Consideration
61 There are two related questions to determine whether Mr Roebuck's employment fell within the coverage of the Award. First, what is the proper construction of the Award? In particular, what is the meaning and effect of the classifications described in cl 14 and Sch A of the Award. Second, on the proper construction of the contract of employment, do the duties of Mr Roebuck fall within the scope of at least one of the classifications in the Award?
62 The principles applicable to interpretation of the contract of employment have been addressed earlier in these reasons. However, these principles do not apply to the interpretation of a modern award.
63 A modern award is a legislative instrument and, as such, is interpreted in accordance with the provisions of the Interpretation Act: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [51]-[57] (French J). Accordingly, the general principles of statutory interpretation referred to earlier in these reasons apply equally to the Award and the ordinary meaning of the text must be considered in context and having regard to the legislative purpose. In the case of a modern award, the industrial context and purpose as well as the commercial and legislative context forms part of the relevant interpretive context and purpose: see, generally, Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37; (2019) 284 IR 97 at [52] (Rangiah J) and the authorities there cited. Having regard to the relevant context and purpose, a narrow or pedantic approach to construction of a modern award is not appropriate, but '[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award': Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [30] (Katzmann J), citing Kucks v CSR Limited [1996] IRCA 141; (1996) 66 IR 182 at 184; Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licenced Aircraft Engineers' Association [2003] FCAFC 209 at [8]; City of Wanneroo at [57]; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806 at [115] (Hayne J).
64 Having regard to these principles, I do not accept SCA Property Group's submission to the effect that the absence of SCA Property Group advising Mr Roebuck of his classification or otherwise classifying him is determinative. That interpretation would give the Award and the description of the classification a narrow and pedantic construction of the kind eschewed by the authorities. Clause 12.2 places a positive obligation on an employer to advise employees in writing of their classification. Failure to do so would be a contravention of a term of the Award for the purposes of s 45 of the Act. Therefore, the reference to classification 'as Level 4 by the employer' in Sch A.4.1 of the Award and similar expressions in each of Sch A.1.1., Sch A.2.1 and Sch A.3.1 presupposes the employer's compliance with cl 12.2 of the Award. It is not a requirement of the classification that the employer has, in fact, complied with cl 12.2. Therefore, I accept Mr Roebuck's submission to the effect that the real question is whether the tasks that the employee performs meet the functional requirements of the classification.
65 White J in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [269] and Flick J in NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883; (2021) 174 ALD 521 at [120] implicitly accepted that, for the purposes of classification, it is necessary to ascertain whether the 'principal purpose' for which the employee was employed falls within the classification. In this respect, the Full Bench of the Industrial Relations Commission made the following observations concerning classification in Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 at [8]-[9].
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. 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, materials" and was not, therefore, covered by the award.
(Footnotes omitted.)
66 While it may be accepted that the relevant enquiry is whether the 'principal purpose' for which Mr Roebuck was employed falls within a classification in Sch A of the Award, as the cited extract from the Full Bench's reasons in Carpenter makes clear, the purpose is ascertained from an examination of the 'nature of the work and the circumstances in which the employee is employed to do the work'. Here, the parties rely only on the statement of agreed facts and the documents tendered in the court book. There is no evidence of precisely what work Mr Roebuck performed from which any quantitative assessment of the time spent on the various tasks could be made. Likewise, there is no evidence, beyond that which can be inferred from the text of the employment contract, of the circumstance in which Mr Roebuck was employed. Moreover, there is no evidence from which to ascertain context or a broader understanding of the nature of the work Mr Roebuck performed that corresponds with the various activities described in the duty statements.
67 As to the applicable duty statement, in these circumstances, I accept SCA Property Group's submission that the only relevant duty statement is that attached to the contract of employment with SCA Property Group. That is the only description of the nature of Mr Roebuck's work at the time he was employed that is in evidence. Therefore, in the circumstances of this case, the nature of Mr Roebuck's work and whether he was engaged in one of the classifications described in the Award must be determined by reference to that duty statement and the proper construction of the written terms of that contract of employment.
68 In keeping with the general principles of award interpretation, in the context of interpreting classification criteria in a modern award, Bromwich J said in Putland v Royans Wagga Pty Limited [2017] FCA 910 at [301]:
… An award classification should not be read so strictly to require each and every criterion to apply in order that the classification apply. [By reference to the text of the classifications in the Clerks Award] it will suffice if enough of the features apply to represent fairly the "characteristic and typical duties/skills", with the characteristics being the "primary guide" as they "indicate the level of basic knowledge, comprehension of issues, problems and procedures required and the level of supervision or accountability of the position". The "key issue" is the level of "competency and skill" required to be exercised in the work performed, not the duties performed per se. A perfect fit is not required.
(Emphasis original.)
