Whether a modern award or enterprise agreement covers an employee depends on:

(a) whether the employer is covered by the instrument in respect of its employment of the employee, which is usually specified in the coverage clause that commonly confines coverage to a particular industry, a particular employer, or a particular workplace; and

(b) whether the employee performs a job described in the work classifications outlined in the instrument.

In FWO v CFMMEU (2020) the Federal Court rejected the argument that an enterprise agreement covers an employee merely because the employee performs a job as described by the terms of the enterprise agreement. In other words you need (a) as well as (b) for an employee to be covered by an award or enterprise agreement.

In relation to (b), an employee can be covered even if the tasks or duties actually performed by the employee in the job do not precisely correspond with the job description given in the classification descriptors in the award or agreement. All that is required is for the duties to correspond with the descriptor in a major or substantial sense.

Two things are important about this ‘major and substantial’ test. Firstly, it is subject to the terms of the coverage clause of the award or enterprise agreement. For example, in order to perform the work of an engine driver, the employee is required to hold a certificate of competency to drive an engine. Where the award applicable to engine drivers states that it applies even when the drivers perform other work, then it applies to an employee in an engine driver’s job, holding the requisite certificate, even if he or she performs predominantly labouring duties each day with only two hours every day driving an engine.

Secondly, the ‘major or substantial’ test is both a qualitative and quantitative exercise. In Choppair Helicopters Pty Ltd v Bobridge (2018) the Court had to determine whether a helicopter pilot was covered by the Ground Staff Award (which covered clerical and administrative work) or the Air Pilots Award (which covered flying work). Quantitatively, the major part of the employee’s work was not that of flying helicopters. However, the following factors led the Court to conclude that, qualitatively, flying helicopters was a major part of the employee’s work.

• The employer engaged the employee as a pilot.
• The employee was required to hold a commercial pilot’s licence and undergo proficiency and currency checks as well as pilot-related training.
• The Air Pilots Award provided that holding a commercial pilot’s licence is a critical element of the definition of pilot, and the classification descriptors contemplated that the work of a pilot included administrative work.

Importantly, much of the administrative work performed by the employee was closely connected to her work as a pilot.

As with all modern awards, the Air Pilots Award and the Ground Staff Award each contained this provision in its coverage clause:

Subject to [the preceding coverage clause], where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

The Court ruled that if the employer was covered by both awards in respect of its employment of the pilot, then the classification in the Air Pilots Award rather than the classification in the Ground Staff Award was the most appropriate to the work performed by the employee and to the environment in which she normally performed that work. This was despite the fact that the bulk of the employee’s work was administrative. While the Air Pilots Award classification contemplates the performance of administrative work, the performance of flying duties is entirely foreign to the Ground Staff Award.