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How to determine award classification

The issue of whether an award or enterprise agreement applies to an employee, and if so what classification applies to his or her work, is often vexed. It is a matter which comes before the courts frequently, for example in cases to recover award or enterprise agreement entitlements. It is also sometimes relevant in unfair dismissal cases. For example if a dismissed employee enjoyed an annual rate of earnings in excess of the high income threshold, he or she will be precluded from taking an unfair dismissal claim to the Fair Work Commission unless his or her employment was covered by an award or enterprise agreement. This is turn will often require an analysis of whether a classification in an award or enterprise agreement covers the work the employee undertook.

Here is an extract from a recent decision of the Federal Circuit Court of Australia which identities the issue and succinctly expresses the interpretation principles which are to be applied.

“Principles in determining applicable award classification

The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.

For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:

…it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do.  The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.”

Davies v Carnachan Family Trust Pty Ltd (2018) FCCA 545 delivered 8 March 2018 per Jones J

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