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[2009] AIRC 596
defendant. The Commission found the applicant excluded from bringing the application; the supplied text truncates before the formal order.
The Commission did not decide whether Schott's termination was harsh, unjust or unreasonable. It decided whether her application could proceed under the statutory scheme. It counted superannuation as part of remuneration and looked at her salary package at the time of termination, rather than the total amount she had earned during her employment. The package was above the specified threshold. The Commission also found that her position was principally professional and managerial, not clerical work covered by the cited award. On those two findings, it concluded that the statutory exclusion applied.
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2,025 words · generated 01/10/2026
Monika Schott applied to the Australian Industrial Relations Commission on 30 December 2008 for relief concerning the termination of her employment. She alleged that Maunsell Australia Pty Ltd had terminated her employment harshly, unjustly or unreasonably ([1]). She had worked for Maunsell from 24 January 2008 until 12 December 2008 as a full-time Principal Consultant - Communication and Community ([9]).
1 cited instrument linked from this judgment.
Maunsell raised a jurisdictional objection. It argued that Schott was excluded from the relevant termination provisions because her remuneration was above the statutory specified rate and she was not employed under award-derived conditions ([2]). The Commission invited further material on those issues and received statutory declarations from both parties. It decided that the objection could be determined on the papers, without a hearing ([3]–[4]).
The remuneration figures changed during the employment. Schott's original offer set out a package of $123,853 in base salary and $11,147 in superannuation contributions ([10]). At her request, her hours changed from 37.5 to 30 per week. A letter of 18 July 2008 recorded a package of $99,082 in base salary and $8,917 in superannuation, totalling $107,999 ([11]).
The parties disagreed about the remuneration actually paid over the employment period. Schott claimed she received total remuneration of $94,636.17, while Maunsell contended that she received $115,209.21 including superannuation ([13]–[15]). The Commissioner considered that disagreement was not decisive. The statutory question concerned the rate applicable immediately before termination, not the sum earned across the whole period.
The second issue was award coverage. Schott argued that her responsibilities fitted the duties and skills of a Grade 6 Administrative Officer under the Clerical and Administrative Employees (Victoria) Award 1999 ([26]). Maunsell argued that the award did not cover her, including because of her senior role and management responsibilities ([27]). The Commissioner considered the position documents from both parties and found that the role's principal character was professional and managerial rather than clerical ([28]–[34]).
The Commission therefore found both parts of the exclusion satisfied: the termination-date package exceeded the specified rate, and Schott was not employed under award-derived conditions ([35]). The decision does not determine whether the termination itself was harsh, unjust or unreasonable. The supplied text stops part-way through paragraph [36], so it does not reproduce the complete formal order.
The Commission's reasoning turned on the language and structure of the statutory exclusion. As set out in the decision, s 638(1)(f) applied to an employee who was not employed under award-derived conditions and to whom the remuneration provisions in s 638(6) applied ([5]). The Commissioner identified the two necessary questions as whether the remuneration rate immediately before termination exceeded $106,400, and whether Schott was employed under award-derived conditions ([8]).
On remuneration, the Commissioner first decided whether employer superannuation contributions counted. At [18], the decision recounts a Full Bench view in G. H. Deane v Paper Australia Pty Ltd: an employer contribution under superannuation guarantee legislation is a benefit for the employee, related directly to the employee's service, and may properly be described as remuneration. The Commissioner applied that reasoning and held that the 9 per cent contributions were to be included ([19]).
The Commissioner then addressed whether to compare the threshold with the actual remuneration received or with a rate. The Full Bench reasoning quoted from D. Hitchcock v Beverage Industry Environment Council treated the statutory phrase “rate of remuneration” as distinct from the actual total paid. It stated that the provision concerned the rate applicable immediately before termination, rather than cumulative or average remuneration over an earlier period ([20]). The Commissioner also quoted Hitchcock for the view that the relevant rate reflects the employment contract and salary package applicable at termination ([21]).
Applying that approach, the Commissioner used the July 2008 package in force at termination: $99,082 salary plus $8,917 superannuation, or $107,999 in total ([11], [22]). That exceeded the specified rate of $106,400 ([6], [23]–[24]). The competing totals for remuneration actually received during the employment did not alter the result under the interpretation applied.
