How to determine award coverage

When determining whether or not an employee is covered by a particular award, you examine the nature of the work and the circumstances in which the employee is employed to do the work, and ask, ‘what is the principal purpose for which the employee is employed’?

This question is not resolved by a mere quantitative assessment of the time spent carrying out various duties. You look at the actual work performed by the employee. It doesn’t matter if the employee performs a mixture of duties, some of which fall, prima facie, within the coverage of the award or classification under consideration and some of which do not. Award coverage hinges on the actual duties the employee performs, not the employee’s job title.

The FWC illuminates how to test for award coverage

In Kelley v Coverite Projects Pty Ltd AFT Davy Family Trust (2025), the Fair Work Commission (FWC) had to determine whether an employee was covered by the:

Commercial Sales Award 2020; or
Miscellaneous Award 2020.

This was necessary to establish whether the employee had an unfair dismissal remedy.

Was the employee covered by the Commercial Sales Award?

The question of coverage by the Commercial Sales Award required consideration of whether the employee was employed in the process, trade, business or occupation of soliciting orders, obtaining sales leads or appointments, or otherwise promoting sales for articles, wares, merchandise or materials. This would not be the case if the principal purpose for which the employee was employed was to perform managerial duties.

The purpose of the person’s employment must be soliciting orders for, or selling articles, goods, wares or merchandise for:

wholesale sale;
resale; or
use in or in connection with the production, preparation and/or distribution of commodities for sale by the customer.

The FWC concluded the majority of the employee’s work involved selling design, project management and construction services to end users. Where goods and services were sold to end users, the work did not fall within the scope of the Commercial Traveller classification in the Commercial Sales Award because it wasn’t for wholesale sale, for resale, or for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer.

Some goods and services were sold to property developers for resale purposes. However, these instances were not the principal focus of the employee’s role. The fact qualifying goods are sold is necessary but insufficient if – as in this case – the principal purpose of the role at the time of dismissal was to sell services that fell outside coverage, i.e. the sale of professional services primarily to end users. Therefore, the employee was not covered by the Commercial Sales Award at the time of dismissal.

Was the employee covered by the Miscellaneous Award?

The FWC also concluded the Miscellaneous Award did not cover the employee because he was a managerial employee. The Miscellaneous Award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists. The Miscellaneous Award is intended to cover low-skilled employees as well as trade-qualified employees not covered by any other award. In this case, the employee was in the position of Project Consultant, earning $210,000 per annum, with responsibility for managing the sale of design and construction deals entered into between the employer and its clients. These transactions typically involved high-level commercial judgement and legal understanding relevant to scope, pricing, risk allocation and customised terms. This, according to the FWC, made him a managerial employee and therefore not covered by the Miscellaneous Award.

Construction company fined $180,000 for waste oil tank explosion
A construction company was fined $180,000 and ordered to pay the Prosecutor’s costs in relation to a waste oil tank explosion that resulted in a labourer suffering serious burns ...