//
[82]
[2018] FWC 2997
General information, not legal advice.
Fair Work Commission
2018-06-08
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy. High income threshold exceeded, whether applicant award covered. Jurisdictional objection upheld.
[1] Mr McCullagh has made an application to the Fair Work Commission (the Commission) alleging he was unfairly dismissed from his employment with Acciona Infrastructure Australia Pty Ltd (Acciona) pursuant to s.394 of the Fair Work Act 2009 (the Act).
[2] Mr McCullagh was employed as General Foreperson working on the Sydney CBD and South Sydney East Light Rail Project (the Project) at the time of his dismissal. The Project was in its construction stage at the time of his dismissal.
[3] The respondent Acciona is a participant in the ALTRAC Light Rail consortium together with Transdec Sydney, Alstrom Transport Australia and Capella Capital. The consortium has been contracted by the New South Wales Government to design, build, operate, maintain and finance the Project.[1]
[4] Mr McCullagh was first employed on 1 August 2016,[2] as a Foreperson reporting to a General Foreperson, Mr Stuart Sweeney, on a salary package of $175,200 per annum plus a fully maintained motor vehicle. On 13 March 2017 Mr McCullagh was promoted to General Foreperson on a total salary package of $202,575 plus a fully maintained motor vehicle.
[5] Mr McCullagh's unfair dismissal application states that on Monday 18 December 2017, while he was off work on leave, he arrived at his worksite on Driver Avenue, Moore Park to hand over plant and equipment keys following a request from a leading hand who was onsite. He was not reporting for work that day as he had been granted three days in lieu as time off by his General Superintendent Mr Garry Todd, from 17 December to 20 December 2017. On completion of his time off in lieu he was then to immediately commence approved annual leave commencing 21 December 2017 until 7 January 2018.
[6] On arrival at the worksite to handover the keys, Mr McCullagh was asked to complete a random drug test by an administrative assistant. He initially refused as he did not think the request had been made with the requisite authority and he was not reporting for work. He eventually agreed to undertake the drug test and failed. He was told he was stood down and to leave site and make his way home via public transport. He was asked to return to work on Thursday 21 December 2018, whereupon he was summarily dismissed.
[7] These circumstances and other factors have led Mr McCullagh to his make his unfair dismissal application. At the date of the hearing Mr McCullagh remained unemployed.
[8] Acciona's written response (Form F3) stated that Mr McCullagh was accorded 'substantive and procedural fairness' and 'afforded a fair go all round'. The Form F3 did not contain any further detail in this regard. Acciona objected to the application on the jurisdictional ground that Mr McCullagh's salary was in excess of the high income threshold and he was not covered by a modern award or enterprise agreement.
[9] This objection is based on the legislative provisions of the Act which are discussed below. On the basis of the jurisdictional argument before the Commission both parties were granted leave to be represented by counsel.[3]
[10] Section 394 of the Act allows a person who has been dismissed to apply to the Commission for an order under Division 4 of Part 3-2 of the Act seeking certain remedies.
[11] However s.396(b) requires the Commission to first determine whether the person is protected from unfair dismissal. This jurisdictional hurdle is required to be decided before determining the merits of any application made under s.394(1).
[12] Section 382(b) provides that for a person to be protected from unfair dismissal one or more of the following must 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."
[13] Regulations 2.13 and 3.05 of the Fair Work Regulations 2009 detail how to work out amounts for the purpose of assessing whether the high income threshold applies in relation to the dismissal of a person at particular time. The current threshold is $142,000 per annum; both parties accept that Mr McCullagh's salary was in excess of the high income threshold.
[14] The jurisdictional issue in this application is whether Mr McCullagh was covered by a modern award at the time of his dismissal and thus a person protected from unfair dismissal. Neither party submits that Mr McCullagh is covered by the enterprise agreement applicable to the Project.[4]
[15] Although it was not applied to his employment, Mr McCullagh submits he was covered by the Building and Construction General On-Site Award 2010 (the Award). In particular Mr McCullagh states that at the time of his dismissal his position as a General Foreperson (based on the 'principal purpose test') was that of a Construction Worker Level 8 (CW8) under the Award.
