Professional Contracting: Serendipitous Timing!

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Amongst the professional contracting issues, which we’ll be discussing in our first Tuesday TalkAbout Live! masterclass for 2023, is the issue of how one interprets and applies the Professional Employees Award 2020. You’ll be interested to learn that last Friday, 20 January 2023, the Full Bench of the Fair Work Commission, on its own motion, varied the coverage provisions of that Award to remove difficulties caused by the “principal purpose test”, which the Commission considered had led to excessive litigation.

You can read the full decision here. However, the gist of the decision to vary the coverage provision can be found at paras [80]-[84], where the Commission said:

[80] … the classifications have the function of determining in what grade an employee covered by the Award will fall rather than whether an employee is covered by the Award in the first place…

[82] … We think that a better approach would be to add a provision to Schedule A which makes it clear that the classifications will apply in the way identified above — that is, that they apply to all employees who perform professional engineering duties, professional scientific duties, professional information technology duties or quality auditing unless the person holds a position which is principally managerial in nature…

[83] We conclude … that Schedule A of the Award should be varied by deleting the sentence appearing immediately under the heading and inserting in lieu thereof the following provision:

An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.

[84] The effect of the above variation will be to remove the need to apply the “principal purpose” test and thus resolve the difficulty identified in Zheng. For the reasons earlier outlined, and contrary to the submissions of the APESMA, we do not consider that the express exclusion of managerial employees will narrow the coverage of the Award and thus engage s 163(1) because no classification in Schedule A currently applies to a manager. Nor do we consider that the variation will expand the coverage of the Award, since its purpose is clarificatory and consistent with the current classification definitions. The variation is necessary, we consider, to achieve the modern awards objective in s 134(1) of the FW Act. In reaching this conclusion, we regard the consideration in s 134(1)(g) as having determinative weight, with the other identified considerations being neutral.

The Commission has published a draft determination and the parties now have until Parties may file submissions in response to the draft determination by 4:00 pm (AEDT) on Friday, 10 February 2023 to file submissions in response to the draft determination.

To find out what else we’ll be covering in our Tuesday Talkabout Live! livestream masterclass, and to reserve your place, check out the Eventbrite online event page here.

Let’s talk again soon!

Andrew C. Wood

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