DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Kaufman
v
Jones Lang LaSalle (Vic) Pty Ltd T/A JLL
(U2016/15618)

Application for an unfair dismissal remedy; whether protected from unfair dismissal; whether covered by modern award; jurisdictional objection dismissed.

[1] Mr James Kaufman (Applicant) was, by all accounts, a successful real estate professional. He began working in the business now operated by Jones Lang LaSalle (Vic) Pty Ltd (Respondent) in September 1989 1 and continued in that employment until his dismissal on redundancy grounds on 9 December 2016. He became a licensed real estate agent in Victoria in August 1991.2 Prior to his employment with the Respondent, the Applicant had worked for other real estate agents in Victoria dating back to 1986.3 At the time of his dismissal, the Applicant occupied a position with the Respondent carrying the title Regional Director, Capital Markets.4

[2] The Applicant has applied to the Commission under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that the termination of his employment on 9 December 2016 was unfair. The Respondent has raised two jurisdictional objections to the application. The first is on the ground that the Applicant was not a person protected from unfair dismissal at the time of the dismissal within the meaning of s.382 of the Act 5 and the second is on genuine redundancy grounds pursuant to s.389. This decision will deal only with the first jurisdictional objection raised by the Respondent.

[3] It is not in dispute that at the time of his dismissal the Applicant was earning a significant income from his employment, the details of which need not be recounted. The Applicant’s rate of annual earnings was at the time of his dismissal well in excess of the high income threshold. 6 Nor is it in dispute that no enterprise agreement applied to the Applicant in relation to his employment with the Respondent.7 Suffice to say that it is accepted that unless a modern award covered the Applicant at the time of his dismissal, he was not a person protected from unfair dismissal at that time and cannot maintain this application.

[4] The modern award identified by the Applicant as covering him during his employment with the Respondent at the time of the dismissal is the Real Estate Industry Award 2010 (Award). 8

[5] A modern award relevantly covers an employee in relation to particular employment if that award is expressed to cover the employee. 9 A modern award must include a coverage term and that term must be expressed to cover specified employers and specified employees of employers covered by the award.10 A coverage term in a modern award must describe employees that are covered by the award by specifying their inclusion in a specified class or classes.11 A class of employees may be described by reference to a particular industry or part of an industry, or particular kinds of work.12

[6] It seems common ground that the question whether the Applicant was covered by the Award is to be determined by reference to that which has been described as the principal purpose test. That is, in determining whether the Award covered the Applicant at the time of his dismissal, an examination is necessary of the nature of the work undertaken and the circumstances in which the Applicant was employed to do the work in order to ascertain the principal purpose for which he was employed and then assess whether the Applicant in that employment fell within the coverage provisions of the Award.

[7] The coverage provision of the Award is set out in clause 4 as follows:

“4. Coverage

4.1 This award covers employers in Australia engaged in the real estate industry in respect to their employees engaged in classifications in clause 14—Minimum weekly wages to the exclusion of any other modern award.

4.2 The award does not cover an employee excluded from award coverage by the Act.

4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.6 This award covers employers which provide group training services for trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”

[8] As is apparent from the above, in order for the Applicant to have been covered by the Award at time of his dismissal, it was necessary for the Respondent to have been in the real estate industry and for the Applicant to have been engaged in a classification for which the Award made provision.

[9] Clause 3.1 of the Award defines “real estate industry” as:

“. . . the provisions (sic) of services associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses. Such services include:

● real estate agency;
● business and hotel broking;
● strata and community title management (or similar service however described);
● stock and station agency;
● buyers agency; and
● real estate valuation.”

[10] There is no dispute that the Respondent was relevantly engaged in the real estate industry within the meaning of clause 3.1 of the Award.

[11] Clause 14 of the Award carries the following classifications, which the Applicant has identified as relevant: 13

● Property Sales Representative;
● Property Sales Supervisor.

[12] Schedule B of the Award contains classification descriptors of the classifications for which provision is made in clause 14. The classifications of a Property Sales Representative and Property Sales Supervisor are respectively described as follows:

“B.1.2 Property Sales Representative

(a) Role definition


(i) A Property Sales Representative is engaged in the listing and/or sale of real property or businesses, either by way of private treaty, auction or tender.
(ii) The Property Sales Representative may alternatively be responsible for the leasing of commercial, industrial or retail property, or act on behalf of a buyer of real property.

