Fair Work Act 2009_

s.394 - Unfair dismissal

Cobar Management Pty Ltd t/as CSA Mine Glencore

[1] On 11 September 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Sean Pennell (the Applicant) against his former employer Cobar Management Pty Ltd t/as CSA Mine Glencore (the Respondent).

[2] The matter was listed for conciliation on Tuesday, 29 October 2013 but was not settled. The Respondent raised a jurisdictional objection.

[3] The Applicant was represented by Mr A. Neilson of Maurice Blackburn, solicitors and the Respondent by Ms Cara Spence of Australian Mines and Metals Association (AMMA) and then by Ms K. De Lange from 13 December 2013.

[4] I conducted a programming hearing by telephone from Newcastle on 11 December 2013. The Applicant's representative was in Sydney and the Respondent's in Brisbane and Cobar.

[5] It was agreed that the matter would be decided on the basis of written submissions and material filed subject to the ability of the parties to request another telephone hearing.

[6] On 13 December 2013 I issued directions, agreed by the parties, as follows:

"The Applicant is to file with the Commission and serve on the Respondent its submissions and any material upon which it seeks to rely, including witness statements, by COB Tuesday, 17 December 2013.

2. The Respondent is to file with the Commission and serve on the Applicant its submissions and any material upon which it seeks to rely, including witness statements, by COB Tuesday, 24 December 2013**.**

3. The Applicant is to file and serve any submissions it may wish to put in reply by COB Wednesday 15 January 2014."

[8] I granted Mr Neilson permission to appear pursuant to s.596 of the Act.

[9] The Applicant was employed as Mobile Plant Management Supervisor at the Respondent's mine in Cobar, New South Wales from April 2010 until the date of his dismissal on 10 September 2013.

[10] The Applicant attached the letter of termination to his F2 application form. The letter alleged that the Applicant had "tampered with approved annual leave forms on a number of occasions in order to obtain a personal benefit. This benefit is in excess of $27,000". The Respondent regarded this as serious misconduct justifying instant dismissal.

[11] The Applicant denied the allegations and took issue with the process that the Respondent had undertaken.

[12] In its F3 form, the Respondent states that the Applicant was dismissed for serious misconduct in tampering with annual leave forms in order to take excessive amounts of leave.

[13] In addition, the Respondent raised a jurisdictional objection. It submits that the Applicant is not a person protected from unfair dismissal in accordance with s.382 of the Act because he is not covered by the award, or an enterprise agreement, and is above the high income threshold.

[14] I note also that the Respondent states it had some 361 employees at the time of the dismissal.

[15] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[16] Section 382 sets out the circumstances that must exist for the applicant to be 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

(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."

[17] The Applicant was employed for over three years so there is no question that sub-section 382(a) is satisfied.

[18] The Respondent submits that sub-section 382(b) is not satisfied. If this objection is upheld the Applicant cannot pursue an unfair dismissal claim.

[19] It is common ground that the Respondent's worksite is covered by the Cobar Management Pty Ltd Operations Enterprise Agreement 2011 [AE889544] (the Agreement). The Agreement operated from 2 December 2011 and expires on 24 November 2015.

[20] As well as Cobar Management Pty Ltd, the Australian Workers' Union is covered by the Agreement

[21] In Clause 4, the Agreement is expressed to apply to "the CSA Mine Site, Cobar NSW and any other place of work operated by the employer".

[22] In clause 6, the Agreement excludes all awards.

[23] Clause 21 contains the positions/classifications covered by the Agreement. These are annual salaries for jobs which are grouped under categories such as "Underground Production", "Underground Maintenance", "Surface Production" etc.

[24] The applicable award, in the absence of the Agreement, would have been the Mining Industry Award 2010 [MA000011] (the Award).

[25] The Respondent submits that the Applicant is not covered by any of the subsections of s.382 (b).

[26] It is submitted that the Applicant's position of "Mobile Plant Management Supervisor" is not covered by the Agreement or the Award. The Respondent refers to s.143(7) which provides:

"Employees not traditionally covered by awards etc.

(7) A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards."

[27] The Applicant's position is a senior staff position and therefore, it is submitted, not traditionally covered by awards or agreements. Copies of the letter of offer, staff conditions of employment and job description were tendered. The evidence is that the Applicant had signed and accepted all of these. The letter of appointment dated 30 April 2012 states that the Applicant's salary is $139,167 per annum plus $12,525 superannuation making total remuneration of $151,692 per annum.

[28] The staff conditions of employment are expressed to be "in full satisfaction of any entitlement otherwise payable under the terms of an award or agreement".

[29] A statutory declaration by Geoffrey Lawrence Potter, the Respondent's Mobile Superintendent was filed and sets out the Applicant's duties. These, it submitted, are supervisory duties.

[30] Neither the Agreement nor the Award, it is submitted, contains classifications that are supervisory or equate to the Applicant's duties.

[31] A statutory declaration signed by Aaron Nankivell, the Respondent's Mine Manager, was filed which summarised the Applicant's duties as:

As part of his duties Sean Pennell was responsible for the management and approval of leave for Trades-people.

In the position of Underground Mobile Plant Supervisor Sean Pennell did not perform nor was he required to perform general trades duties other than as part of his supervisory role of providing instruction to trades-people and monitoring the quality and performance of trades- people."

[32] The Applicant's submission is that: is an employee covered by a classification in Schedule B of the Award, namely levels 4 and 5.

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.

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."

[34] The Applicant submits that his training and skills as a mechanical fitter and qualified fitter and turner bring him within these classifications.

[35] The Applicant provided a witness statement which noted that he commenced as a fitter and turner with the Respondent in April 2010 and became supervisor on 9 May 2012.

[36] The Applicant submits that the Award covers him because Level 5 quoted above, contains the phrase "will provide guidance and assistance to others".

[37] It seems to me that the Respondent's submission in this case is correct.

[38] It is not contested that the Applicant is outside subsection (iii). The high income threshold is currently $129,300. His base salary exceeds it at $139,167.

[39] The Agreement applies to the minesite and it is expressed to exclude the Award. There is no classification in the Agreement which equates to the Applicant's duties. The Applicant's duties are clearly "supervisory" and "staff" in nature and intended to be outside the Agreement. The documentation relating to his position - his letter of offer, staff conditions of employment and job description - all support this conclusion.

[40] Accordingly, I find that s.382(b)(ii) does not apply to the Applicant.

[41] My view is that the Agreement excludes the operation of the Award. In any event, I find that the Applicant is not covered by the Award either.

[42] The classifications in the Award do not reflect the Applicant's work. The words in Level 5, which are relied on, are fundamentally different to the Applicant's supervisory duties. A proper comparison of the tasks performed reveals the Applicant is not covered by Level 5 of the Award.

[43] Moreover, I find that s.143(7), quoted in paragraph 26 above, would have application in any event.

[44] For these reasons, I find that the Applicant is not a person protected from unfair dismissal pursuant to s.382.

[45] The application for a remedy for unfair dismissal is therefore dismissed.

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