Fair Work Commission|2025-10-22

Joseph Kelley v Coverite Projects Pty Ltd AFT Davy Family Trust [2025] FWC 3169 (22 October 2025)

s.394 - Unfair dismissal

Coverite Projects Pty Ltd AFT Davy Family Trust

Application for relief from unfair dismissal - jurisdictional objection - was the applicant covered by an award? - no award coverage - jurisdictional objection upheld - application dismissed Application for an unfair dismissal remedy

[1] Mr Joseph Kelley was employed by Coverite Projects Pty Ltd ATF Davy Family Trust in the period from 31 October 2022 until his dismissal on 20 May 2025. Mr Kelley contends that his dismissal was harsh, unjust and unreasonable. Coverite denies those allegations and contends that the Fair Work Commission does not have jurisdiction in relation to Mr Kelley's unfair dismissal claim because he was not covered by a modern award or an enterprise agreement and the sum of his annual rate of earnings was more than the high income threshold.[1]

[2] Mr Kelley accepts that his annual rate of earnings exceeded the high income threshold and does not contend that an enterprise agreement applied to him in relation to his employment with Coverite. Mr Kelley submits that he was covered by the Commercial Sales Award 2020, or alternatively the Miscellaneous Award 2020, at the time of his dismissal.

[3] I conducted a hearing on 3 September 2025 in relation to Coverite's jurisdictional objection. Mr Kelley gave evidence, as did Mr Glen Pearson, Integrator employed by Coverite, and Mr Matt Conn, Finance Manager employed by Coverite. After the hearing, both parties filed further submissions in accordance with directions I issued inviting submissions on particular points which had not been addressed at the hearing.

[4] Section 382(b) of the Fair Work Act 2009 relevantly provides that "A person is protected from unfair dismissal at a time if, at that time ... (b) one or more of the following apply: (i) a modern award covers the person..."

[5] A modern award covers an employee if the award is expressed to cover the employee (s 48(1)). Employees covered by a modern award must be specified by inclusion in a specified class or specified classes (s 143(5)(b)). A class may be described in a range of ways, including by reference to a particular industry or part of an industry, or particular kinds of work (s 143(6)).

[6] The 'principal purpose test' is relevant to whether an employee is covered by an industrial instrument such as the Commercial Sales Award. The test was summarised in Carpenter v Corona Manufacturing[2] as follows:

"In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "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" and was not, therefore, covered by the Commercial Sales Award."

[7] A Full Bench of the Commission explained various features of the 'principal purpose test' in Broadspectrum Limited v United Voice[3]:

"... the required analysis of the principal purpose is to be conducted by reference to the work performed by the employee. The test enunciated is primarily of utility where an 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. However the test cannot be used to bring an employee within the coverage of an award or classification where the employee does not perform any of the prescribed work duties."

[8] Clause 4.1 of the Commercial Sales Award provides that "[t]his occupational award covers employers throughout Australia with respect to Commercial Travellers, Merchandisers and Advertising Sales Representatives and those employees unless any other modern award contains classifications that apply to such persons, in which case the other modern award prevails".

[9] The classifications of Merchandiser and Advertising Sales Representative are plainly not applicable to Mr Kelley's position with Coverite.

[10] The expression 'Commercial Traveller' is defined as follows in clause 2 of the Commercial Sales Award:

"Commercial Traveller means a person employed, substantially away from the employer's place of business, for the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material 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."

[11] This definition has the following two elements:

(a) First, the person must be employed substantially away from the employer's place of business.

(b) Secondly, the purpose of the person's employment must be soliciting orders for, or selling articles, goods, wares or merchandise for:

(iii) use in or in connection with the production, preparation and/or distribution of commodities for sale by the customer.[4]

[12] A salesperson will fall within the definition of Commercial Traveller if they meet both criteria. Examples include:

A carpet manufacturer's salesperson selling to retailers who on-sell to consumers (wholesale sale).

A garage door manufacturer's salesperson selling to builders who resell to homeowners (resale).

A tractor supplier's salesperson selling to farmers who use the tractors in producing goods for sale (use in production of commodities).

