[1] On 30 October 2002, Commissioner Whelan issued an order[1] that the application by Leigh Carpenter (the appellant) for relief under s.170CE of the Workplace Relations Act 1996 (the WR Act) in respect of the termination of his employment by the Corona Manufacturing Pty Ltd (the respondent) be struck out. The order gave effect to the Commissioners decision of the same date.[2] As amended, this is an appeal, for which leave is required, against the order of the Commissioner.

[2] An objection by the respondent to the competency of the appeal was not pursued. The objection was to be based upon the alleged absence from the notice of appeal of any signature either by or on behalf of the appellant. Although the copy of the notice of appeal served upon the respondent did not contain any signature, an examination of the original notice as filed in the Registry demonstrated that it had been signed by the appellant's representative on his behalf.

[3] We would merely comment that the taking of such technical points is not to encouraged. No doubt any requirement of the Rules of the Commission that a notice of appeal be signed is intended to ensure that the lodging of such a notice is being done either by the appellant or with the appellant's authority. Where the veracity of such a notice is called into question, it may not be inappropriate to raise such an objection. In other instances, however, we would anticipate that a Full Bench would be inclined to exercise its powers under paragraphs (p) and/or (q) of s.111(1) of the WR Act and/or Rule 6.

[4] The matter before the Commissioner was a jurisdictional objection that the appellant was not employed under award conditions and that his remuneration exceeded the rate specified by Regulation 30BB. There was no dispute between the parties that the appellant's remuneration at the time of the termination of his employment exceeded the specified rate. As the Commissioner identified, at paragraph [4] of her decision, there were two questions to be determined, namely -

· was the respondent bound by the Commercial Sales (Victoria) Award 1999 (the Award)[3] as a member of a named respondent employer association, and,

· if so, was the appellant employed under the provisions of the Award?

[5] The Commissioner answered the first question in the positive and the second question in the negative. It is this latter answer that is the subject of this appeal.

[6] The answer to the second question depends upon the proper construction of the coverage of the Award and the application of that construction to the facts of the matter before the Commissioner. The issue is one of jurisdictional fact. As such, we are concerned with whether or not the Commissioner reached the right conclusion, not simply with whether or not the decision of the Commissioner was reasonably open to her.[4]

[7] The coverage of the Award is specified in Clause 6 which, in so far as it is relevant, provides as follows -

This award shall apply in the State of Victoria in respect of the employment of any person or persons or classes of persons, whether members of the Union or not, employed in the process, trade, business or occupation of:

6.1 Soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials:

6.1.2 To be used by the purchaser in the manufacture, production, preparing, or distribution of commodities for sale; or

6.1.3 To be used by the purchaser or by the person from whom the order was solicited in this business, trade or occupation, or (in the case of a public or semi-public body) for the purpose of its undertaking:

where the employee is employed away or substantially away from the employer's place of business or where the employee conducts such duties via telephone or other electronic means or any combination thereof.

[8] At the time of the termination of his employment, the appellant was employed by the respondent as National Sales Manager. The agreement under which he was employed stated that the "function and responsibilities of the employee will involve sales and management duties throughout Australia". The appellant's job description identified his duties in a way that, in our view, can only be described as principally managerial in nature. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of "soliciting orders", "obtaining sales leads" or "promoting sales", such tasks formed a minor part of the work he was required to perform.

[9] 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.[5] 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 Award.

[10] For that reason, it is not necessary for us to consider whether, on the evidence before the Commissioner, the appellant was "employed away or substantially away from the employer's place of business" or conducted "such duties via telephone or other electronic means or any combination thereof".

[11] Whilst the Commissioner appears, in her decision, to have placed some emphasis on the requirement of Clause 6.1 that the employee be "employed away or substantially away from the employer's place of business", we consider that, on a proper reading of her decision, she had regard to the principal purpose for which the appellant was employed. At paragraph [110] of her decision, the Commissioner concluded -

I am satisfied that the purpose for which the applicant was engaged was to manage the employer's sales functions at a national level. Those functions involved, in part, activities designed to promote the respondent's products. The applicant was however not employed away or substantially away from the employer's place of business.

[12] It is generally considered that leave to appeal should be granted in cases which raise a question as to the Commission's jurisdiction. That, however, is not an immutable rule. In this case, we are not of the view that the matter is of such importance that, in the public interest, leave to appeal should be granted. Nor are the conventional considerations for granting leave satisfied. We refuse leave to appeal.

4 Pawel v Australian Industrial Relations Commission and Another [1999] FCA 1660; (1999) 97 IR 392, at 395 (Branson and Marshall JJ).

5 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 (Sheldon J); Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99, 101-102 (Ludeke J); Robinson v Roxburgh & Alexander Pty Ltd t/as Power Price (1988) 25 IR 1, 5-7 (Miller CIM); Re The Australian Workers' Union Construction, Maintenance and Services (W.A. Government) Award 1987 1991/12 CAR 68, Print K0748 (Peterson J, Keogh DP and Johnson C); Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 (Maidment J); Logan v Otis Elevator Co Pty Ltd, Unreported, Industrial Relations Court of Australia (Moore J), 20 June 1997.