For award coverage, the decision reproduced the statutory definition of award-derived conditions in s 642(6) ([7]). It then identified the Clerical and Administrative Employees (Victoria) Award 1999 as the relevant award. Its coverage clause applied to people employed wholly or principally in clerical work, which could include administrative duties of a clerical nature ([29]–[30]).
The Commissioner assessed the substance of Schott's position. The role statement described a Principal Professional expected to contribute significantly to sales, profitability, and the management of work and people. Responsibilities included project procurement, management and technical work, winning projects, monitoring staff, business development and client relationships ([31]). The Commissioner treated these duties as evidence that the position's primary purpose was professional and managerial, not clerical ([33]).
In reaching that view, the Commissioner applied the Full Bench's qualitative approach in Layton v North Goonyella Coal Mines Pty Ltd. The question was not simply how much time an employee spent on particular tasks. It was the primary purpose and character of the role. Clerical tasks did not make a professional or managerial role clerical ([32]–[33]). The Commission concluded that Maunsell was not bound by the cited award in relation to Schott's wages and conditions, and that she was not employed under award-derived conditions ([34]).
The decision concerns the Workplace Relations Act 1996 as it applied to Schott's application. It does not purport to establish a general rule beyond the statutory provisions it considers. Its analysis gives a practical account of how the Commission applied the exclusion in s 638(1)(f), read with s 638(6) and Regulation 12.3 ([5]–[8], [35]).
Before applying those provisions, the Commissioner drew on earlier Full Bench decisions for two interpretive points. From G. H. Deane v Paper Australia Pty Ltd, the Commissioner adopted the treatment of employer superannuation contributions as remuneration ([18]–[19]). From Hitchcock, the Commissioner adopted the distinction between an employee's remuneration rate and the total amount actually received over a period ([20]–[22]). The decision presents these principles as settled for the purpose of the matter ([17]).
On award coverage, the Commissioner relied on Layton's qualitative approach to deciding whether a role was clerical. The assessment focused on the primary purpose of the position, not a numerical count of different tasks ([32]). The decision applied that approach to conclude that Schott's professional project responsibilities were not transformed into clerical work by the presence of some clerical tasks ([33]).
The decision describes the result of applying these authorities and provisions to the evidence before it. No subsequent statutory amendments, later judicial treatment, or current-law position is supplied in the judgment text. It therefore cannot establish how the statutory framework operates today or whether later courts have modified, followed or limited these propositions.
At [18], the Commission quoted the Full Bench in Deane as saying that an employer's superannuation contribution is a benefit to the employee and directly related to the employee's service. In plain English, the contribution was treated as part of the value of the employee's remuneration even though it was paid into superannuation rather than received as ordinary salary. The Commissioner applied that reasoning at [19].
At [20], the Commissioner quoted Hitchcock: “the ‘rate of remuneration’ is not equivalent to the actual amount of remuneration.” In plain English, the statutory comparison was not a tally of everything paid during Schott's employment. It was the rate applying to her employment immediately before it ended.
At [21], Hitchcock was quoted as linking the rate to the salary package applicable under the contract at the termination date. The Commission then applied that reasoning to the package recorded in the July 2008 letter ([22]). The decision therefore treated the change in hours and salary as relevant to the package then applying.
At [30], the award's coverage clause referred to employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature. That wording made the character of the work important. The Commission did not treat every administrative activity as enough to establish coverage.
At [32], the Commissioner quoted Layton: “Professional and managerial employees are clearly not clerks.” Read in context, the point was not that job titles alone determine coverage. The quoted reasoning emphasised a qualitative assessment of the role's primary purpose. At [31] and [33], the Commissioner connected that test to the professional, technical, project-management and business-development duties described in the position material.
At [35], the Commissioner brought the two findings together. Because the remuneration rate exceeded the threshold and the role was not award-derived, the statutory exclusion applied. That resolved the jurisdictional objection, not the merits of the allegation about the termination.
The reasoning is most directly relevant to a jurisdictional dispute under the provisions considered where the parties contest whether an employee's remuneration exceeded the specified rate. In particular, it addresses a situation where actual earnings over a short or part-year period may be below the threshold, but the employee's contractual or package rate immediately before termination may be above it. The Commission treated the applicable rate, rather than cumulative earnings, as the relevant comparison ([20]–[24]).
It is also relevant where remuneration is presented as a package combining salary and employer superannuation contributions. The Commissioner included the contributions as remuneration, relying on Deane ([18]–[19]). The precise figures in Schott were a $99,082 salary and $8,917 superannuation, giving a total rate of $107,999 ([22]).