[13] Award coverage hinges on the actual duties performed by an employee, not the employee's job title.[5]

[14] Coverite is a professional services firm specialising in architectural design, master planning, interior design, construction, and project management. Coverite's target markets are education, early learning, aged care and hospitality. By way of example, Mr Kelley made sales on behalf of Coverite in connection with the following projects:

School - refurbishment of existing toilet, construction of new car park, and relocation of temporary demountables. Services provided by Coverite were project management and architectural design;

Office fitout - services provided by Coverite were interior design, project management, and construction;

New college - services provided by Coverite were project management, architectural design, and construction;

School - construction and refurbishment of WC facilities. Services provided by Coverite were project management and construction;

School - construction of covered walkway with associated storm water drainage. Services provided by Coverite were project management and construction.

[15] The services provided by Coverite are predominantly for the benefit of business operators who own or lease the property. Mr Kelley accepts that Coverite's clients are generally the end user of the final project. However, Coverite does sometimes undertake work for a property developer. For example, in December 2023, Coverite entered into a construction contract with a property developer for the construction of an early learning centre in Singleton. The project commenced in February 2024 and was completed in early 2025. To the best of Mr Kelley's knowledge, the property has since been sold by the property developer.

[16] Mr Kelley's role as Project Consultant with Coverite was focused on identifying new business opportunities, engaging with clients, preparing and presenting proposals, and securing contracts. This included cold-calling prospective clients and attending in-person meetings to promote and sell construction related services and goods, tailored to the client's specific needs. The scope of sales made by Mr Kelley included:

[17] In relation to design and build services, Coverite acted as the principal contractor, entering into a head contract with the client and subcontracting specialised services, such as lighting, to third-party subcontractors. All clients were billed by Coverite directly.

[18] In relation to the sale of commercial furniture, carpets and flooring, Coverite purchased these items from a wholesaler and on-sold them to clients at a marked-up price. Flooring installation was a fairly significant source of revenue for Coverite prior to 2022. However, as at 30 June 2024 flooring revenue was 3.68% of Coverite's total revenue and as at 30 June 2025 flooring revenue was 0.74% of Coverite's total revenue. Furniture sales and flooring sales are often made by Coverite as part of a design and construct project, but Coverite sometimes sells stand-alone furniture packages or flooring sales to its clients. For example, in about April 2023, Mr Kelley secured a library furniture package sale to a college with a value of approximately $30,000, and in about early 2024, Mr Kelley was involved in a classroom recarpeting project for a school with a value of approximately $100,000.

[19] Coverite says that Mr Kelley's primary duties were to promote and secure AS4902 General conditions of contract for design and construct and AS4906 Minor works contracts. The sale of such contracts typically involves high-level commercial judgment and legal understanding to negotiate scope, pricing and risk allocation, customise terms to suit the project and client, engage in commercial discussions, and develop binding agreements for construction services.

[20] On 31 October 2023, Mr Kelley commenced employment with Coverite in the role of Project Consultant. Mr Kelley did not have any direct reports in the role of Project Consultant.

[21] Schedule 2 to Mr Kelley's contract of employment indicated that his position was covered by the Commercial Sales Award.[6]

[22] In about April 2024, Mr Kelley took on the role of Head of Marketing, as well as his role as Project Consultant. I accept Coverite's contention that Mr Kelley's principal role at Coverite was Head of Marketing from about April 2024 until November 2024. In the role of Head of Marketing, Mr Kelley was part of Coverite's Leadership Team, had several direct reports, and was accountable for a significant marketing budget.

[23] In about June 2024, Mr Kelley was paid $50,000 by way of a bonus for sales made by him. At about that time, his salary was also increased by $50,000 per annum, to a total of $210,000 per annum, because Coverite wanted to roll his commissions into his base salary moving forward. This change was made because the system created a disincentive for the delivery team and was administratively complex.

[24] In September 2024, Mr Pearson forecast significant financial stress for Coverite's business.

[25] In about October or November 2024, Mr Pearson informed Mr Kelley that he would no longer be involved in Coverite's Leadership Team and he would instead focus on sales opportunities in his Project Consultant role. From November 2024 until the termination of his employment, Mr Kelley did not work in the Head of Marketing role and he was not part of Coverite's Leadership Team. The principal focus of Mr Kelley's position in the period from November 2024 until the termination of his employment in May 2025 was on sales in his Project Consultant role.

