DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Millis
v
WesTrac Cat Pty Ltd T/A WesTrac
(U2015/13208)

Application for relief from unfair dismissal.

[1] Mr Andrew Millis was employed by WesTrac Cat Pty Ltd until his employment was terminated on 8 September 2015. WesTrac objected to Mr Millis’s application because it said he earned more than the high income threshold.

[2] Mr Millis was employed as a Human Resources Business Partner.

[3] Mr Millis submitted that his work was covered by the Miscellaneous Award 2010 or the Vehicle Manufacturing, Repair, Services and Retail Award 2010.

[4] At the hearing, Mr Millis did not press that he was covered by the Vehicle Award.

[5] Section 48 of the Fair Work Act 2009 makes it clear that:

“A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

[6] The Miscellaneous Award provides as follows at clause 4:

4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14 -Minimum wages who are not covered by any other modern award.

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

[7] Clauses 4.2 - 4.6 have no application.

[8] Schedule B provides for the classification structure and definitions:

Level 1
An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 2
An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 3
An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4
An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

[9] WesTrac provided a description for a Human Resources Business Manager position which provided that the minimum qualification was a tertiary qualification. Mr Millis has degree qualifications. Mr Millis said that he had not been provided with the position description and he disputed that the position description tendered by WesTrac accurately reflected the work he performed. He accepted that he had a HR adviser and recruiter report to him. Mr Millis submitted that he was not a decision maker and was only able to make recommendations to more senior management. He said he performed administrative functions.

[10] I am not satisfied that the Miscellaneous Award does not cover Mr Millis’ employment. I am not satisfied that he was a sub-professional employee. I am satisfied that the position of Human Resources Business Partner is the type of position excluded from coverage in the Miscellaneous Award.

[11] The question then to be determined is whether Mr Millis earned more than the high income threshold of $136,700.

[12] Mr Millis accepted that his guaranteed base salary was $138,000. He submitted that because he had only worked for seven months his annual salary had not exceeded the high income threshold.

[13] It is clear that the calculation of a person’s annual rate of earnings is to be determined at the date of termination. It is clear that the amount is not determined by calculating the amount the employee earned in the twelve months prior to termination, except as provided by the Fair Work Regulations 2009.

[14] In this matter, Mr Millis’ annual rate of earnings was a minimum of $138,000. As this exceeds the high income threshold, Mr Millis was not protected from unfair dismissal and his application must be dismissed.

DEPUTY PRESIDENT

Appearances:

A. Mills on his own behalf.

B. Stocks for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by telephone link:

October 28.

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