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[93]
[2026] FWC 1228
General information, not legal advice.
Fair Work Commission
2026-04-10
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - jurisdictional objection - whether applicant is a person protected from unfair dismissal - whether applicant is covered by a modern award - Banking and Finance Industry Award 2020 - award coverage - applicant covered by modern award - jurisdictional objection dismissed.
[1] Ms Deanne Boules has applied pursuant to s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Boules was employed by Regional Australia Bank (RAB) from 8 July 2024 to 27 August 2025. She was employed as a Health Safety and Wellbeing (HSW) Manager.
[2] RAB contests the application. It raises a threshold issue that Ms Boules was not a person protected from unfair dismissal for the purposes of s 382. This is a threshold issue because s 390(1)(a) has the effect is that it is a precondition for the exercise of the power to order an unfair dismissal remedy that the Commission be satisfied that the applicant is a person protected from unfair dismissal within the meaning of s 382. Section 382 of the Act provides:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[3] RAB contends that Ms Boules did not meet the description in s 382 as none of the three preconditions in s 382(2)(b) applied to her employment.
[4] RAB contends that Ms Boules was paid an annual salary by RAB in excess of the high income threshold, was not covered by an enterprise agreement, and was not covered by a modern award. Ms Boules accepts that she was paid above the high income threshold and is not covered by an enterprise agreement.
[5] Ms Boules contends that she was covered by a modern award and submits that she was covered by the Banking, Finance and Insurance Award 2020 (BFI Award). The threshold issue was heard separately.
[6] Both parties submitted that the correct approach to determining Award coverage involved applying the principal purpose test. I was taken to the decision of the Full Bench of the Commission in Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 6041 (Zheng No. 2). That decision followed an earlier decision in Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 3478 (Zheng No. 1). In Zheng No. 1 the Full Bench described the principal purpose test as follows:
It remains necessary to consider what the application of the "principal purpose" test requires. As was stated in Carpenter v Corona Manufacturing Pty Ltd [2002] AIRC 1562; (2002) 122 IR 387, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor."
[7] In Zheng No. 2 the Full Bench considered whether an employee was covered by a modern award and used as its starting point the job advertisement and contract of employment of the employee. The Full Bench found that an analysis of the job advertisement and the employment contract demonstrated that the conducted professional work was "without detailed supervision but with guidance on unusual features" and was "usually engaged on more responsible assignments requiring substantial professional experience". The Full Bench found that the relevant Award, the Professional Employees Award included a classification descriptor that was apt to capture those duties.
[8] The approach to be taken to determining award coverage was discussed further in United Workers' Union v Thrive Group Tasmania Inc [2026] FWCFB 7. Three observations were made by the Full Bench. First, the principal purpose test, which involves identifying the major and substantial aspect of an employee's work to determine the appropriate award classification, is most useful when an employee undertakes mixed duties, and it is necessary to determine which classification or industrial instrument applies. The Full Bench noted that the principal purpose test is merely an aid in interpreting and applying the relevant industrial instrument and may not always be suitable, especially if the classifications are expressed in generic terms. Second, it is not necessary for an employee's duties and responsibilities to precisely match every criterion in an award classification. Instead, the role should fall substantially within the scope of the classification described. A perfect fit is not required, as long as the role fairly represents the characteristics and typical duties/skills of the classification. Third, evidence about the actual work performed by the employee may provide context but does not override the classification descriptors in the award.
[9] Ms. Boules' evidence was that she was employed as the Health, Safety, and Wellbeing Manager at RAB from July 8, 2024 to August 27, 2025. She reported directly to Ms Rachel Mitchell, Chief People and Culture Officer, who reported to the CEO. Her role was described as a senior position, but she claimed that from January 2025 her actual work was limited to administrative and advisory tasks and she was not permitted to exercise managerial authority or decision-making power.