69 These observations of Bromwich J in Putland apply, with all necessary modifications, to the description of the duties and responsibilities, indicative job titles and indicative tasks set out in Sch A of the Award. Further, the observations are not inconsistent with an approach that requires an examination of the 'nature of the work and the circumstances in which the employee is employed to do the work' to ascertain if the 'principal purpose' of the employee's employment falls within a classification in a modern award. The question is whether enough of the features of the duties of Mr Roebuck's position, as described in the duty statement, apply to represent fairly the duties and responsibilities of at least one of the classifications in Sch A of the Award. Consideration of that question naturally forms part of an examination of the 'nature of the work' for the purposes of ascertaining the principal purpose of the employment. Thus, there need not be precise correspondence in the duties and responsibilities described in the duty statement and the description of the classification in the Award for the nature of the work and principal purpose of the employment to meet the classification in the Award. However, if significant or substantive duties and responsibilities described in the duty statement fall outside the duties and responsibilities of any classification described in the Award, that may indicate that the principal purpose of the position is not within any classification in the Award.
70 In the context of an examination of the nature of Mr Roebuck's work derived from the duty statement, SCA Property Group's reliance and emphasis on the job description and position summary has limitations. As Flick J observed in NSW Trains (at [120]) a focus on an employee's position description 'is susceptible of leading to too narrow an inquiry as to what [an employer] may ask of its [employees] pursuant to … contracts of employment'.
71 In this case, the duty statement, as a whole, describes a diverse range of activities. These are identified as 'Key Result Areas' suggesting that all the activities under that heading are core components of the nature of the work Mr Roebuck was to perform. Certain activities are managerial in character, but many, if not most, are functional and, broadly, fall within the indicative tasks of a real estate employee engaged in leasing work described in the classifications for Level 2 and Level 3 in Sch A of the Award. Moreover, Mr Roebuck's managerial responsibility for SCA Property Group's leasing business in Western Australia was quite limited in that he had no authority to execute any relevant agreements relating to leases without approval of 'senior management'.
72 Overall, the descriptions of the activities in the duty statement are indicative of supervision and management of internal leasing executives (which I take to mean other employees of SCA Property Group engaged in leasing activities) and external leasing teams (which I take to mean independent real estate agents engaged by SCA Property Group) as well as directly performing leasing functions. Management of SCA Property Group's business is largely limited to ensuring that budgets (which I take to mean budgets set by others) are met and reporting performance against budget to senior management.
73 I accept that the description of the position summary and activities in the duty statement do not fall neatly within the description of the indicative tasks for the classification Level 4 in the Award. However, Mr Roebuck does not contend that he was engaged in that classification. He puts his case on the footing that he was engaged in the classification for Level 2 or Level 3 having regard to indicative tasks for those classifications compared to the activities of his position described in the duty statement. Therefore, it is not critical, on Mr Roebuck's case, whether or not the principal purpose of his employment meets the classification for Level 4.
74 Typically, real estate agents are appointed as agents of a third-party principal and are paid a commission for facilitating a successful transaction relating to real estate on behalf of the principal. It is evident that the Award is largely focussed on employers which conduct real estate agency businesses of that character and their employees. In the case of SCA Property Group, I infer from the provisions of the contract of employment that it employed real estate agents directly (internal agents) rather than as independent contractors to facilitate real estate transactions on its behalf. I also infer that it engaged independent real estate agent businesses (external agents) from time to time. Mr Roebuck's duties and responsibilities included supervision of 'Leasing Executives' and having key working relationships with 'External Leasing Operatives'. Given that SCA Property Group was not engaged in business as a real estate agent, but employed persons to perform the functions of real estate agents, it is inevitable that there will be a degree of mismatch and lack of cohesion in the application of the provisions of the Award to SCA Property Group, as employer, and its employees engaged in real estate agent functions. However, whether a person is engaged directly as employee of the principal or indirectly as employee of independent real estate agent business, that person performs the functions of a real estate agent for the principal (e.g., landlord). The real estate industry functions of the person in each case are essentially the same which is to facilitate a real estate transaction between the principal and a third-party. In this regard, the observations of Bromwich J in Putland are apposite and the Award should be given a purposive construction in its application such that the classifications extend to employees engaged in work of substantially the same nature irrespective of whether or not the employers covered by the Award are engaged in business as real estate agents or engaged in business that includes buying and selling or leasing real estate on their own account.
75 Having regard to the nature of SCA Property Group's business, Mr Roebuck's position title 'Regional Leasing Manger (WA)' is similar to the indicative job titles for the Level 4 classification for a real estate agent business which include: 'Licensee-In-Charge; and 'Agency Manager'. All titles suggest a significant role in supervision and management of an office or part of the employer's business, a role in planning and managing business finances for the organisation, and a role ensuring that the office or part of the employer's business complies with applicable statutory obligations relating to the real estate industry. While not confined to a particular location or office, the supervisory and management activities described in the duty statement are of a broadly similar nature.
