s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether Award covered employee; whether above high income threshold.

• [1] Puneet Chawla was employed by Australian Plant Proteins Pty Ltd between 4 May 2020 and Friday 17 January 2025. Mr Chawla was employed throughout as the Respondent's Production Manager. When he was dismissed, the termination of employment was characterised as a redundancy with the Respondent being under the control of an administrator at the time.

• [2] Mr Chawla's application for unfair dismissal remedy was filed in the Fair Work Commission on 28 February 2025. As the application was made out of time it was the subject of extension of time proceedings before me with me being satisfied there were exceptional circumstances and that an extension of time should be granted to Mr Chawla. In my ex-tempore decision given in transcript on the subject I erroneously referred to the Applicant holding the position of General Manager, Operations.[1] That is incorrect as the position Mr Chawla held was Production Manager.

• [3] Having extended the application period it is now necessary to consider a further objection made by the Administrator of the Respondent, namely that Mr Chawla's rate of earnings at the time of his termination is greater than the high income threshold, with him not being covered by an award or enterprise agreement and thereby not a person protected from unfair dismissal. A determinative conference regarding the Respondent's objection was held on 16 April 2025, at which Mr Chawla appeared for himself and Mr Michael Augustine from Romanis Cant, the Respondent's Administrator, appeared for the Respondent.

• [4] In relation to the objection, the evidence before me shows Mr Chawla's annual rate of earnings excluding superannuation is $198,450 per year. This amount is plainly greater than the high income threshold which is presently $175,000 per year.[2]

• [5] Mr Chawla contends his employment is covered by the Food, Beverage and Tobacco Manufacturing Award 2020[3]. No contention is advanced that Mr Chawla's employment was covered by an enterprise agreement.

• [6] This decision determines the subject, with me finding Mr Chawla is not covered by the Award; that his annual rate of earnings is greater than the high income threshold and that he is not a person protected from unfair dismissal.

• [7] Mr Chawla contends he is covered by the Food, Beverage and Tobacco Manufacturing Award 2020, and should be classified at Level 6 of the Award.

• [8] The Award covers the parties set out in clause 4 (Coverage);

4.1 This industry award covers employers throughout Australia in the food, beverage and tobacco manufacturing industry and their employees in the classifications in this award to the exclusion of any other modern award.

4.2 Food, beverage and tobacco manufacturing means the preparing, cooking, baking, blending, brewing, fermenting, preserving, filleting, gutting, freezing, refrigerating, decorating, washing, grading, processing, distilling, manufacturing and milling of food, beverage and tobacco products, including stock feed and pet food, and ancillary activities such as:

(a) the receipt, storing and handling of ingredients and raw materials to make food, beverage and tobacco products, including stock feed and pet food;

(b) the bottling, canning, packaging, labelling, palletising, storing, preparing for sale, packing and despatching of food, beverage and tobacco products, including stock feed and pet food; and

(c) the cleaning and sanitising of tools, equipment and machinery used to produce food, beverage and tobacco products, including stock feed and pet food.

4.3 This award does not cover employers or employees covered by:

(e) the Hospitality Industry (General) Award 2020 ;

(f) the Manufacturing and Associated Industries and Occupations Award 2020;

4.4 This award covers any employer which supplies labour on an on-hire basis in the food, beverage and tobacco manufacturing industry 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. Clause 4.4 operates subject to the exclusions from coverage in this award.

4.5 This award covers employers which provide group training services for apprentices and/or trainees engaged in the food, beverage and tobacco manufacturing industry and/or parts of that industry 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 4.5 operates subject to the exclusions from coverage in this award.

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

(b) 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; or

(c) 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 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.

• [9] The Award sets out several classifications with descriptors set out in Schedule A. Level 6 of the classification structure is the highest classification both by work value and pay. The level 6 descriptor is this;

"A.2.6 Level 6 (105% relativity to the tradesperson)

(a) An employee at Level 6 is an employee who has completed the following training requirement above that for Level 5:

(i) 2 competency units from the Associate Diploma of Food Technology (ADFT); or

(ii) 6 competency units from the Advanced Certificate of Food Technology (ACFT); or

(iii) 6 competency units above the requirement for Level 5; or

An employee at Level 6 performs work above and beyond a Level 5 and to the level of the employee's training:

(i) exercises skills attained through satisfactory completion of the training prescribed for Level 6;

(ii) exercises discretion within the scope of Level 6;

(iii) works under general supervision either generally or in a team environment;

(iv) understands and implements quality control techniques;

(v) provides technical guidance and assistance as part of a work team;

(vi) exercises skills relevant to the specific requirements of the enterprise at a level higher than a Level 5."

• [10] As may be seen from clause 4.1, in order to be covered by the Award it is necessary for the employer of the person concerned to be "in the food beverage and tobacco manufacturing industry" as well as for the employee to be within one the classifications within the Award, each to the exclusion of coverage by any other Award. That is, to be covered by the Award it is insufficient merely to be employed in the food beverage and tobacco manufacturing industry; rather one has to be employed in that industry and be covered by one of the Award's classifications.

