DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nigel Scarborough
v
Sandfire Resources NL T/A Sandfire Resources NL
(U2016/12820)

Termination of employment – high income threshold – whether an enterprise agreement or modern award applies – applicant’s remuneration exceeds high income threshold –employment not covered by a modern award – application dismissed.

Background

[1] This decision concerns an application made by Mr Nigel Scarborough for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Sandfire Resources NL T/A Sandfire Resources NL (Sandfire).

[2] Sandfire contends that Mr Scarborough is not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold 1 and the applicant’s employment is not covered by a modern award2 or enterprise agreement.3

[3] With effect from 1 July 2016, the high income threshold referred to in s.382(b)(iii) of the Act is $138,900.

[4] Mr Scarborough contends that although his annual rate of earnings exceeds the high income threshold, he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (the Manufacturing Award) and as a result of s.382(b)(i) of the Act he is a person protected from unfair dismissal.

[5] On 2 December 2016, directions were issued for the parties to file material in support of their application by 9 December 2016 with any material in reply to be provided by 16 December 2016. Submissions and submissions in reply were received by both parties.

[6] Mr Scarborough also provided a witness statement.

[7] Sandfire provided witness statements from:

• Paul Richard Sheppard – Maintenance Manager;



• Martin Richard Reed – Chief Operating Officer;



• Janine Sandra Collier – Human Resources Manager; and



• John Richard Fraser – Process Manager.

[8] Mr Scarborough’s position is summarised as follows;

• He commenced employment with Sandfire on 24 March 2012 as a Mechanical Supervisor.



• During his employment, he performed work at the DeGrussa Copper Mine and also in Sandfire’s workshop.



• His key responsibility was the day to day maintenance of Sandfire’s plant and equipment which included a range of industrial machinery.



• A large part of his role involved supervising and coordinating two maintenance crews comprised of five fitters, one boilermaker, one boilermaker apprentice and one mechanical fitter apprentice. However, approximately twice a week sometimes during afterhours call out work, he performed maintenance, fault finding and repairs on Sandfire’s plant and equipment.



• The duties undertaken as part of the supervisory role included:

a) Carrying out workplace inspections and related paperwork;

b) Performing safety inspections on equipment, maintenance crews, operational employees and contractors;

c) Investigating safety incidents;

d) Checking and signing off on JHA’s, permits to work, and isolations;

e) Training of maintenance staff and contractors;

f) Training, supervising, and overseeing the education and management of apprentice metal workers;

g) Scheduling unplanned breakdown work in to the ordinary work week;

h) Managing scheduled shutdowns;

i) Coordinating rosters for maintenance crews;

j) Liaising with vendors about the purchase of spare parts and materials; and

k) Sourcing of new tools for the maintenance crews.

• The operational duties undertaken whilst working “on the tools” included:

a) Oxy-cutting steel bolts, steel frameworks, steel pumps;

b) Grinding steel and stainless steel;

c) Drilling into steel work and plastics;

d) Fabricating steel and plastic brackets;

e) Welding steel brackets;

f) Trimming and repairing wire slings;

g) Painting steel work to prevent it from rusting;

h) Repairing and making steel, steel mesh and tin safety guards;

i) Repairing gear boxes in fixed plant;

j) Rebuilding pumps, filter presses, and conveyers;

k) Changing out rollers on fixed plant; and

l) Replacing liners and bolts in the ball and fag mills.

• His employment was terminated on 3 October 2016.



• He acknowledged no enterprise agreement applied to his employment and that he earned more than the high income threshold (currently $138,900 per annum). However, he contends that he is a person protected from unfair dismissal as he has been employed with Sandfire for four and a half years, meeting the requisite minimum employment period under s.383 of the Act, and is covered by a modern award, namely the Manufacturing Award.

[1] Sandfire’s position is summarised as follows;

• Sandfire is engaged exclusively in the mining industry and is a publicly listed Australian company. Its operations include the DeGrussa Cooper-Gold Mine located in Murchison of Western Australia and exploration projects in New South Wales and Queensland.



