Pub­li­ca­tions

What’s in a Name? Job Titles and Mod­ern Award Coverage

The Name Game

Amus­ing arti­cles appear on a reg­u­lar basis about the renam­ing of par­tic­u­lar occu­pa­tions in an effort to make them seem more grand or impor­tant than they have been tra­di­tion­al­ly regarded.

Some exam­ples that have been cit­ed include renam­ing Bar Atten­dant” to Bev­er­age Dis­sem­i­na­tion Offi­cer”, Labour­er” to Mor­tar Logis­tics Engi­neer”, Garbage Col­lec­tor” to Recy­cling Oper­a­tive”, Toi­let Clean­er” to San­i­ta­tion Con­sul­tant” and Pan­el Beat­er” to Vehi­cle Restora­tion Engineer “.

While there may well be a laud­able inten­tion behind rebrand­ing par­tic­u­lar occu­pa­tions that have not been accord­ed the respect or impor­tance they might deserve, the mere renam­ing of a posi­tion does not, of itself, change its essen­tial character.

The posi­tion of the Fair Work Commission

This is con­sis­tent with the view adopt­ed by the Fair Work Com­mis­sion (FWC) which takes a sub­stance over form” approach in con­sid­er­ing the weight to be giv­en to a job title in deter­min­ing whether an employ­ee is cov­ered by a par­tic­u­lar mod­ern award.

This is illus­trat­ed by the recent deci­sion of Karen Mus­cat v Chase Com­mer­cial Pty Ltd t/​a Chase Com­mer­cial [2018] FWC 1398.

In this case, Com­mis­sion­er Hunt need­ed to deter­mine (in the con­text of a juris­dic­tion­al objec­tion in unfair dis­missal pro­ceed­ings) whether Ms Mus­cat was cov­ered by a mod­ern award dur­ing the course of her employ­ment. If Ms Mus­cat was not cov­ered by a mod­ern award then she would not be able to pur­sue a claim for unfair dis­missal unless it was deter­mined she earned less than the high income threshold.

At the time of the ter­mi­na­tion of her employ­ment Ms Mus­cat held the posi­tion of Direc­tor of Asset Man­age­ment with Chase Com­mer­cial. At first blush, it might seem a rea­son­able assump­tion that an employ­ee in such an osten­si­bly exalt­ed posi­tion would fall out­side the scope of the mod­ern award system.

Dur­ing the pro­ceed­ings the par­ties were asked by the FWC to address whether Ms Mus­cat could have been cov­ered by the Prop­er­ty Man­age­ment Super­vi­sor clas­si­fi­ca­tion in the Real Estate Indus­try Award 2010 (Award).

Chase Com­mer­cial sub­mit­ted that Ms Mus­cat fell out­side the scope of the Award. It should be not­ed that while the sub­mis­sions of Chase Com­mer­cial did rely on the fact that Ms Mus­cat held the title of Direc­tor” (and was the only employ­ee with­in the busi­ness to hold such a posi­tion), it was also sub­mit­ted that she had var­i­ous finan­cial and man­age­r­i­al author­i­ties and respon­si­bil­i­ties as part of her posi­tion that took her out­side the scope of the Award.

Ms Mus­cat con­tend­ed that when she com­menced employ­ment with Chase Com­mer­cial she was the sole employ­ee in the Asset Man­age­ment Depart­ment. Fur­ther, she ini­tial­ly per­formed all work required in rela­tion to man­ag­ing prop­er­ties and then, sub­se­quent­ly, per­formed these duties again when the Assis­tant Prop­er­ty Man­ag­er was on leave. She sub­mit­ted that the prin­ci­pal pur­pose of her employ­ment was to man­age the prop­er­ty port­fo­lio, as opposed to direct­ing an entire depart­ment (as was sub­mit­ted on behalf of Chase Commercial).

The Prin­ci­pal Pur­pose Test

In con­sid­er­ing the issue Com­mis­sion­er Hunt observed:

The ques­tion of whether Ms Mus­cat was cov­ered by the Award is to be deter­mined by ref­er­ence to the prin­ci­pal pur­pose test, as artic­u­lat­ed in the Full Bench deci­sion of the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion in R Brand v APIR Sys­tems Lim­it­ed. That deci­sion, in turn, cit­ed the deci­sion of the Full Bench of the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion in Car­pen­ter v Coro­na Man­u­fac­tur­ing Pty Ltd, which stat­ed rel­e­vant­ly as follows:
In our view, in deter­min­ing whether or not a par­tic­u­lar award applies to iden­ti­fied employ­ment, more is required than a mere quan­ti­ta­tive assess­ment of the time spent in car­ry­ing out var­i­ous duties. An exam­i­na­tion must be made of the nature of the work and the cir­cum­stances in which the employ­ee is employed to do the work with a view to ascer­tain­ing the prin­ci­pal pur­pose for which the employ­ee is employed.’”

