FWA 1864
REASONS FOR DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Oehme
Nilsen Resources Pty Ltd
PERTH, 8 MARCH 2012
 On 13 January 2012, Mr Anthony John Oehme (“the Applicant”) made application to Fair Work Australia (FWA) seeking an unfair dismissal remedy following alleged unfair dismissal from his employment with Nilsen Resources Pty Ltd (“the Employer”).
 The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
 On 23 January 2012, the Employer filed a response to Mr Oehme’s application. The response included the jurisdictional objection that the Applicant is not protected from unfair dismissal because he was not covered by a modern award or enterprise agreement but employed under a common law contract of employment. Further, between 1 July 2011 and the date of termination, his annual rate of earnings was $200,749.38. Accordingly, Mr Oehme is not protected from unfair dismissal pursuant to s.382(b) of the FW Act.
 Section 382 of the FW Act provides:
● 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:
(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.
Note: High income threshold indexed to $118,100 from 1 July 2011
 Conciliation did not proceed and the application was referred to me for arbitration on 10 February 2012.
 On 16 February 2012, I advised the parties that I intended to deal with the Employer’s jurisdictional objections by way of written submissions. On 16 February 2012, I issued procedural directions. Submissions were received and finalised on 29 February 2012.
THE NATURE OF THE CASE PRESENTED BY THE EMPLOYER
 The Employer submits that the Applicant entered into a common law contract of employment with Nilsen Resources Pty Ltd in May 2011.
 Included in the contract of employment are the following specifications:
Position Title: Construction Manager
Remuneration: $70 per hour for each hour worked.
An additional $20 per hour for each hour worked on site.
Roster: Three (3) weeks on followed by one (1) week off.
Hours of work: 11 hours per shift.
Termination of Unless agreed otherwise, subsection 117(3) of the FW Act.
 The duties of the Construction Manager included but were not limited to planning, organising, directing, controlling and coordinating (usually though subordinate supervisory personnel) activities concerned with the construction project. These duties included technical activities as well as administrative matters such as cost control, progress claims, staffing matters, communication and interaction with clients, suppliers and subcontractors.
 The role and responsibilities of the Construction Manager, the Employer submits, go well beyond the duties and wages of the highest classification of an electrical worker in the Electrical, Electronic and Communications Contracting Award 2010.
 Accordingly, the Employer submits that Mr Oehme was not covered by a modern award. Furthermore, no enterprise agreement is applicable.
 From 5 July 2011 to 10 January 2012, the Applicant received:
$ 177,490.80 - wages
$ 3,384.00 - public holiday pay
$ 9,180.87 - accrued leave on termination
$ 6,840.00 - two weeks (76 hours) payment in lieu of notice
$ 3,853.71 - expense reimbursements
$ 200,749.38 Total
THE NATURE OF THE CASE PRESENTED BY THE APPLICANT
 Mr Oehme submits that:
“as an electrical tradesman employed in a capacity to provide technical and statutory support to the role based on my trade skills, I am covered under a modern award. Furthermore, I was not notified in writing that during my employment, that a modern award would not apply whilst the annual earnings exceeded the high income threshold.”
 Further, the Applicant submits that he was listed on the Company Electrical Contractors License as a Nominee for the purposes of ensuring statutory compliance, specifically for the Dewatering Project.
 Mr Oehme characterises the high income threshold as “irrelevant” in view of his submission that a modern award applied to this employment.
 The Applicant does not submit that an enterprise agreement applied to his employment.
 Having considered the submissions and documentary material provided by the parties, the issue for determination is whether the Electrical, Electronic and Communications Contracting Award 2010 applied to Mr Oehme during his employment as Construction Manager with Nilsen Resources Pty Ltd.
 Before considering the above question for determination, I am satisfied from the submissions and material that an enterprise agreement did not apply to Mr Oehme during his period of employment and that his annual rate of earnings exceeded the high income threshold.
 I now turn to the question of whether the Applicant was covered by a modern award.
 I begin with Mr Oehme’s contract of employment.
 The contract of employment entered into by Mr Oehme is as a Construction Manager on the Sino Iron Project. The position of Construction Manager reports to the Project Manager and/or Site Manager. The reporting arrangement indicates it is relatively senior in the site structure.
 Specifically, in the contract, it is stated that, “the terms and conditions set out above form the entire agreement between us as to your employment...They can only be altered in writing signed by both you and the Company.”
 As a finding of fact, I conclude that Mr Oehme’s contract of employment never envisaged that his employment conditions included coverage by a modern award.
 Mr Oehme has not submitted or provided evidence that he raised, at commencement or during his employment the applicability of a modern award to his position of Construction Manager. Effectively what Mr Oehme is seeking to do is, post dismissal, to contract him and his employer into a modern award. Quite obviously the purpose of doing so is to confer upon the Tribunal the jurisdiction to hear his claim for unfair dismissal.