[16] Mr McCullagh states that in effect, his promotion from Foreperson to General Foreperson was only to enable him to receive a salary increase and that his duties and responsibilities did not change. The promotion came about when he approached his General Foreperson Mr Sweeney and advised him that he was thinking of leaving as he had received an offer of employment on another project paying a higher salary. Mr Sweeney said he would speak to the Area Manager Mr Gary Todd.
[17] Mr Sweeney subsequently advised Mr McCullagh that he had spoken with Mr Todd who agreed to him being made a General Foreperson[5] as he was already on the top salary level for a Foreperson. Mr McCullagh submitted that his duties remained the same and that it was simply a job title change from Foreperson to General Foreperson.[6]
[18] Acciona submitted the Acciona Infrastructure Australia Pty Ltd and the Australian Workers' Union Sydney Light Rail Project Greenfields Agreement 2016 covered work on the Project for employees in the Award classifications CW1 to CW6. However Acciona maintains this range of classifications did not include Mr McCullagh and his position was outside the coverage of the Award for two reasons. Firstly, the Award does not cover a Foreperson or General Foreperson in NSW in the civil construction industry and, secondly, if the Award did cover those positions, Mr McCullagh's primary duties were more senior and in excess of those in the Award definition of Foreperson and General Foreperson.
[19] Whether the Building and Construction General On-Site Award 2010 covered Mr McCullagh at the time of his dismissal requires a close examination of the Award having some regard to its origins.
[20] Clause 4.1 - Coverage of the Award states:
"This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B - Classification Definitions to the exclusion of any other modern award"
[21] The classification of Construction Worker Level 8 is contained at B.2.8. of Schedule B - Classification Definitions, under which B.2.8(d) states:
"The CW/ECW8 classification incorporates the following broadbanded award classifications:
[22] Mr McCullagh submits that the reference to 'Foreperson (as defined)' at B2.8(d) of Schedule B - Classification Definitions, is a reference to the definition found at clause 43.6 Definitions of the Award which provides the following definitions:
"(a) Foreperson/supervisor shall mean an employee (other than a leading hand) appointed as such or required by his/her employer to be mainly engaged in the direct supervision of employees including those employed as leading hands, covered by this award.
(b) General foreperson/supervisor shall mean an employee appointed as such or required by his/her employer to be mainly engaged in the direct supervision and coordination of the work of at least two forepersons/supervisors as defined in clause 43.6(a) but shall not include site managers, nor departmental heads and the like."
[24] Clause 43.1 sets out the application of clause 43 as follows::
These special conditions apply to forepersons and supervisors in the metal and engineering construction sector covered by this award, but do not apply to any employer employing fewer than 30 employees."
[25] It is not in dispute that Mr McCullagh's work was in the civil construction industry as opposed to the metal and engineering construction sector.[7] Civil construction is defined at clause 4.10(b) of the Award to include civil engineering projects and includes railways, tramways and roads.
[26] On the face of the specific wording of clause 43.l of the Award, the definitions of Foreperson and General foreperson in clause 43.6 only have application to employees in the specific industry of metal and engineering construction and not civil construction.
[27] This however is not accepted by Mr McCullagh. He points to the comments in the Award Modernisation decision of 3 April 2009[8] in which the Full Bench of the Australian Industrial Relations Commission (AIRC) decided to make 27 modern awards, including the Building and Construction Industry General On-site Award 2010.[9] In relation to the Award, at paragraph [69] the Full Bench stated:
"The final award incorporates some alterations in the definitions clause, including minor changes to adult apprentice and air-conditioning work definitions. We have also added a definition of continuous service, reflecting the award definition in the National Building and Construction Industry Award 2000 (Building and Construction Award), to apply in respect of redundancy arrangements and the living away from home-distant work provision. We have removed foreperson/supervisor and general foreperson/supervisor from the definitions clause, placing that definition with special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7 - Industry Specific Provisions. These special provisions reflect Appendix B of the National Metal and Engineering On-site Construction Industry Award 2002 (Metal and Engineering On-site Award)"
[28] Mr McCullagh's contention is that the reference by the Full Bench to removing the Foreperson/Supervisor and General Foreperson/Supervisor from the definitions clause and placing the definition within Part 7 results in the reference to 'Foreperson (as defined)' in Schedule B.2.8(d) meaning the definition found in sub clause 43.6 of the Award. It is put that the phrase 'as defined' at clause B.2.8(d) of Schedule B is not a reference to the National Building and Construction Industry Award 2000[10] (NBCIA) as submitted by Acciona.
