clause 2 of the Award. The Applicant argued this definition excludes nobody, other than those falling within the definitions of 'academic teacher', ‘teacher’ and ‘tutor/instructor’. The Applicant submitted the definition makes it clear that while teaching staff are not general staff, anyone else, broadly speaking, is.
The Applicant submitted it is not relevant to decide whether salespeople are covered by the Award, but proffered there is an argument to say that they would be. Regardless, the Applicant argued she was a manager, the Award has classifications for managers and the occupations of those who are being managed are irrelevant, noting that the Award, in any event, contains a very broad definition of a ‘general staff member’.
The Applicant disputed the contention that she performed a sales role and submitted that if the principal purpose test is applied, her role was that of a manager and was covered by the Award. Relying on the duties outlined in her position description, the Applicant asserted they constituted core management functions. She also characterised the administrative and reporting functions outlined therein as forming part of her managerial role.
As to her rate of remuneration, the Applicant argued that it is not relevant. The Applicant suggested there is no shortage of managers who earn more than the high income threshold and this cannot be the basis for a claim that an employee is not protected from unfair dismissal. The Applicant argued that if it was automatic that a modern award could not apply because of the annual rate of earnings, the other provisions in s.382(b) of the Act would have no work to do.
Consideration
In order to determine the Respondent’s jurisdictional objection, it is first necessary to ascertain the industry in which the Respondent operates. The Applicant’s contention is that the Respondent operates “in the post-secondary educational services industry” and that she is an employee employed in a classification listed in a Schedule to the Award.[16]
The principles relevant to the interpretation and application of modern award terms are well established. In particular, when determining the phrase “employers throughout Australia in the post-secondary educational services industry”, the observations of Charlesworth and Snaden JJ (O’Callaghan J agreeing) in BioGene Pty Ltd v Mullan,[17] a case in which their Honours were concerned with construing the meaning of “employers … in the meat industry”, are relevant:
“The precise limits of the phrase “employers...in the meat industry” in cl 4.1 of the MIA turns upon an orthodox process of construction. The principles that the court should apply in that endeavour are well known and were not in contest. When construing the terms of a modern award, the court looks to divine and give effect to the meaning that their authors intended them to convey: Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J). The terms in which an award is framed are to be understood under the light of their context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, 246 [2] (Gleeson CJ and McHugh J). They must not be construed in a vacuum, divorced from industrial realities: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, 440 [57] (French J).”
Clause 4 of the Award deals extensively with its coverage:
“4. Coverage
4.1This industry award covers employers throughout Australia in the post-secondary educational services industry and their employees (other than trades, cleaning or maintenance staff) employed in the classifications listed in Schedule A—Classifications—Academic Teachers, Schedule B—Classifications—Teachers and Tutor/Instructors and Schedule C—Classifications—General Staff, to the exclusion of any other modern award.
4.2Post-secondary educational services industry means the provision of education and training to persons over the age of 16 years who have exited the school education system; and includes:
(a) vocational education and training (VET) teaching leading to qualifications recognised within the Australian Qualifications Framework (AQF);
(b) English Language Intensive Courses for Overseas Students (ELICOS) and Teaching English to Speakers of Other Languages (TESOL) teaching;
(c) Languages Other Than English (LOTE) teaching;
(d) English language, literacy and numeracy teaching;
(e) English language teaching in migrant education programmes;
(f) community and adult education teaching not leading to qualifications recognised by the AQF;
(g) undergraduate and postgraduate teaching leading to the conferring of accredited degrees or other higher education qualifications recognised within the AQF, except teaching in a university approved to operate in Australia;
(h) foundation studies programmes or bridging course teaching where the programme or course is preparatory to or articulates with programmes of teaching leading to higher education qualifications recognised within the AQF; and
(i) the employees of any student unions established for students in institutions providing post-secondary educational services.
4.3 This award does not apply to:
(a) any secondary school;
(b) any employer in respect of an employee to whom the Higher Education Industry—Academic Staff—Award 2020 or the Higher Education Industry—General Staff—Award 2020 applies; or
(c) any employer whose principal function is the provision of labour market assistance programs.
4.4 This award does not cover:
(a) employees excluded from award coverage by the Fair Work Act 2009 (Cth) (the Act);
(b) 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; or
(c) 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.
