Sarah Marie Tauri v Flight Centre Limited
[2010] FWA 7718
•14 OCTOBER 2010
[2010] FWA 7718 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Marie Tauri
v
Flight Centre Limited
(U2010/9607)
COMMISSIONER BISSETT | MELBOURNE, 14 OCTOBER 2010 |
High income threshold.
[1] Ms Tauri has made an application for relief from unfair dismissal relating to the termination of her employment from Flight Centre Ltd.
[2] Flight Centre raises a jurisdictional objection to Fair Work Australia dealing with the application on the basis that Ms Tauri is not protected from unfair dismissal because in the last 12 months her earnings were in excess of the high income threshold.
[3] Section 382 of the Fair Work Act 2009 (the Act) states:
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] Ms Tauri claims that she is covered by a modern award (s.382(b)(i)) and/or her annual rate of earnings (s.382(b)(iii)) is not in excess of the high income threshold.
Award coverage
[5] Ms Tauri primarily worked as a Team Leader for Flight Centre and occupied this position at the time of the termination of her employment, although for some 5 months in the 12 months prior to the termination she worked temporarily in an area manager role whilst another employee was on leave.
[6] At the time of her appointment to the Team Leader role, Ms Tauri says her duties included:
- taking incoming telephone calls;
- responding to email inquiries;
- responding to queries from clients;
- booking travel for corporate clients;
- conducting quarterly meetings with clients;
- reviewing KPI reports;
- managing financial aspects of the business;
- recruitment of staff (with appointments signed off by higher management);
- conducting monthly one on one meetings with staff; and
- managing complaints. 1
[7] Ms Tauri argues that in the role she occupied at the time of the termination of her employment she was covered by the Clerks - Private Sector Award 2 (the Clerks Award). She relies on two grounds for this submission.
[8] First she says that, at the time of the making of modern awards, the Full Bench of the AIRC said of the travel industry:
We have decided not to make a modern award for the travel industry. The only pre-reform award is the Travel Industry–Agencies General Award 1999. That award apparently has quite limited coverage. It seems likely that employees of travel agencies and employees performing similar functions in other industries are presently covered by pre-reform awards and NAPSAs which apply on an industry or occupational basis. In the modern award system they would appropriately be covered by industry awards such as the General Retail Industry Award 2010 or the Clerks Modern Award. At this stage we see no need to extend the terms of the pre-reform award to a very large number of employers and employees who have never been covered by them. 3
[9] This, Ms Tauri claims, indicates an acceptance by the AIRC that the travel industry did not warrant a modern award of its own as it would appropriately be covered by the General Retail Industry Award 4 (the Retail Award) or the Clerks Award.
[10] Secondly, Ms Tauri says that a consideration of the scope of the Clerks Award and classification descriptors in that Award show quite clearly that the work she performed was within the scope of the Award and that the relevant classification under the Award is Level 5. 5
[11] A determination as to whether or not Mr Tauri is covered by the Clerks Award cannot be based solely on the statement of the Full Bench of the AIRC, but this is indicative of where they broadly perceived the travel industry may sit within the structure of modern awards.
[12] Even if the travel industry does come with the scope of the Clerks and/or Retail Award this will only be to the extent that the classifications of employees in the travel industry come within the classification descriptors in one or other of those Awards.
[13] The coverage of the Clerks Award is expressed in clause 4:
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.
[14] Clerical work is defined as:
clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk. 6
[15] Ms Tauri says the classification description that applies to the work she carried out at the time her employment was terminated is:
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. 7
[16] Ms Tauri claims that on the basis of the indicia of the Level 5 positions, a consideration of her work tasks as set out above demonstrates that her work clearly falls within the Level 5 classification.
