Fair Work Act 2009_

s.394 - Unfair dismissal

Termination of employment - high income threshold.

[1] This decision concerns an application made by Darryl Pickering (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Pilbara Hire Group Pty Ltd (the respondent).

[2] The respondent has objected to the application and asserts that the applicant's annual rate of earnings is above the high income threshold of $129,300 applicable from 1 July 2013 (section 382(b)(iii) of the Act) and that the applicant's employment is not covered by a modern award (section 382(b)(i) of the Act) nor is his employment covered by an enterprise agreement (section 382(b)(ii) of the Act).

[3] Both parties have provided submissions on these issues.

[4] Section 382 of the Act explains when a person is protected from unfair dismissal as follows:

"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.

Note: High income threshold indexed to $129,300 from 1 July 2013"

[5] The respondent says that the applicant was employed on a casual hourly rate of $63.

[6] The respondent says that the applicant earned a fortnightly average of $6,048. In the 12 months preceding the termination of the applicant's employment his annual earnings were $158,004 and in the six months preceding the termination of the applicant's employment his earnings were $85,428. The respondent has also provided a copy of a PAYG payment summary for the applicant for the year ending 30 June 2013 which shows he earned $144,410 excluding superannuation.

[7] The applicant does not dispute these earnings figures.

[8] The applicant says that he worked on a regular and systematic basis for over two years on the casual rate of $63 per hour. The applicant concedes that he did earn over $129,300 per year but argues that this was never a guaranteed rate of earnings and that he did not have a fixed salary.

[9] Having considered the evidence provided by both parties I am satisfied that at the time of his dismissal the applicant's annual rate of earnings was more than $129,300.

[10] The respondent says the applicant was employed as a supervisor involved in railway maintenance and that there is no modern award that covers this work.

[11] The applicant effectively agrees with the respondent's evidence on this point saying that he was employed initially as a truck driver labourer but then was engaged as a supervisor on rails sites into rafts and then at Cape Lambert.

[12] The applicant says he had been employed as a supervisor of a team of up to four men largely involved in rail yard maintenance for Rio Tinto.

[13] The applicant has referred to the number of modern awards that his submits covered him. There is no suggestion there is any enterprise agreement that applied to his employment.

[14] Having considered the various modern awards in question I agree with the submissions made by the respondent. In short the respective awards either do not apply to rail yards associated with iron ore operations and/or do not include classifications that cover supervisors.

[15] My conclusion is that the there was no modern award that covered the applicant nor was there an enterprise agreement that applied to his employment.

[16] Consequently it is my conclusion that the respondent's jurisdictional objection should be upheld.

[17] By virtue of section 382 of the Act the applicant is not a person protected from unfair dismissal and so is not able to make this application.

[18] Accordingly this application will be dismissed and an order to that effect will now be issued.

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