[29] Support for this argument is drawn by Mr McCullagh from the decision in Master Builders Australia Limited and others.[11] This was a decision of SDP Watson in 2013, which considered applications made by numerous parties to vary the Award including an application by the Housing Industry Association (HIA).
[30] In particular the HIA proposed a variation within Schedule B of the Award to clarify that the classification of sub-foreperson at clause B.2.7(d) be confined to the metal and engineering construction sector and foreperson as defined at clause B.2.8(d) also be confined to the metal and engineering construction sector.
[31] The relevant variations sought were that the reference to "Foreperson (as defined)" at clause B.2.8(d) of Schedule B be amended to "Foreperson in the metal and engineering construction sector" with a similar proposed amendment to clause B.2.7(d) in respect to the classification of Sub-foreperson.
[32] Watson SDP refused the variations, stating sub-forepersons and forepersons were included within the classification structure in Schedule B of the Award by the Award Modernisation Full Bench, consistent with their inclusion within the (NBCIA) in clause 18 - Classifications and Wage Rates as translated classifications, and in clause 19 - Award Restructuring in the Building and Construction Industry.
[33] The SDP stated that the inclusion of special conditions for forepersons and supervisors in the metal and engineering construction sector within Part 7 - Industry Specific Provisions, of the Award did not affect coverage of sub-forepersons and forepersons under the Award, consistent with the NBCIA, and found that the HIA had not established a proper basis for the variations it proposed. Accordingly no change was made to the Award in respect of "Foreperson (as defined)" at clause B.2.8(d) of Schedule B. Below is the decision on the HIA application found at the end of the award restructuring decision of the Senior Deputy President in 2013.
"20. HIA application to vary schedule B - Classification definitions in relation to sub-foreperson and foreperson (B2.7(d) and B2.8(d))
[288] The HIA proposed a variation within Schedule B to clarify that the classification of sub-foreperson at clause B.2.7(d) be confined to the metal and engineering construction sector and foreperson as defined at clause B.2.8(d) also be confined to the metal and engineering construction sector.
[290] Sub-forepersons and forepersons were included within the classification structure in Schedule B of the Building On-site Award by the Award Modernisation Full Bench, consistent with their inclusion within the NBCIA in clause 18, as translated classifications and in clause 19 - Award restructuring in the building and construction industry. The inclusion of special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7 - Industry specific provisions, of the Building On-site Award did not affect coverage of sub-forepersons and forepersons under the Building On-site Award, consistent with the NBCIA.
[291] The HIA has not established a proper basis for the variations it proposed in respect of the classification structure within Schedule B of the Building On-site Award. These variations are refused."
[34] It is not apparent from the above that the SDP held that the Foreperson definitions in the Award at subclause 43.6 had application in the civil engineering sector. He referred to the history of how the definitions appeared in the Award and noted that the Industry specific provisions in Part 7 of the Award did not affect coverage of forepersons under the Award, consistent with the NBCIA.
[35] Schedule B - Classification Definitions of the Award at B.6 - Definitions of Classifications in Schedule B states that the broadbanded award classifications referred to in Part B.2 have the meaning ascribed to them to an award made under the Workplace Relations Act 1996 that would have applied immediately prior to 1 January 2010.
[36] Clause B.6 - Definitions of classifications in Schedule B, states as follows:
"The broadbanded award classifications referred to in Part B.2 of this Schedule will have the meaning ascribed to them by an award made under the Workplace Relations Act 1996 (Cth) or a notional agreement preserving a State award that would have applied to an employee immediately prior to 1 January 2010; or a Division 2B State award that would have applied to the employee immediately prior to 1 January 2011."