(b) Indicative tasks

The indicative tasks for a Property Sales Representative are as follows:

(i) Perform market appraisals for sales of real property, businesses or commercial leasing;
(ii) Use personal initiative, source prospective sellers or buyers of real property or businesses, or prospective property owners or tenants in relation to the leasing of commercial property;
(iii) Supervise the necessary listing and sales documentation for real property or businesses, or leases or agreements to lease associated with commercial property;
(iv) Conduct market research and provide marketing advice to customers of the real estate business;
(v) Conduct negotiations between the prospective buyer and seller of real property or businesses, or between a prospective tenant and the property owner;
(vi) Conduct inspections with interested parties for real property or businesses that are for sale (including open homes), or commercial property that is for lease;
(vii) Organise advertising, sign boards, searches, etc.;
(viii) Conduct auction(s) of real property; and
(ix) Liaise with conveyancers or solicitors involved in the sale or commercial leasing process.

B.1.3 Property Sales Supervisor

(a) Role definition

(i) A Property Sales Supervisor is employed to perform a broad range of skilled applications and the provision of leadership and guidance to others engaged in Property Sales classifications.
(ii) The role involves significant initiative, judgment, decision-making and problem solving in relation to the listing, marketing and selling or commercial leasing of real property or businesses.
(iii) This person is responsible for the overall leadership and supervision of a sales team in accordance with legislative and business requirements.
(iv) The position may also involve contribution towards the development of a broad business plan/strategies and budgets and having the accountability and responsibility for self and others in achieving the outcomes.

(b) Indicative tasks

The indicative tasks for a Property Sales Supervisor are as follows:

(i) Provide leadership in the workplace;
(ii) Supervise and/or manage work team(s);
(iii) Ensure compliance with the various obligations imposed under relevant real estate law;
(iv) Implement and/or supervise quality customer service;
(v) Develop and/or supervise operational plans;
(vi) Manage personal work priorities and professional development of self and others in the work team(s);
(vii) Facilitate change and innovation;
(viii) Resolve customer complaints;
(ix) Develop and implement customer service strategies;
(x) Involvement in selling of real property or businesses, or leasing of commercial property; and
(xi) Responsibility for the overall supervision of the office as a licensed real estate agent and as required under real estate law.”

[13] The Respondent says that the Regional Director, Capital Markets role in which the Applicant was employed at the time of his dismissal is a senior management position that, in the context of the Respondent’s business, goes well beyond the classifications in the Award. It says that this is evident from the Applicant’s seniority within the Respondent’s organisation, his remuneration and remuneration structure, the significant leadership and business development responsibilities, and the general requirements and accountabilities of his position. 14

[14] To make good this point it relies on the evidence of Mr David Bowden, the Respondent’s Managing Director, Victoria.

[15] Mr Bowden’s evidence was that the Respondent is part of the broader Jones Lang LaSalle Group (JLL Group) which is a leading global professional services firm that specialises in real estate and investment management. It employs approximately 61,500 employees worldwide, with 287 corporate offices. Across Asia Pacific there are 81 offices in 17 countries. 15 In 2016, the JLL Group had revenue of $6.8 billion, fee revenue of $5.8 billion and completed sales acquisitions and finance transactions of approximately $136 billion.16 The JLL Group has approximately 2,764 employees across Australia, with the Respondent employing approximately 645 employees in Victoria.17 The JLL Group and the Respondent provide that which is described as ‘Investor Services’ which spans leasing, property management, sales and investment, valuations and advisory and consulting services;18 and ‘Corporate Solutions’ services spanning facilities management, project development services and tenant representation.19 I accept this evidence and it is not particularly controversial.

[16] Mr Bowden also gave evidence about the Applicant’s role. Essentially, Mr Bowden’s evidence about the Applicant’s role was in two parts. First, by describing the Applicant’s role (including his ascendancy into it) in the context of the Respondent’s organisation. Secondly, by describing that role in the context of the duties carried out.

[17] As to the first, Mr Bowden’s evidence was that until the Applicant’s role became redundant, he was a Regional Director, Capital Markets in the Melbourne office of the Respondent, a position into which the Applicant had been promoted in July 2008. From the third quarter of 2013 until 2016, the Applicant reported directly to Mr Bowden. 20 Mr Bowden also identified that which he understood to be the previous roles occupied by the Applicant.21

[18] Mr Bowden’s evidence was that the Applicant’s role as Regional Director was a senior management role within the Respondent’s business, with significant leadership, mentoring and business generation responsibilities. 22

[19] I do not accept that the Applicant’s role as Regional Director was a senior management role. The evidence to which I have referred above is contained in Mr Bowden’s witness statement adopted by him when he gave evidence, but with respect, that evidence stands in contradistinction to the evidence he gave while being cross-examined, the relevant extracts of which are set out below:

“Now JLL has international directors such as yourself?---Yes.