• The Degrussa Copper-Gold Mine comprises an underground mine, processing plant, accommodation camp and aerodrome to facilitate the fly in fly out workforce.



• Mr Scarborough commenced employment with Sandfire on 2 April 2012 as a Mechanical Supervisor and in that capacity planned, organised and supervised the performance of the required mechanical maintenance activities.



• Mr Scarborough’s role consisted entirely of supervisory responsibilities. He was responsible for ensuring the work was performed by others under his supervision and was to oversee allocated work.



• Mr Scarborough’s employment was terminated on 3 October 2016.



• Mr Scarborough’s unfair dismissal application is objected to on the basis that he is not a person protected from unfair dismissal as his remuneration exceeds the high income threshold, as he was on a base salary of $176,156.35 excluding superannuation at the time of dismissal, and he is not covered by an enterprise agreement or modern award.

[2] A hearing was conducted by telephone on 19 December 2016. Mr Scarborough was represented by Mr Cory Fogliani of counsel, and Mr Greg Smith of counsel, represented Sandfire. Permission was granted pursuant to s.596(2) of the Act. A sound recording was retained.

[3] At the hearing Mr Fogliani and Mr Smith reiterated their written submissions and replies.

[4] Section 382 of the Act, set out below, prescribes when a person is protected from unfair dismissal:

“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.”

[5] Mr Scarborough’s offer of employment dated 13 February 2012 states that Mr Scarborough’s guaranteed base salary was $179,850.00 including superannuation.

[6] It is agreed that Mr Scarborough was not covered by an enterprise agreement in relation to his employment.

[7] The determinative issue in this matter is whether Mr Scarborough is covered by a modern award.

The Submissions of the Parties in relation to Award Coverage

[8] Mr Scarborough’s letter of offer dated 13 February 2012 states that he was engaged as a Mechanical Supervisor and contains a job description. The job description is consistent with the statement provided by Mr Fraser and Mr Sheppard.

[9] Sandfire contended that if Mr Scarborough was covered by a modern award it would be the Mining Industry Award [MA000011]. However, they contend that he is not covered by the Mining Award as it does not cover Supervisors.

[10] Mr Scarborough contends that he is covered by the Manufacturing Award on the following basis:

• That the proper construction of clause 4.1 of the Manufacturing Award, the coverage clause, requires the Commission to determine the industry and occupation of the employee when determining whether an employer is covered by the Award.



• For the purposes of clause 4.1 of the Manufacturing Award, he acknowledges that it is uncontroversial that Sandfire is located in Australia and is an employer in the sense that it employs people as employees.



• The operational duties, or work performed when “on the tools”, listed earlier in this decision, fall within the meaning of the term “Manufacturing and Associated Industries and Occupations” by virtue of clauses 4.9(a)(iii) and 4.10(a), (b), (c), (i), (s) and (cc) of the Manufacturing Award.



• Although Sandfire does not operate within an industry as listed in clause 4.9(a)(i) and (ii) of the Manufacturing Award, a significant aspect of his role was to repair, recondition, maintain, test and fault find plant and equipment which falls within the term “Manufacturing and Associated Industries and Occupations” as defined in the Manufacturing Award.



• The supervisory duties were performed in, or in connection, or incidental to the maintenance occupations of the crew and as such it falls within the term “Manufacturing and Associated Industries and Occupations” by virtue of clause 4.9(a)(ix) and 4.10(a), (b), (c), (i), (s) and (cc) of the Manufacturing Award. This is further supported by the classification structure in clause B.2.3 and B.3.2 of Schedule B of the Manufacturing Award.



• He is a Supervisor Level I as per clause B.2.3 and B.3.2(a)(ii) of Schedule B of the Manufacturing Award and is thus a person protected from unfair dismissal.

[11] The coverage clause of the Manufacturing Award is reproduced below:

“4. Coverage

4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.

