s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - whether the Applicant is a person protected from unfair dismissal - award coverage - Applicant not Award covered - jurisdictional objection upheld - application dismissed

[1] Mr Paul Cartwright (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with IMR Group Pty Ltd (the Respondent).

[2] Section 396 of the Act requires satisfaction of four matters before considering the merits. The Respondent raised a jurisdictional objection that the Applicant is not a person protected from unfair dismissal as the Applicant's earnings are above the high income threshold and he is not covered by an Award or Enterprise Agreement.

[3] The matter was listed for a hearing on 13 November 2025. Both parties appeared self-represented.

[4] The Respondent purchased the Applicant's business, called 22Vision, on 1 July 2024. The Applicant's business involved installing roadside guardrails on public and private roads. The Respondent undertakes specialist work for mining companies and had identified possible synergies between the two business.

[5] As a result of the purchase of the Applicant's business, the Applicant became an employee of the Respondent. The Applicant's employment contract took effect from 1 August 2024. The Applicant's annual remuneration under his employment contract was $180,000. The Respondent also stated that the Applicant was given access to a "company car, laptop and mobile phone". The Applicant debated whether these non-monetary benefits counted. However, for the reasons outlined below, it is not necessary to resolve this issue.

[6] Following the purchase of the business, the Applicant reported to the Respondent's CEO, Mr Sam Leonardi. The Applicant was given responsibility over the guardrails division of the business. He continued to manage the business as he had done previously albeit under more financial oversight. The employees of the 22Vision business were also transferred into the payroll system of the Respondent.

[7] In early June 2025, the Respondent became aware of several inconsistencies in invoicing by the Applicant and alleged that the Applicant had breached his contract of employment by invoicing work and receiving payment through his old company whilst using the resources and being in the employ of the Respondent.

[8] At a meeting on 4 June 2025, a series of allegations were put to the Applicant. The Applicant was dismissed for alleged fraudulent activity. In the ensuing weeks, the Respondent closed the 22Vision business and laid off its employees.

Is the Applicant a person protected from unfair dismissal?

[9] Under s.382 of the Act, a person is protected from unfair dismissal if they meet the conditions of both s.382(a) and s.382(b).

"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."

[10] There was no dispute as to the minimum employment period. It is also not disputed that the Applicant's annual rate of earnings was above the high-income threshold. At the time the application was filed, 9 June 2025, the high income threshold was $175,000. Given the Applicant's base salary of $180,000.00 was above that figure, it is not necessary for me to resolve the issue of whether other fringe benefits should be included as well.

[11] There is no enterprise agreement covering the Respondent. The relevant issue is whether the Applicant is covered by the Building and Construction General On-site Award 2020.

[12] The Respondent argues that the Applicant was in a managerial position in the business and as such there is no Award that covered the Applicant's work. The Respondent put forward an extract from the Applicant's employment contract which states:

Your title will be 22 Vision Manager, you will report to the organisations CEO. This is a Fulltime salaried position. A full position description of your role will be attached as an appendix to this employment contract, ensuring full understanding and clear responsibilities and dimensions of the position."

[13] However, there was no position description attached to the contract.

[14] The Respondent's Director gave evidence that the Applicant had the following duties:

"The position was a managerial in nature, the Applicant was responsible to perform typical managerial duties such as:

1. In relation to day to day operations and human resources

b. Authorising spending within budget, seeking CEO approval for over budget spending.

c. Overseeing staff re-allocation of tasks, positions and equipment. Supervising and monitoring of staff to ensure tasks were completed in timely manner.

d. Overseeing all paperwork completed by staff to ensure accuracy of information and timeframes, including quotes and invoices drafted for customers and suppliers.

f. Maintaining staff moral and company culture. Ensuring the safety and wellbeing of staff.

g. Hiring and firing staff as required in consultation with the CEO

B. In relation to customers, suppliers and business development;

a. Managing relationships with external suppliers and stake holders.

b. Maintaining business development with existing and new customers.

d. Reviewing all customer invoicing and following up overdue accounts.

C. In relation to strategic and financial management:

b. Preparing, analysing and reporting data on monthly budget versus capital expenditure requirements.

a. Responsibility for the Brisbane depot; overseeing maintenance and security of all company equipment and property.

In relation to the Applicant's position whilst employed by IMR Group Py Ltd, there was no modern award I was aware of that the Applicant was eligible to be covered by. My understanding was the position of 22 Vision Manager fell outside modern awards, as it involved high-level decision making not classified under awards."

[15] The Respondent contends that the Applicant performed a managerial level role and that, using the principle purpose test, there was no relevant Award which covered the Applicant.

• [16] The Applicant argues that his role as 22Vision Manager was covered by the Building and Construction General On-site Award 2020. He does not point to a particular classification but seems to suggest he had an engineering role.[1]

[17] The Applicant said he was often leading crews or working with them, and would take charge of design. He was often on the tools and that he would be at site frequently conferring with the clients on requirements. He had a deep understanding of the various engineering standards that applied to the use of guardrails and how they should be specified. As a result, he spent a lot of time with the client and in design work to ensure the final outcome was fully compliant with the various codes and regulations. Once there was agreement with the client, he would hand off the design work to a consultant registered practising engineer.

