| [2020] FWC 4731 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Dare
v
Prominent Hill Operations Pty Limited T/A OZ Minerals
(U2020/5391)
COMMISSIONER PLATT |
Termination of employment – high income threshold – applicant’s remuneration exceeds high income threshold – whether enterprise agreement applies – or employment covered by a modern award – application dismissed.
[1] This decision concerns an application made by Mr Stephen Dare for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment by Oz Minerals Limited. I note that the Respondent has advised its legal name is Prominent Hill Operations Pty Limited T/A OZ Minerals (OZ Minerals), this is also the employing entity detailed in the contract of employment submitted, and I have exercised my powers pursuant to s.586(a) of the Act to correct the Respondent’s name accordingly.
[2] The Respondent is a party to the Oz Minerals Prominent Hill Collective Agreement 2015 (the OZ Minerals Agreement).
[3] The dismissal occurred on 31 March 2020 and, at the time, the high income threshold referred to in s.382(b)(iii) of the Act was $148,700.
[4] OZ Minerals contends that Mr Dare is not protected from unfair dismissal on the basis that his annual rate of earnings exceeds the current high income threshold 1 and his employment is not covered by the Agreement,2 or a Modern Award.3
[5] There is no dispute that Mr Dare’s annual base salary of $163,470 exceeds the high income threshold, however, Mr Dare contends that at the time of dismissal, the OZ Minerals Agreement applied to him, or in the alternative he was covered by the Mining Industry Award 2010 (the Mining Award) or the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical Contracting Award) or the Miscellaneous Award 2010 (the Miscellaneous Award).
[6] Various directions were issued for the parties to file material in support of their positions. Statements, documents, submissions and submissions in reply were received by both parties. The information was collated in a Digital Court Book.
[7] A hearing was conducted by video conference on 7 August 2020. Mr Dare was represented by Mr Wright (of counsel) and OZ Minerals by Mr Bakewell (a paid agent). Permission was granted pursuant to s.596(2)(a) of the Act.
[8] The onus of proof in respect of the jurisdictional objection rests upon OZ Minerals.
[9] OZ Minerals submitted witness statements from:
• Mr Matthew Bunnet
• Mr Nicholas Couch
• Mr Duncan Fraser
• Mr Matt Bunfield
• Mr Shane Warburton
• Mr Justin Claughton
[10] None of these witnesses were required for cross-examination – much of their evidence went to the merits of the matter. However, the authors of the statements generally appeared to regard Mr Dare as senior to them.
[11] In addition, OZ Minerals submitted statements and oral evidence from:
• Mr Martin White (Superintendent - Maintenance - Prominent Hill)
• Ms Sarah Western (People and Performance Advisor - Prominent Hill)
[12] Mr Dare submitted witness statements and gave oral evidence.
[13] Mr Dare provided extensive written submissions, which I do not propose to repeat. I accept that Mr Dare had difficulties in framing his argument as a result of the limited information provided by OZ Minerals prior to them securing representation. In essence Mr Dare contends he was employed as a Team Leader due to his electrical skills and provided some supervision but did not act as a Supervisor such that he was excluded from coverage of the OZ Minerals Agreement, or in the alternative the Mining Award (Level 5) applied to him or alternatively the Electrical Contracting or the Miscellaneous Award applied to him.
[14] OZ Minerals also provided extensive written submissions, which I also do not propose to repeat. In essence its position is as follows:
• OZ Minerals Prominent Hill is engaged in the mining industry.
• Mr Dare was engaged and worked as a Supervisor.
• The OZ Minerals Agreement does not cover Supervisors.
• The Mining Award does not cover Supervisors.
• OZ Minerals is not in the industry of Electrical Contracting and thus the Electrical Contracting Award does not cover Mr Dare.
• The Miscellaneous Award, as at the date of dismissal, did not cover Mr Dare.