The Australian operations area headed by a CEO currently based in Brisbane I understand?---Yes.

Yes?---Yes.

And assisted by an Australian executive committee?---Yes.

Now Mr Kaufman wasn't on that committee was he?---No.

In Victoria you hold the position of managing director and you are assisted by a senior leaders group?---Yes, I have - - -

What's the actual title of that group?---Well I've had a strategy group, I call it that but I have a business line heads role through the administration and the management of the business and the financials.

Mr Kaufman wasn't in that group, was he?---No, not with me, no.

Sorry, not?---No, no.

He was simply one of the large number of real estate sales people who you call directors.  Would you agree with that?---He is a regional director of the firm, yes, and he - and the function - the market role he played was in sales, yes.

But you have a lot of people within the organisation who have the title director as part of their rank within the organisation.  Do you agree with that?---Yes, there are a number of directors in the firm, yes.

In fact do you know how many within the organisation would have the title associate director or above?---That's a good question.  I would - I would say in Victoria there would be about 50.  Or actually within the transactional business - we've got a couple of different businesses but across every form of the firm there would be perhaps 50 but I'd stand corrected.

Fifty directors - - -?---Associate directors.

Associate directors and above, and those individuals would by and large be engaged in real estate work?---Real estate work either as management or we have IFM facilities management, we have engineers, we have a whole range of roles within our firm.  It's quite diverse.

Mr Kaufman will give evidence to say that he was involved in meetings with all directors, those above associate director, in Melbourne about two or three times a year.  That's correct?  Whilst he was there?---I would have thought more than that.  There is informal and formal meetings, yes.

He says:

These meetings are essentially information sessions, this is at paragraph 11 of his statement, providing a general financial overview but no precise details of the company's budget or performance.

Would you agree with that?---There's usually a bit of high level information on finances which we roll out, yes.  But not into the grit of the whole P&L or profit and loss information on every area of the business, no.

He says:

The directors are not otherwise privy to detailed information regarding the performance or financial operations of the business, or the performance of individual sales people.

You'd agree with that?---Not generally over - but yes.

Now you're aware Mr Kaufman used to be a statutory director of the company but stood down from that role in 2010.  You're aware of that, yes?---Absolutely, yes.

Now prior to that he had for a period been, before standing down from the statutory director role, he had been the head of commercial sales and investments back in 2007.  You're familiar with that?---Absolutely, yes.

But then he stood down from that role in April 2007.  You're familiar with that?---(No audible response.)

He says in the period that followed from April 2007, he reported to the department head and was engaged solely in a sales capacity.  Do you agree with that?---He was in the sales and investments team, that was his - yes.

He says, and this is paragraph 20 of his statement that in that role he did not set budgets:

I did not set budgets for revenue or expenses.  I did not sit on the Victorian Management Committee.  I was not involved in the hiring of staff, business planning or restructuring of the business.

Pause at that point.  That's all correct, isn't it?---Yes, but as a senior member of the firm his opinion was often sought on a variety of things but no, most of the budget setting is done by the managing director in consultation with the business line heads.

He says that he had no staff after April 2007 who reported to him, other than an analyst who assisted him in investment sales, who finished in February 2016.  That reflects your understanding as well?---Yes, without knowing the detail of that exactly but that sounds right, yes.

He also says that in February 2016, he had a discussion with Duncan McHarg, he had taken over hadn't he in January - - -?---Langton McHarg, my apologies.  He had taken over in January 2016 had he not as the - what was the position that he held from that point?---He was head of the sales and investments capital markets, as we call it, business in Victoria, to take a lead in that.

He was effectively Mr Kaufman's boss in that capacity?---Yes.

So Mr Kaufman reported to him.  Was Mr McHarg a regional director?---No.

So the title of - or the type of director a person is, is just a rank within the organisation, it doesn't necessarily follow, would you agree with this, that because somebody has an elevated title that they will necessarily have elevated responsibilities?---It depends what you define as responsibilities.  There's two parts.  There is market responsibilities and there is operational or management responsibilities, which are different.  So you don't need - they don't reflect who's got the best skills to run a team of - like me, who's a managing director and an international director, I may not have the skills to manage a business but I might still be an international director doing a lot of other important things in the business.  So there's a distinction in our business about market activities and leadership, and management of teams and the operations of the business. 23”

[20] Moreover, just as there is nothing in the extract above which describes any managerial function carried out by the Applicant, there is also nothing in the witness statement of Mr Bowden which sheds any light on the duties inherent in the Applicant’s role which could properly be described as “managerial”. The last paragraph from the extract above seems to me telling in putting to rest any suggestion that the Applicant’s role was a “senior management role”. The distinction drawn by Mr Bowden between “marketing activities and leadership” and “management of teams in the operations of the business” is apt, with the latter appearing on the evidence to have no application to the role occupied by the Applicant at the time of his dismissal.