4.5This award covers any employer which supplies labour on an on-hire basis in the post-secondary educational services industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.5 operates subject to the exclusions from coverage in this award.
4.6This award covers employers which provide group training services for trainees engaged in the post-secondary educational services industry and/or parts of that industry 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. Clause 4.6 operates subject to the exclusions from coverage in this award.
4.7Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
Guidance as to whether the Respondent is an employer “in the post-secondary educational services industry” can be derived from Central West Group Apprentices Ltd v Coal Mines Insurance Ltd[18] (“Central West”), in which Allsop P (with whom Giles and Bell JJA agreed) explained that the task of determining whether a particular employer was “in” the coal industry involved enquiring as to the nature and limits of the term “coal industry” and the relationship between the employer and the coal industry such that it can be said that the former is “in” the latter.[19] Further, His Honour:
a)accepted the proposition that to be an “employer in the coal industry” requires a substantive connection between the employer and the coal industry to satisfy the relationship required by the preposition “in”, beyond merely being the employer of a person who works in and about a mine;
b)agreed that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that the employer was “in” the particular industry; and
c)concluded the question is to be resolved textually, and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company’s character and business.[20]
In Central West, His Honour also recognised that assistance can be derived from determinations involving different provisions and different words and referenced the High Court’s determination in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (Thiess).[21] In Thiess, Latham CJ determined that a dispute as to whether an employer running a machinery workshop situated proximate to a coal mine operated by a related company operated “in the coal mining industry” was to be resolved by asking - what was the “substantial character” of the employer and its business?
In Health Services Union v Catering Industries (NSW) Pty Ltd,[22] the Full Court of the Federal Court cited Thiess and Central West and approached the question of construing “employers… in the aged care industry” by stating that it was a phrase “apt to describe employers that operate businesses or undertakings, the substantial character of which suffices to situate them ‘in’ that industry”.[23] The Full Court described the requirement as being to analyse the essential elements that constitute a particular industry and the nature of the undertaking of the employer in question.[24]
In order to determine whether the Respondent is an employer “in the post-secondary educational services industry” therefore requires me to be satisfied there is a substantive connection between the Respondent and the post-secondary educational services industry, having assessed the substantial character of the Respondent and its business.
Clause 4.2 of the Award defines the post-secondary educational services industry as meaning the provision of education and training to persons over the age of 16 years who have exited the school education system. The Award defines “general staff member” as an employee employed in a capacity other than as an academic teacher, a teacher, or tutor/instructor and as including employees engaged in clerical, administrative, professional and technical work. The Award additionally defines:
a)A “teaching staff member” as meaning an academic teacher, a teacher or a tutor/instructor;
b)An “academic teacher” as meaning an employee engaged to teach students, where a majority of the employee’s teaching work is in the delivery of units or programs which are at bachelor’s degree level or higher academic level, including the delivery of units which are intended subsequently to be accepted without discount as credit towards a degree;
c)A “teacher” as meaning an employee engaged to teach students where a teaching qualification is mandatory or required by the employer, and where the work required involves teaching a course of study or units of work recognised within or pursuant to the Australian Qualifications Framework or accredited by a relevant state or territory authority and which is neither the work of an academic teacher, nor a tutor/instructor; and
d)A “tutor/instructor” as meaning an employee engaged in providing tutoring/instruction to students where the course is not accredited and where the employer may not require a teaching qualification, and which is neither the work of an academic teacher nor a teacher.
Having regard to these terms in the Award, it is clear that in order to be an employer in the post-secondary educational services industry, an employer must operate a business or undertaking that teaches or provides tutoring and/or instruction to students in a range of specified disciplines and contexts. Having regard to the evidence before the Commission, I am not persuaded the Respondent conducts such a business or undertaking.