[10] Ms Boules was engaged under a written contract of employment. The contract included a section titled "Enclosures or Web Links," which listed the BFI Award as a resource relevant to the job together with other resources such as the Position Description, Fair Work Information Statement, and the Code of Conduct The contract stated that the employment terms and conditions were governed by applicable legislation, including the National Employment Standards in the Fair Work Act 2009. The Position Description was for a Health, Safety and Wellbeing Manager within the People and Culture Portfolio in the Health, Safety and Wellbeing Department. The position was located in Armidale. The position reported to the Chief People and Culture Officer and had no direct reports. The position was responsible for providing expert advice and support to the business in shaping health and safety practices and ensuring compliance with legislative and regulatory obligations. The role involved developing, implementing, and managing WHS strategies, frameworks, programs, and systems to foster a safe and healthy workplace for employees, contractors, and members.
[11] The key responsibilities were described in the Position Description under five headings. The first, which was allocated a weighting of 30 %, was Health, Safety and Wellbeing Leadership. It included:
a) providing WHS expertise and guidance to management and health and safety representatives;
b) developing and managing workplace health, safety, and wellbeing frameworks;
c) identifying and managing health, safety, and wellbeing risks, implementing risk treatment plans;
d) leading change management initiatives to ensure a safe working environment; and,
e) preparing reports for the Health, Safety and Wellbeing Working Group and Board committees.
[12] The second heading was WHS Management and Systems, also allocated a weighting of 30% It included:
a) reviewing and updating WHS management systems, policies, and procedures;
b) coordinating annual WHS reviews and developing management plans;
c) monitoring WHS budgets and ensuring effective utilisation;
d) conducting audits, inspections, and investigations to ensure compliance and risk mitigation; and,
e) overseeing WHS induction processes for new staff.
[13] The third, allocated a 10% weighting, was Training and Development which involved collaborating on health, safety, and wellbeing training programs and developing techniques for managers to address psychosocial risks and implement intervention strategies.
[14] The fourth was Workers Compensation and Return to Work involving managing workers' compensation claims and coordinating return-to-work programs. It was also allocated 10%.
[15] The final list of responsibilities, which were weighted 20%, was described as Engagement. It involved building relationships with external organisations such as WorkSafe, representing the bank in industry bodies and forums and participating in major decisions, projects and planning within the People and Culture team.
[16] The selection criteria for the job were:
1. Relevant tertiary qualifications in WHS (Diploma), or Human Resources with experience in a WHS related role or an appropriate alternate combination of experience, qualifications, and training.
2. Demonstrated knowledge of relevant legislation, return to work programmes and best practice with the ability to provide high-level advice and support on their application within a geographically dispersed workforce.
3. Excellent interpersonal, communication and consultation skills, with proven ability to interact effectively at all levels and to build positive working relationships, drive engagement, motivate people and influence culture.
4. Demonstrated high level of independence in solving problems and using judgment, with the ability to identify, and manage risk, and evaluate and improve the effectiveness of safety practices.
5. Passionate about delivering service excellence and able to build high levels of impact and influence with critical stakeholders.
6. An experienced track record in leading and promoting a safety culture and development of preventative strategies particularly in the psychosocial risk space.
[17] The Position Description identified the classification Grade as Grade 5. The evidence was that this was a reference to a grade in a document entitled Guidelines - Position Evaluation. The Guidelines described Grade 5 as follows:
Requires highly specialised commercial, professional, or technical capabilities or advanced managerial capabilities. Manages a substantial professional discipline or operational team. Breadth of expertise is often applied to diverse set of conditions., for example varying and multiple topics/issues/products. Establishes operational plans with measurable contribution towards the achievement of results of the job function. Focus may be on shorter to midterm operational plans. Provides measurable input to new products, processes or standards in operational plans that will have some impact on the achievement of overall function results.
• Typically requires a University Degree with extensive experience, or equivalent levels of skill and knowledge with an extensive period of relevant experience.
• Makes independent decisions in relation to area of responsibility.
