FWA 4626
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Taylor-Hunt
Downer EDI Works Pty Ltd
ADELAIDE, 5 JULY 2010
Unfair dismissal - preliminary objection - whether applicant protected from unfair dismissal - high income earner - salary above prescribed limit - whether covered by modern award or enterprise agreement.
 This matter arises in the context of an application for a remedy for alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act) as made by Mr Anthony Taylor-Hunt (the applicant).
 The respondent employer in that application is Downer EDI Works Pty Ltd (the respondent) and it has made a number of jurisdictional objections in this matter. 1 These include that the applicant is not protected from unfair dismissal as a result of s.382 of the Act given his level of income and the nature of his employment (the high income objection).
 The matter has not, in light of these jurisdictional objections, been subject to conciliation and has been assigned to me to determine. During a telephone directions conference conducted on 10 May 2010, the parties agreed that I should initially determine the high income objection given that it was a relatively confined matter.
 Having considered the material subsequently filed by the parties I took the view that there were relevant factual disputes and as such I was, in accordance with s.397 of the Act, obliged to conduct a conference or hearing. Having regard to the views of the parties as discussed at the earlier directions conference, I determined that it was appropriate to conduct a hearing in this matter.
 It has been agreed that the applicant’s salary of $123,500 per annum at the time of dismissal in January 2010 was above the high income threshold as established by ss.332 and 333 of the Act, and the relevant regulation 2; being $108,300.
 It is also not disputed that the applicant worked for the respondent in its civil construction business in the Northern Territory and was given the title of “Supervisor”. What is in dispute is the true nature of the applicant’s role and whether as a result, he was covered by a modern award and/or an enterprise agreement applied to his employment.
 The modern award in question is the Building and Construction General On-site Award 2010 (the Building Award) and the applicant has not suggested that any other modern award would apply to his employment. 3 The enterprise agreement in question is the Downer EDI Works Northern Territory Workplace Agreement 2009 (the Enterprise Agreement) as approved under the former Workplace Relations Act 1996 (the WR Act) in July 2009.4
The immediate statutory context
 Section 382 provides as follows:
“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.”
 Given the level of agreed earnings of the applicant is above the high income threshold it is not necessary to canvass the detail of the Act in that regard. It is also agreed that the applicant has served the period of employment contemplated in s.382(a) of the Act.
 In approaching this matter, I have had regard to the very clear explanation relating to the intended operation of this provision given as part of the Explanatory Memorandum as follows: 5
“1513. Paragraph 382(b) provides that a person will be protected from unfair dismissal if they are covered by a modern award or if an enterprise agreement applies to their employment. If neither of these criteria applies, a person will only be able to bring an unfair dismissal claim if their remuneration is less than the high income threshold.”
The cases as presented
 The respondent contended that the applicant was not covered by the Building Award or subject to the Enterprise Agreement. As a result of this circumstance and his salary level, the applicant was not protected from unfair dismissal under the Act.
 In terms of the applicant’s role, the respondent contended that he was engaged in a staff position with a salary and benefits said to be well in excess of that applying to employees under the Award or Enterprise Agreement.
 The respondent argued that the applicant’s role was consistent with being a genuine supervisor with significant responsibilities for the management of staff and projects. These were said to go well beyond those applicable to award-based leading hands.
 In terms of the application of the Building Award and Enterprise Agreement, the respondent contended that each applied to employees that were principally undertaking hands-on roles and that the applicant’s role and position was not contemplated in either instrument.
 The respondent called Mr Paul Taylor – General Manager, Operations (formerly the Regional Manager to whom the applicant reported) to give evidence in support of its case.
 The applicant contended that he was in effect a leading hand under the Building Award or the Enterprise Agreement and that, particularly at the commencement of his employment, was working as part of various crews that were undertaking road construction activities in relatively remote areas of the Northern Territory. 6 As such, he argued that he was performing predominately hands-on work and that his overall responsibilities as now claimed by the respondent were not in practice carried out.