[18] When questioned by me in the hearing, the Applicant generally agreed that he performed the activities submitted by the Respondent. He did, however, state that he presented cashflow information but did not keep a budget as the 22Vision business was "ad hoc" in the beginning.

[19] Consideration of whether an employee is covered by an Award, and which classification an employer falls under, is often examined using the "principle purpose test".

[20] The Full Bench at paragraph [9] of the decision in Carpenter v Corona Manufacturing Pty Limited said:

"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 Award."[2]

[21] The Full Bench in Fonterra Brands (Australia) Pty Ltd v AMWU [2015] FWCFB 3912 at [16] states:

The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement. If a role does not substantially fall within the scope of any classification the consequence is that the agreement is silent on the rate of pay for that role, and depending on the scope of the agreement, the role may fall outside the agreement entirely.

[22] While noting that the principle purpose test is commonly used in the Commission, I am conscious of the Full Bench's recent comments in United Workers' Union (108V) v Thrive Group Tasmania Inc [2026] FWCFB 7 at [41]:

It is important to remember that, although often found to be a useful device, examination of the 'major and substantial employment' or 'principal purpose' of an employment is no more than an aid in the task of construing and applying the relevant industrial instrument. There will be instances in which the 'principal purpose' test is ill-suited to determining whether a person falls within a classification if, for example, the classifications are expressed in highly generic terms and do not describe with any specificity the job functions required to be performed at each level. The question is, ultimately, one of the interpretation and application of the classification descriptors in the relevant modern award.

[23] In applying the principles in this case, the Applicant argued that he undertook a lot of work on the tools however he did not point me to any particular classification under the Building and Construction General On-site Award 2020. The Applicant highlighted various parts of the Award which he said applied, but these highlighted parts were taken out of context. For example, the Applicant highlighted parts from three different streams: the general building and construction, civil construction and engineering streams.

[24] Clause 4 of the Building and Construction General On-site Award 2020 outlines who is covered by the Award:

4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule A - Classification Definitions to the exclusion of any other modern award.

4.2 For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.

[25] The work undertaken by the 22Vision guardrails business unit can, comfortably in my view, fit under the engineering and civil construction industry. It is then necessary to examine whether the Applicant's role comes under a classification in Schedule A of the Award, bearing in mind the principle purpose of his role.

[26] The Applicant highlighted parts of the engineering stream in the Award which he argued apply to his role, set out below:

A.2.9 Engineering construction worker level 9 (Advanced engineering construction tradesperson level II and Engineering construction technician level V) (ECW 9)

(a) An Advanced engineering construction tradesperson level II is an:

· Advanced engineering construction tradesperson (electrical/electronic) level II; or

· Advanced engineering construction tradesperson (mechanical) level II; or

· Advanced engineering construction tradesperson (fabrication) level II;

· 15 appropriate modules of an Associate Diploma; or

· 15 appropriate modules in addition to the requirements of CW/ECW 3; or

· any training which a registered provider (e.g. TAFE) or by a State training authority has been recognised as equivalent to an accredited course which the appropriate industry training board recognises for this level. This can include advanced standing through recognition of prior learning and/or overseas qualifications; or

· will have skills equivalent to the above gained through work experience subject to competency testing to the prescribed standards.

(b) An Advanced engineering construction tradesperson level II works above and beyond a Tradesperson at CW/ECW 8 and to the level of their training:

· provides technical guidance or advice within the scope of this level;

· prepares reports of a technical nature on specific tasks or assignment as directed or within the scope of discretion at this level;

· has an overall knowledge and understanding of the operating principle of the systems and equipment on which the tradesperson is required to carry out their task;

· assists in the provision of on-the-job training in conjunction with supervisors and trainers.

(c) Indicative tasks which an employee may perform at this level, subject to the employee having the appropriate Trade and Post Trade Training to enable the employee to perform them, are:

· through a systems approach able to exercise high level diagnostic skills on complex forms of machinery, equipment or instruments which utilise some combination of electrical, electronic, mechanical or fluid power principles;

· set up, commission, maintain and operate sophisticated maintenance, production and test equipment and/or systems involving the application of computer operating skills at a higher level than a CW/ECW8;

· works on various forms of machinery and equipment electronically controlled by complex digital and/or analogue control systems using integrated circuitry;

· works on complex electronics or instruments or communications equipment or control systems which utilise electronic principles and electronic circuitry containing complex analogue and/or digital control systems using integrated circuitry.

An Engineering construction technician level V has the level of training and skills to an Advanced engineering construction tradesperson level II but is engaged in one of the following areas:

· undertakes draughting or planning which requires the exercise of judgment and skill in excess of that required of an Engineering technician level IV at CW/ECW 8; or

· exercises a level of cross skilling in technical fields as defined, consistent with the training and experience at this grade.