[21] Mr Bowden gave evidence that the main purpose of the Applicant’s role was to assist in the development of the Capital Markets business to a market leading position through transactional activity, leadership and assisting with the development of a team. 24 Mr Bowden said25 that Mr Kaufmann had been promoted over time and had taken on increasing levels of responsibility. He pointed to a letter given to the Applicant at the time of his promotion to Regional Director in 2008 which provided, inter-alia, as follows:

“As a Regional Director, you will join an exceptional group of leaders who are creating measurable value for our clients, our people and the firm… You are a member of a diverse team of leaders, representing different cultures and expertise…” 26

[22] That the Applicant received the letter referred to above and that it contained the passage extracted above is not in dispute. What if anything is to be made of the passages from the letter is another thing altogether. For my own part there is nothing inherently inconsistent with being a leader or a member of a diverse team of leaders or being part of an exceptional group of leaders, and falling within a classification for which provision is made by the Award. Indeed, one need only refer to the role description of a Property Sales Supervisor to see that part of that role includes such a person being “responsible for the overall leadership”. But more fundamentally, the notion of leadership generally comes from actions, from examples set and performance, not necessarily from title. But if by one’s actions, examples and performance, one is identified as a leader by one’s employer (as evidently was the case in respect of the Applicant), and is promoted accordingly, that act in and of itself does not necessarily result in the Applicant not being Award covered. Accordingly, that in 2008 the Applicant “joined in exceptional group of leaders” and became a member of a “diverse team of leaders”, and presumably as at the date of his dismissal was still a member of such group and team, does not mean that, by that reason alone, he was not covered by the Award.

[23] Mr Bowden gave evidence that the Capital Markets team at the Respondent handles commercial sales and equity transactions across the CBD and suburban commercial markets with institutional, private and offshore clients. 27 He said that the team has generated between $2.9m and $6m per year over the past 6 years. Deal sizes range from small transactions of circa $1m to large instructional transactions and that the largest transaction in recent years was for $470m.28

[24] Mr Bowden described the hierarchy in the JLL Group as follows:

● International Directors
● Regional Directors
● National Directors
● Local Directors
● Associate Directors
● Managers
● Professional and other employees,

and said that the Applicant’s role was at the second most senior level. 29 He said that the Applicant was in the top 2% of employees in Australia, “seniority-wise” and in the top

1.2% of the employee population of the Respondent in terms of seniority in Victoria. 30 None of this is seriously disputed.

[25] However, as is evident from the earlier extracted transcript from Mr Bowden’s cross examination, seniority is a multi-faceted description which might come from the performance and recognition of a person’s market activities and leadership, or from a person’s management of teams and the operations of the business. 31 Moreover, reporting relationships within the Respondent and more broadly within the JLL Group have developed whereby more highly ranked persons in a hierarchy by reason of their market activities and leadership, might report to more lowly ranked persons in the hierarchy who are involved in the management people and of the business.32 The hierarchy and in particular the Applicant’s position in that hierarchy therefore says little about the constituent elements of the Applicant’s role, other than that he was a high performing and highly successful employee.

[26] Mr Bowden’s evidence was that although the Applicant’s role did not have any direct reports, as a senior director he was expected to provide leadership and mentoring to the broader team. 33

[27] Mr Bowden’s evidence was that the Applicant’s role was subject to the JLL Group’s Global Leadership Competency framework, which prioritises:

● People Management
● Leadership
● Client focus
● Creating a culture of change
● The ability to lead across businesses and cultures
● Strategic orientation to drive growth
● Quick learning. 34

[28] However, during cross examination, he could not say whether the Applicant had been given a copy of or had seen a document containing the Global Leadership Competency framework as is evident from the following:

“It says Annex 1, global leadership competencies?---Yes.

His evidence will be that he hasn't seen that document.  What's your knowledge of that document and whether it was given to him?---I think this document is generally more used for incoming directors of the firm, and I can't know if James says he hasn't seen that document.  Perhaps he hasn't.  But there's a lot of information available in the firm on a range of things that I don't know who's seen what.

If we were talking about somebody who had been made a director in recent times, perhaps you could be more confident that they'd been handed that?---Yes.

