In a recent Fair Work Commission (“FWC”) decision, the FWC upheld a jurisdictional objection to an unfair dismissal claim because the employee was not covered by an award and earned above the high income threshold. The employee argued that he should have access to the unfair dismissal regime as his role was covered by the Commercial Sales Award or, alternatively, the Miscellaneous Award. While the employee’s contract stated he was covered by the Commercial Sales Award, the FWC found this was not determinative. Instead, the FWC’s focus when determining whether the employee was award-covered was on the true nature of his role at the time of dismissal.

Factual background

The employee worked for the employer, a professional services firm specialising in architectural design, construction and project management, from October 2022 until his dismissal in May 2025. He was initially engaged as a Project Consultant and later became Head of Marketing before reverting to a sales-focused role.

At the time of dismissal, the employee’s duties included securing design and construction contracts, promoting services, attending client meetings and cold-calling. Occasionally, he sold goods such as furniture and flooring purchased wholesale and resold at a profit. However, these sales represented less than 1 per cent of the employer’s revenue by mid-2025.

What is the principal purpose test?

The FWC applied the principal purpose test which looks at the dominant purpose of the employee’s role, not only at job titles or occasional tasks. Although the employee in this case worked substantially away from the employer’s workplace and occasionally sold goods purchased wholesale, his primary duties involved selling professional services such as design and construction projects to end users. The FWC determined that this excluded the employee from the definition of a “Commercial Traveler” under the Commercial Sales Award which requires the selling of goods for wholesale, resale, or use in production.

Occasional tasks that fit an award do not make a role award-covered. The FWC confirmed that the principal purpose of the role, not isolated duties, determines coverage. While the employee occasionally sold goods purchased wholesale, this was not the principal nature of his role.

The FWC found that the employee was also excluded from coverage under the Miscellaneous Award because his responsibilities, such as negotiating complex contracts and managing high-value projects, were managerial in nature (and the Miscellaneous Award expressly excludes managerial employees). Accordingly, the employee was prevented from bringing an unfair dismissal claim as he was not covered by an award and earned above the high income threshold.

Key takeaways for employers

This case is a timely reminder that award coverage depends on the dominant purpose of the role, not on occasional tasks or what is written in an employment contract. Employers should avoid specifying award coverage in the contracts of high income earners. By referring to award coverage in a high income employee’s contract, it may give that employee reason to believe they can initiate unfair dismissal proceedings.

It is also important to remember that earning above the high-income threshold does not automatically exclude an employee from unfair dismissal protections, they must be award-free or not covered by an enterprise agreement. To mitigate risk, employers should review role descriptions and contracts to ensure they accurately reflect the true nature of the role. For example, if an employee’s role changes throughout their employment, it is important to be aware of how this will impact the underlying award coverage.

For hybrid or senior roles, it is important that employers clearly define managerial responsibilities and steer clear of using language suggesting award-covered duties as the primary purpose. Proactive contract drafting and accurate role descriptions are essential to preventing misclassification which could result in costly jurisdictional disputes.

For more insights on managing high income employees see our blog post here.