[37] In this matter the relevant award is the NBCIA which was referred to by SDP Watson in the decision above. Under clause 19 - Award restructuring in the building and construction industy, subclause 19.3 - Classifications and related issues,19.3.1(h)(iv) provides as follows:
"The CW8 classification incorporates the following braodbanded award classifications:
[38] This is for all intents and purposes the same wording in Schedule B - Classification Definitions of the Award at Schedule B.2.8(d).
[39] The NBCIA contains clause 4 - Definitions. Sub-clause 4.24 provides as follows:
"Foreperson means an employee in Tasmania or a Bridge and Wharf Carpenter (NSW) who is given by the employer, or employer's agent, the responsibility for supervising the programming of work."
[40] It is not suggested that Mr McCullagh meets the definition of Foreperson under this definition.
[41] In the Federal Court decision of City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union,[12] French J, as he then was, said in relation to the interpretation of awards:
"The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '....ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 80 IR 345 (Marshall J)."[13]
[42] In Kucks v CSR Ltd,[14] a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:
"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."[15]
[43] Mr McCullagh submits that in considering the Award in context and in particular by reference to other Award provisions including the subclause 43.6 reference to Forepersons, albeit in Part 7 - Industry Specific Provisions, the CW8 classification at B.2.8(d) incorporates the broadbanded classification of 'Foreperson (as defined)'.
[44] Mr McCullagh submits the words 'Foreperson (as defined)' is a reference to the definition of Foreperson contained at clause 43.6 of the Award, and not the definition at clause 4.24 of the NBCIA. Mr McCullagh also submits that the definition at clause 43.6 does not distinguish forepersons employed in any particular sector.
[45] Mr McCullagh says the definitions in subclause 43.6 of the Award of 'Foreperson/supervisor_'_ and 'General foreperson_'_ apply to the civil construction sector as, despite the application of clause 43 at subclause 43.1 - Application limiting the special conditions in the clause to forepersons and supervisors in the metal and engineering sector, the definitions themselves are not 'special conditions'. It is accepted that all other provisions of clause 43 apply only to the metal and engineering sector.[16]
[46] This in my view ignores the plain language of the Award and does not consider the Award in context. This is not to adopt a pedantic or narrow approach to the interpretation question.
[47] It must be noted that the Full Bench stated in their decision that they removed 'foreperson/supervisor' and 'general foreperson/supervisor' from the definitions clause, placing the definitions with special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7 - Industry Specific Provisions, which reflect Appendix B of the National Metal and Engineering On-site Construction Industry Award 2002 (Metal and Engineering On-site Award 2002).
[48] Thus the definition in Part 7 of the Award is to reflect what was in Appendix B - Foremen and Supervisors of the Metal and Engineering On-site Award 2002, which, pursuant to clause 6 - Coverage of Award, at subclause 6.2, did not apply to civil engineering projects, subject to certain exemptions not applicable in this application.
[49] This is consistent with the comments of SDP Watson when he said in 2013:
"The inclusion of special conditions for foremen and supervisors in the metal and engineering construction sector within Part 7 - Industry specific provisions, of the Building On-site Award did not affect coverage of sub-forepersons and forepersons under the Building On-site Award, consistent with the NBCIA"
[50] The definition of Foreperson that Mr McCullagh seeks to rely upon in clause 43.6 is contained in Part 7 of the Award titled 'Industry Specific Provisions' in clause 43 - Forepersons and supervisors which at 43.1 limits its application to the engineering and construction sector.
[51] Schedule B - Classification Definitions in the Award contains the broadband CW8 Level which refers to a Foreperson 'as defined'. B6 - Definitions of classifications in Schedule B, states that the classifications will have the meaning ascribed to them by an award made under the Workplace Relations Act 1996 that would have applied immediately prior to 1 January 2010. The specific terms of B6 in Schedule B must take precedence over those found in Part 7 of the Award.
