Contains issues that may form the basis of a jurisdictional issue
See Fair Work Act 2009 s.382(b)(i)
The Fair Work Act provides that a person may be protected from unfair dismissal if they have met the minimum period of employment AND they are covered by a modern award.
See Fair Work Act s.48
A modern award covers an employee if the modern award is expressed to cover the employee.
Each modern award contains a coverage clause (usually at clause 4) that defines who is covered by the award.
If a person’s employment is covered by a modern award or award-based transitional instrument, then the person can have an annual rate of earnings of more than the high income threshold and still be within the jurisdiction of the Fair Work Commission.
For information on modern award coverage, contact the Fair Work Ombudsman on 13 13 94 or visit the Awards page of the Fair Work Ombudsman's website.
To determine whether an employee is employed under a classification within a modern award the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed.
The Commission must make more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties.
This test is applied to the work performed at the time of the dismissal, not at some earlier time as an employee may prefer performing certain duties, which are not necessarily the ones directed to be performed by the employer.
The words of award clauses are to be given their ordinary general meaning.
The award’s history and subject matter may be considered to resolve ambiguity.
Courts and tribunals should avoid an overly literal or technical approach. They should attempt to give the terms of the award meaning that is consistent with the intentions of the parties.
Interpreting awards involves looking at the meaning intended when drafting the document. This may involve going to effort to give an interpretation that avoids inconvenience or injustice. This does not mean disregarding the words of the instrument. Where simple or common words are used they must be given their ordinary meaning.
 Carpenter v Corona Manufacturing Pty Ltd, PR925731 (AIRCFB, Williams SDP, Lacy SDP, Tolley C, 17 December 2002) at para. 9, [(2002) 122 IR 387]; cited in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting  FWAFB 7184 (Richards SDP, Harrison DP, Cambridge C, 28 August 2012) at para. 11, [(2012) 223 IR 125].
 McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting  FWAFB 7184 (Richards SDP, Harrison DP, Cambridge C, 28 August 2012) at para. 37, [(2012) 223 IR 125].
 The Clothing Trades Award (1950) 68 CAR 597 (Australian Industrial Court, Full Court, Foster, Kirby and Dunphy JJ, 27 October 1950); cited in City of Wanneroo v Holmes  FCA 369 (12 September 1989) at para. 43.
 Geo. A. Bond & Co. Ltd (in liq.) v McKenzie  AR (NSW) 498 at p. 503; cited in City of Wanneroo v Holmes  FCA 369 (12 September 1989) at para. 43.
 Kucks v CSR Ltd  IRCA 166 (19 April 1996), [(1996) 66 IR 182 at p. 184]; cited in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited  FWAFB 4801 (Kaufman SDP, Richards SDP, Roberts C, 9 July 2010) at para. 12, [(2010) 197 IR 53].