The award-coverage reasoning may be relevant where an employee performs some clerical or administrative tasks but the position also involves professional, technical, managerial or business-development functions. The Commission assessed the position as a whole and focused on primary purpose, rather than counting clerical tasks ([31]–[34]). Job title alone was not the stated test: the decision considered the role descriptions and actual areas of responsibility.
The decision's factual application depended on the specific package and role documents before the Commission. It does not resolve how a different statutory threshold, award, contract, duties description or employment arrangement would be assessed. It also does not decide whether Schott's termination was substantively fair.
The judgment identifies earlier Full Bench decisions that it applied: G. H. Deane v Paper Australia Pty Ltd, D. Hitchcock v Beverage Industry Environment Council, and Layton v North Goonyella Coal Mines Pty Ltd ([18], [20], [32]). It does not discuss any later court or tribunal treatment of Schott itself.
No subsequent authorities are included in the supplied judgment text. Accordingly, this source alone does not support a conclusion about whether later courts followed, distinguished, limited or overruled the decision. The references in this judgment establish only how Commissioner Cribb used the cited Full Bench reasoning in deciding Schott's jurisdictional objection.
The supplied decision text ends during paragraph [36]. Although paragraph [35] states the Commission's conclusion that Schott was excluded from bringing the application, the full operative order is not reproduced. The precise form of the order therefore cannot be confirmed from the supplied text.
The decision records that Schott and Maunsell disagreed about the amounts earned during the employment, and that the respondent's totals included superannuation ([12]–[16]). The Commissioner resolved the jurisdictional question by focusing on the termination-date rate. The judgment does not fully reconcile the competing actual-payment figures because, on its approach, that calculation was not determinative.
The decision also refers to different documents describing Schott's role, including a document said to have been attached to the offer and a more detailed role statement ([28]). The Commissioner concluded that the material did not establish award coverage, but the supplied reasons do not detail the weight assigned to each specific responsibility or resolve every difference between the documents.
Finally, the judgment is tied to the Act, regulations, threshold and award provisions identified in it. It does not explain the operation of any later or current legal framework. Any assessment of the decision's present-day relevance or later treatment would require legal sources beyond this judgment.
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s.643 - Termination of employment
[1] This decision concerns an application filed by Ms Monika Schott (the applicant) on 30 December 2008 for relief pursuant to section 643(1)(a) of the Workplace Relations Act 1996 (the Act). It is alleged that the termination of the applicant's employment by Maunsell Australia Pty Ltd (the respondent) was harsh, unjust or unreasonable.
[2] The respondent has moved to have the application dismissed, pursuant to s.638 of the Act, on the grounds that the applicant's remuneration exceeded the specified rate and that Ms Schott was not employed under award derived conditions. Maunsell Australia Pty Ltd objected to conciliation prior to determination of its jurisdiction objection.
[3] The Commission decided, in the first instance, not to hold a hearing and to determine the jurisdictional objection "on the papers". Accordingly, pursuant to s.648(2) of the Act, the Commission wrote to both the respondent and the applicant inviting them to provide any additional material regarding the jurisdictional objection. Both parties filed statutory declarations which addressed the issues of the applicant's remuneration and whether the applicant was employed under award derived conditions.
[4] On the basis of the material before me from the parties, it is my view that it is possible to determine the respondent's jurisdictional objection, without holding a hearing.
[5] The relevant sections, in this matter, are s.638(1)(f) and s.638(6) which provide as follows:
Exclusions from Subdivisions B, D and E and sections 660 and 661
(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:
(a) an employee engaged under a contract of employment for a specified period of time;
(b) an employee engaged under a contract of employment for a specified task;
(c) an employee serving a period of probation, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:
(i) the period, or the maximum duration, is 3 months or less; or
(B) is reasonable, having regard to the nature and circumstances of the employment;
(d) a casual employee engaged for a short period, within the meaning of subsection (4);
(e) a trainee whose employment under a traineeship agreement or an approved traineeship:
(ii) is, for any other reason, limited to the duration of the agreement;
(i) who is not employed under award-derived conditions (see subsection 642(6)); and
(6) For the purposes of subparagraph (1)(f)(ii), this subsection applies to an employee if:
(a) the employee's remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates; and
(b) the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified, or worked out in a manner specified, in the regulations (the specified rate)."