 Pursuant to sections 47 and 48 of the FW Act, a modern award applies to an employee if it is in operation and applies. A modern award only applies if it expressly states that it covers an employee.
 I am not prepared to adopt Mr Oehme’s reasoning that because he was not notified that a modern award did not apply, he is covered by a modern award. Firstly, his argument is inconsistent with his contract of employment which specifically sets out (unless changed in writing) all of his conditions of employment, and secondly, absence of evidence is not evidence of the fact that a modern award applied.
 Mr Oehme puts the argument that he is an “electrical tradesman employed in a capacity to provide technical and statutory support to the role based on my trade skills”.
 It was not disputed that Mr Oehme had trade skills but neither his contract of employment, position title, duties, reporting arrangements nor remuneration indicate or demonstrate that the Applicant was employed in a classification within Schedule B of the Electrical, Electronic and Communications Contracting Award 2010. In this respect, I agree with the Employer that the Applicant’s duties, responsibilities and wages go significantly beyond the highest classification of electrical worker in the modern award.
 In Mr Oehme’s application, I have considered and adopted the two factor approach of Vice President Lawler in Halasagi v George Weston Foods Limited  FWA 6503. The first factor is whether, to adequately perform the duties required, the employee must possess a technical qualification. The parties did not contest this issue.
 The second factor is whether the employee, in this case, Mr Oehme, is employed and carrying out the duties of a classification in the modern award. It is not disputed that Mr Oehme was employed as a Construction Manager. He was not employed as an Electrical Worker Grade 10, the highest classification for electrical workers in the modern award.
 The practical reality is that while the role of Construction Manager may require a trade qualification or technical ability, the position is that of a manager. The principal purpose of a manager is to coordinate the various relevant employees/groups, customers and resources in a business. To “manage” is to organise and direct to achieve the aims of the business which, in this case, is the construction phase of the Employer’s involvement on the Sino Iron Project.
 The principal purpose of Mr Oehme’s role as Construction Manager was “managing” which can be contrasted with the descriptors of an Electrical Worker Grade 10 as set out in Schedule B of the Electrical, Electronic and Communications Contracting Award 2010. In conclusion, I find that Mr Oehme was carrying out the role and responsibilities of a Construction Manager and not that of an electrical tradesperson covered by a modern award.
 I now turn to Mr Oehme’s third limb of submissions in which he states that he “was listed on the Company Electrical Contractors License for the purposes of ensuring statutory compliance specifically for the Dewatering Project.
 Any evaluation and assessment of this fact, which is not contested by the Employer, is difficult due to the lack of any submission by the Applicant as to how it demonstrates, if it does, that Mr Oehme is covered by the modern award. If the connection is to demonstrate that only an electrical tradesperson can be a nominee on the Company Electrical Contractors License, that is an issue of ensuring statutory compliance with the relevant project requirements and not an indicator that the Applicant is covered by a modern award.
 Having an exiguous “connection” between a trade qualification and the position of Construction Manager, or any similar position, is not the correct test in my view. A number of tradespersons move into administrative and managerial positions and take with them skills, qualifications and expertise they have learnt while “on the tools”. However, the focus should not be upon the history of what they have brought with them to a position but what was intended at the commencement of the employment relationship, and the principal purpose of the position which existed during employment.
 Merely having a statutory connection between a tradesperson and the position being carried out is not sufficient connection in my view. Any connection would need to be substantial, and this can only be evinced by the conduct of the parties at the commencement and during the employment relationship.
 Importantly, subsection 143(7) of the FW Act requires that a modern award not be expressed in such a way that it covers employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether State of Commonwealth)
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
 In the “Note” to the subsection, it refers to the situation that managerial employees have traditionally not been covered by awards.
 From the material before me, I am not prepared to conclude that the Electrical, Electronic and Communications Contracting Award 2010 was wrongly made by excluding persons such as Mr Oehme because of his role and seniority. On the contrary, the descriptors of the various classifications in the modern award appear to cover those persons who have traditionally been covered by awards.
 Finally, subsection 47(2) of the FW Act clearly provides that a modern award does not apply to an employee or an employer at a time when the employee is a “high income employee” which is consistent with subsection 143(7) of the FW Act outlined in paragraph  above.
 In conclusion, for the reasons set out above, I find that Mr Oehme’s employment with the Employer was not covered by the Electrical, Electronic and Communications Contracting Award 2010. Accordingly, none of the provisions in subsection 382(b) of the FW Act apply to Mr Oehme. Consequently, Mr Oehme is not protected from the unfair dismissal provisions of the FW Act.
 Mr Oehme’s application:
● is dismissed; and
● an Order to this effect is issued jointly with this Decision and Reasons for Decision.
Respondent: 20 February 2012
Applicant: 22 February 2012
Respondent: 29 February 2012
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