Throughout this guide, the Professional Employees Award will be referred to simply as “the Award”.
Before we begin, we need to make the following points:
- This guide is general advice only. This guide does not constitute legal advice.
- This guide is written in good faith and has been vetted prior to publication.
- However, industrial law can be complicated. Every person’s situation is likely to be different, particularly with regards to skills and qualifications, and should be assessed accordingly.
- Because we are a new union, and we are a relatively young industry, our position that game development falls under the Professional Employees Award has yet to be tested before the Fair Work Commission. We have settled a number of disputes regarding this privately with employers who have conceded our position, but we have not tested a case before the Commission at this time.
- We recommend that you join as a paying member of Game Workers Australia immediately, and that you do so before you have any issues at work, as pre-existing issues may not be eligible for full legal assistance.
Why does the Professional Employees Award apply?
All Awards have a Coverage section which outlines the scope of that particular Award, and the industries and employees it applies to.
Clause 4.1 (b) of the Award provides that it applies to:
(b) Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A—Classification Structure and Definitions.
We can see the Award explicitly applies both to employers in the information technology industry and to employees who perform information technology duties.
(It is worth noting that a single employer can have employees operating under different awards depending on their role and duties. However, most Australian game developers are highly specialised and are, definitely, “principally engaged in the information technology industry”.)
So the question here is: does “the information technology industry” include game development?
Every Award also features a Definitions section that helps us understand the terms used in that Award. Here, we are looking for the legal definition of the “information technology industry”.
Clause 2.3 of the Award defines the “information technology industry” as any one or more of the following:
(a) the design and manufacture of computers and computer peripherals;
(b) the design and manufacture of telecommunications equipment;
(c) the design and manufacture of computer software;
(d) computer system installation, repair and maintenance;
(e) computer consultancy services;
(f) computer programming;
(g) system analysis services;
(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or
(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.
All of these are clearly the activities of game development. However the best and most obvious definition is (c) – the design and manufacture of computer software.
This definition also very clearly covers artists, designers, producers and other non-programming roles as their work contributes to both the design and manufacture in a way that cannot be denied or overlooked.
Reinforcing this interpretation is clause 2.3(i), a catch-all clause that makes it clear the Award has the broad scope necessary to cover additional roles which are critical to the development of the software.
Alright, but why not a different Award?
It is always possible under Australian law that there may arise confusion or disagreement between employeer and employee as to which Award is the right one to use. When that happens, the Fair Work Commission which arbitrates the matter takes a “best fit” approach.
A “best fit” approach is about looking at the holistic nature of the industry, and the work performed by the employee, to make a judgement call about which Award should apply.
Although there are other Awards which potentially could apply to information technology work, we believe that the Professional Employees Award is the Award that best captures the activities of video game development.
There is no reasonable case to be made that game development is “award free employment”, as some employers have claimed.
Professionals Australia’s industrial team has taken action against employers on the basis of the Professional Employees Award being the correct Award. Action taken in those cases to recover underpayments and other entitlements has been successful, resulting in private settlements.
Many of those members worked in art, design or other non-programming fields.
How do I know my classification within the Award?
The classifications are explained in Schedule A of the Award.
Schedule A provides that there are four classification levels as follows:
- Level 1: Graduate Information Technology Employee
- Level 2: Experienced Information Technology Employee
- Level 3 Professional
- Level 4 Professional
The levels increase in complexity of duties and experience requirements as they go from 1 to 4.
Uniquely, level 1 has several distinct ‘sub-levels’ or ‘pay points’ inside it based on qualifications and experience.
The specific job duties required to be performed and assessed at each level are explained in Schedule A of the Award in further detail, which we will not go into here.
If you would like assistance interpreting this, please contact us.
Defining an ‘information technology employee’
Let’s look more closely at the definitions of an information technology employee.
Clause 2.3 defines what it means to be an information technology employee as follows:
Graduate information technology employee means a person who:
(a) holds a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or
(b) has sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:
(a) that they have graduated with a university degree, with a science or information technology major (3, 4 or 5 year course) and had 4 years’ experience on professional information technology duties since graduating; or
(b) that they, not having so graduated, have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society plus a further 4 years’ experience on professional information technology duties.
For further context;
Professional information technology duties means duties carried out by a person in employment where the adequate discharge of any of the duties requires a person to:
(a) hold a university degree with a science or information technology major (3, 4 or 5 year course) accredited by the Australian Computer Society at professional level; or
(b) have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term professional information technology employee includes graduate information technology employee and experienced information technology employee as defined.
This means there are ultimately two pathways to being clearly defined as an ‘information technology employee’:
- Hold a university degree which is accredited by the Australian Computer Society (a full list of which can be found on the ACS website), or;
- Have sufficient qualifications and experience to be a Certified Professional of the Australian Computer Society.
If you hold an ACS accredited university degree, that’s clearly sufficient.
However assuming you do not, let’s explore the other option.
What’s a Certified Professional?
The Australian Computer Society is currently recognised by the Award as being the industry body which assesses skills and qualifications in the information technology sector.
Certified Professional Membership of the Australian Computer Society is the lowest, entry-level membership on offer. You can read more about it on the ACS website.
Gaining Certified Professional Membership with the ACS broadly requires:
- Paying an application fee;
- Demonstrating your qualifications and industry experience to the ACS;
- Proving your knowledge by being assessed, or undertaking a self-assessment against the categories in the Software Framework for the Information Age (SFIA), and;
- Committing to ongoing ACS-recognised training each year to maintain your status.
However, it is critical to understand the wording of the Award regarding ACS membership. The Award says you must “have sufficient qualifications and experience to be a Certified Professional” (emphasis ours).
It does not say that you must actually be an ACS Certified Professional, or currently hold a Certified Professional membership with the ACS.
This is because the Award does not exist to force people to sign up and pay membership fees to an industry body.
The SFIA and game development
The Software Framework for the Information Age is at version 8 at the time of writing.
There are many SFIA skills which apply to game development work, some explicitly (such as Animation Development which has a strong narrative component) and many implicitly such as Quality Assurance, Project Management, Systems Design – the list goes on.
If you possess even a small amount of experience in the games industry, or have graduated from an number of non-university institutions, it would be in most cases trivial for you to prove competency in various SFIA skills.
Artists, designers, and other non-programming roles should review the SFIA closely as there are many applicable skills at which your competency can be measured.
How do I get SFIA assessed?
The SFIA website explains that there are many ways to get assessed, ranging from a self-assessment to a formal assessment.
A self-assessment is completely valid, and is the most common form of assessment. For example, the Australian Computer Society uses its own self-assessment tool.
The SFIA self-assessment guidelines page advises:
(…) a SFIA-based self-assessment provides a good starting point for professional discussions related to work experience, achievements, skills and professional development.
Completing the SFIA self-assessment tool is a valuable – and valid – way of demonstrating your skills to your employer, for the purposes of the Award.
Your employer must also be reasonable and genuinely take into account the skills and experience you demonstrate during your day-to-day duties.
Ultimately, if your employer benefits from your skills and experience (which is the very essence of employment), they cannot then reasonably claim they have doubts about your ability to meet the required standards.
It bears repeating that this is broad general advice and your own particular situation may have a unique factor that requires further investigation.
However, we believe it is reasonable to say that the Professional Employees Award is the most appropriate award for the game development industry, and that employees are entitled to the wages and conditions in it (at a minimum – remember, employers can always pay more!).
If you’ve read all the way to the end, now is the best time to join us. Click here and take the next step.