 The applicant did however accept that after moving to Darwin in 2009, his duties did involve additional responsibilities and paperwork. These included some, if not most, of the responsibilities asserted by the respondent but did not in the view of the applicant change his substantive role.
 The applicant contended that although he was allegedly made redundant, subsequent events had cast doubt upon that basis. He argued that he should be found to be protected from unfair dismissal by the Act and should be given the opportunity to have his case heard.
 The applicant gave evidence in support of his case.
What was the true nature of the applicant’s position?
 Given the parties’ position in this matter, and in order to consider the questions raised by the respondent’s high income objection, it is necessary to determine the true nature of the applicant’s position with the respondent at the relevant time; being the point of dismissal.
 I have considered all of the evidence before Fair Work Australia in this matter. I find that each of the witnesses gave their evidence truthfully and to the best of their recollection. The differences are matters of degree and perspective and remain for me to determine having regard to all of the evidence.
 In making my findings I note that as alluded to above, the applicant in his evidence conceded that by the time of his dismissal he was actually doing the sort of role that he understood a supervisor to perform. 7 I do not understand this to be a concession that the Enterprise Agreement and/or Building Award did not apply. However, it is confirmation that the nature of the applicant’s role as contended by the respondent was in fact the case at that time. In any event, it is Fair Work Australia’s responsibility to determine the high income objection based upon all of the evidence and to consider whether the respondent has demonstrated its case.
 The applicant was engaged upon the same basic salary (subject to a review and increase in July 2008) and terms of employment during his employment from 7 November 2007 until his dismissal on 27 January 2010. His employment contract did not contain a duty statement and a position description was not subsequently provided. In that context, the actual duties and responsibilities must be assessed solely by reference to the evidence as to how these elements operated in practice.
 The position occupied by the applicant at all times carried the title of Supervisor and in general terms I find that it involved the same broad responsibilities. However it is the substance of the position and the nature of the work and responsibilities that must be considered and little if any weight should be placed upon its title.
 It is clear to me that until the time that the applicant relocated his position from Katherine to Darwin in February 2009, he was in effect spending a significant amount of time actually performing work as part of a number of work teams. Given the relatively small size of these projects and their distance from the regional office, the difference between acting as an award-based leading hand and a construction supervisor was in some respects academic. On balance, I find that the applicant did hold all of the responsibilities as contemplated for the position of supervisor, but at least initially, these were not in practice required and much of his day to day work was that of operating road building plant.
 In any event, following his move to Darwin, I find that the applicant was fully engaged and operating in a position with significant supervisory responsibilities. These included:
 It is also clear that the applicant formed part of the regional management team and attended meetings and participated in management training consistent with a supervisor’s role. He was also allocated office space to complete administration associated with his role.
 The reporting arrangements operating at the time of his dismissal are also consistent with the position as advanced by the respondent. The applicant reported directly to the regional manager and as such any leading hands that were in the crews for which he held responsibility reported to him. 8
 The applicant was also subject to formal performance reviews as part of the management team of the employer and was paid on a basis that was consistent with being in a genuine salaried position.
Did the Enterprise Agreement apply to the applicant?
 The Enterprise Agreement clearly applied to the respondent as the employer party. In terms of the group of employees to be covered, this is set out in clause 3.2 in the following terms, with the term ‘Works” referring to the respondent in this matter:
“3.2 What effect does the Agreement have?
This Agreement is made under the Workplace Relations Act 1996 (the Act).
This Agreement sets out the terms and conditions of employment for employees of Works who are based in the Northern Territory employed in classifications contained in the Agreement on the work performed by Works on road construction and maintenance civil construction, and related workshop activities.
This Agreement will operate to the exclusion of any and all other agreements and/or awards.
For the purposes of this clause, the terms ‘award’ or ‘awards’ include any applicable award including a pre-reform federal award, and a rationalised and/or simplified federal award including the Building and Construction Industry (Northern Territory) Award 2002 and the Metal Industry (Northern Territory) Award 2003.”
 The applicant’s work for the respondent was in connection with the respondent’s road construction and maintenance activities and other civil construction works. Accordingly, the Enterprise Agreement would have applied to the applicant if his position fell within the classification structure of that instrument.
