The Fair Work Commission (FWC) has allowed a jurisdictional objection by Globus Medical that its former Area Manager for Queensland was not covered by the Commercial Sales Award 2010 and therefore he could not bring an unfair dismissal claim.
Employment partner Andrew Ball from the Sydney Employment group led the successful jurisdictional challenge on behalf of Globus Medical. Globus is a leading global musculoskeletal implant manufacturer that provides orthopaedic devices for implantation into patients with spinal disorders.
This decision will have ramifications throughout the medical devices industry, and more broadly, as the FWC was not satisfied that a salesperson in this area would meet the definition of 'Commercial Traveller' which requires a person to be substantially away from the employer's business for the purpose of the soliciting of orders or selling for wholesale sale or resale purposes.
Although the applicant was found to be substantially away from Globus' place of business, and a predominant reason for this was for 'soliciting of orders or selling' of Globus' products, the products that Globus provided to hospitals were ordered on an 'as needed' basis and no mark-up was applied by the hospital. A patient of the hospital was never directly billed by Globus nor did a hospital re-sell the product. Therefore, the FWC was not satisfied that the spinal products could be said to have been subject to resale. Further, the Macquarie Dictionary defines 'wholesale' as:
'The sale of commodities in large quantities, as to retailers or jobbers rather than to customers directly'.
The FWC found that the products sold by the applicant were not sold in large quantities but rather were provided to hospitals as needed. Moreover, the FWC was not satisfied that a hospital would be 'retailing' a product when it is inserted into a patient, particularly in circumstances where the hospital derives no profit from that product. Therefore, the applicant was not a 'Commercial Traveller' covered by the Commercial Sales Award when employed by Globus.
The FWC also upheld Globus Medical's argument that the applicant, who had the title 'Area Manager - Queensland', was employed in a managerial capacity, despite the FWC finding that the applicant's duties largely concerned the marketing and/or sales of Globus' products. The FWC found that an explicit or implicit requirement by Globus Medical for an employee to give precedence to a particular task (i.e. sales) does not necessarily change the principle purpose for which that employee is engaged.