[26] In about November 2024, Mr Kelley was given a directive to aim to be "on the road" pursuing sales opportunities four days per week. Mr Kelley did, in fact, spend at least two to four days each week "on the road" pursuing sales opportunities in the period from November 2024 until the termination of his employment. I accept Mr Kelley's evidence that he did not retain any marketing duties during this period of time, albeit he worked collaboratively with the marketing team.

[27] I need to assess whether Mr Kelley was protected from unfair dismissal at the time he was dismissed. It follows that I do not need to consider whether Mr Kelley was, or was not, covered by the Commercial Sales Award at some point in his employment with Coverite prior to his dismissal. It is irrelevant whether Mr Kelley was covered by the Commercial Sales Award when he was employed in the Head of Marketing position in the period from about April 2024 until November 2024.

[28] I accept that the principal purpose of Mr Kelley's role at the time of his dismissal was sales. I also accept that Mr Kelley was employed substantially away from Coverite's place of business for the purpose of soliciting orders. However, this is not enough to bring Mr Kelley within coverage of the Commercial Traveller classification. As explained above, a Commercial Traveller within the meaning of the Commercial Sales Award is an employee whose purpose is soliciting orders for, or selling, articles, goods, wares, merchandise or material for wholesale, resale or use in or in connection with the production, preparation and/or distribution of commodities for sale by the customer.[7]

[29] Coverite contends that the principal purpose of Mr Kelley's role was marketing and sales of professional services, via the securing of AS4902 General conditions of contract for design and construct and AS4906 Minor works contracts.

[30] Mr Kelley contends that his role of Project Consultant satisfies the definition of Commercial Traveller under the Commercial Sales Award because he was regularly engaged in selling commercial furniture, carpets and flooring purchased wholesale and resold at a profit, in addition to securing contracts that supplied goods used by developer clients in the production of properties for sale.

[31] Mr Kelley also contends that there is no qualification or condition in the relevant parts of the Commercial Sales Award that stipulates a predominant or substantial part of the role is required to be selling goods etc under the clause. All that is required, so Mr Kelley contends, is that the employee is: 1. In sales, 2. Is away from the business, and 3. Sells something that can be a good or a commodity. Mr Kelley submits that there is no qualification or condition that such sales must be the whole or some part of the employment; it is simply that the relevant selling must be required by the role. In this regard, Mr Kelley relies on the fact that the definition of Commercial Traveller in clause 2 of the Commercial Sales Award refers to "purpose", not "principal purpose", "substantial purpose" or "predominant purpose". This is said to be significant in circumstances where the definition of Commercial Traveller also includes the expression "substantially away from the employer's place of business" [emphasis added by Mr Kelley]. Therefore, Mr Kelley contends that if the drafter had intended a qualification that the purpose of selling particular types of goods was to be the predominant part of the role, then such a condition or qualification would have been included in the definition of Commercial Traveller. Mr Kelley goes on to submit that it is open to the Commission to find that as long as some part of the role had a purpose to sell wholesale goods, then the role will meet the definition of Commercial Traveller. Mr Kelley also directs attention to other definitions in the Commercial Sales Award, such as "Merchandiser", which states, in part, "... and who in conjunction with these principal functions may solicit orders as a minor feature of the employee's work" [emphasis added by Mr Kelley].

[32] I accept that Mr Kelley sold commercial furniture, carpets and flooring - often as part of design and construct contracts - and that these items were purchased from a wholesaler and sold by Mr Kelley, on behalf of Coverite, to its clients at a profit. I also accept that such items are articles, goods, wares, merchandise or material within the meaning of the Commercial Traveller definition in clause 2 of the Commercial Sales Award. However, in most cases, Mr Kelley did not sell such items for wholesale sale, resale, or for use in or in connection with the production, preparation and/or distribution of commodities for sales by the customer. In most cases, the clients to whom Mr Kelley sold the items were the end users of the items. Although the commercial furniture, carpets and flooring were purchased by Coverite from a wholesaler, when they were sold to the end user of the item (e.g. a school buying carpet) they were not sold by Mr Kelley "for wholesale sale, resale, or for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer".

[33] In less common cases, such as where Coverite contracted with a property developer intending to resell the developed property, I accept that the sale of goods (e.g. furniture, flooring, construction materials) to such clients meets the requirement of the sale of goods "for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer". In these instances, the property itself (e.g. an early learning centre) is the commodity being prepared or produced for sale. The ordinary meaning of "commodity" is "a thing that is of use or advantage; an article of trade or commerce".[8]

[34] The majority of Mr Kelley'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 a Commercial Traveller because Mr Kelley was not selling goods etc "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". Where such goods and services were sold to property developers for resale purposes, the work fell within the definition of Commercial Traveller. However, these instances were not the principal focus of Mr Kelley's role.