[52] In so holding, no damage is done to the intent of the award modernisation decision of the Full Bench in 2009. The Full Bench stated that notwithstanding the pursuit by some parties for separate modern awards for the general building and construction, engineering construction and civil construction sectors there would be a single award with some limited differential conditions between the sectors.[17] The transfer of the Foreman definitions in the NBCIA and in the Metal and Engineering On-site Award 2002 into the Award and the insertion in the Award of Part 7 Industry Specific Provisions are examples of the differential conditions between sectors.
[53] Mr McCullagh also relies on the wording which did not find its way into the final Award that was contained in the Commission's 'Exposure Draft' to ascertain the intention of the drafters. However with the specific comments of the AIRC in the Award making decision at [69] it is not necessary or desirable to consider the presumed intention of the authors of the Exposure Draft.
[54] The conclusion adopted in this matter is also consistent with the observations of Hampton C in Mr Anthony Taylor-Hunt v Downer EDI Works Pty Ltd:
"[48] I note that Part B.6 of Schedule B in the Building Award refers to the relevant award as made under the WR Act or a Notional Agreement preserving a State Award in terms of the meaning to be given to classifications referred to in Part B.2. In the case of "Foreperson (as defined)", this is drawn from the National Building and Construction Industry Award 2000 and is not relevant to this matter."[18]
[55] In view of the finding above if, as Mr McCullagh submits, his role was that of a Foreperson, as he was not an employee in Tasmania or a Bridge and Wharf Carpenter (NSW) with the responsibility for supervising the programming of work, and he was not covered by a modern award or enterprise agreement, the application therefore must be dismissed as his salary was above the high income threshold.
[56] In the Federal Full Court decision of Construction, Forestry, Mining, and Energy Union v Thiess Pty Ltd[19] the Court stated that the proper approach to deciding cases, where clearly articulated and substantial additional grounds are advanced, it is generally speaking, necessary, or at least desirable, for the decision-maker to deal with all grounds, not just the ground that the decision-maker regards as decisive. As the matter was agitated, and if contrary to the conclusion reached above, forepersons are covered by the Award, I will consider the issue of whether the Award definition of Foreperson at 43.6(a) and duties of a CW8 were equivalent to those performed by Mr McCullagh.
[57] The skills, duties and indicative tasks for the CW8 under the Award at B.2.8 illustrate the nature of the classifications intended to be covered at this Level:
(i) An employee at this level performs work to the extent of their skills, competence and training. Employees will acquire skills both formal and informal over time and with experience, and will undertake indicative tasks and duties within the scope of skills they possess.
(ii) An employee at this level may be part of a self-directed WAT, and may be required to perform a range of duties across the three skill streams contained within this award.
(iii) An employee at this level:
• exercises skills attained through satisfactory completion of the training prescribed for this classification;
• exercises discretion within the scope of this grade;
• designs training programs in conjunction with relevant supervisors and trainers;
• understands and applies quality control techniques;
• contributes to the design of work and the application of labour;
• undertakes quality control and work organisation at a level higher than for CW/ECW7;
• provides trade guidance and assistance as part of a work team;
• assists in the provision of training to employees in conjunction with supervisors/trainers;
• performs maintenance planning and predictive maintenance work not in Technical Fields;
• works under limited supervision either individually or in a team environment;
• prepares reports of a technical nature on specific tasks or assignments as directed;
• exercises broad discretion within the scope of this level.
(c) Indicative tasks which an employee may perform at this level include the following:
• works on plant and equipment at a higher level of skill than CW/ECW 7;
• exercises high precision trade and/or operative skills using various materials and specialised techniques at a higher level than CW/ECW 7;
• works on combinations of machines or equipment which utilises complex electrical or electronic, mechanical or fluid power principles;
• works on instruments which make up a complex control system which utilises some combination of electrical, electronic, mechanical or fluid power principles and electronic circuitry containing complex analogue and/or digital control systems utilising integrated circuitry;
• applies computer integrated manufacturing techniques involving a higher level of computer operating and programming skills than for CW/ECW 7;
• works on various forms of machinery and equipment which are electronically controlled by complex digital and/or analogue control systems using integrated circuitry.