4.2 The award does not cover:

(a) an employer who is outside the scope of clause 4.9(a) or (b) unless such employer employs an employee covered by clause 4.9(c) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee; or

(b) an employee excluded from award coverage by the Act; or

(c) exempt employers and employees, as set out in clause 4.11.

4.3 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.

4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.5 This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in clauses 4.9(a) or (b) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries).

4.6 This award covers any employer which supplies on-hire employees in occupations set out in clause 4.9(c) covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.

4.7 Clauses 4.5 and 4.6 operate subject to the exclusions from coverage in this award.

4.8 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industries and/or parts of industry and/or occupations set out at clause 4.9 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.8 operates subject to the exclusions from coverage in this award.

4.9 Manufacturing and Associated Industries and Occupations means:

(a) the following industries and parts of industries:

(i) the manufacture, making, assembly, processing, treatment, fabrication and preparation of:

• the products, structures, articles, parts or components set out in clause 4.10; or



• the materials or substances set out in clause 4.10; or



• any products, structures, articles, parts or components made from, or containing, the materials or substances set out in clause 4.10.

(ii) the coating, painting, colouring, varnishing, japanning, lacquering, enamelling, porcelain enamelling, oxidising, glazing, galvanising, electroplating, gilding, bronzing, engraving, cleaning, polishing, tanning, dyeing, treatment and finishing of any of the items referred to in clause 4.9(a)(i).

(iii) the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of:

• any of the items referred to in clause 4.9(a)(i); or



• floor covering; or



• plant, equipment and buildings (including power supply) in the industries and parts of industries referred to in clauses 4.9(a)(i) and (ii); or



• plant, equipment and buildings (including power supply) in any other industry.

(iv) mechanical and electrical engineering.

(v) space tracking.

(vi) farriery (other than in the racing industry).

(vii) bottle merchants.

(viii) the printing and processing of photographs from film.

(ix) every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries, parts of industries or occupations.

(x) handling, sorting, packing, despatching, distribution and transport in connection with any of the foregoing industries or parts of industries.

(b) the provision of any of the operations or services set out in clause 4.9(a) on a contract basis by one business to another business, where the first business is independent of the second business.

(c) the following occupations:

(i) maintenance employees in the engineering streams.

(ii) technical workers.

(iii) draughtspersons.

(iv) production planners.

(v) trainee engineers.

(vi) trainee scientists.

(vii) engine drivers.

[12] Clause 4.1 of the Mining Award is reproduced below:

“4. Coverage

4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13—Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.

4.2 Definition of mining industry

For the purposes of this clause mining industry means:

(a) extracting any of the following from the earth by any manner or method including exploration, prospecting, development and land clearing, preparatory work and rehabilitation during the life of the mine:

(i) any metals, minerals or ores;

(ii) phosphates and gemstones;

(iii) mineral sands;

(iv) uranium and other radioactive substances;

(b) the processing, smelting and refining of the metals, minerals, ores or substances covered by clause 4.2(a);

(c) the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) on a mining lease or tenement;

(d) the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) by the mine operator, a related company or an entity principally engaged by the mine operator to do such work, using the plant or infrastructure (including rail and/or ports) of the mine operator or a related company;

(e) the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to (d) by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed; or

(f) the provision of temporary labour services used in the activities set out in clauses 4.2(a) to (e), by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.

