If a worker is employed under a particular award, but also performs duties covered by another award, which one applies?

In some industries, it’s not uncommon for an employee to fill various roles within the same company, even if those roles fall under different modern awards.  

Consider the following example: an employee at a manufacturing plant was employed as a production worker under the Manufacturing and Associated Industries and Occupations Award 2020.

The employee is also directed to work as an offsider on trucks that deliver products to customers weekly, typically once or twice a week. There is no classification under the manufacturing award that covers duties involving deliveries, but there is such a classification in the Road Transport and Distribution Award 2020. 

The award rate for an offsider under the Road Transport Award is higher than the ordinary hourly rate under the Manufacturing Award. Would the ‘higher duties’ clause under the manufacturing award cover this situation, or would the road transport award cover the employee when performing delivery duties? 

 

Which modern award applies when different duties are involved?   

The employee can only be employed under one modern award with respect to their ordinary duties unless the work performed is under a separate contract of employment with the same employer. The ‘higher duties’ subclause in the award refers to work where the employee is engaged for two hours or more on duties carrying a higher minimum wage than their ordinary classification under the manufacturing award, not higher duties covered under a different modern award. 

Industrial courts and tribunals have usually applied the ‘principal purpose test’ in these circumstances. 

This test is recognised by industrial tribunals where the work under consideration involves a range of different activities. In determining which award applies, it is not merely a matter of quantifying the time spent on various elements of work performed by an employee; the quality of the different types of work done is also a consideration. 

For instance, in considering the contest between work as a journeyman tradesperson and a labourer, greater emphasis should be placed on the “quality” of work as a journeyman tradesperson. Aspects of the employment to look at include the substance, the nature of the work, the principal purpose, or the major objective for which the employee was employed. 

The employer could pay the higher rate attached to the offsider duties, but would be under no obligation to do so if the production worker duties constitute the employee’s major and substantial function. It could also be said that the employee may lawfully refuse to perform the offside duties as they are not covered under the applicable modern award unless the employee has agreed to perform these duties under the contract of employment. 

 

Case law examples

In considering that a modern award does not cover an employee, the Fair Work Commission needs to be satisfied that the employee’s duties were not the major and substantial role of the employee, and this activity was not the principal purpose of their employment and was incidental to the principal purpose of their employment.  

The following decisions have applied the principal purpose test in relation to modern awards: See Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767; Power v Barrick Australia Pacific [2011] FWA 8092; Halasagi v George Weston Foods Ltd [2010] FWA 6503. 

The task of determining award coverage is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Where the primary purpose of the role is the exercise of skills of a professional or quasi-professional nature, the role would not be regarded as clerical – notwithstanding that the role involves various recording and ordinary administrative office functions.  

See Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713.