But not for Mr Kaufman?---I can't comment on it.  James has been with us for a long time, as I have.  It's hard to know what he was supplied with at what stage over those years.  My memory's not that good.” 35

[29] Mr Bowden described some of the specific expectations of the Applicant as a Regional Director as follows:

● Acting as a role model, across multiple business lines and markets, in respect of JLL values and leadership capability;

● Aligning himself (and the Capital Markets team) with regional priorities by presenting a common vision to drive high performance;

● Making decisions and taking actions in consideration of shareholder, client and employee interests;

● Contributing to the overall profitability of the Australian and consequently Asia Pacific region through actions, deliverables and decisions; and

● Championing the need to build bench strength within the organization through active coaching of junior, diverse talent. 36

[30] I consider that these expectations are best described as expectations about the way in which the Applicant will conduct himself, vis-�-vis the organisation’s values, priorities, shareholder, client and employee interests, profitability and talent development, in carrying out the duties attaching to his role. They say little about his core or principal duties.

[31] Similarly, Mr Bowden’s evidence as to the Applicant’s attendance at annual Asia Pacific Leadership Conferences, which focussed on business strategy at the APAC level and provided an opportunity for networking at the senior leadership level; or at a March 2016 conference held in Shanghai; or at a JLL International & Regional Directors Meeting in 2014, 37 says little about the Applicant’s core or principal duties or the principal purpose of the employment. It says more about how successful the Applicant was in executing his core or principal duties.

[32] As to the second element earlier identified, Mr Bowden’s evidence was that the Applicant’s day-to-day duties included meeting revenue targets from new and existing clients and contributing to the overall success of the Capital Markets team and that he was expected to meet these targets by maintaining client relationships and bringing in new opportunities for the Respondent. 38 Meeting revenue targets required the Applicant to sell property.39 While it is doubtless the case that maintaining client relationships and bringing in new business opportunities contribute to the opportunity to meet targets, fundamentally, targets are met when the maintenance of the client relationship or the bringing in of a business opportunity is executed in a way that ultimately results in sales of property. Without the sale, a new opportunity brought in is missed. Without the sale, commission is not earned, and targets are not met. Moreover, Mr Bowden’s evidence on this point sounds much like the Applicant was required to use his personal initiative and source prospective sellers and buyers of real property or businesses, a task indicative of a Property Sales Representative under the Award.

[33] Mr Bowden also gave evidence that the Applicant was expected to provide leadership in his team to ensure that the team’s work aligned with the business plan and that more junior members of the team were motivated and achieving their own targets, and to contribute to the development of strategy and budgets. 40 It would be, with respect, quite remarkable if this were not the expectations of most employers in the real estate industry of any long serving and experienced property sales representative employed by them.

[34] A document purporting to be a job description of a position titled Regional Director, Capital Markets in Victoria, the direct manager for which happens also to be the Applicant’s direct manager, was the subject of some evidence. 41 The document was said by Mr Bowden to contain the accountabilities of key result areas that were expected of the Applicant in his role as Regional Director.42 Mr Bowden was cross-examined about this document as follows:

“Mr Kaufman says in his witness statement:  I did not have a position description for my role.  An attachment to your original witness statement as filed was a position description.  That's now been excluded from your statement?---That is a position description which summarises the expectations of a regional role, but we're not sure what information James has had at different times formally about the different levels and the different expectations, a lot of information available to the firm, but it's not his specific description.  It wasn't designed for him.  That's one that we see of what the regional director's role is there for to fulfil.

When was this document created?---That was created recently to try to reflect what we see of the role of regional director based on our business strategy.

But it's actually quite specific to Mr Kaufman, isn't it, because it says:  "Department, Capital Markets, Vic?"---Yes.

This was created to present to the Commission, was it?---It was created to understand what that role was, and it was being submitted with the documents incorrectly.

So this position description should never have been included?---No. They're position description as such as to the expectation of regional role, yes, but it's not something that we have given to James previously.

I just want to understand that.  So this was a document that was created in preparation for this case to come to the Commission, is that right?---It was taken off - I'd have to get guidance from the ATR - but it was taken off the information in our HR system about expectations around the different roles and the business - international and regional and other directorships.

Do you have it there in front of you?  Is it attached to your statement?  It was DB6 in the document that was filed?---Yes.

But this isn't a generic - - -?---No, it's not.

- - - director position description; this is something that has been created to give the appearance of a position description for Mr Kaufman, isn't it?---It was prepared to reflect the regional director's role for this purpose, but it should not have been prepared - - -

Sorry, for this purpose, do you mean for the purposes of this proceeding?---It's the result of the request that has been made about the position descriptions for a regional director, or what that is in the view of the firm, effectively, for the capital markets.