4.3 Exclusions

This award does not cover:

(a) an employee who is 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 such employee;

(b) an employee who is covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to such an employee;

(c) an employee excluded from award coverage by the Act;

(d) employers in respect of their operations or activities in the following industries or occupations:

(i) aluminium;

(ii) catering, accommodation, cleaning and incidental services (unless employed by a mine operator or a related company);

(iii) clerical or administrative;

(iv) information technology professionals, professional engineers, geologists and scientists;

(v) oil, gas and hydrocarbons;

(vi) quarrying of stone, crushed stone, sand and gravel, and land reclamation (including dredging);

(vii) salt;

(viii) security services (unless employed by a mine operator or a related company);

(ix) steel making;

(x) prospecting and resource assessment for the purposes of potential mine development, which is not on a mining lease or tenement;

(xi) brown coal mining; and

(xii) melting and smelting of metals in connection with manufacturing activities covered by the Manufacturing and Associated Industries and Occupations Award 2010;

(e) employers in respect of their operations or activities covered by the Black Coal Mining Industry Award 2010;

(f) employers in respect of their operations or activities covered by the Manufacturing and Associated Industries and Occupations Award 2010, except for work covered by clause 4.2 above; and

(g) persons employed in the head office or town office of an employer.

…

4.5 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”

[13] Clause 13 of the Mining Award contains the following levels:

“13. Classifications and minimum wage rates

13.1 Adult employees

(a) A full-time adult employee must be paid a minimum weekly rate for their classification as set out in the table below:

(b) The classification structure and descriptors for the above classifications are contained in Schedule B—Classification and Structure.”

[14] The descriptors relating to the classifications in clause 13 are in Schedule B of the Mining Award are as follows:

“Schedule B—Classification and Structure

B.1 Classification and progression principles

B.1.1 Classification

In each of the classifications under this award it is a requirement that an employee must:

(a) perform work in a fully flexible manner as reasonably required by the employer and in accordance with the employee’s ability and competence;

(b) acquire any skills as reasonably requested by the employer and, where necessary, undertake required training and assist with the training of others; and

(c) use such tools and equipment as may be required, subject to the limit of the employee’s skills and competence and provided that the employee has been properly trained in the use of such tools and equipment.

B.1.2 Progression

An employee will progress through the classification levels subject to:

(a) possessing the applicable skills for the level; and

(b) being required by the employer to perform work at that level.

Progression from Level 4 and above will be subject to the employee being appointed by the employer.

B.2 Classification groups

B.2.1 Mining Industry Services Employees

A Mining Industry Services Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: labouring; assisting work crews and tradespersons; operation of plant and equipment (including mobile plant); maintenance work on plant, equipment or buildings; performance of general plant, stores, workshop, warehouse, packaging, and marine interface tasks, resource assessment (including prospecting, drilling and exploration); preparing and cleaning equipment and materials; and on site catering cleaning and security.

This classification group also encompasses work performed by Laboratory Assistants, who do not hold tertiary qualifications.

B.2.2 Mining Industry Surface Mining and Haulage Employees

A Mining Industry Surface Mining and Haulage Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: open cut mining activities (including labouring, sampling, spotting); operating all forms of mining industry plant and equipment (including mobile plant); operating equipment used in the transportation handling and loading (or discharge) of ores, metals, minerals and/or product (including rail activities); and all tasks associated with drilling and blasting.

B.2.3 Mining Industry Processing Employees

A Mining Industry Processing Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: operating and adjusting all plant equipment (and associated control panels) utilised in mining industry production, processing, smelting and refining operations; and issuing clearances and permits as required.

B.2.4 Mining Industry Underground Mine Employees

A Mining Industry Underground Mine Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: underground mining activities (including labouring, sampling, drilling, blasting, mine ventilation, ground control and shaft activities); and operation and maintenance of underground mining plant and equipment (including mobile plant).

B.2.5 Mining Industry Maintenance Trades Employees

A Mining Industry Maintenance Trades Employee is designated as such by their employer, performs all tasks on the surface or underground as directed by their employer and is trade qualified.

B.3 Classification Structure

B.3.1 Entry Level—Introductory

An employee at this level is undertaking the standard induction training required for the operation or business. Such training covers: conditions of employment; mine and plant safety; first aid procedures; movement around the site; work and documentation procedures; quality control and quality assurance; and introduction to supervisors and fellow workers. Employees at this level perform routine duties under direct supervision.

This level applies to the following classification groups:

Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.

