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Introduction

This decision examines both the high-income threshold under the Fair Work Act and the applicability of the Miscellaneous award.

Background

The applicant worked for a mining company in a senior position. His annual base salary of $163,470 exceeds the high income threshold, however, the applicant argued that at the time of dismissal, the an enterprise agreement applied to him, or in the alternative he was covered by the Mining Industry Award 2010 (the Mining Award) or the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical Contracting Award) or the Miscellaneous Award 2010 (the Miscellaneous Award).

Relevant Statutory, Agreement and Award Provisions

Section 382 of the Act, set out below, prescribes when a person is protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.” (emphasis added)

Consideration

The Commission then applied each industrial instrument to the employee’s employment, as follows:

Agreement Coverage

“The first issue to consider is if [the applicant] was covered by the [respondent’s] Agreement. Supervisors are excluded from the coverage of the Agreement and thus the critical issue is if [the applicant] was a Supervisor.

“To determine whether an employee is employed under a classification within an Agreement or Modern Award, the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed. This requires more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties.

“I accept that the question of Award (or Agreement) coverage is not determined by the person’s title, and that it is the duties performed that will be of significance.

“[The applicant’s] letter of offer dated 7 February 2013 and signed by [the applicant] on 25 May 2013 engaged [the applicant] as a full time Electrical Supervisor reporting to the Electrical Superintendent. Whilst Clause 1(h) of the contract of employment contemplated that it could coexist with Agreement coverage, there is nothing further in the contract that clarifies that point”.

Is the applicant correctly described as a Supervisor?

“The evidence revealed that a number of duties that were performed by [the applicant] indicated that he was engaged as a Supervisor”.

“When I consider Mr Dare’s authority levels, responsibilities and duties…it leads to a conclusion that the nature of his work and the principal purpose for which he was employed was indeed that of a Supervisor, even if he spent a substantial amount of time assisting his team. I reject his contention that he was engaged as a Team Leader, he was expressly engaged as a Supervisor and the evidence of his responsibilities and tasks performed support that characterisation”.

Is the applicant’s employment covered by the respondent’s Agreement?

“Based on my factual finding above, and the exclusion of Supervisors contained at Clause 8.2 of the Agreement, I find that Mr Dare is not covered by the OZ Minerals Agreement.

Was the applicant’s employment covered by the Mining Industry Award 2010?

“There are a number of decisions of the Commission which confirm that the classification structure in the Mining Award does not cover Supervisory roles. See, for example, Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton where Senior Deputy President Richards found that the reference to ‘providing guidance and assistance to others’ at Level 4 and Level 5 of the classification structure is not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision, also McMillan and Norman v Northern Project Contracting T/A NPC where Commissioner Gay found that a genuine Supervisor is not covered by the Mining Award and endorsed in Suleski v Rio Tinto Iron Ore Dampier a decision of Deputy President Gooley; see also Finch v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore.

“Mr Dare was a Supervisor and I find that his employment is not covered by the Mining Award”.

Is the applicant’s employment covered by the Electrical, Electronic and Communications Contracting Award 2010?

“In order for [the respondent’s] operation to fall with the scope of the Electrical Contracting Award the employer (by virtue of Clause 4.1 of that Award) needs to operate in the industry of electrical services provided by electrical, electronics and communications contractors’.

“Based on the information before me (including the oral testimony of [the applicant]), [the respondent] is not an electrical, electronic or communications contractor and does not operate in the industry of electrical services…

“Accordingly, this submission does not need to be further considered…”

Is the applicant’s employment covered by the Miscellaneous Award?

“The position of Supervisor in the mining industry has not been the subject or traditional coverage by Awards and, as a result of Clause 4.2 of the Miscellaneous Award, it does not cover [the applicant].

“In the alternative, [the applicant] works in an industry (the Mining Industry) which is covered by an Award and his employment does not fall within a classification in the Mining Industry Award. As a result of Clause 4.3(a) of the Miscellaneous Award, the Award would not cover [the applicant]. I note that [the applicant] contends that Clause 4.3(a) of the Miscellaneous Award was not a term that could be included in a Modern Award and thus could not have any effect at the time of dismissal. Whilst that may explain why the Clause was subsequently removed from the Modern Award, it does not mean that the Award provision was not in force at the time of [the applicant’s] dismissal. I reject this contention in so far as [the applicant] was not excluded by Clause 4.2 of the Miscellaneous Award.

“On that basis, I find that Mr Dare was not covered by the Miscellaneous Award at the time of his dismissal”.

Conclusion

“I find that [the applicant’s] annual earnings were greater than the high-income threshold and an enterprise agreement did not apply to him nor was he covered by a Modern Award. Accordingly, [the applicant] is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application”.