76 Mr Roebuck reported to a person with the position 'Head of Leasing'. His role was in the department titled 'Leasing'. The summary of that position was to 'maximise the rental income of the property by securing lease renewal to ensure maximum value and return for the organisation'. The role was to drive 'ongoing growth of the SCA Property Group Portfolio identifying the ideal retail mix, conducting feasibility/benchmarking studies, securing new site leases and lease renewals, negotiation and documenting commercial terms that ensure viable businesses, and delivery of tenancies in an efficient and cost effective manner, whilst ensuring effective communication and management of all parties involved in such dealings.' In the role Mr Roebuck was 'also responsible for managing financial budgets and performance targets and met/exceeded each year and that the values of the organisation are upheld in any interactions with all internal and external stakeholders.' As already mentioned, he had 'supervisory responsibility of Leasing Executives'. Broadly, these are all things that a real estate agent is or may be engaged to do as a managing agent or real estate for or on behalf of a principal that is a landlord.
77 The key working relationships included the 'Chief Operating Officer', 'Head of Leasing', 'National Leasing Manger' and 'Asset Manager'. External relationships were 'Retailers', 'External Leasing Operatives' and 'Centre Mangers'. The external relationships with, at least retailers and centre managers, were of the kind that a real estate leasing agent would have and developed in the performance of commission-based work on behalf of a landlord. The reference to 'External Leasing Operative' indicates that SCA Property Group also utilised or may have utilised independent real estate agent businesses and Mr Roebuck had some responsibility for working with them in his position. Again, broadly, that is the kind or work that a real estate agent engaged in managing a large portfolio of real estate for a landlord may be required to do.
78 The key result areas for the position were: lease renewals, new sites, internal and external relationships and general areas of responsibility. All the main activities described for lease renewals, new sites and internal and external relationships were, in general, tasks that a real estate leasing agent might be expected to perform. Broadly, these activities fall within the range of indicative tasks for Real Estate Agent - Level 1, Level 2 and Level 3 in Sch A.1.3, Sch A.2.3 and Sch A.3.3 of the Award. Additionally, the activities included providing input into strategic leasing reviews and preparing annual leasing budgets and budget forecasts. These activities broadly correspond to the description of indicative tasks in Sch A.4.3(b) of the Award.
79 Many of the activities for general areas of responsibility also fall within the range of indicative tasks for Real Estate Agent - Level 1, Level 2, Level 3 and Level 4 in Sch A.1.3, Sch A.2.3, Sch A.3.3 and Sch A.4.3(a) and (c) of the Award. These activities also include:
(a) responsibility for achieving new site leasing and lease renewal budgets each year;
(b) accurately reporting pipeline and work in progress weekly with budget vs actuals and a focus on monthly board reports;
(c) conduction and (or) assisting with any special projects as directed by the Head of Leasing or CEO;
(d) managing, monitoring and updating or leasing tools and databases were necessary or instructed; and
(e) reporting on monthly meetings and budgets.
While these activities are focussed on the business finances of SCA Property Group they all fall within the general ambit of leasing and the contribution that leasing would make to those finances. No doubt, the business is of a different character than that of a commission-based real estate agency, however, these activities also fall broadly within the scope of classification for a Real Estate Agent - Level 4 in Sch A.4.3(b) of the Award.
80 As already mentioned, it is not necessary that there be perfect correspondence between the classification descriptions, indicative job-titles and indicative tasks. It is sufficient if the role in which a person is employed falls substantially within the scope of a classification described in the Award. In the absence of any direct evidence as to precisely what work Mr Roebuck performed, there is sufficient correspondence between the description of his position and duties in the employment contract to conclude that he was engaged in the classifications Level 3 or Level 4 in Sch A of the Award. That is, the principal purpose of his employment involved performing functions that are typically performed by a real estate agent engaged in facilitating leasing transactions and managing leases for lessees or lessors. These are the functions that are described in the classifications Level 2, Level 3 and Level 4 of the Award.
81 Mr Roebuck's remuneration under his employment contract was significantly higher than the minimum rate for Level 4. It was also significantly more than the benchmark of 125% of the minimum rate set for commission-only employment in the real estate industry. However, there was no evidence regarding the average earnings of commission-only employees engaged in the Level 4 classification. In the absence of such evidence, I am not able to draw an inference that Mr Roebuck's remuneration was significantly greater than the remuneration of a person engaged at Level 4. Likewise, I am not able to draw the inference SCA Property Group invited the Court to draw to the effect that the disparity between Mr Roebuck's remuneration and the minimum rates in the Award alone was a sufficient basis for considering Mr Roebuck was not engaged in any Award classification work.