B.3.2 Level 1—Basic

An employee at this level will have completed the standard induction training and have been assessed to be able to competently carry out the basic and semi-skilled work required for this level.

This level applies to the following classification groups:

Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.

B.3.3 Level 2—Intermediate

An employee at this level will have been assessed as being competent to carry out semi-skilled work on a broad range of plant and equipment functions. The employee exercises discretion within their level of skill and is responsible for the quality of the work subject to routine supervision.

This level applies to the following classification groups:

Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.

B.3.4 Level 3—Competent

An employee at this level will have been assessed as being competent to apply skills and knowledge in complex but routine situations where discretion and judgment are involved. The skills and knowledge are acquired through the completion of a trade certificate, or through practical experience, which has equipped the employee with an equivalent level of skills and knowledge.

An employee at this level can plan tasks, select equipment and appropriate procedures from known alternatives and takes responsibility for the work of others. An employee at this level requires only limited supervision or guidance.

An employee at this level: understands and applies quality control techniques; exercises discretion within the scope of this level; performs work under limited supervision; operates all equipment incidental to the work; and assists in the provision of on-the-job training.

This level applies to the following classification groups:

Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.

B.3.5 Level 4—Advanced

An employee at this level will have met the requirements for Level 3 and been assessed as being competent to perform tasks which require in depth skill or knowledge, or the employee is assessed as having the integration of a broad range of skills. The work may be of a non-routine nature requiring the application of the relevant skills and knowledge to new but predictable situations.

The level of skills or knowledge required to perform this work will involve the completion of a post trade training appropriate for this level, or through the acquisition of practical skills and knowledge which has equipped the employee with the equivalent level of skills and knowledge.

An employee at this level will provide guidance and assistance to others.

This level applies to the following classification groups:

Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.

B.3.6 Level 5— Advanced Specialist

An employee at this level will have met the requirements for Level 4 and holds a trade qualification used in the operation and has acquired additional knowledge by having satisfactorily completed a prescribed post trade course appropriate for this level or the achievement to the satisfaction of the employer of a comparable standard of skill and knowledge by other means including in-plant training or on-the-job experience.

An employee at this level will provide guidance and assistance to others.

This level applies to the following classification groups:

Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.

B.3.7 Level 6—Dual Trade

An employee at this level will have met the requirements for Level 5 and holds a dual trade qualification or equivalent prescribed post trade course used in the operation and has acquired additional knowledge enabling the employee to apply dual trade skills or an equivalent level of high precision specialised trade skills in one area.

An employee at this level: has high precision trade skills in more than one area; is qualified to work on machinery or equipment with complex mechanical, hydraulic, electrical circuitry or controls; and meets the skills requirements for Tradespersons in accordance with the Manufacturing and Associated Industries and Occupations Award 2010 for this level.

This level applies to Mining Industry Maintenance Trades Employees.

B.3.8 Level 7—Dual Trade Instrument Technician

An employee at this level will have met the requirements for Level 6 and have acquired further additional knowledge by having satisfactorily completed a prescribed post trades course or an advanced trade equivalent enabling the employee to apply advanced dual trade instrument electrical technician skills.

This level applies to Mining Industry Maintenance Trades Employees.”

Consideration

[15] Mr Scarborough contends his work was covered by the Manufacturing Award. Clause 4.1 of the Manufacturing Award defines its scope. The Manufacturing Award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in the Award. (emphasis added)

[16] There is no dispute that Mr Scarborough was an employee, that Sandfire is an employer in Australia or that Mr Scarborough’s earnings exceeded the high income threshold.

[17] What is in dispute is the industry in which Sandfire operates and whether Mr Scarborough is covered by an Award.

[18] The term ‘Manufacturing and Associated Industries and Occupations’ is defined in Clause 4.9 of the Manufacturing Award.

[19] Mr Scarborough contends that clause 4.1 of the Manufacturing Award does not link coverage of the Manufacturing Award to the industry or enterprise of the employer, but to the industry and occupation of the employee. 4 I am unable to accept this proposition.