 The classifications and pay structure are detailed in Attachment 1 to the Enterprise Agreement and provide for seven classifications. These include various labouring and plant operator classifications including the nature of plant being operated by the applicant during the pre-Darwin period. The highest classifications are Leading Hand Grader Driver and Bitumen Sprayer and Workshop Foreman. There are no definitions for these positions within the Agreement.
 The wages payable to these classifications, even accounting for likely overtime and the various additional payments provided by the Enterprise Agreement are significantly less that the applicant’s salary. More importantly, the nature of the positions contemplated in the classification structure are different in substance to that as occupied by the applicant, at least following his move to Darwin.
 The applicant was clearly not a Workshop Foreman. The evidence of Mr Taylor, which I accept, is that there is a particular role of Leading Hand Grader Driver and Bitumen Sprayer and that this classification applies to a particular role that is only relevant to road crews. Even though the applicant did operate the machinery concerned as part of his role, particularly prior to his move to Darwin, the role was always more than as contemplated in the classification structure of the Enterprise Agreement and was in particular, very different in character after he began to undertake the Supervisor role in Darwin.
 I do not consider that the Enterprise Agreement applied to the applicant at the time of his dismissal.
Did the Building Award cover the applicant?
 Sections 47 and 48 of the Act provides as follows:
“47 When a modern award applies to an employer, employee, organisation or outworker entity
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
48 When a modern award covers an employer, employee, organisation or outworker entity
(1) 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.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, FWA orders or court orders on coverage
(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:
(a) a provision of this Act or of the Fair Work (Registered Organisations) Act 2009;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:
(a) a provision of this Act;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular employment
(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”
 The requirement that the modern award cover the applicant in s.382(b)(i) of the Act necessitates the application of s.48 of the Act, rather than the alternative narrower concept of the award applying as canvassed in s.47. Accordingly, in this case, the Building Award will have covered the applicant if that award is expressed to do so.
 The Building Award was established by Fair Work Australia in accordance with a request made by the then Minister for Employment and Workplace Relations pursuant to s.576C(4) of the WR Act. I note that paragraph 4A of the amended request provided in part that “this modern award is not to cover those classes of employees, such as managerial employees, who, because of the nature and seniority of their role, have not traditionally been covered by awards”. 9 The intended coverage of a modern award is though to be assessed by reference to its actual terms.
 The Building Award commenced to operate from 1 January 2010 and was accordingly in force at the relevant time.
 Clause 4 of the Building Award provides relevantly as follows:
4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award.
4.2 Without limiting the generality of the exclusion, this award does not cover employers covered by:
(a) the Manufacturing and Associated Industries and Occupations Award 2010;
(b) the Joinery and Building Trades Award 2010;
(c) the Electrical, Electronic and Communications Contracting Award 2010;
(d) the Plumbing and Fire Sprinklers Award 2010;
(e) the Black Coal Mining Industry Award 2010;
(f) the Mining Industry Award 2010; or
(g) the Quarrying Award 2010.
4.3 The award does not cover an employee excluded from award coverage by the Act.
4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.9 For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.