Who has this position now?---Who has this position now?

Yes?---Well there is another regional director in that space who we'd have a similar expectation around his - - -

He's not a regional director, capital markets?---Yes.

Yes?---Mm-hm.

But that person would have a different position description, wouldn't they?---I'd have to have a - - -

Well in any event, this is - - -?---No, that would be essentially the same, because this hasn't talked about a specific sector of the development sector that you were talking about.  This is the expectations of a regional director in the capital markets.

So this document was created in, what, February this year, just before you filed your witness statement?---It would have been - this was put together in - yes, I don't know, is the short answer.  If you're asking me exactly when that was, I don't know, but it would have been in relation to our discussions that we've had around this.

And by that you mean your discussions with your lawyers?  I don't want to ask you about those discussions, but that's what you're talking about?---About this matter.

But that was still all in the aftermath of the termination of employment and Mr Kaufman coming to the Commission?---Yes, but not the context of what the regional director was.

And by that you mean that the document that's been created is, on your evidence, a reflection of what your understanding was whilst Mr Kaufman was still an employee?---Yes, absolutely.

But it's a re-creation of the role that you say Mr Kaufman had?---Yes, essentially.” 43

[35] As is evident from the above, the document is not the Applicant’s job description and the Applicant’s evidence that he did not have a job description for the position he occupied is not challenged. Moreover, the document, according to Mr Bowden’s evidence above is a recreation of the role that Mr Bowden says the Applicant carried out. 44 That which is more telling in giving exposition to the principal purpose of the role in which the Applicant was employed is the following extract from the cross examination of Mr Bowden:

“In that re-creation of the position description, the first line says in "Objective:"

As Regional Director in the Capital Markets team, this role will need to achieve revenue targets from new and existing clients.

Pausing at that point, that's essentially a salesperson's role, isn't it?  It's about achieving budgets?---Sure.  I mean, everybody in our business in the agency, I suppose, including myself, has an income or fee-earning budget, so that's a primary part of all our roles.

And then in the first accountability that's listed there, it says:

Achieve personal revenue targets through negotiating major deals.

Again, the primary accountability of this role is about selling real estate, isn't it?---It's a large part of it, yes - a primary part.  I mean, a lot of these other things are a part of the whole outcomes - personal revenues and outcome, along with a lot of other things in here.

But achieving personal revenue targets is what's been chosen as the key accountability, would you agree with that, of this role?---Well the key accountability, it's a big accountability, because that's a large part of his role.

It's more than a large part of his role, isn't it, effectively the principal purpose of his role, isn't it?---That's what his market role is to sell; that's his role - market operational role, absolutely.  In the capital markets team, that's what they do, everybody. ” 45

[36] Mr Bowden’s evidence was also that the Applicant’s duties included:

• the listing and sale of properties or businesses;



• conducting market appraisals and research;



• interacting with buyers and sellers of property;



• supervising the preparation of listing documentation for the relevant properties;



• ensuring the organisation of advertising campaigns; and



• liaising with conveyancers and solicitors to ensure the completion of any deals. 46

[37] These duties appear to me to correspond with the indicative tasks for a Property Sales Representative classification in the Award.

[38] According to Mr Bowden, the Applicant was expected to have knowledge of, and comply with, the relevant Victorian real estate legislation, however, his role was not only technical or transactional based. 47

[39] The Applicant’s evidence was that until the termination of his employment, the focus of his position was property sales for the Respondent. 48 He said that his role was to find listing opportunities and to complete those transactions and that this was emphasised by his direct manager Mr Duncan McHarg in February 2016.49 Mr Bowden said that that was the Applicant’s market role.50 The Applicant also said that in the same discussion in February 2016 with Mr McHarg, the Applicant was instructed by Mr McHarg to take no part in dealing with any staff who may have been looking for guidance.51 Mr Bowden could not comment on this as he was not a party to the conversation but expressed surprise.52 Mr McHarg was not called by the Respondent to give evidence though he could have been.53

[40] It was not put to the Applicant that the conversation with Mr McHarg did not occur or that the instructions about his role and staff dealings did not occur. In the circumstances there is no reason why that evidence should not be accepted and I do so.