[15] 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.” (emphasis added)
[16] Clause 8 of the OZ Minerals Agreement provides as follows:
“8. APPLICATION AND SCOPE
8.1. Subject to clause 4, this Agreement applies to those employees of OZ Minerals employed to work in the classifications specified in Schedule A of this Agreement at the company's Prominent Hill Mine located 130 kilometres south east of Coober Pedy in the Gawler Craton of South Australia [“the Mine”] and any new positions created by OZ Minerals that fall within the scope of the classifications contained in the Mining Industry Award 2010 or Clerks - Private Sector Award 2010.
8.2. Unless otherwise provided for in the classifications set out at Schedule A this Agreement shall not apply to the following employees:
• employees permanently appointed to leadership roles, including; supervisory, superintendent and managerial positions;
• employees in support service roles such as Commercial and Human Resources:
• employees within the Safety, Community, Training and Environment Teams, including the Health Centre and Emergency Services Team; and
• employees in technical areas including Engineering, Geology, Metallurgy, or similar positions and graduates.” (emphasis added)
[17] 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.”
[18] 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:
Level |
Classification |
Minimum weekly rate $ |
Entry Level |
Introductory |
697.40 |
Level 1 |
Basic |
731.80 |
Level 2 |
Intermediate |
760.00 |
Level 3 |
Competent |
783.30 |
Level 4 |
Advanced |
835.60 |
Level 5 |
Advanced specialist |
889.90 |
Level 6 |
Dual Trade |
933.50 |
Level 7 |
Dual Trade Instrumentation |
971.40 |
(b) The classification structure and descriptors for the above classifications are contained in Schedule B—Classification and Structure.”
[19] Clause 4 of the Electrical Contracting Award is reproduced below:
4.1 This industry award covers employers throughout Australia in the industry of electrical services provided by electrical, electronics and communications contractors 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 that exclusion, the award does not cover:
(a) employers who are manufacturers or vendors of plant or equipment in high or low tension power stations; and/or substations for the generation and/or transmission of electric power in respect of the manufacturing section of the business or their employees engaged in that section; or
(b) employers operating a business, the primary purpose of which is the manufacture and/or vending of plant and equipment in respect of those parts or divisions of the business which predominantly engage in the manufacture and/or vending of plant and equipment or the installation, assembly, refurbishment and maintenance of that plant and equipment or their employees engaged in that part or division.
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.
4.5 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.
4.6 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 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. This subclause operates subject to the exclusions from coverage in this award.
4.7 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 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. This subclause operates subject to the exclusions from coverage in this award.
4.8 For the purposes of clause 4.1, electrical services includes:
(a) the maintenance of electric power distribution lines and all associated work; and/or
(b) the installation of electric light and power, all classes of assembly, wiring, repair and maintenance of electrical installations and appliances including, without in any way limiting the generality of the foregoing, the assembling, installing, diagnosing, servicing and rectifying of faults in any of the following:
• electronic products (e.g. television receivers, video cassette recorders, audio equipment/systems, home computers, etc) and any combination of these products together with ancillary devices and/or equipment;
• television and radio transmitting devices including: LF (low frequency); HF (high frequency); VHF (very high frequency); UHF (ultra high frequency); and CB radios;
• telemetry systems and ancillary equipment;
• multiple access television distribution systems;
• computers and their peripherals;
• microwave and associated equipment;
• electrically operated refrigeration and air conditioning plant and/or equipment;
• telephone communication devices;
• fibre optic transmission lines and associated equipment;
• public address systems;
• domestic satellite television receivers;
• maritime electronic equipment (including depth sounders, radar, etc);
• security alarm systems;
• fire alarm systems;
• superconductivity systems and associated equipment;
• electromagnetic devices;
• instrumentation; and
• all work incidental to the above.
4.9 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.” (emphasis added)
[20] Clause 4 of the Miscellaneous Award is reproduced below:
“ 4 Coverage
4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14 – Minimum wages who are not covered by any other modern award.
4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
4.3 The award does not cover employees:
(a) in an industry covered by a modern award who are not within a classification in that modern award; or
(b) in a class exempted by a modern award from its operation,
or employers in relation to those employees.
4.4 The award does not cover employees excluded from award coverage by the Act.
4.5 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.
