To apply a Modern Award or not – is a position title a determinative factor?

BY OWEN WEBB & SARAH LEGOE

Determining whether the role an employee has been engaged to perform falls within the Hospitality Industry (General) Award 2020 (HIGA) can be difficult as the classification criteria are not always clear and can contain terminology that is outdated and not suited to a modern hospitality employer. Employers often select a classification criterion that best suits the title of an employee’s position, as opposed to basing the decision on the duties the employee has been engaged to perform.

In a recent matter before the South Australian Employment Tribunal (Tribunal), Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024) Deputy President Lieschke considered, amongst other matters, the classification structure within the HIGA and how that can apply to positions that were titled as Manager.

This article will examine the findings of the Tribunal insofar as the classification structure, the HIGA and employees engaged as managers are concerned. It does not examine any other issues that were before the Tribunal.

Background

The Applicants (a couple) were engaged as full time managers of a holiday park and paid annual salaries of $55,000.00 and $60,000.00 per annum respectively. The Respondent asserted that the positions were Award free, however the Applicant’s claimed that the roles fell within the classifications contained in the Hospitality Industry (General) Award 2020 (HIGA) such that the salaries were insufficient for both the duties and hours of work that were being performed.

While there were a number of issues before the Tribunal, the issue, relevant to this article, was whether the HIGA covered the Applicants employment and if it did, which classification(s) were the relevant classification(s).

The Higa And Classifications

Whether the HIGA (or an alternative Award) applies to an employee’s employment will depend on the nature of the duties the employee has been engaged to perform, not on the title that has been given to the role.

On many occasions, an employee will be required to carry out a number of duties and these duties may fall within different classifications in the Award. To determine which classification, if any, applies to an employee an employer must look to the primary or main duties of the role.1

In this case, the Tribunal had to determine whether the primary or main duties of the Applicants were managerial duties or not (noting the Managerial Staff (Hotels) classification was not relevant in this matter due to the nature of the operation).

The Applicants were responsible for, amongst other things, managing the day to day operations of what was a relatively small park including accommodation bookings and queries, staff rostering (for a small team), maintenance of the grounds, marketing including social media for the park and managing the finances for the park. Neither had prior management experience, or prior experience working in a caravan park, before commencing these roles.

The Respondent operated a top heavy structure at the Park. The Tribunal found that this structure and the number of “managers” employed was unusual for such a small employer which meant that the use of the word “manager” was meant in a general sense such that the management or operational aspect of their position was only a minor part of the overall role.2 As a result, the Tirbunal found:

“…the applicant’s roles were to primarily perform front office duties including supervision and training of other staff when performing front office duties”. 3

The marketing duties (duties which may have fallen outside of the HIGA) were secondary duties only.4

As a result of this finding, the Tribunal held that the HIGA applied to the Applicants’ employment and the positions should have been classified within the Front Office stream.

Somewhat helpfully for the hospitality industry, the Tribunal examined the Supervisor (Level 5) classification within this stream. This classification requires, amongst other matters, the person to have undertaken a supervisory course. The Tribunal held that if the person had not undertaken such a course, they could not fall within this classification despite the fact they may have been undertaking some supervisory duties.5 This is helpful for the hospitality industry as a whole, as the Supervisor classification within each relevant stream contains the same wording.

In summary, whether a position should fall within the HIGA (or another Award) or not depends on the primary or main duties being performed as agreed by the parties at engagement and not by the title given to the position.

It should also be noted the Tribunal did consider, albeit it briefly, whether an employee (full time) could be classified across multiple classifications. However, at the end of the day no determination was made on this point as it was not necessary to consider this in this matter as the duties the Applicants’ were undertaking fell within one classification. Whether a full time employee can be classified across multiple classifications therefore remains unclear, unless the secondary duties fall within a lower classification in which case the higher duties clause will apply such that the higher classification will need to be applied.6

2 Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024) [241].

3 Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024) [296].

4 Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024) [294].

5 Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 December 2024) [298].

Key Takeaways For Members

In light of this matter, members should be mindful of the following when firstly determining whether an employee is covered by the HIGA and secondly determining which classification is relevant to the role they have been engaged to perform:

• What are the primary or main duties that the employee will undertake.

• Do these duties fall within a classification within Schedule A of the HIGA (or relevant Award).

• If they do, which is the most relevant classification or are multiple classifications relevant.

6 Staska & Staska v The Bend Motorsport Park Pty Ltd [2024] SAET 117 (24 Dece«mber 2024) [293].

• If the employees position does fall within the HIGA and that employee is to be paid an annual salary, is the salary sufficient to fall within the parameters of either clause 24 or clause 25 of the HIGA (as relevant).

• Does the size of the employer’s operation have an impact on whether the Award and/or a classification applies to an employee.

• Has the employee undertaken the training required for a classification that may otherwise apply to their position.

Further Information

Members should contact Owen Webb or Sarah Legoe if they need any further information or who would like to discuss staff classifications under the HIGA or another modern award.

This article contains information that is of a general nature and is for informational purposes only. This article, and its contents, does not constitute legal advice.