[58] Various courts and industrial tribunals have established principles to be applied to determine whether an employee falls within a particular classification described in an award or industrial agreement. Where an employee performs mixed functions, which is normally the case, the approach has been to examine the "major and substantial employment" of the employee or the "principal purpose" or "primary function" of the employee.
[59] In Logan v Otis Elevator Company Pty Ltd[20], Moore J referred to and applied the decision of Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd [21] where, applying the "major and substantial employment" test his Honour observed:
"...it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration."
"...in determining whether or not a particular Award applies to identified employment, more is required than a mere quantitative assessment of the time spent carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed."
[62] More recently the examination of the major and substantial employment or the principal purpose of the employment or its primary function has been summarised in the decision of Judge Driver in the Federal Circuit Court of Australia decision, TWU v Coles Supermarkets of Australia Pty Ltd.[24]
[63] Mr McCullagh argues that at the time of his dismissal his duties were aligned to those of a Foreperson under the Award, that he was mainly engaged in the direct supervision of employees, including those employed as leading hands.[25]
[64] Mr McCullagh was promoted to General Foremen in March 2017, and signed a new employment contract. Although his job title at the time of his dismissal was General Foreperson he was never in charge of other Forepersons which is required under the definition of General Foreperson under the Award. On 'promotion' to General Foreperson his previous position of Foreperson was not replaced.
[65] The new position reported to the Area Manager/General Superintendent Mr Todd. In Mr McCullagh's evidence he stated that after signing his new contract he still reported to Mr Sweeney a General Foreperson and his previous direct report on a day to day basis,[26] although he accepted in cross examination that he ultimately reported to Mr Todd.[27] He also accepted that he was the most senior employee in zones 20 and 21 of the Project.[28]
[66] Mr McCullagh's area of responsibility was the earthworks relating to the construction of a tunnel in what was known as zones 20 and 21 out of a total of 31 zones on the Project. Mr McCullagh was responsible for the health and safety of his area and conducted toolbox meetings with employees and subcontractors.[29]
[67] Mr McCullagh explained how his elevation from Foreperson to General Foreperson came about. He stated that he was thinking of leaving to work on another project for more money. He approached Mr Sweeney who advised the only way to get more money was to take a position as a General Foreperson.[30] Following his elevation to General Foreperson he sat down with the General Superintendent Mr Todd and General Foreperson Mr Sweeney and was advised that 'basically nothing would change" and he would still report to Mr Sweeney.
[68] The position occupied by Mr McCullagh at the time of his dismissal was titled General Foreperson; however as the authorities stipulate it is the substance of the position and the nature of the work and responsibilities that must be considered when considering award coverage, not the job title.
[69] Acciona submits that due to the supervisory and senior nature of the applicant's duties his role is outside the scope of Award classification CW8, whether he is labelled Foreperson or General Foreperson. Acciona points to Mr McCullagh's witness statement at paragraphs 7 and 8, in which he set out the duties and responsibilities he largely undertook at all times during his employment with Acciona, which it says demonstrate the senior nature of his role:
"Monitor the performance of subcontractors and review their performance in the on-site diary;
Devise programmes/profiles in advance for tasks to be completed;
Perform written tasks in the satellite compound in zone 21, for example emails and the preparation of reports and forecasts to be presented to my superiors at site meetings;
Engage with Engineers, Planners and Foremen on construction works;
Monitor the day to day running of zone 20 and zone 21, which heavily involved supervision of construction works;
Engage with external providers to ensure compliance with health and safety; and
Ensure compliance with all relevant policies, procedures and rail safety legislative requirements.