[6] The specified rate is defined in Regulation 12.3 of the Workplace Relations Regulations as follows:
"For paragraphs 638(6)(b) and 7(b) of the Act, the specified rate is:
(b) the rate worked out by indexing that amount in accordance with regulation 12.6"
That figure was indexed to $106,400 per year from 1 July 2008.
[7] The expression "employed under award derived conditions" which appears in s.638(1)(f) of the Act is defined in s.642(6) of the Act as follows:
"(6) For the purposes of this Division, an employee is taken to be employed under award-derived conditions if the employer is bound:
(a) in relation to the employee's wages and conditions of employment - by an award or a workplace agreement; or
(ii) in relation to the employee's conditions of employment - by an award or a workplace agreement."
[8] In this matter, these legislative provisions require the Commission to determine whether the applicant's remuneration immediately before the termination of her employment exceeded $106,400 and whether or not the applicant was employed under award derived conditions.
[9] The applicant was employed with the respondent from 24 January 2008 to 12 December 2008. Her position was full time and that of Principal Consultant - Communication and Community.
[10] It would appear that it is not disputed that in the letter of offer to Ms Schott, dated 9 January 2008, her annual total remuneration package was set out as:
[11] It also seems that it is undisputed that, in July 2008, the applicant requested a change in her working hours from 37.5 hours per week to 30 hours per week. This was agreed to by the respondent and a letter confirming the new arrangements was sent to Ms Schott on 18 July 2008. The relevant details of that letter are:
[12] It was common ground between the parties that the applicant's salary for the period from 24 January 2008 to 30 June 2008 was $47,794.67 (the respondent's figure was 4 cents less at $47,794.63). To this figure, the respondent added $4,301.52 in superannuation.
[13] The parties held different views about the applicant's remuneration from 1 July 2008 to 12 December 2008. It was the applicant's position that her salary from July to November 2008 was $43,030.67. In addition, in December 2008, the applicant said that she was paid $3,810.83 which included a termination payment.
[14] For the respondent, the applicant earned $58,211.31 in salary plus $4,901.75 in superannuation for the period 1 July 2008 to 12 December 2008.
[15] In total, therefore, the applicant contended that, during her employment with the respondent, she received remuneration of $94,636.17. It was the respondent's submission that Ms Schott earned $115,209.21 (including superannuation) during her employment with the company. The respondent also argued that the applicant's rate of remuneration immediately before the termination of her employment was $107,999 which was in excess of the specified rate.
[16] The differences between the parties lie, primarily, in two areas. Firstly, whether superannuation is included in "remuneration" and secondly, whether it is the actual remuneration received or the "rate" of remuneration applicable to the employee prior to termination.
[17] These two issues have been dealt with by the Full Bench of the Commission in the past and the principles appear to be settled. I will first deal with whether superannuation is included in the calculation of remuneration.
[18] The issue of whether superannuation forms part of remuneration was dealt with by a Full Bench in an appeal against the decision in G. H. Deane v Paper Australia Pty Ltd [1]. The Full Bench formed the view that:
"…the operation of the superannuation guarantee legislation renders the employer's contribution a benefit to the employee and that benefit is of such a character that it could properly be described as remuneration. It is an amount paid for the benefit of the employee which is directly related to the service the employee renders to the employer." [2]
[19] In applying this principle to this matter, I find that the 9% Superannuation Guarantee Contributions are to be included as part of the applicant's remuneration.
[20] The dispute between the parties regarding the applicant's remuneration concerns whether or not it is the actual remuneration that is relevant for the purposes of the exclusion. A Full Bench, in hearing an appeal in the case of D. Hitchcock v Beverage Industry Environment Council, [3] (Hitchcock) addressed this issue and canvassed the previous cases on this issue. The Full Bench found that:
"It has long been held that the 'rate of remuneration' is not equivalent to the actual amount of remuneration. … It is well established that s.170CC (3)(b) [now s.638(6)] is directed to remuneration applicable to the employee immediately before the termination, as it states, and not to a cumulative or average remuneration over a period of time preceding the termination." [4]
[21] Further, the Full Bench went on to say that:
"In our view, Williams SDP correctly interpreted and applied s.170CC (3)(b) in finding that the rate of remuneration applicable to the appellant immediately before the termination of his employment was that specified within the appellant's 'salary package' … and as applicable to the employment of the appellant at the date of termination. . . .