4.6 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.
4.7 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B 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. This subclause operates subject to the exclusions from coverage in this award.
4.8 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and 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. This subclause operates subject to the exclusions from coverage in this award.” (emphasis added)
[21] The first issue to consider is if Mr Dare was covered by the OZ Minerals Agreement. Supervisors are excluded from the coverage of the Agreement and thus the critical issue is if Mr Dare was a Supervisor.
[22] To determine whether an employee is employed under a classification within an Agreement or Modern Award, the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed. This requires more than a ‘mere quantitative assessment’ of the time the person spends performing certain types of duties. 4
[23] I accept that the question of Award (or Agreement) coverage is not determined by the person’s title, and that it is the duties performed that will be of significance. 5
[24] Mr Dare’s letter of offer dated 7 February 2013 and signed by Mr Dare on 25 May 2013 engaged Mr Dare as a full time Electrical Supervisor reporting to the Electrical Superintendent. Whilst Clause 1(h) of the contract of employment contemplated that it could coexist with Agreement coverage, there is nothing further in the contract that clarifies that point.
[25] The evidence given by the witnesses, whilst not consistent in all respects, is largely free from dispute. It is not necessary for me to make credit findings in order to resolve the issue, and I have resisted the temptation to repeat the evidence provided by way of statements and oral testimony. The principal evidence came from Mr Dare and his Superintendent Mr Martin White.
[26] The evidence revealed that a number of duties that were performed by Mr Dare indicated that he was engaged as a Supervisor.
[27] These duties (much of which were not in dispute) included:
• The supervision of 4 electricians, one dual tradesperson and an apprentice.
• Participation in recruitment processes, including reviewing applications and conducting interviews with a large influence on the outcome.
• Participation, or arranging, induction processes.
• The capacity to permanently appoint persons at the completion of their probationary period.
• Preparation of the weekly plan, labour resources co-ordination, including employee and contract labour and allocation of work to execute the plan.
• Attending weekly Supervisor meetings and arranging a subordinate if he could not attend.
• Attendance at the daily leadership site meeting.
• The conduct of pre-start meetings for his team.
• Identification and addressing of training and skills gaps within his team.
• The authority to counsel and discipline (up to and including a warning) of persons who reported to him.
• The imposition of Performance Improvement Plans (PIP) with the assistance of the Human Resources function – noting that Mr Dare did not ever impose a PIP.
• The conduct of Performance and Talent Reviews for direct reports.
• Responsible for purchasing expenditure subject to an authority level of $50K.
• Conduct of ‘time in field’.
• In the event of a safety incident, the investigation and actioning if it occurred on his shift. Mr Dare had completed ICAM training.
[28] Mr Dare accepted that he did not need to ‘time confirm’ as did his subordinates.
[29] I accept that some of Mr Dare’s activities were in line with his team – including the working of the same roster, having his own tool kit, and the need to observe safety and code of conduct obligations.
[30] Mr Dare’s evidence on the amount of time he spent with his team differed with that of Mr White. I accept that Mr White did not work the same roster as Mr Dare and ordinarily would not have been aware of the hour by hour activities undertaken by Mr Dare. On that basis, I accept Mr Dare may have spent more time in the field with his team than Mr White was aware of. However, Mr Dare was largely self-managed, it is not apparent that he was directed to spend the majority of his time in the field, and the amount of time spent in the field was a judgement call for Mr Dare. The mere fact that he spent what might be regarded as an excessive amount of time in the field for a Supervisor, does not reduce the role he was engaged as to a lesser role. It appears that Mr Dare’s role whilst in the field was a supportive one, during his evidence Mr Dare described his roles as providing ‘oversight’, ‘guidance and assistance’, ‘making sure they do the right thing’ and ‘helping them fill out job safety evaluations’ – the provision of that guidance and assistance is not inconsistent with his characterisation as a Supervisor.