[27] The Respondent argued that the Applicant's role was to run the 22Vision business. They state that the Applicant had a client-relationship role which was important to ensure current clients would continue to rely upon the business. The Respondent acknowledged that the Applicant did use his technical skills to assist clients with the specifications or the design and layout of the guardrails, given his deep knowledge of regulations that apply to the business.

[28] However, the Respondent was clear that they did not utilise the Applicant in an engineering capacity for report writing or to provide engineering advice. The Respondent stated that it was not within the scope of its business to provide engineering advice and the Applicant was not required to provide that advice, as that may leave the business liable to a law suit. The Respondent indicated that the Applicant had the usual office computer skills consistent with the Microsoft suite and did not use or operate programs such as CAD and other sophisticated drawing or technical systems software.

• [29] The Applicant described his duties as follows during the hearing:[3]

"Well, firstly, as Mark [the Respondent's Director] has pointed out, I have been running the business for a very long time. We were only a small business. Over the years, we ran roughly six to eight people, and it was a very hands-on business. I was often on the tools. I was often leading crews or working with them. And I always was ahead of the design. So our clients very rarely knew what they wanted. Even larger civil contractors would give you a bill of quantities of what was required, but we had to go over the design to make sure that the specification was met all the time. And certainly the TMR and Austroads specifications are anything but simple. And so I spent a lot of time with people on site determining what the design would be, making sure it was compliant to the standards and the authorities, the authority design standards. I also went through and signed off a lot of the work, so I would go through afterwards doing the inspection of the work, making sure that it did meet the standards, filling in ITPs, also Form 12s and Form 15s. With designs, Mark was very light in what he said in that we don't want to take ownership of designs. So what I would do is that I would have a design based on my understanding of what needed to happen. And then we would employ an RPEQ to sign off on that design."

[30] The Applicant emphasised that business development and client relationships were important to his role. He would try and improve relationships with customers by going out to site to provide a quote where possible. The Applicant argued that the Respondent wanted him to get to the point of rolling into a senior management role, but at the time, they did not have enough staff with technical skills such that the Applicant was required to use his technical skills in his role.

[31] The Applicant submitted that prior to the business acquisition, his staff were covered by the Building and Construction General On-site Award 2020. Following the acquisition, the 22Vision staff's roles were reviewed and were classified under different Awards. On 11 July 2024, the Applicant provided a list of his employees to the Respondent for review of which Awards the employees fell under. The Applicant's name appears on that list. However, there is a "???" next to his name under the Award heading. The Applicant suggests because the Respondent put down "???" as the Award covering the Applicant, then there is an Award which covers the Applicant which was being assessed. That is not a convincing argument.

[32] The Applicant also submitted a copy of a subcontractor tender qualification provided to McNab in 2020, prior to the acquisition. That document states that employees working on project will be covered by the Building and Construction General On-site Award 2010. The fact that the Applicant's employees, or indeed the Applicant, may have been covered by the Building and Construction General On-site Award 2010 when the Applicant was running his own business in 2020 is not probative. It does not demonstrate whether the Applicant was covered by an Award five years later, when he was in the role of 22Vision Manager. I put no weight on this evidence.

[33] While there was no written position description, this is not required to assess the Applicant's award coverage. The Applicant generally agreed with the list of duties provided by the respondent. He disagreed on his financial responsibilities and contended that he was on-site more often than the Respondent put forward.

[34] In an examination of the duties of the Applicant, I do not see that he would fit into the classification under the Engineering stream or any other level or description under Building and Construction General On-site Award 2020. The Applicant's role was principally managerial. He reported directly to the CEO and acted more or less autonomously.

[35] The Applicant was clear that any design work would be sent off to be approved by a registered practising engineer of Queensland, who was insured to provide the sign off. That is a very significant factor in my determination that the Applicant does not fit within the engineering streams of the Building and Construction General On-site Award 2020. Sending drafting work to a registered engineer is inconsistent with the indicative duties of an employee classified in the roles the Applicant highlighted of Advanced engineering construction tradesperson level II and Engineering Construction Technician Level V.

[36] The Applicant was the leader of a small team. Aspects of his work which were emphasised by him included client retention, engagement and building the business. The fact that the Applicant may have had technical knowledge which helped him in assisting customers in achieving what they wanted does not mean that he was required to maintain engineering qualifications.

[37] Additionally, the fact that the Applicant may not have felt he was required to produce a budget does not change the fact that the Applicant was given responsibility for developing the business unit. A degree of financial planning is inherent in developing a business unit.

[38] I find that the Applicant is not covered by the Building and Construction General On-site Award 2020. The Applicant did not put forward an alternative Award which he may be covered by. As the Applicant is not covered by a modern award, he is not a person protected from unfair dismissal. It is unnecessary for me to consider the merits of the application.

The jurisdictional objection is upheld and the application is dismissed. I Order accordingly.

[2] [2002] AIRC 1562; (2002) 122 IR 387.

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