MODERN AWARDS – dispute about matter arising under award – coverage – s.739 Fair Work Act 2009 – dispute regarding modern award coverage – respondent conducts a business which provides software and software support to health professionals and medical practices – applicant performs work in call centre operated by respondent as Customer Care Agent – applicant contended that his work is covered by the Professional Employees Award 2010 (the Professionals Award) – respondent submitted that the Clerks – Private Sector Award 2010 (the Clerks Award) is applicable – applicant applied for determination from Commission – applicant submitted that he is not engaged wholly or principally in clerical work but that his skills and abilities fit under Level B.1.1 of the Professionals Award – sought reinstatement of underpaid wages since inception of the Professionals Award – respondent objected on basis that neither the Clerks nor Professionals Award authorise arbitration unless by consent by both parties – respondent also contended that the declaration being sought by applicant involves the impermissible exercise of judicial power by the Commission – Commission did not accept that the dispute by arbitration would necessarily involve the exercise of judicial power – Tenix Solutions P/L considered – could not discount possibility that applicant’s dispute could be framed in a manner so that the Commission would not be exercising judicial power in arbitration – however, as respondent did not consent to the Commission arbitrating the dispute, the Commission has no power to make a binding determination under the dispute resolution procedures of both awards – notwithstanding this issue, the Commission noted that applicant did not meet the definition of a Professional information technology employee under clause 3.3 of the Professionals Award – no evidence that the applicant’s role required a relevant degree or qualifications such that he would be eligible for admission as a member of the Australian Computer Society – noted that type of work performed by applicant is described within Level 2 or Level 3 of the Clerks Award – did not accept that Clerks Award does not properly cover applicant – application dismissed. Davidson v Health Communication Network t/a Medical Director
