[2017] FWC 2623


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

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



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:

[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:

[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

[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:

[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:

[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:

[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:

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:

[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:

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

[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:

[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:

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

[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:

(b) Meetings with prospective vendors:

(c) Meetings with potential purchasers

(d) Transactions

(e) Other activities

[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:

[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:

[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.

Seal of the Fair Work Commission with Member's signature



Mr R Millar, Counsel for the Applicant.

Mr J Tuck, Solicitor for the Respondent.

Hearing details:



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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