[20] In my view, the effect of clause 4.9 is to define the industries (or parts) of industries in which the employer must operate so as to be covered by the Manufacturing Award provided the additional requirements of that clause are met (e.g. role inclusion in the classification structure).

[21] Mr Scarborough contended that Sandfire is involved in the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of plant, equipment and buildings (including power supply) in any other industry, or alternatively in or in connection with or incidental to any of industries contained in Clause 4.9(a) of the Manufacturing Award.

[22] Sandfire contends that it operates the DeGrussa Copper-Gold mine in Western Australia and Exploration projects in New South Wales and Queensland and that it operates in the mining industry. Mr Reed’s witness statement indicates that the DeGrussa Mine comprises of an underground mine, processing plant, accommodation camp and an aerodrome to support the FIFO workforce. The processing plant comprises unit processes common to base metal production including the crushing, grinding, flotation, thickening and drying of the ore. The maintenance department in which Mr Scarborough worked maintains the equipment and facilities associated with the operation of the mine. This evidence was not disputed.

[23] Based on this information, it clear to me that Sandfire does not operate in the Manufacturing Industry. If Sandfire was solely or principally involved in the provision of the services described by Clause 4.9(a)(iii) then this would lend support to Mr Scarborough’s argument, but this is not the case. In my view Sandfire operates in the Mining Industry and the maintenance services provided by Mr Scarborough and his team were incidental to the operation of the mine and not in connection with or incidental to any of the industries described in Clause 4.9(a) of the Manufacturing Award.

[24] On that basis, I find that Mr Scarborough is not covered by the Manufacturing Award.

[25] I have also considered if the work performed by Mr Scarborough is covered by the Mining Award. The Sandfire operation falls within the coverage as described by clause 4.2 of the Mining Award and I note that the provision of maintenance services in which Mr Scarborough was involved appears to fall within clause 4.2(c) which covers ‘the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to (d) by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed’.

[26] The next issue is whether Mr Scarborough’s work falls within the Mining Award classification structure.

[27] Based on the information before me, including the contract of employment and the position description, and witness statements, it appears that Mr Scarborough was clearly employed at a Supervisory level, as opposed to undertaking maintenance work and providing some supervision.

[28] There are a number of decisions of the Commission which confirm that the classification structure in the Mining Award does not cover Supervisory roles. See, for example, Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton 5 where Senior Deputy President Richards found that the reference to ‘providing guidance and assistance to others’ at Level 4 and Level 5 of the classification structure is not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision, also McMillan and Norman v Northern Project Contracting T/A NPC6 where Commissioner Gay found that a genuine supervisor is not covered by the Mining Award and endorsed in Suleski v Rio Tinto Iron Ore Dampier7 a decision of Deputy President Gooley; see also Finch v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore.8

[29] In light of my finding that Sandfire does not operate in the industry covered by the Manufacturing Award and that Mr Scarborough’s role does not fall within the Mining Award, I find that Mr Scarborough is not covered by a modern award.

Conclusion

[30] I find that Mr Scarborough’s annual earnings were greater than the high income threshold and he is not covered by an enterprise agreement or modern award. Accordingly, Mr Scarborough is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application.

[31] Consequently, I uphold Sandfire’s objection to this application which must be dismissed. An Order to that effect will be issued. 9

COMMISSIONER

Appearances:

C Fogliani of counsel on behalf of the Applicant.

G Smith of counsel on behalf of the Respondent.

Hearing details:

2016.

Adelaide:

December 19.

 1   s.382(b)(iii) of the Act

 2   s.382(b)(i) of the Act

 3   s.382(b)(ii) of the Act

 4   Nigel Scarborough’s Outline of Submissions on the Issue of Jurisdiction dated 9 December 2016, [10]

 5   [2011] FWA 6927

 6   [2012] FWA 7049

 7   [2015] FWC 1663

 8   [2015] FWC 7664

 9  PR590288

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