4.10 For the purposes of clause 4.1:
(a) general building and construction means:
(i) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
(ii) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.10(a)(i); and
(iii) the installation in any building, structure or works of fittings and services;
(b) civil construction means:
(i) the construction, repair, maintenance or demolition of:
• civil and/or mechanical engineering projects;
• power transmission, light, television, radio, communication, radar, navigation, observation towers or structures;
• power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries;
• silos; and/or
• sports and/or entertainment complexes;
(ii) road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt;
(iii) the prefabrication and installation of geomembranes, geotextiles and appurtenances;
(iv) dredging or sluicing work for or at premises provided for persons mentioned in or in connection with work under clause 4.10(b)(i);
(v) the testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10(b)(i);
(vi) batch plants and precast yards at a construction site in or in connection with work under clause 4.10(b)(i);
(vii) traffic management in or in connection with work under clause 4.10(b)(i);
(viii) construction and/or establishment of landscape gardens in or in connection with work under clause 4.10(b)(i), provided that this award does not apply to the:
• maintenance or horticultural establishment work following practical completion of work as specified under the terms of the construction contract or project; and/or
• laying-out, construction, cultivation or keeping in order of gardens in connection with private houses;
(ix) the industry or calling of either or both catering and cleaning for or at premises provided for persons mentioned in clause 4.10(b)(i);
(x) car parks excepting car park buildings and car parks within the alignment of a building; and
(xi) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;
(c) metal and engineering construction means:
(i) metal trades work performed in the work of construction, fabrication, erection and/or installation work or work incidental thereto when it is carried out at a construction site which is specifically established for the purpose of constructing, fabricating, erecting and/or installing the following:
• power stations, oil refineries, terminals and depots; chemical, petro-chemical and hydrocarbon plants; and associated plant, plant facilities and equipment;
• major industrial and commercial undertakings and associated plant, plant facilities and equipment including undertakings for the processing and/or smelting of ferrous and non-ferrous metals, the processing of forest products and associated by-products, acid and fertiliser plants, cement and lime works, and other major industrial undertakings of a like nature;
• plant, plant facilities and equipment in connection with the extraction, refining and/or treatment of minerals, chemicals and the like;
• transmission and similar towers, transmission lines and associated plant, plant facilities and equipment;
• lifts and escalators as prescribed in clause 42—Lift industry;
• facilities and equipment in other engineering projects; and
(ii) maintenance and/or repair and/or servicing work carried out on-site by the employees of contractors or subcontractors in connection with contracts for on-site construction work referred to in clause 4.10(c)(i). This does not include any work which is incidental to or of a minor nature in relation to the work normally performed by an employee of an employer not engaged substantially in metal and engineering construction.”
 The scope of the Building Award is therefore broad enough to cover the nature of civil construction work in which the applicant was employed by the respondent. However, in order for that Award to cover the applicant, clause 4.1 requires that the work in question be in one of the classifications listed in Schedule B – Classification Descriptions.
 The classification descriptions provided in that Schedule canvass a range of functions and classifications that are graduated according to the level of supervision given to the employees, and their skills, duties and responsibilities. A group of broad-banded classifications are also listed for each classification level to illustrate the application of these concepts.
 The applicant contends that he should be considered to be a leading hand for present purposes. Clause 3.1 of the Building Award defines a leading hand as “..... an employee who is required to supervise or direct or be in charge of another employee or other employees.”
 The term leading hand is not used in the classification structure in Schedule B, rather it is linked to the payment of an additional allowance in clause 19.2 of the Agreement. On that basis, it is clear that an employee acting as a leading hand with the necessary responsibilities would be covered by the Building Award provided that the work being performed by that employee fell substantially within the classification structure.
 Further, the concept of supervision and direction as set out in clause 3.1 is directed to an employee who has immediate responsibility for the work of another employee or a group of employees, but not such whereby the employee has overall responsibility for a project or multiple work teams. The inclusion of the leading hand definition and allowance could not by itself mean that any genuine supervisor or other senior employee in the building industry would fall under the scope of the Building Award simply because their position includes supervision of staff.
 I have earlier outlined the nature of the applicant’s duties and responsibilities at the relevant time. If these are to fall within the coverage of the Building Award, it is likely that the higher classifications Construction Worker (CW)/Engineering Construction Worker (ECW) levels 7 and 8 will be relevant. (I note that ECW 9 relates to Engineering construction which is not relevant here.)
 The following extract relating to the skills and duties and indicative tasks for the CW/ECW8 illustrate the nature of the classifications intended to be covered at this level: 10
“(b) Skills and duties
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT, and may be required to perform a range of duties across the three skill streams contained within this award.
