DECISION

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

Mr Dale St George
v
Gold Coast Turf Club Limited T/A Gold Coast Turf Club
(U2016/10325)

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr Dale St George for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr St George was the Chief Executive Officer of the Gold Coast Turf Club Limited (Turf Club).

[2] The Turf Club objected to Mr St George’s application on the basis that it alleged that Mr St George’s earnings were more than the high income threshold. The Turf Club sought that its objection be dealt with as a preliminary matter.

[3] I wrote to Mr St George on 27 September 2016 requesting that he file a statement responding to the objection within 14 days. A response was received from Mr St George on 7 October 2016 although not in the form of a statement.

[4] I heard the Turf Club’s objection in Brisbane on 9 December 2016. Both parties appeared at this hearing and sought permission to be legally represented. I granted permission to both parties to be represented by a lawyer on the basis that the jurisdictional dispute between the parties related to Modern Award coverage which gave rise to some complexity and that representation would enable the matter to be dealt with more efficiently. 1

High Income Threshold

[5] Section 382 of the 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:

(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.”

[6] It is not in dispute that Mr St George completed a period of employment of at least the minimum employment period, that an enterprise agreement did not apply to him in relation to his employment and that the sum of his earnings was not less than the high income threshold. 2 The matter in dispute between the parties is whether a modern award covers Mr St George in his employment. Mr St George maintains that the Registered and Licensed Clubs Award 2010 (the Award) does so.

[7] The Turf Club submitted that Mr St George is not covered by the Award on a number of bases:

● The employment agreement entered into explicitly states that the position of CEO is considered to be Award free;

● The Award does not cover employers in the Racing industry;

● The Turf Club does not fall within the definition of “Club” in the Award; and

● The classification definitions submitted do not apply to a manager at CEO level.

[8] Mr St George submitted that he is covered by the Award because:

● The Turf Club is a “Club” as defined in the Award;

● The principal purpose of the position held by Mr St George falls within the classification definition of “club manager” in the Award and, more particularly, a ‘Level G manager’; and

● The Award contemplates high income club managers by the inclusion of provisions exempting certain managers from Award entitlements where they earn more than 50% above the minimum.

Consideration

[9] Award coverage is determined by reference to the Act and the Award.  3 The Act does not provide for the ability to contract out of Award coverage. The terms of a contract may be a relevant consideration when determining the application of a particular Award but is not of itself determinative. To the extent that the Turf Club relies on the express provision in the employment agreement regarding award coverage I reject the submission.

[10] Section 48 of the Act deals with when a Modern Award covers an employer, employee etc and relevantly states:

“When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, 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…”

[11] The Award’s coverage is expressed by clause 4. The relevant portions of that clause are as follows:

“4. Coverage

4.1 This award covers employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications within Schedule C—Classification Definitions, to the exclusion of any other modern award.

4.2 To avoid doubt, this award covers the work of bar attendants or stewards employed in a club situated on a football ground, cricket ground or sports ground and persons engaged as greenkeepers, ground attendants, gardeners, propagators, lawn mower and motor roller drivers and general labourers in the construction and maintenance of bowling greens and golf courses, but does not cover:
…
(e) thoroughbred, harness, trotting and greyhound racing clubs and their employees in relation to operations covered by the Racing Clubs Events Award 2010; or
…

4.3 This award does not apply to employees of employers who are covered by the following awards:
…
(c) Racing Industry Ground Maintenance Award 2010…”

[12] Whether the Award covers Mr St George is a two part process: does the Award cover the Turf Club and, if that answer is positive, does the Award cover Mr St George because he falls within one of the classifications in Schedule C. If necessary, I must then consider the exceptions to the coverage of the Award.

[13] The Turf Club will be covered if it has employees doing work in or in connection with a club that is registered or recognised under State, Territory or Commonwealth Legislation. The term ‘club’ is defined in the Award as meaning:

“…any club which is registered and licensed under the provisions of relevant State or Commonwealth Statutes (Liquor and/or Gaming Acts, Associations’ Incorporation Acts or Corporations Acts) and which is established and operates on a not-for-profit basis for the benefit of members and the community”

[14] To be a ‘club’ for the purposes of the Award, I will have to be satisfied that the employer is the following:

● registered and licensed under the provision of a State or Commonwealth, Liquor or Gaming Act, Associations’ Incorporation Act or Corporations Act; and

● established and operates on a not-for-profit basis; and

● does so for the benefit of members and the community.