Com­mis­sion­er Hunt continued:

Thus in deter­min­ing whether the Award cov­ered Ms Mus­cat at the time of her dis­missal, an exam­i­na­tion is nec­es­sary of the nature of the work under­tak­en and the cir­cum­stances in which Ms Mus­cat was employed to do the work in order to ascer­tain the prin­ci­pal pur­pose for which she was employed and then assess whether Ms Mus­cat in that employ­ment fell with­in the cov­er­age pro­vi­sions of the Award.”

As part of her delib­er­a­tions in the mat­ter, Com­mis­sion­er Hunt con­sid­ered the issue of Ms Muscat’s title, and observed:

Rel­e­vant to Ms Muscat’s title as Direc­tor of Asset Man­age­ment, I am not per­suad­ed that the title of Direc­tor’ caused Ms Mus­cat to be ele­vat­ed beyond the sta­tus of an Award employ­ee. It was a title grant­ed to her when the role was first cre­at­ed, when she was earn­ing a base (inclu­sive of salary) of $80,000. The nomen­cla­ture used was cho­sen by Chase, in what one would expect to be a desire to pro­mote or add legit­i­ma­cy to Chase’s abil­i­ty to man­age com­mer­cial prop­er­ty. Ms Mus­cat had for the most part of her employ­ment only one employ­ee under her supervision.”

For this, and oth­er rea­sons, Com­mis­sion­er Hunt held that Ms Mus­cat was cov­ered by the Award dur­ing the course of her employ­ment with Chase Commercial.

Com­mis­sion­er Hunt held:

I am sat­is­fied the prin­ci­pal pur­pose of the role at the time of her dis­missal falls square­ly with­in the role of Prop­er­ty Man­ag­er Super­vi­sor and the duties that she under­took to exe­cute the pri­ma­ry pur­pose falls com­fort­ably with­in the indica­tive tasks for a Prop­er­ty Man­age­ment Super­vi­sor set out in the Award. I am not sat­is­fied that the oth­er high­er func­tions Ms Mus­cat per­formed result in her not being prin­ci­pal­ly employed to per­form the work cov­ered by a Prop­er­ty Man­ag­er Supervisor”.

This deci­sion reflects the approach that was adopt­ed by Deputy Pres­i­dent Gos­tenc­nik in the sim­i­lar case of Mr James Kauf­mann v Jones Lang LaSalle (VIC) Pty Ltd t/​a JLL [2017] FWC 2623.

At the time of ter­mi­na­tion, the appli­cant, Mr Kauf­mann, held the (high­ly remu­ner­at­ed) posi­tion of Region­al Direc­tor, Cap­i­tal Mar­kets with JLL.

In the course of con­clud­ing that Mr Kauf­mann was cov­ered by the Award, Deputy Pres­i­dent Gos­tenc­nik held:

His title, of Region­al Direc­tor, was effec­tive­ly a rank or acco­lade accord­ed by the Respon­dent, but the ques­tion of award cov­er­age is not deter­mined by the person’s title – it is the duties per­formed that will be of significance.”

Lessons for Employers

When con­sid­er­ing whether an employ­ee might fall with­in the scope of a mod­ern award the analy­sis under­tak­en by the employ­er needs to extend beyond super­fi­cial fac­tors such as the title of the posi­tion (or even remu­ner­a­tion). Instead, regard needs to be giv­en to the prin­ci­pal pur­pose test, as enun­ci­at­ed in the Mus­cat deci­sion (as set out above).

Deter­min­ing mod­ern award cov­er­age with accu­ra­cy is fun­da­men­tal. A fail­ure to prop­er­ly cat­e­gorise a posi­tion can lead to breach­es of a mod­ern award and con­comi­tant expo­sure to under­pay­ments and penal­ties. To stream­line what can be a com­plex and bur­den­some task, some employ­ers use titles as an ini­tial fil­ter. This can work where posi­tion titles are very close­ly aligned to clas­si­fi­ca­tions with­in the mod­ern award. The nomen­cla­ture of organ­i­sa­tion­al job titles, how­ev­er, is fre­quent­ly dri­ven by oth­er oper­a­tional or com­mer­cial imper­a­tives (and, on occa­sion, sta­tus and ego). With this in mind, a more thor­ough and sub­stan­tive analy­sis is required so as to avoid the title of the posi­tion being giv­en undue significance.