[2011] FWA 7018

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Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Donald Coventry
Southern Gulf Catchments Limited



Jurisdiction; Australian Workplace Agreement; Enterprise Agreement; high income threshold.


[1] Pursuant to s.394 of the Fair Work Act 2009 (the Act), Mr D. H. Coventry sought relief in relation to his termination of employment by Southern Gulf Catchments Limited (Southern Gulf). Mr Coventry’s employment was terminated on 30 June 2011. His application was lodged on 11 July 2011.

[2] By notice dated 29 July 2011, Southern Gulf lodged an objection to the application on the basis that the applicant was not covered by a modern award and that his earnings exceeded the high income threshold. Southern Gulf submitted that Mr Coventry was not a person protected from unfair dismissal pursuant to s.382 of the Act.

[3] Mr Coventry argues that he is a person protected from unfair dismissal in accordance with s.382 of the Act, as he was, at the time of his termination of employment covered by an Australian Workplace Agreement. This is not a simple matter and I now turn to the legislation governing the jurisdiction.


[4] Section 382 defines when a person is protected from unfair dismissal and provides:

[5] Item 36 of Division 3 in Part 5 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the T&C Act), provides:

[6] It can be seen that the operation of the T&C Act means that s.382(b)(ii) includes a reference to an agreement-based transitional instrument. I note in passing that if it had been established that Mr Coventry had been covered by an award-based transitional instrument then item 3(3) of Part 2 of Schedule 3 of the T&C Act would mean that the high income threshold applied. However this is not the case as he only argues that he was covered by an Australian Workplace Agreement.

[7] Under item 2(5)(d)(iii) of Part 2 of Schedule 3, an Australian Workplace Agreement is defined as an individual agreement-based transitional instrument.

[8] It follows that if Mr Coventry was covered by an Australian Workplace Agreement at the time of his termination of employment, he would have been a person protected from unfair dismissal.


[9] Mr Coventry’s Australian Workplace Agreement was lodged with the Workplace Authority on 16 November 2007 and began operating from that day. By letter dated 4 June 2008, the Workplace Authority notified Southern Gulf that given Mr Coventry’s salary the Fairness Test would not be applied.

[10] The Workplace Relations Act 1996 (incorporating amendments from the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008) (the WR Act) provided how a workplace agreement may be terminated:

[11] At no stage has action been taken to terminate the Australian Workplace Agreement. Southern Gulf argues that the Australian Workplace Agreement lapsed because it passed its expiration date and another agreement was made. Mr Coventry disputes the nature of any changes to the Australian Workplace Agreement but in any event argues that, to the extent there were changes, they were not reflected in any agreement under the statute.

[12] Moreover, item 2 of Schedule 7(A) of the WR Act relevantly maintains the continued operation of the Australian Workplace Agreement.


[13] Mr Coventry entered into an Australian Workplace Agreement which remains in place and pursuant to the T&C Act is a person protected from unfair dismissal. It follows that I dismiss the jurisdictional objection and the matter will now be referred for action in accordance with the Act.



D. Coventry on his own behalf.

S. Pate, Solicitor on behalf of Southern Gulf Catchments Ltd.

Hearing details:

September, 19.

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