[15] Mr St George relies upon a “Licence Summary” issued pursuant to the Office of Liquor and Gaming Regulation. The licence identifies the relevant licensee as “GOLD COAST TURF CLUB LIMITED”. Neither party has specifically submitted under what Act this licence is issued but it would appear to be the Liquor Act 1992 (Qld). Plainly enough, this satisfies me that the club is registered under a relevant State statute.

[16] Mr St George has also filed the 2015 Annual Report of the Turf Club. That report identifies that the basis for preparing its financial statements are those appropriate for a “not-for-profit” oriented entity. The Turf Club has not disputed that it is established and operates on a not-for-profit basis. I am satisfied and find that it does so.

[17] The Turf Club does dispute that it operates for the benefit of members and the community. The Turf Club draws a distinction between the services offered by a registered and licensed club to that of a racing industry club. The Turf Club called no evidence in respect of either of these matters or its own operations. The Turf Club submitted, in a general way, that clubs in the racing industry operate 1 or 2 days per week and generally only while racing occurs. While operating, these clubs provide entertainment in the form of racing, food, alcohol and wagering.

[18] The Chairman of the Turf Club states in his report contained in the Annual Report:

“In the past year your board of directors has continued to implement financially responsible actions including building or acquiring assets for the benefit of the club, members and racing stakeholders” (my emphasis)

[19] On the material before me I am satisfied that the club operates for the benefit of members. However, it is also required that the club be operating for the benefit of the community. No evidence has been led in respect of this. I am not persuaded that a club that promotes and holds racing events is conducted for the benefit of the community.

[20] I am not satisfied that the Turf Club is a ‘club’ for the purposes of the Award such that Mr St George is not engaged “in or in connection with” a club in the relevant sense. I find that the Turf Club is not covered by the Award.

[21] If I am wrong in that conclusion I would still conclude that the Turf Club is not covered by the Award by operation of the exclusions in the coverage in the Award.

[22] The Award explicitly excludes coverage of “thoroughbred, harness, trotting and greyhound racing clubs” and their employees in relation to “operations” covered by the Racing Clubs Events Award 2010. The phrase “thoroughbred, harness, trotting and greyhound racing club” is not defined in the Award. The Turf Club has not called any evidence in respect of its operations, however, I am satisfied that the Turf Club would fall within this phrase. I accept that the Turf Club is a racing club. This is supported by the material filed by Mr St George, specifically the Annual Report.

[23] Clause 4 of the Racing Clubs Events Award 2010 expresses coverage as follows:

“This industry award covers employers throughout Australia engaged in the staging of events at horse and greyhound racing venues, including but not limited to thoroughbred, harness, trotting and greyhound racing clubs, and their employees in the classifications listed in clauses 17 and 18 to the exclusion of any other modern award.”

[24] The Annual Report states that in December 2014 it was announced that the Turf Club would host the next Magic Millions Carnival and that the event would occur in January 2016. I find that the Turf Club is an employer engaged in the staging of events at horse racing venues. The Turf Club is excluded from the coverage of the Award by operation of clause 4.2(e).

[25] It is not relevant whether Mr St George’s position falls within a classification of the Racing Clubs Award. The coverage of that Award is an industry coverage and operates in respect to employers in the relevant industry. The exception in the Award excludes coverage of racing clubs in relation to “operations” covered by the Racing Clubs Award. Given that Mr St George was the CEO of the Turf Club it cannot be said that he was not engaged in the operations covered by the Racing Clubs Award.

[26] There is no evidence before me on which to draw any conclusion about the coverage of the Racing Industry Ground Maintenance Award 2010.

[27] Given my conclusion I do not have to decide if Mr St George would be within a classification in Schedule C of the Award.

Conclusion

[28] I am satisfied and find that the sum of Mr St George’s annual rate of earnings is not less than the high income threshold. It is agreed that no enterprise agreement applies to Mr St George. I am not satisfied that Mr St George is covered by a Modern Award. Therefore, I am satisfied that Mr St George is not a person who was protected from unfair dismissal at the time of his termination of employment. On this basis his application must be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K Gibb for the Applicant.

Mr M Smith for the Respondent.

Hearing details:

2016.

9 December.

Brisbane.

 1   See Fair Work Act 2009 s.596(2)(a).

 2   Applicant’s Response to Respondent’s Jurisdictional Objection, paragraph 7.

 3   See for example McMillan and Norman v Northern Project Contracting [2012] FWA 7049 at [14].

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