(iii) An employee at this level:
• exercises skills attained through satisfactory completion of the training prescribed for this classification;
• exercises discretion within the scope of this grade;
• designs training programs in conjunction with relevant supervisors and trainers;
• understands and applies quality control techniques;
• prepares complex reports;
• contributes to the design of work and the application of labour;
• undertakes quality control and work organisation at a level higher than for CW/ECW7;
• provides trade guidance and assistance as part of a work team;
• assists in the provision of training to employees in conjunction with supervisors/trainers;
• performs maintenance planning and predictive maintenance work not in Technical Fields;
• works under limited supervision either individually or in a team environment;
• prepares reports of a technical nature on specific tasks or assignments as directed;
• exercises broad discretion within the scope of this level.
(c) Indicative tasks which an employee may perform at this level include the following:
• works on plant and equipment at a higher level of skill than CW/ECW 7;
• exercises high precision trade and/or operative skills using various materials and specialised techniques at a higher level than CW/ECW 7;
• implements quality control programs;
• plans complex construction sequencing;
• works on combinations of machines or equipment which utilises complex electrical or electronic, mechanical or fluid power principles;
• works on instruments which make up a complex control system which utilises some combination of electrical, electronic, mechanical or fluid power principles and electronic circuitry containing complex analogue and/or digital control systems utilising integrated circuitry;
• applies computer integrated manufacturing techniques involving a higher level of computer operating and programming skills than for CW/ECW 7;
• works on various forms of machinery and equipment which are electronically controlled by complex digital and/or analogue control systems using integrated circuitry.
(d) The CW/ECW 8 classification incorporates the following broadbanded award classifications:
• Foreperson (as defined)”
 I note that Part B.6 of Schedule B in the Building Award refers to the relevant award as made under the WR Act or a Notional Agreement preserving a State Award in terms of the meaning to be given to classifications referred to in Part B.2. In the case of “Foreperson (as defined)”, this is drawn from the National Building and Construction Industry Award 2000 11 and is not relevant to this matter.
 All of the relevant classifications in the Building Award canvass the provision of guidance and assistance to others and assisting in the provision of training. However, it is clear that the Building Award contemplates that such work is undertaken under (at least) limited supervision and that training is provided by the CE/ECW 8 classification in conjunction with supervisors and/or trainers. As such, it is clear to me that even these higher classifications contemplate that they will report to supervisors (or others) who have the nature of responsibilities held by the applicant.
 The responsibilities of the applicant extended to groups of employees and contractors and this in my view is beyond the scope of responsibilities reasonably ascribed to the classifications and the concept of a leading hand as contemplated by the Building Award.
 It is also clear to me that particularly by the time of his dismissal, the applicant was not employed in any other plant operator or related classifications as contemplated by the Building Award.
 On that basis, I do not consider that the applicant fell within the scope of a Building Award based classification with leading hand responsibilities. Rather, he was a supervisor whose employment is not contemplated by the Building Award.
 In light of my findings, the applicant is not protected from unfair dismissal by virtue of s.382 of the Act. As such, Fair Work Australia does not have the jurisdiction to hear and determine the substantive application.
 As a result, the application pursuant to s.394 of the Act must be dismissed and an order to this end (PR998902) has been issued in conjunction with this decision.
A Taylor-Hunt on his own behalf.
B Barton for Downer EDI Works Pty Ltd.
1 These include that the applicant was dismissed as a result of a genuine redundancy. I note also that an extension of time is required for the lodgement of the application however the foreshadowed explanation for that delay is directly linked to the dispute between the parties in relation to the alleged redundancy.
2 Regulation 3.05 of the Fair Work Regulations 2009.
3 Transcript PN12. I have also considered the scope of the Miscellaneous Award 2010 and I find that it is not relevant to this matter given the exclusion in clause 4.3 of those employees who fall within the scope of (other) modern awards.
4 This agreement is recognised as an enterprise agreement by virtue of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
5 Para 1513 from the Explanatory Memorandum to the Fair Work Bill 2008.
6 Transcript PN97 and PN97.
7 Transcript PN232 – 234.
8 The evidence of Mr Taylor – transcript PN72.
9 Variation to Award Modernisation Request as made on 28 March 2008.
10 Building Award Schedule B.2 Classifications and related issues.
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