Firstly, my conclusion is borne out by the terms of the MSA and the Instructor Terms. The MSA operates as follows:
a)The MSA may be entered into by the Respondent and a “Customer”;
b)A “Customer” is defined as the party entering into the MSA or an “Order Form” with the Respondent;
c)An “Order Form” is the ordering document mutually executed by the Respondent and the “Customer” specifying:
(i)the “Services” purchased;
(ii)the number of licenses purchased;
(iii)Fees payable by the “Customer” to the Respondent for provision of the “Services”;
(iv)the subscription period of the “Services” to be provided by “the Respondent” to the “Customer”;
(v)billing and payment information; and
(vi)any other applicable quantity specifications regarding the “Customer’s” purchase of the “Services”.
d)The MSA governs access and use of one or more “Services” purchased by the “Customer” from the Respondent;
e)The “Services” available for purchase are a “platform” and “any related services” offered by the Respondent that may be purchased by a “Customer”;
f)The “platform” is as set out in the “Order Form” signed between the Respondent and a “Customer” and allows the “Customer” to access online courses and “any related services”;
g)Upon purchase, the Respondent agrees to make “Services” available to the “Customer” and its “Users” pursuant to the terms of the MSA and as specified in the “Order Form”; and
h)The “Users” are employees and contractors whom the “Customer” authorizes to access and use the “Services” it has purchased from the Respondent.
Relatedly, individuals sign up to become an Instructor on the Respondents’ platform and when doing so, agree to abide by the Instructor Terms, which operate in the following way:
a)Instructors are responsible for all content that they post, which is called “Submitted Content” and includes lectures, quizzes, coding exercises, practice tests, assignments, resources, answers, course landing page content, labs, assessments, and announcements;
b)Instructors warrant they have the required qualifications, credentials, and expertise (including education training, knowledge, and skill sets) to teach and offer the services that they offer through their “Submitted Content”;
c)Instructors also warrant they will ensure a quality of service that corresponds with the standards of their industry and instruction services in general;
d)Instructors further warrant they will not use the Services for business other than providing tutoring, teaching, and instructional services to students;
e)Instructors grant the Respondent the rights to offer, market, and otherwise exploit their Submitted Content, including the right to add captions or otherwise modify “Submitted Content” to ensure accessibility;
f)Instructors agree that the Respondent may record and use all or any part of their Submitted Content for quality control and for delivering, marketing, promoting, demonstrating, or operating the Services;
g)The Respondent’s platform allows Instructors to add other users as co-instructors or teaching assistants for the “Submitted Content” that they manage, with the Instructors required to comply with the Respondent’s Co-Instructor Relationship Rules and Guidelines when doing so;
h)When creating their “Submitted Content” for purchase on the Respondent’s platform, Instructors are prompted to select a base price (“Base Price”) for it from a list of available price tiers. In the alternative, they may choose to offer their “Submitted Content” free of charge;
If a premium instructor, the Instructor will also be given the opportunity to participate in certain promotional programs under the terms of the Respondent’s Promotions Policy and if they opt to so participate in a Promotional Program, the Respondent may set a different discounted price or list price for the Instructor’s “Submitted Content”; and
j)When a student purchases an Instructor’s “Submitted Content”, revenue is shared between the Respondent and the Instructor in accordance with a formula which varies according to whether the Instructor has opted into a “Promotional Program” and where this is the case, according to the terms specified in the Respondent’s “Promotions Policy.”
Secondly, the evidence established that the Respondent does not employ academic teachers, teachers or tutor/instructors to deliver course content. The evidence was that the Respondent employed 50 people, comprising 37 people in sales and marketing, 11 in customer service supporting the Respondent’s revenue function, and 2 engaged in administration duties in office management and recruitment roles, and it may also be noted that the Instructor Terms provide that the Respondent and the Instructors agree that no joint venture, partnership, employment, contractor, or agency relationship exists between them. In addition, the Respondent does not assess students and nor does it issue qualifications or take responsibility for learning outcomes. As the Applicant’s position description outlined, the Respondent’s business is to ‘connect’ people and provide a platform upon which Instructors share their knowledge with students wishing to master new skills.[25] Further, the MSA makes clear it is the “Customers” who ultimately determine who amongst their employees will be authorised to access the platforms they purchase from the Respondent. As to the Applicant’s assertion that the Respondent controls the content on its platform via a curation team, it is uncontroversial that the Respondent will select content for its platform by virtue of entering into Instructor Terms with an Instructor and the Instructor terms afford the Respondent the right to subsequently remove it. However, the Respondent does not create the “Submitted Content” and the Instructor terms provide that the Respondent simply has the right to add captions to and modify “Submitted Content” to ensure accessibility, which the Applicant conceded during cross examination:
“And the general position under these terms is that content that an instructor submits is in its original form?‑‑‑That's right.
All Udemy has a right to do is add captions or modify their accessibility issues, isn't that right?‑‑‑Yes.
