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

In late March, Commissioner Hunt in the matter of Karen Muscat v Chase Commercial Pty Limited T/A Chase Commercial [2018] FWC 1398 was required to determine whether the Real Estate Industry Award 2010 applied to the employment of a person employed as a “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 has can bring an application alleging unfair dismissal.

Commissioner Hunt examined the work that the Director of Asset Management did 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 Ms Muscat did not have the power to hire or fire employees, had only one employee directly reporting to her.

Commissioner Hunt also noted the similarity in facts between the case in hand 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 the Kaufman case an employee having a 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 such as “production technician” or “maintenance technician”.

In these cases it remains the major and substantial work 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 they are doing work that is 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.