• Problems and issues faced are numerous and undefined, and require detailed information gathering, analysis and investigation to understand the problem.
• Problems are difficult and often complex. Problems typically impact multiple departments or specialties. Problems are typically solved through drawing from prior experience and analysis of issues.
• Responsible for making significant improvements of processes, systems, or products to enhance operational performance of job area.
• Requires proven and significant knowledge in leading and managing the execution of processes, projects, and tactics within one job area.
• Substantial advanced knowledge and skills within a specific technical or professional discipline with understanding of the impact of work on other areas of the organisation.
• Management of specialised projects requiring considerable interpretation and understanding of organisational operations and subject matter.
• Makes decisions using good judgement, expertise, and knowledge, under limited guidance.
• Ensures decisions are governed by the application of regulations and best practice principles.
• Budget accountability for the department and/or certain processes or projects within a defined budget.
• May have leadership and management responsibilities of a mid-sized team consisting of experienced professionals.
• Leads, directs, and reviews the work of a team who exercise latitude and independence in their assignments
• High level relationship management within and outside of own job function, may include external customers/vendors.
• Provides detailed explanation/interpretation of policies, practices, and procedures of the job area to others within the organisation.
• May need to influence and negotiate to justify and gain cooperation of other parties on practices, policies, and procedures outside of own job area.
[18] Ms Boules was paid a total remuneration package of $213,400.00 comprising salary of $191,390.13 and superannuation.
[19] Ms. Boules' evidence was that while performing the role she was not required to take on all of the responsibilities in the Position Description. She said her work primarily involved:
[20] She claimed that her role was subject to limits imposed by her manager, Ms Mitchell, who required prior approval for all her work and who often altered or disregarded her recommendations. She said she was excluded from strategic decision-making, emergency response planning, and direct engagement with the ELT. She described her role as more akin to a "Coordinator" or "Junior Advisor" rather than a senior managerial position.
[21] RAB relied on two witness statements. Ms Rachel Mitchell, Chief People and Culture Officer and Mr Simon Stubbs, Digital People and Culture Manager. Ms Mitchell was cross examined.
[22] Ms Mitchell's evidence was that Ms. Boules' role as Health, Safety & Wellbeing Manager was a senior position requiring expertise in work health and safety (WHS). Ms Mitchell said that Ms Boules was expected to lead the WHS function, provide expert advice, and develop systems and practices to ensure the bank met its WHS obligations. Ms Boules was the most senior member of the bank with WHS expertise and was the highest-paid person in the People & Culture team. She was required to develop and implement the Safety Management System (SMS) and improving the bank's WHS systems. Her responsibilities included; developing and delivering the SMS, establishing WHS metrics for the Board, implementing the computer system for hazard and incident reporting, leading workers' compensation and return-to-work programs, developing leadership WHS practices and training and creating a psychosocial risk assessment approach. Ms Mitchell said Ms. Boules was responsible for WHS operational planning and was given autonomy to articulate plans and implement change management initiatives. She was expected to deliver high-level WHS strategies and frameworks. Ms Mitchell said that while Ms. Boules did not have direct reports, she was expected to lead and develop plans and approaches for the organisation. Her role involved making decisions and directing work as a WHS expert. Ms Mitchell disagreed with Ms Boules that her role resembled a coordinator or junior advisor position, asserting that the role was designed to be a high-level expert position with significant responsibilities.
[23] Mr Stubbs' evidence was that Ms. Boules' role was a high-level expert position. He said Ms Boules was recruited for the role because her curriculum vitae presented her as a highly respected, award-winning expert in people, safety, leadership, and culture, boasting over 30 years' experience. He said her duties closely aligned with the key responsibilities set out in the Position Description. She was a member of the People & Culture leadership team alongside the Chief People and Culture Officer, the Culture and Capability Manager, and the Talent Acquisition Manager. While Ms Moules worked independently, she regularly collaborated with managers and senior leaders throughout RAB to address health, safety, and wellbeing requirements. He said her role involved considerable discretion and operational planning duties.
