In this case summary, AMMA Principal Workplace Relations Consultant, Peter Cooke (pictured), analyses why a recent Fair Work Commission (FWC) provides a timely reminder that when determining whether an award or agreement applies to an employee, it is the duties they undertake – rather than their job title – that needs to be considered.

In late March, Commissioner Hunt in the matter of Karen Muscat v Chase Commercial Pty Limited T/A Chase Commercial [2018] FWC 1398 determined whether the Real Estate Industry Award 2010 applied to the employment of a person employed as the Director of Asset Management by a commercial real estate agency.

If the employee was not employed under the terms of the Real Estate Industry Award, it was arguable that she may not have been eligible to progress an application alleging unfair dismissal under the Fair Work Act, given her income level.  If she was employed under the Award, then she, like any other employee engaged under a Federal Award or Agreement can bring an application alleging unfair dismissal.

Commissioner Hunt examined the scope of the work undertaken by the Director of Asset Management in the normal course of her employment and found that the employee’s duties accorded with those of a Property Management Supervisor (as defined by the Award).

Commissioner Hunt found the employee did not have the power to hire or fire other employees, and had only one employee directly reporting to her.

Commissioner Hunt also noted the similarity in facts between the case and a decision last year in the matter of Mr James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623.

In this case, an employee with the job title of Regional Director, Capital Markets for a commercial real estate firm was found to be carrying out the duties of a Property Sales Representative under the Real Estate Industry Award. The employee had no direct reports, no managerial responsibilities and was not part of the executive leadership team for the business.

Both of these cases are relevant to the resources sector where on occasions employees who are otherwise doing work set out within the classification structure for the relevant award, may have job titles that don’t exactly match those prescribed under the award.

In these cases it remains the majority of duties undertaken by an employee rather than their job title that will determine whether or not an award covers the employment of the individual concerned.  If the employee is undertaking duties within the classification structure of the award or agreement, they will retain access to the unfair dismissal processes set out in the Fair Work Act.

For more information on clarifying job titles and how they relate to awards or agreements, please contact your local AMMA office.