The rate of remuneration reflected the contract applicable to the employment at the time of the termination in respect of ordinary work to be undertaken under the contract. It is that employment, to which that rate of remuneration was applicable, which was terminated." [5]
[22] On the basis of the principles outlined in Hitchcock, it is the applicant's rate of remuneration which is relevant for the purposes of the exclusion. At the time of the termination of the applicant's employment, the applicant's total remuneration package was:
[23] The applicant's rate of remuneration immediately before the termination was therefore $107,999. The specified rate of remuneration, at the time of the termination of the applicant's employment, was $106,400.
[24] Therefore, I find that the applicant's rate of remuneration exceeded the specified rate immediately before termination.
[25] I now turn to deal with the second issue - whether the applicant was employed under award derived conditions.
[26] The applicant's position with the Company was that of Principal Consultant - Communication and Community. The applicant contends that her responsibilities fell within the list of duties and skills of a Grade 6 Administrative Officer as set out in Clause 16.2.6 of the Clerical and Administrative Employees (Victoria) Award 1999 (the Award).
[27] On the other hand, it is argued by the respondent that the applicant is specifically excluded from the Award by virtue of the definition of "employee" which was said to exclude "a manager of an employer". It was stated that the applicant had specific management responsibilities including the management of consultancy staff. In addition, it was submitted that the applicant's role was a senior one which did not include routine administrative duties.
[28] Different documents outlining the nature of the position and the responsibilities were provided by the parties. The applicant's document was said to have been attached to her letter of appointment dated 9 January 2008. The respondent's document is presented as the Role Statement for the applicant's position and is more detailed that the applicant's document.
[29] Having considered all of the material before me, it would appear that it is not possible to find that the applicant was employed under award derived conditions. The relevant award, in this matter, is the Clerical and Administrative Employees (Victoria) Award 1999 (AP773032 CRV) (the Award) - a common rule award.
[30] Clause 5 of the Award - Coverage of Award - states as follows:
"This award shall apply to the employment in any part of Victoria of employers bound by this award to the industry of the process, trade, business or occupation of a person or persons or classes or persons (by whatever name called) employed wholly or principally in clerical work which may include administrative duties of a clerical nature."
[31] The documents from both parties describe the applicant's role as that of Principal Professional which is further described in the applicant's document as having "specific management responsibility". The organisation provides consultancy services in four different market divisions. The applicant's job title is that of Principal Consultant - Communication and Community. The employer's document indicates that Principal Professionals are required to make "a significant contribution to the sales, profitability and management of work and people in a Business Group." The key areas of responsibility include project delivery -
"actively participate in and contribute to the procurement, management and technical aspects of projects; play an active role in winning projects; and monitor the work of staff allocated to specific projects to ensure that technical competence and performance meet the requirements for allocated projects."
Other key responsibilities include business development/client relationship management; staff/teamwork development and assisting in ensuring resource management for projects.
[32] The Full Bench in Layton v North Goonyella Coal Mines Pty Ltd [6] considered the issue of whether a Commercial Superintendent was a "clerk" for the purposes of the relevant award. The Full Bench stated in that decision:
"…the task of interpretation is not a quantitative one based upon the time spent performing certain types of duties. Rather the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the roles is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical - notwithstanding that the role involves various recording and ordinary administrative office functions." [7] [emphasis added]
[33] It would seem, therefore, that the applicant was not employed wholly or principally "in clerical work which may include administrative duties of a clerical nature." Obviously, some of the applicant's tasks in fulfilling her role as a Principal Professional/Consultant with respect to projects, may well have been of a clerical nature. However, this does not alter the fact that the applicant was a senior skilled professional in the procurement, management and technical aspects of projects.
[34] I find, therefore, that the employer is not bound by the terms of the Clerical and Administrative Employees (Victoria) Award 1999 in respect of the wages and conditions of the applicant for the purpose of the exclusion in s.638(6)(b). The applicant was not an employee employed under award derived conditions.
[35] As I have found both that the applicant's rate of remuneration excluded the specified rate and that the applicant was not an employee employed under award derived conditions, the applicant is therefore excluded from bringing this application by virtue of s.638(1)(f) and s.638(6) of the Act and Regulation 12.3.
Printed by authority of the Commonwealth Government Printer
Monika Schott
Maunsell Australia Pty Ltd [2009] AIRC 596;
The Commission found the applicant excluded from bringing the application; the supplied text truncates before the formal order.