On any given day, either as a Foreman or General Foreman, I would start work at or about 6:00am. I would conduct a Toolbox meeting in the presence of subcontractors and employees in order to plan out the day's work in accordance with pre-planned instructions provided to me by my superiors. Once complete, I would attend to any emails in the satellite compound located in zone 21. For the rest of the day I would supervise construction works and provide hands on support to subcontractors and employees. "
[70] Acciona's submissions were supported by the evidence of Mr Gittus, its Human Resources Manager. Mr Gittus stated that the applicant's role as a Foreperson was to coordinated onsite construction activities and to direct wages employees, plant, resources and sub contract teams to ensure the safe and successful completion of the Project.[31]
[71] The General Foreperson's role reports to the General Superintendent who has up to seven General Forepersons reporting to him including Mr McCullagh. The General Superintendent reports to the Construction Manager who in turn reports to the Project Director. There are around 50 Forepersons reporting through to the seven General Forepersons, depending on the work schedule and work sites being accessed. There could be up to 1,000 subcontractors working on any given day.[32]
[72] Mr McCullagh's scope of work was said to be valued at over $15M and included earthworks, excavation and piling. He was also responsible for preparing the profile for the route of the cut and cover tunnel at Moore Park.
[73] Mr Gittus stated that Mr McCullagh was also involved in the day to day running of the site, including health and safety and fire plans with external agencies. Mr McCullagh worked between 55 and 65 hours Monday to Friday with no additional payment for hours in excess of 40 per week. For work at weekends he was paid a flat daily rate based on his salary.[33]
[74] Mr Gittus stated in his evidence that he was involved in the applicant's promotion from Foreperson to General Foreperson and that it was ultimately his decision.[34] Mr McCullagh was promoted to General Foremen following his request for more money to stay on the Project as he had received another job offer. Mr Gittus spoke to Mr Todd and it was agreed Mr McCullagh would be promoted to General Foreperson. Mr Gittus stated that the promotion had to withstand scrutiny and stand on its own merits.
[75] Mr Gittus was not able to comment on any discussions between Mr McCullagh and Mr Todd, or Mr Sweeney, regarding any understanding they may have reached about Mr McCullagh's role as a General Foreperson. Mr Gittus said that as a result of Mr McCullagh's promotion he ceased reporting to Mr Sweeney and reported to Mr Todd. Mr Gittus agreed in cross examination that the applicant as a General Foreperson had two leading hands reporting to him.[35]
[76] Mr Gittus further conceded he was not aware of the day to day operations on site as he did not frequent the work site on a regular basis.[36]
[77] Much of Mr McCullagh's evidence was uncontested. Mr McCullagh's most recent supervisor, Mr Todd and previous supervisor Mr Sweeney were not called to give evidence as to the nature of his duties. I accept as stated by Mr McCullagh in his evidence that upon his change of title and salary increase he was told by Mr Todd and Mr Sweeney that he would still report to Mr Sweeney who would then report to Mr Todd; nothing would change from his previous role as a Foreperson.[37] He had little to do with Mr Todd.[38] His previous position as a Foreperson was not replaced and he did not supervise any Forepersons, and at all times during his employment he had two leading hands reporting to him.
[78] The evidence leads to the conclusion that Mr McCullagh's role did not change in its principle purpose despite the name and salary change that occurred on 13 March 2017. While ostensibly based on increased responsibility, the promotion to General Foreperson was primarily for retention purposes., I note some aspects of Mr McCullagh's role did change; he became the most senior person in his work area and was no longer under the direct supervision of a General Foreperson.
[79] On examining the definition of General Foreperson contained under Part 7 of the Award, Mr McCullagh does not meet the criteria of being mainly engaged in the direct supervision and coordination of the work of at least two Foreperson/supervisors as he did not have any forepersons/supervisors under his control.[39] He did however supervise leading hands which is required for the role of a Foreperson under the Part 7 definition. However in addition to this, Mr McCullagh was also responsible for the supervision of a number of contractors/labour hire employees. Mr McCullagh stated this was between 6 and 8 persons[40] whereas Mr Gittus' evidence was that there could be between 10 to 40 labour hire employees working beneath Mr McCullagh depending on the work each day.[41]
[80] The Foreperson definition in the Award at clause 43.6 refers to a Foreperson being mainly engaged in the direct supervision of employees including leading hands. Mr McCullagh was responsible for monitoring and reviewing the performance of subcontractors/labour hire employees who made up most of the workforce.[42] Mr McCullagh's evidence was that in addition to supervising employees he performed a number of other tasks which he set out in paragraphs 7 and 8 of his witness statement. While Mr McCullagh's evidence did not extend to allocating the actual time spent on his duties, it is far from clear that his role was mainly the direct supervision of employees.