It's got no right under these terms to control the course content in any other circumstances, does it?‑‑‑No.
So when in your statement you say that 'Udemy controls content', that is not an accurate statement, is it?‑‑‑It is an accurate statement, because, I will repeat, I was selling Udemy Business, and Udemy Business is controlled. It's a curated catalogue, and that's what I was told to sell and that's what my team was selling. So Udemy did control what was included in that catalogue.
I put to you, Ms Das, that controlling what might be on the catalogue is not the same as controlling the content itself. Do you accept that?‑‑‑Correct, yes.
So it's not right to say that Udemy controls the content, is it?‑‑‑Udemy – no, it controls the content that is included. So yes, it does control – it doesn't control the contents of that content, but it controls the content that's included or not included. Udemy has control over what's included in that package.”[26]
Thirdly, to the extent the Applicants seeks to rely on what she characterised as promotional material published by the Respondent,[27] I am not persuaded this material weighs in favour of a conclusion that the Respondent is an employer “in the post-secondary educational services industry”. The Instructor Terms make it clear that the “Submitted Content” of Instructors will be marketed, promoted and demonstrated. Further the marketing material serves to promote the Respondent’s platform, revealing what is available when platforms of the Respondent are purchased. Exhibit A1, for example, outlines how the Respondent’s platform enables employers to offer learning opportunities to their employees and refers to the Respondent’s ‘content engine’ and ‘marketplace platform’, to which Instructors join and add their content.
Having regard to these considerations, I am not satisfied that there is a substantive connection between the Respondent and the Post-secondary educational services industry such that the Respondent can be regarded as an employer “in” that industry. This is because I am not satisfied that the “substantial character” of the Respondent’s business is the provision of education and training to persons over the age of 16 years who have exited the school education system in one or more of the range of specified disciplines and contexts outlined in clause 4.2 of the Award. I accept Mr Kennedy’s characterisation of the Respondent as a technology company providing an online platform. Here, the substantial character of the business in which the Respondent is engaged is that of providing an online platform capable of storing content that can be accessed upon purchase. This is distinguishable from engaging “in” the Post-secondary educational services industry. That the Respondent’s online platform was employed to hold content suitable for education and training purposes and the Respondent granted authorisation for its access does not mean that the Respondent entered into the Post-secondary educational services industry.
Conclusion
I have concluded the Respondent is not an employer “in” the Post-secondary educational services industry. This is sufficient for me to be satisfied that the Applicant was not covered by a modern award when she was notified of her dismissal with immediate effect on 29 June 2023 (s.382(b)(i) of the Act) and it is not necessary for me to determine whether the Applicant’s position of Manager Emerging Markets fell within a classification in the Award. As outlined above in paragraph [5], I have previously been persuaded that neither s.382(b)(ii) nor s.382(b)(iii) of the Act applied on 29 June 2023. As such, I am satisfied that the Applicant was not a person protected from unfair dismissal at that time and this being the case, her application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
G Dircks for the Applicant
D Fawcett for the Respondent
Hearing details:
2023.
Melbourne.
November 8.
[1] Attachment RD2 to Exhibit A2 at Digital Court Book (DCB) 32 and DCB 95.
[2] Attachment RD1 to Exhibit A2 at DCB 26.
[3] Ibid at DCB 28.
[4] Attachment RD3 to Exhibit A2 at DCB 50.
[5] Attachment RD4 to Exhibit A2 at DCB 51.
[6] Attachment R5 to Exhibit A2 at DCB 52.
[7] Attachment RD6 to Exhibit A2 at DCB 53.
[8] DCB at 139.
[9] Transcript at PN 68 and PN 122-124.
[10] Transcript at PN 120.
[11] Transcript at PN 103.
[12] DCB at p.147.
[13] DCB at p.139.
[14] Exhibit A1.
[15] Citation provided: Educational Services (Post Secondary) Award 2020 at clause 4.1.
[17] [2022] FCAFC 73.
[18] [2008] NSWCA 348.
[19] Ibid at [37].
[20] Ibid at [50]-[52].
[21] [1948] HCA 9; (1948) 77 CLR 123.
[22] [2023] FCAFC 82.
[23] Ibid at [61].
[24] Ibid.
[25] Attachment RD1 to Exhibit A2 at DCB 30.
[26] Transcript at PN 244-249.
[27] Outlined above at paragraph [10].
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