Guidance: How to determine Award coverage and classification

The building and construction industry is diverse, sometimes demanding tasks from employees that does not form part of their contractual duty description. This often leads to confusion about an employee’s classifications and coverage under the relevant Award.

A recent decision by the Fair Work Commission provides some guidance to employers to navigate this situation.

Recent case:

In the recent case of Sam Fogarty v Kokoda Property Group (Melbourne) Pty Ltd [2026] FWC 3147 (20 August 2026) the Fair Work Commission (FWC) was required to consider whether a highly paid employee was covered by the Real Estate Award.

The FWC found that although many of the employee’s tasks aligned with those of a real estate employee level 2, the main consideration was the principal purpose for which the employee was engaged.

The FWC examined the nature of his work and the circumstances in which he was employed to do so, finding that the principal purpose was to oversee and develop commercial and retail opportunities for the employer. This aligned with the position description and was of a “significantly higher level of responsibility” than required by a real estate level 2 employee.

The matter was ultimately dismissed as it was found the employee was not Award covered and exceeded the high-income threshold.

Key takeaways for employers

1. Focus on the employee’s principal purpose of employment and overall nature of the role to determine Award coverage
2. Position description matters: It is critical to that the position description reflect the employee’s level of responsibility and tasks
3. Not all tasks determine Award coverage, an employee may be required to perform tasks that fall within Award covered roles from time to time.

If you have any questions about your workplace obligations or employee descriptions, please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au