[81] Mr McCullagh's evidence under cross examination was that he was the most senior person in his area of responsibility, work zones 20 and 21.[43] He was required to supervise the work being done and ensure that the work was carried out in accordance with the engineering plans.[44] Mr McCullagh accepted that he did not work under supervision in his role as a General Foreperson and his role was to ensure others were implementing the plans he had devised to carry out the excavation work in accordance with the engineering schedules.[45] He had the day to day monitoring of what was happening in the two zones under his control.[46] His duties extended beyond the supervision of employees to the implementation of the engineering schedules based on a plan he put together.
[82] Mr McCullagh did not carry out any trade guidance or assistance training and was not involved in any maintenance related work which was carried out by others.[47]
[83] Following his reclassification to General Foreperson his role as per the Position Description for the General Foreperson role was to directly report to the Superintendent as opposed to the General Foreperson.[48] Although as stated above, Mr McCullagh's evidence was that in practice this did not occur. It is noted however that in Mr McCullagh's unfair dismissal application he refers to being on time off in lieu which was approved by his Superintendent Mr Todd, not Mr Sweeney.
[84] There are a number of skills and duties described for the Level CW8 under the Award that Mr McCullagh didn't perform; notably providing trade guidance and designing and or assisting in providing training to employees in conjunction with others or performing maintenance planning. However I do not consider that this is sufficient in itself to hold that the CW8 level did not apply to his role as equally there are other skills and duties listed in the CW8 Level that Mr McCullagh did exhibit and undertake.
[85] In respect of the indicative tasks for the CW8 Level listed under the Award there is little in common with the tasks performed by Mr McCullagh.
[86] More relevantly though his position of General Foreperson was no longer a position under limited supervision as it was when he was a Foreperson reporting to the General Foreperson (although I accept that his tasks remained the same as they were when held the title of Foreperson). Concomitant with his title change and increased salary he became the most senior person in his work area with a direct report to the General Superintendent. Mr McCullagh accepted that given the nature of his role as a General Foreperson he worked unsupervised.[49]
[87] Considering the absence of supervision and his role as the most senior person in his area of responsibility (described by Mr Gittus as valued at over $15m) I consider that that the Award classification of CW8 and in particular Foreperson is a role which is below that undertaken by Mr McCullagh. Mr McCullagh's substantial salary package while not determinative, is indicative of the more senior role he occupied.
[88] In view of the conclusions reached above the jurisdictional objection raised by Acciona is upheld and the application is dismissed.
Mr B Rauf of Counsel for Acciona Infrastructure Australia Pty Ltd
[1] Witness Statement of D Gittus Exhibit R1 at [6]
[2] The Applicant states he was employed in July 2016, the Respondent states 1 August 2016
[4] Acciona Infrastructure Australia Pty Ltd and the Australian Workers' Union Sydney Light Rail Project Greenfields Agreement 2016
[7] Applicant's written submissions 16 April 2018 at [20]; TranscriptPN184
[9] The Full Bench indicated at paragraph [68] the award would be retitled to the Building, Engineering and Civil Construction Industry General On-site Award 2010, however attachment A to the decision, titled 'Stage 2 modern awards' reverts to the title Building and Construction Industry On-Site Award 2010, the title used in the order issued following the decision.
[22] City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278
[24] [2014] FCCA 4 at paragraphs [128] to [133]
[33] Witness Statement of Mr Gittus at [24]
[39] This is contrary to the Witness Statement of Mr Gittus at [16] who deposed to Mr McCullagh supervising up to 2 Forepersons
[42] PN49, PN179, Witness statement at 7(d)
Printed by authority of the Commonwealth Government Printer
Mark McCullagh
Acciona Infrastructure Australia Pty Ltd [2018] FWC 2997
(2006) 153 IR 426
(1996) 149 CLR 337
(1989) 30 IR 362
(1990) 26 FCR 261
(2002) 122 IR 387