[41] The Applicant’s evidence was that his sales focus was on development transactions and structured deals, such as forward funded investment sales, and joint ventures. 54 The Applicant said that those sales would often involve city office or residential buildings and development sites, frequently of high capital value.55 This evidence is not controversial. He said that he did not have a position description for his role, a fact I accept given the evidence to which I have already referred on the subject, but that his position involved regular duties which included the following56:

(a) Attending weekly sales meetings:

• Discuss deal pipeline and progress of the various transactions;



• The Head of department would usually ask for an update on fees due to be changed over the next few month and progress in following up any outstanding debts;



• We may also discuss who we are meeting with over the past week and planning to meet with;



• Looking at what advertising commitments each sales person has been able to secure;

(b) Meetings with prospective vendors:

• Discuss market conditions;



• Sometimes present research material;



• Discuss current transaction;



• Discuss potential buyers;



• Discuss highest and best use for their properties;



• Provide advice and guidance in relation to leasing, planning, development



• Outcomes the likely effect on value;



• Property inspections

(c) Meetings with potential purchasers

• Property inspections;



• Discuss their requirements and return expectations;



• Present information on properties for sale;



• Discuss properties that may be coming up in the future. Canvas those owners to sell if they would consider a sale;



• Help with their assessment of properties that other agents may have presented;



• Research presentations;

(d) Transactions

• Prepare submissions;



• Present proposals;



• Appraise the potential value;



• Prepare marketing budgets and plans for the sale transaction;



• Secure the listing;



• Organise the marketing material;



• Collect due diligence material;



• Take enquiries from the marketing initiative and qualify the buyers;



• Arrange building inspections;



• Present suppo1iing information;



• Help buyers with their assessment of the opportunity;



• Report to the owner of progress;



• Negotiate the price and terms;



• Coordinate the purchaser's due diligence process;



• Arrange for documents to be signed;



• Bill the client for JLL fees;



• Collect fees;

(e) Other activities

• Client entertainment;



• Informal discussion with other JLL sales people and valuers to seek help or give assistance;



• Collect information for database, including past sales, planning permits, ownership information etc;



• Study tours of key markets and preparation of white papers, press releases, as business development tools;



• Road show trips locally, interstate and occasionally internationally to visit potential and current clients;



• Conference calls with national and international JLL team to discuss clients and their purchasing requirements.

[42] Mr Bowden also gave evidence about the Applicant’s earnings, which comprised a base salary, allowances and commission payment, and various incentive payments made and stock given to the Applicant. 57 This is not disputed by the Applicant. That which was sought to be made of this evidence by the Respondent was that, the remuneration paid to the Applicant compared to the minimum weekly rate paid under the highest paid position contemplated by the Award, was indicative of the different character of the position contemplated by the Award compared to the position occupied by the Applicant.58 That might well be correct when the duties undertaken by a person do not align with those corresponding duties set out in an award classification. But where the duties or principal purpose for which an employee is engaged in a role correspond with the coverage provisions of a relevant award, high levels of remuneration paid to such an employee are indicative only of an employer’s view that the employee is valuable to the business and a reflection of the success with which the employee has executed the principal purpose for which he or she was engaged. In this regard, high levels of remuneration would say nothing about whether such a person is Award covered.

[43] In my view, the evidence discloses that the Applicant was a high performing employee principally responsible for attracting and executing high-value real estate transactions. He had no managerial responsibilities and no direct reports. He was very senior in the hierarchy of the Respondent, but that hierarchy is not completely or even mostly functionally based. The Applicant’s promotion to Regional Director was recognition of his capacity as a winner of business. The expectations attaching to his role relating to leadership, mentoring and development of less experienced employees would be common of most long serving, experienced and successful property sales representative employed in a real estate business. However, the fundamental or principal purpose for which the Applicant’s position existed was to sell real estate. Apart from maintaining and cultivating relationships with clients and potential clients, the Applicant did this by, inter-alia:

• the listing and sale of properties or businesses;



• conducting market appraisals and research;



• interacting with buyers and sellers of property;



• supervising the preparation of listing documentation for the relevant properties;



• ensuring the organisation of advertising campaigns; and



• liaising with conveyancers and solicitors to ensure the completion of any deals. 59

[44] The evidence of Mr Bowden earlier extracted underscores this point and the real estate sales nature of the Applicant’s position. 60

[45] I agree with the Applicant’s submission that put simply, the principal purpose of the Applicant’s position was to sell real estate. Some of the transactions involved were of higher value and greater complexity than those involved in, say a suburban residential real estate agency, but the true nature of the work being performed is much the same. The Applicant had little role in the strategy and management of the Respondent. He had no direct reports. His title, of Regional Director, was effectively a rank or accolade accorded by the Respondent, but the question of award coverage is not determined by the person’s title – it is the duties performed that will be of significance.

