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  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  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.