[31] When I consider Mr Dare’s authority levels, responsibilities and duties detailed in para 27, it leads to a conclusion that the nature of his work and the principal purpose for which he was employed was indeed that of a Supervisor, even if he spent a substantial amount of time assisting his team. I reject his contention that he was engaged as a Team Leader, he was expressly engaged as a Supervisor and the evidence of his responsibilities and tasks performed support that characterisation.
[32] Based on my factual finding above, and the exclusion of Supervisors contained at Clause 8.2 of the Agreement, I find that Mr Dare is not covered by the OZ Minerals Agreement.
[33] There is no contest that the OZ Minerals Prominent Hill operation extracts minerals (principally copper) from the earth and processes the same. The OZ Minerals Prominent Hill operation clearly falls within the coverage of the Mining Award.
[34] I note that the provision of electrical services in which Mr Dare was involved appears to fall within Clause 4.2(e) of the Award 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.”
[35] The next issue is whether Mr Dare’s work falls within the Mining Award classification structure.
[36] As I have found earlier, Mr Dare worked as a Supervisor as opposed to undertaking electrical work and providing some supervision.
[37] 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 6 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 NPC7 where Commissioner Gay found that a genuine Supervisor is not covered by the Mining Award and endorsed in Suleski v Rio Tinto Iron Ore Dampier8 a decision of Deputy President Gooley; see also Finch v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore.9
[38] I have also been referred to Robert Parker v AngloGold Ashanti Australia. 10
[39] Mr Dare was a Supervisor and I find that his employment is not covered by the Mining Award.
[40] In order for OZ Minerals Prominent Hill’s operation to fall with the scope of the Electrical Contracting Award the employer (by virtue of Clause 4.1 of that Award) needs to operate in the ‘industry of electrical services provided by electrical, electronics and communications contractors’.
[41] Based on the information before me (including the oral testimony of Mr Dare), OZ Minerals is not an electrical, electronic or communications contractor and does not operate in the industry of electrical services. OZ Minerals operates in the mining industry. Mr Dare’s submissions of 21 July 2020 accepted this contention.
[42] Accordingly, this submission does not need to be further considered. Mr Dare’s employment is not covered by the Electrical Contracting Award.
[43] The Applicant contends that he is covered by the Miscellaneous Award, the Respondent rejects that contention.
[44] The position of Supervisor in the mining industry has not been the subject or traditional coverage by Awards and, as a result of Clause 4.2 of the Miscellaneous Award, it does not cover Mr Dare.
[45] In the alternative, Mr Dare works in an industry (the Mining Industry) which is covered by an Award and his employment does not fall within a classification in the Mining Industry Award. As a result of Clause 4.3(a) of the Miscellaneous Award, the Award would not cover Mr Dare. I note that Mr Dare contends that Clause 4.3(a) of the Miscellaneous Award was not a term that could be included in a Modern Award and thus could not have any effect at the time of dismissal. Whilst that may explain why the Clause was subsequently removed from the Modern Award, it does not mean that the Award provision was not in force at the time of Mr Dare’s dismissal. I reject this contention in so far as Mr Dare was not excluded by Clause 4.2 of the Miscellaneous Award.
[46] On that basis, I find that Mr Dare was not covered by the Miscellaneous Award at the time of his dismissal.
[47] I find that Mr Dare’s annual earnings were greater than the high income threshold and an enterprise agreement did not apply to him nor was he covered by a Modern Award. Accordingly, Mr Dare is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application.
[48] Accordingly, I uphold the Respondent’s jurisdictional objection to this application, the unfair dismissal application of Mr Dare is therefore dismissed. An Order to that effect will be issued. 11
COMMISSIONER
Appearances:
Mr A Wright of counsel on behalf of the Applicant.
Mr S Bakewell paid agent on behalf of the Respondent.
Hearing details:
2020.
Adelaide:
August 7.
Printed by authority of the Commonwealth Government Printer
<PR722489>
1 s.382(b)(iii) of the Act
2 s.382(b)(ii) of the Act
3 s.382(b)(i) of the Act
4 Carpenter v Corona Manufacturing Pty Ltd Williams SDP, Lacy SDP, Tolley C, 17 December 2002 [PR925731]
5 James Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623