[46] It seems to me that the principal purpose of the role occupied by the Applicant at the time of his dismissal as disclosed by the evidence discussed above falls squarely within the role definition of a Property Sales Representative and the duties that he undertook to execute the primary purpose fall comfortably within the indicative tasks for a Property Sales Representative set out in the Award. Some aspects of the Applicant’s role might also be covered by the Property Sales Supervisor role definition in paragraphs B.1.3(a)(i), (ii) and (iv). Although, as he had no direct reports, his position cannot fall within that classification.

[47] The Respondent also submitted that the Applicant occupied a role which has not traditionally been award covered and that prior to the making of the Award, there was no real estate industry award regulation in Victoria. 61 Instead, employees engaged in the industry were covered by the Property and Business Services Industry Sector Minimum Wage Order.62

That order did not cover the Applicant’s role. On its face, the order applied to real estate agents 63 but did not contain a classification readily applicable to a role of the kind occupied by the Applicant. Presumably, the Respondent’s submission seeks to invoke s.143(7) of the Act which provides:

“Employees not traditionally covered by awards etc.

 (7)  A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note:    For example, in some industries, managerial employees have traditionally not been
covered by awards.”

[48] However, this section is concerned with the power of the Commission to make provision in a coverage clause for certain classes of employees. The submission is an invitation to determine that the Award or aspects of it were beyond power. It is not a finding I can make in this proceeding. To the extent that the submission invites me to read down the coverage clause, I am not persuaded that that is appropriate given the lack of material on the subject, particularly the absence of material pertaining to Victorian State award regulation before the Victorian Parliament referred the power to legislate for certain industrial relations matters to the Commonwealth Parliament.

[49] For these reasons, I am satisfied that the Applicant was at the time of his dismissal covered by the Award because he was engaged in the classification of a Property Sales Representative and is thus protected from unfair dismissal within the meaning of s.382 of the Act. The Respondent’s jurisdictional objection in this regard is dismissed. The application will be reallocated to the Unfair Dismissal Case Management Team in order that the application be dealt with noting that the question whether there was a genuine redundancy should be determined in conjunction with the merits.

[50] An order dismissing the Respondent’s jurisdictional objection is separately issued in PR592925.

DEPUTY PRESIDENT

Appearances:

Mr R Millar, Counsel for the Applicant.

Mr J Tuck, Solicitor for the Respondent.

Hearing details:

2017.

Sydney.

31 March.

 1   Exhibit 2 at [4].

 2   Ibid at [2].

 3   Ibid at [3].

 4   Ibid at [4].

 5   Applicant’s Outline of Submissions dated 10 March 2017 at [1].

 6   Ibid at [2].

 7   Ibid.

 8   Ibid at [3].

 9   Section 48.

 10   Section143(1) & (2).

 11   Section 143 (5)(b).

 12   Section 143(6).

 13   Applicant’s Outline of Submissions dated 10 March 2017 at [9].

 14   Respondent’s Outline of Submissions dated 27 February 2017 at [23].

 15   Exhibit 1 at [13].

 16   Ibid at [14].

 17   Ibid at [15].

 18   Ibid at [16].

 19   Ibid.

 20   Ibid at [18].

 21   Ibid at [19].

 22   Ibid at [21].

 23   Transcript PN74 – PN106.

 24   Exhibit 1 at [22].

 25   Ibid at [23].

 26   Ibid at [25], attachment DB – 1.

 27   Ibid at [28].

 28   Ibid.

 29   Ibid at [29].

 30   Ibid at [30].

 31   Transcript PN106.

 32   Transcript PN104 - PN113.

 33   Ibid at [32].

 34   Ibid at [34]; see also attachment DB – 4.

 35   Transcript PN160 – PN163.

 36   Exhibit 1 at [36].

 37   Ibid at [37] – [38].

 38   Ibid at [41].

 39   Transcript PN127.

 40   Ibid at [42] – [43].

 41   Exhibit 3.

 42   Exhibit 1 at [44] as amended in transcript at PN34.

 43   Transcript PN128 – PN148.

 44   Transcript PN148.

 45   Transcript PN149 – PN156.

 46   Exhibit 1 at [45].

 47   Ibid at [46].

 48   Exhibit 2 at [23].

 49   Ibid.

 50   Transcript PN115.

 51   Exhibit 2 at [23].

 52   Transcript PN118.

 53   Transcript PN120.

 54   Exhibit 2 at [24].

 55   Ibid.

 56   Ibid at [25].

 57   Exhibit 1 at [48] – [62].

 58   Respondent's Outline of Submissions dated 17 February 2017 at [40].

 59   Exhibit 1 at [45].

 60   Transcript PN151 – PN156.

 61   Transcript PN533 – PN536.

 62   Ibid; AP793164.

 63   Classification 4.2.

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