[24] Going to the coverage provisions in the BFI Award, clause 4.1 states that the award is an industry award covering the banking, finance and insurance industry "in respect of work by their employees in a classification in this award". The industry is defined at clause 4.2. There is no question that RAB falls within the definition of the industry. Employee classifications are defined in Schedule A. The Schedule describes employees at 6 levels. Each level is defined by the complexity of work to be performed, methods and procedures that are to be followed, and the extent to which an employee exercises discretion in their role. Typical activities are described and an indicative job list included. Tasks performed become more complex and involve the exercise of greater discretion at the higher levels. Ms Boules held a management role and contends that her employment fell within the definitions at level 4 or alternatively level 5. Those definitions read:
A Level 4 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a level higher than required at Level 3. Those employed at this level are responsible for their own work and any employees under their control.
Positions at this level require the application of relevant specialist knowledge and experience.
Those employed at this level are required to advise on a range of activities and contribute to the determination of objectives within the required area of expertise.
Typical activities and skills may include but are not limited to:
· overseeing day-to-day operations of functional areas of responsibilities;
· assisting with the recruitment and selection of staff; and/or
Indicative job list - human resource officer, learning and development officer, compliance officer, personal assistant, assistant accountant, accounts officer, claims officer, assistant underwriter, customer relationship manager, settlement officer, collections officer, lending officer, administrative officer, personal lending relationship officer, personal banker, customer service specialist agency officer, branch services officer, senior case manager, entry level team leader, senior technical officer.
A Level 5 position is one in which tasks, service requirements and supervisory functions are performed using a more extensive range of skills and knowledge at a higher level than required at Level 4.
(a) a specialised role, possibly supported by one or 2 junior staff members, requiring formal qualifications and/or specialised vocational training; and/or
(b) a managerial role (managing 5-10 people) responsible for the operation of part or parts of the employer's business.
Those employed at this level exercise considerable discretion and/or are responsible for operational planning.
Indicative job list - human resources consultant, senior learning and development officer, accountant, senior claims officer, analyst programmer, fraud investigator, call centre team leader, credit controller, administration manager, underwriter, sales manager, customer service team leader, assessor, loss control officer, business analyst, assistant branch manager, personal lending specialist, team leader.
[25] The Respondent submits that the BFI Award should be read with s 143(7) of the Fair Work Act 2009, which states that modern awards must not cover classes of employees who, due to the nature or seniority of their role, have traditionally not been covered by awards or perform work that is not of a similar nature to work previously regulated by awards. The submission is made in the context of a decision of Commissioner Smith who considered an application to vary the BFI Award in 2013 AFEI and ors in the Banking Finance and Insurance Award 2010 [2013] FWC 5482. In that case the Commissioner was considering altering the definition of level 6 of the Award so as to exclude certain managerial employees who have not been traditionally covered by awards consistent with the alteration to the request and contrary to s 143(7) of the Act. The Commissioner adopted a course of varying the Award so that it did not apply to employees, who because of their seniority were not covered by awards. The variation was said to do no more than to recognise the statutory injunction contained in s.143(7). The Commissioner was satisfied that the variation would not remove employees from coverage. The Commissioner was concerned to ensure that those employees who were covered did not lose that coverage. An issue arose over senior employees who were excluded from some terms of the award. The variation was not to disturb award coverage of those employees to whom some sections of awards previously applied. The Commissioner did not alter the indicative job list but rather concentrated on seniority and coverage rather than providing that a job title could determine the coverage of an award.
A Level 6 position typically performs a middle managerial role primarily to control the conduct of a part of the employer's business and in which decisions are regularly made and responsibility accepted on matters relating to the administration and conduct of the part of the business. Those responsible for managing more than 10 people must be classified at this level provided that this level 6 classification does not cover classes of employees:
(a) who, because of the nature or seniority of their role, were not traditionally covered at all by awards; or
(b) who perform work that is not of a similar nature to work that has previously been regulated at all by awards.
