Home - How to determine if an employee is covered by a modern award for unfair dismissal purposes

UpdatesSep 10, 2010

How to determine if an employee is covered by a modern award for unfair dismissal purposes

Did you know that an employee who earns above $113,800 cannot access the Fair Work Act unfair dismissal laws unless they are covered by a modern award or an enterprise agreement that applies to their employment at the time of dismissal?

By Charles Power

Did you know that an employee who earns above $113,800 cannot access the Fair Work Act unfair dismissal laws unless they are covered by a modern award or an enterprise agreement that applies to their employment at the time of dismissal?

Remember, an employee will only be considered to be covered by a modern award if they fall both within the award’s coverage and an award classification.

In a recent unfair dismissal case involving a high earning employee (Halasagi v George Weston Foods Limited [2010]), Fair Work Australia had to determine whether the employee’s role fell within the Professional Employees Award (Award) definition of “professional engineering duties.” If not, then the employee’s unfair dismissal claim could not proceed.

The Professional Employees Award 2010 defines “professional engineering duties” as “duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia.”

So in other words, an employee would only be considered to be carrying out “professional engineering duties” under the Award if the majority of the tasks they performed in their role required them to have a qualification at least equal to being a graduate member of Engineers Australia.

In this case, the applicant was employed to perform computer programming duties and fell within one of the IT classifications in the award. But even though his employer wasn’t in the IT industry, the applicant tried to argue that he was performing professional engineering duties because he held qualifications in manufacturing engineering.

In the end, FWA ruled that he did not need that qualification to perform his duties. Therefore, the applicant’s unfair dismissal claim could not proceed because he was not covered by the Award at the time of his dismissal.

Regards,

Charles Power

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

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