[35] While the principal purpose test is a rule of construction only and must yield to any clear language in the relevant award,[9] the Commercial Sales Award does not provide that any selling of qualifying goods is sufficient. There is no debate in this case about the principles to be applied in construing the relevant provisions of the Commercial Sales Award.[10] The relevant question under the definition of Commercial Traveller is what is "the purpose" of the role. The principal purpose test may be of utility in cases such as the present where Mr Kelley performed a mixture of duties some of which fell within the coverage of the Commercial Traveller classification of the Commercial Sales Award and others of which did not.[11] On the evidence, I find that the principal purpose of Mr Kelley's role at the time of dismissal was selling Coverite's professional services - primarily to end users. This does not meet the definition of a Commercial Traveller under the Award.

[36] Mr Kelley also contends that the decision of the Full Bench of the Commission in Graham v Globus Medical Australia Pty Ltd[12] is either distinguishable on the facts or was wrongly decided. I do not accept that submission. The relevant point of that decision is that selling work is not enough to bring an employee within the coverage of the Commercial Traveller classification. As the Full Bench pointed out in paragraph [18], a Commercial Traveller must sell goods etc "for wholesale, resale or use in relation to commodities for sale to customers". The fact that the Full Bench did not use the longer expression "use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer" does not, in my view, mean that the decision is erroneous. That part of the definition was not relevant to the arguments put to the Full Bench on appeal.

[37] The fact that Mr Kelley's contract of employment represented that he was covered by the Commercial Sales Award is not determinative. The focus is on the duties performed by Mr Kelley in his role of Project Consultant.

[38] Clause 4.2 of the Miscellaneous Award provides that it does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists. As the Full Bench in United Voice v Gold Coast Kennels[13] observed before the coverage provisions of the Miscellaneous Award were amended:

"... the award was not intended to cover professional or managerial employees, and that it was intended to cover low skilled employees as well as trade-qualified employees not covered by any other award."

[39] I am satisfied that Mr Kelley's position of Project Consultant, in which he was paid $210,000 per annum, was a managerial position. He was responsible for managing the sale of design and construction deals entered into between Coverite and its clients. Those deals often included architectural design, interior design, project management and construction work. I accept Coverite's submission that making such deals typically involves high-level commercial judgment and legal understanding relevant to scope, pricing, risk allocation and customised terms.

[40] Because Mr Kelley was a managerial employee of Coverite, he was not covered by the Miscellaneous Award.

[41] I am further satisfied that Mr Kelley was not covered by any award at the time of his dismissal.

[42] For the reasons stated, Mr Kelley was not covered by a modern award or an enterprise agreement at the time of his dismissal by Coverite. At that time, Mr Kelley's annual rate of earnings exceeded the high income threshold. It follows that Mr Kelley was not protected from unfair dismissal within the meaning of s 382(b) of the Act. Coverite's jurisdictional objection must therefore be upheld and Mr Kelley's unfair dismissal application must be dismissed.

Following the hearing the Applicant filed submissions on 10 September 2025 and 7 October 2025 and the Respondent filed submissions on 17 September 2025.

[4] Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 at [18]

[5] Kaufmann v Jones Lang LaSalle (Vic) Pty Ltd [2017] FWC 2623

[7] Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 at [18]

[8] Macquarie Dictionary, Revised Third Edition.

[9] Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co Ltd [1940] CthArbRp 244; (1940) 42 CAR 836; applied in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [66]

[10] See, for example, Swissport Australia Pty Ltd v ASU (No 3) [2019] FCA 37

[11] Broadspectrum Limited v United Voice [2017] FWCFB 3202 at [31]; Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 3478

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Joseph Kelley v Coverite Projects Pty Ltd AFT Davy Family Trust [2025] FWC 3169

At a glance

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Judgment (77 paragraphs)

Joseph Kelley v Coverite Projects Pty Ltd AFT Davy Family Trust [2025] FWC 3169 (22 October 2025)

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Legislation Cited (1)

Cases Cited (1)