Indicative job list - branch manager, human resources or fraudulent relations manager, financial planner, information technology specialist, relationship manager, senior analyst, subject matter manager, divisional manager.
[28] I was also taken to Chris Trutwein v Harness Energy Services Pty Ltd t/as Harness Energy [2015] FWC 1816 where the Commission was required to determine whether the applicant was covered by the Hydrocarbon Industry (Upstream) Award 2010. The applicant in that case was providing health and safety support across multiple sites which required specialist knowledge of the Petroleum & Gas (Production and Safety) Act 2004 (Qld) the Work Health and Safety Act 2011 (Qld). The applicant was found to not be covered by the relevant award as he was not engaged in the hydrocarbon industry. It was found that instead he was engaged in the workplace health safety and environment industry. Having made that finding the Commission concluded that as no award applied to health and safety professionals and they have never been historically covered by awards the applicant was not covered by a modern award at all. The case involved some discussion of s. 143(7) of the Act in the context of health and safety professionals not historically being covered by an award. I do not consider this cases sets a rule that settles this matter. The award coverage test is to be applied in each individual circumstance.
[29] The outcome here will be determined by applying the evidence about Ms Boules employment, being the contractual documents and the witness evidence about the way Ms Boules work was performed. The test for award coverage requires an examination of the nature of Ms Boules' work and the circumstances in which she did that work. This is a question of fact. Once that is done, those matters must be compared to the classification descriptors in Schedule A in order to determine whether Ms Boules employment fell within the scope of the BFI Award.
[30] The position was a managerial role albeit Ms Boules did not manage any staff. I note that the BFI Award includes management roles at Level 5 and Level 6. Level excludes persons who, because of the nature or seniority of their role, were not traditionally covered at all by awards.
[31] The documentary evidence demonstrates that Ms Boules was employed in a senior role She was in a senior management position within the People and Culture Portfolio, specifically in the Health, Safety, and Wellbeing Department of the bank. She was required to have specialised knowledge and expertise in workplace health and safety, including expertise in compliance with legislative and regulatory obligations. She had key responsibilities in leadership in health, safety, and wellbeing practices, developing and managing of WHS frameworks, systems, and strategies. She was responsible for risk identification and management. She was required to conduct audits, inspections, and carry out investigations to ensure compliance and mitigate risks. She managed workers' compensation claims and return-to-work programs. She reported directly to the Chief People and Culture Officer, Ms. Mitchell.
[32] Ms Boules pay was set in accordance with RAB's remuneration guidelines at Grade 5. That document described employees at Grade 5 as possessing advanced commercial, professional, or technical expertise, managing a significant professional discipline or operational team. They were to apply broad knowledge to varied and complex issues, develop operational plans, and contribute to new products, processes, or standards. Typically holding a university degree and extensive experience, they independently solve complex problems impacting multiple departments, make important decisions with budget accountability, and lead mid-sized teams. Their responsibilities include improving processes, managing specialized projects, maintaining high-level internal and external relationships, interpreting policies, and influencing co-operation across the organisation.
[33] Ms. Boules contended that before January 2025, she performed the senior role described in the Position Description. She says that her understanding was that she would be guiding the organisation in work health and safety matters and would be reporting directly to the Board of Directors on those issues. She stated that during the initial months of her employment she was engaged in gathering information, understanding the organisation's needs, and developing strategies to strengthen its safety performance. I note that she gave evidence that she believed she was not covered by the BFI Award at the commencement of her employment. Her view however is not determinative.