[17] Flight Centre does not consider that Ms Tauri’s position is covered by the Clerks Award. It says that the
position held by the applicant as team leader had a much broader and more responsible range of duties which would take her outside that classification. She was basically running a business unit. She was responsible for the performance of the business unit. She was responsible for hiring and firing of staff of that business unit and responsible for setting and complying with budgets for that business unit. So in our submission that would take the applicant outside the realms of level 5 of the classification structure. 8
[18] Further, Flight Centre argues that
the level of responsibility of this applicant in her role was much higher than the level of responsibility and duties described in level 5. This person was basically responsible for the performance of a business unit. She wasn’t assisting someone else or she was solely responsible for the determination of how the business unit operated, including determining all aspects of its budget functioning, recruitment, number of employees hired, termination of employment and she might have been responsible for supervising and ensuring that people are trained, but she wasn’t, as this seems to suggest, someone who was assisting the delivery of training courses which suggests a less significant role... 9
[19] Flight Centre maintains that Ms Tauri would be ‘supervising the people who would be carrying out these tasks or duties described at level 5, they would be reporting to her.’ 10
[20] Ms Tauri says she did not have authority to hire and fire staff nor to make final decisions as to how the business was run but rather had to gain the approval of the Area Leader before she undertook any of this. Further, she maintains that she assisted the Area Leader in how the business operated, all budgetary matters, recruitment, staff numbers, termination of staff and staff training.
[21] Ms Tauri submits that, while she had input in the setting of financial targets etc, this ultimately was the decision of others. Whilst she had to comply with budgets she was not responsible for setting them.
[22] Ms Tauri’s view would seem to accord with the submissions of Flight Centre which state that the decision as to which clients are allocated to which team would be determined typically by the ‘nation leader, so the person who looks after corporate for the whole of Queensland’ who is someone ‘much more senior’ than Ms Tauri. 11 Further, Flight Centre acknowledge that Ms Tauri is ‘accountable to the area leader who looks after a region of corporate business’12 (emphasis added).
[23] At the same time Flight Centre argue that Ms Tauri, in her position, is
the sole responsible leader for the team, so she is the person who is responsible for motivating the team, for driving the team, for ensuring that they’re hitting their set targets, for meeting with them on a regular basis to ensure that they have the appropriate skills and training to be able to do the role... 13
Decision as to award coverage
[24] This decision can only be made on the basis of the material before me as provided by Flight Centre and Ms Tauri.
[25] That Ms Tauri may have supervised other employees who would provide training to her staff is not, in itself, indicative that Ms Tauri worked at a higher level than the Level 5 in the Clerks Award. To concentrate on one activity in the Level 5 descriptor from the Clerks Award is not a proper approach to the determination of Ms Tauri’s classification level.
[26] It is clear that Ms Tauri was responsible and accountable for her own work and for that of employees under her supervision. She clearly had specialist knowledge which she contributed to the determination of targets and objectives in her area.
[27] Whilst I appreciate the views expressed by Flight Centre, its arguments were not consistent as to the level of responsibility and accountability held by Ms Tauri. On the one hand Flight Centre says she was ‘solely responsible for how the Business Unit operates’ whilst also maintaining she was accountable to the Area Manager who looks after a region of corporate business and that the allocation of corporate clients was done by the nation leader who is ‘much more senior’ that Ms Tauri.
[28] On the right to hire and fire staff, Ms Tauri has maintained from her earliest submission that this could only be done by her after sign off from more senior managers in the business.
[29] On the basis of the submissions and material filed I find that Ms Tauri is covered by the Clerks Award and that her duties and responsibilities indicate that her role fits within the Level 5 classification descriptor.
Conclusion
[30] Having determined that Ms Tauri is covered by a modern award, Ms Tauri is protected from unfair dismissal. It is not necessary that I determine whether her annual rate of earnings are above the high income threshold.
[31] The application to dismiss the application for relief from unfair dismissal for lack of jurisdiction is dismissed.
[32] The matter will now be listed and directions issued for the determination of the merits of the application.
COMMISSIONER
Appearances:
S. Tauri, on her own behalf.
A.Milner, for the Respondent.
Hearing details:
2010.
Brisbane:
14 September.
1 Ms Tauri’s submissions dated 3 September 2010.
2 MA000002.
3 Award Modernisation, [2009] AIRCFB 450, (22 May 2009), [223].
4 MA000004.
5 The classification descriptions are in Appendix B of the Award.
6 Clerks Award, clause 3.
7 Detail in the descriptor relating to call centre workers has been excluded from this excerpt from the Award.
8 Transcript PN36.
9 PN40.
10 PN42.
11 PN92-5.
12 PN97.
13 PN71.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR502414>
2
0
0