[34] She said her ability to perform at a senior level was progressively curtailed, particularly after December 2024. After that time her work increasingly involved administrative and advisory type work including in relation to workers compensation matters. The witnesses differed about whether these tasks were taken on at Ms Boules request or were undertaken by direction. That distinction is not determinative. It appears that Ms Boules volunteered to do that work and was permitted to. Ms Boules evidence was that she was not permitted to exercise managerial authority or decision-making power. I accept that was the case. I do not accept her evidence that her role became akin to a "Coordinator" or "Junior Advisor" rather than a senior manager. She continued to act, and was regarded by her peers, as a senior manager. This is indicated by the content of email communications throughout 2025. I also accept that the shift in her responsibilities and the limitations on her work were imposed by Ms. Mitchell. Ms Mitchell acknowledged that Ms Boules duties were limited primarily due to organisational governance, resource management, and concerns about Ms Boules' performance. Ms Mitchell said that RAB was a relatively small team, and there were limitations on how resources could be managed effectively. Ms Mitchell's concerns about Ms. Boules' performance was that she was not performing well in some areas and her expertise did not appear to match the role. Ms Mitchell disagreed that Ms Boules was prevented from performing her duties and said that Ms Boules was given autonomy to act as an expert in her field. Ms. Mitchell acknowledged that she had the authority to override some of Ms. Boules' recommendations, which she did on occasion.
[35] My assessment, based on the job description and remuneration guidelines and the way in which the work was performed, is that Ms Boules was not employed, as she contended, as a Level 4 employee under the BFI Award. While she did apply relevant specialist knowledge and experience, she was required to do more than simply advise on a range of activities and contribute to the determination of objectives within her area of expertise. She had autonomy to move around the business, make assessments of the WHS performance of the bank and had considerable discretion and/or responsibility for operational planning relevant to WHS matters.
[36] I find that her duties fell within the description of a Level 5 employee. Her role was consistent with the definition of a Level 5 employee, which refers to specialised or managerial roles exercising considerable discretion and responsibility for operational planning. The indicative job list in the Award at Level 5 includes human resources consultant, senior learning and development officer, and senior claims officer. These indicative roles are consistent with the workplace health and safety role performed by Ms Boules.
[37] As I have found Ms Boules was covered by the FBI Award as a Level 5 employee I do not need to consider whether the exemption in Level 6 with more senior roles not traditionally covered by awards applies. Had I been required to do so, I could not find on the material provided by RAB that this exemption was met. Reliance was placed on the coverage clause of the Credit Union Award 1998 (CUA) and a submission made that work, health and safety specialist were not covered. That award is a predecessor to the BFI Award and may be a relevant document for the purposes of the exclusion in Level 6 of the BFI Award. I do not see an exclusion for work, health and safety specialist in the CUA. The definition of a Grade 5 employee in that award is in similar terms to Level 5 of the BFI Award which I consider contemplates the work performed by Ms Boules. The material provided amounted to an assertion that workplace health and safety managers had not traditionally been covered by awards. I do not consider on the material provided that the assertion is made out.
[38] Consequently, I find that the BFI Award is expressed to cover Ms Boules and consequently for the purposes of s 382 of the Act Ms Boules was a person protected from unfair dismissal.
[39] The jurisdictional objection is dismissed. I so order.
[40] The matter will be listed for programming of the substantive matter.
[1] David Faulder v Lanteri Partner Financial Management Pty Ltd T/A Lanteri Partner Group [2012] FWA 4801, [39]-[41].
[2] Robert Currie v SMA Super Pty Ltd [2013] FWC 3225, [32]-[43].
[3] George v ParkTrent Properties Group Pty Ltd [2013] FWC 7447, [73]-[75].
[4] Gregory Simonsen v Pioneer Credit Limited [2016] FWC 901, [104]-[111].
[5] Mr Christopher Grindal v CGA Accounting Pty Ltd T/A CGA Accounting [2021] FWC 1002, [183].
[6] J Marshall v UBS AG Australia Branch T/A UBS [2012] FWA 1708, [45]-[46].
Printed by authority of the Commonwealth Government Printer
Ms Deanne Boules
Regional Australia Bank Ltd [2026] FWC 1228
(2002) 122 IR 387