• [11] The evidence about the former employer establishes it is within the relevant industry as defined in clause 4.2. In particular Mr Chawla's evidence[4] is that Australian Plant Proteins processed and packed raw faba beans for further processing into human and pet foods

• [12] The Applicant argues his employment is within Level 6 of the Award's classification schedule. The descriptor for Level 6 is in two parts. First it is necessary for a person covered by the level to have completed certain training requirements set out within the clause, described as being requirements "above that for level 5". The second part of the Level 6 descriptor prescribes certain minimum competencies that would be performed by person at that level, again greater and would be expected of the person classified at Level 5.

• [13] When he started work with Australian Plant Proteins Mr Chawla was provided with a position description which provides the following of relevance to the purpose of his position;

• "Operate continuous automated manufacturing systems including Management Execution Systems and Management Information systems supported by strong IT skills
• Human resource management including hiring, labour scheduling including trainees and shifts
• Thorough understanding of all facets of the manufacturing process
• Develop standards and processes to maximise the efficiency of the plant by organising each area effectively.
• Promote a safe and healthy working environment to support the manufacture of a high quality product
• Support and compliance with culture of doing the right thing because we want to (as opposed to have to).

"Would you be happy if your son, daughter, partner, significant other person" worked in that environment. Link to same level of attention to Quality Assurance "Would you be happy if your son, daughter, partner, significant other person ate that"?

• Participation in Quality and Safety planning, monitoring and meetings.
• Perform inspections of facilities to detect potential quality or health hazards, and recommend solutions
• Commitment to achieve the targets set out by the General Manager Operations.
• Providing information to management on product lead times, status of orders, and raw material levels.
• Responsibility for delivery of raw materials and management of finished goods including logistics
• Identify process improvements and problem solve
• Adherence and execution of legal process and documentation to support APP's confidentiality of processes, procedures and IP protection.
• Management of in house production management software and liaison with external providers.
• Assist in planned expansion of manufacturing capability to match strong market opportunities

• Ability to identify the skills, activities and detail a Production Manager in a start up business would require
• Experience in a food manufacturing start up, or new product manufacturing, or new plant commissioning
• Flexibility, enthusiasm and ability to be hands on and work on a range of activities commensurate with a start up business.
• Experience and focus on Quality (HACCP and GSFI accredited) quality systems
• Strong experience and focus on OH&S
• OHS Training - WHSO course or demonstrates an understanding of Safety Management Systems /Australian Standards."

• [14] The Applicant's submissions to the Commission about his position are that his duties and responsibilities were these:

• Overseeing site production operations
• Managing staff across departments
• Coordinating maintenance and quality control
• Ensuring compliance and reporting to senior management
• Managing product distribution and logistics

• Overseeing daily production operations across multiple departments
• Supervising production, maintenance, and quality control teams
• Managing plant scheduling, safety compliance, and product dispatch
• Coordinating with logistics, quality assurance, and operations
• Reporting directly to the Business Operations Director

• [15] Mr Chawla argues he operated under the direction of the business operations director and did not possess full strategic executive authority. He elaborated about this in his oral evidence that this description described his duties for the majority of his time in the role for the last five years.[5] Additional project management responsibilities were added in 2023, where Mr Chawla was co-chairing the project management team with another employee.[6]

• [16] What flows from the Applicant's evidence is that the principal purpose of his employment was as set out within his title and position description. As Production Manager Mr Chawla responsibility was to manage the production of the things manufactured by his employer, Australian Plant Proteins.

• [17] The Award Level 6 descriptor sets out training requirements and competencies to be demonstrated, mostly in the context of being above those of Level 5. That level in turn refers to competencies to be demonstrated to be "above and beyond" those of Level 4. The descriptors for Level 6 show the purpose of the position to be about performing production tasks. The training required for the level is for food technology skills. The competencies to be demonstrated are for base level supervision; exercising discretion, working under general supervision; undertaking quality control techniques and providing technical guidance.

• [18] The duties and responsibilities identified by Mr Chawla in his submissions as well as those set out in his position description show an altogether higher purpose for his position. His role required him to operate continuous automated manufacturing systems and undertake human resource management functions, including hiring and labour scheduling and was responsible for promoting a safe and healthy working environment. His role also required him to develop standards and processes to maximise the plant's efficiency and perform inspections to detect quality or health hazards and recommend solutions. The position description made him responsible for raw materials delivery and the management of finished goods as well as managing the use of production management software. Mr Chawla's submissions about his duties and responsibilities likewise show an orientation of his role toward the management of the plant and the goods it produced.

• [19] These matters of purpose for his role are significantly different to the matters that may be discerned from the Award's descriptors.

• [20] Consideration of whether a person is covered by an award requires consideration of the work undertaken by the person concerned against the particular classification sought. Where mixed functions are involved "the approach has been to examine the "major and substantial employment" of the employee or the "principal purpose" or "primary function" of the employee".[7]

• [21] I am not satisfied that Mr Chawla's employment was covered by the modern award he argues for, the Food, Beverage and Tobacco Manufacturing Award 2020. In forming this view I have had regard to the evidence and submissions before me about the duties actually performed by Mr Chawla and have had regard to the criteria set out by the Full Bench for determining whether or not a particular award applies to employment. In Carpenter v Corona Manufacturing, (Corona)[8] the Full Bench held that:

"... more is required than a mere quantitative assessment of the time spent in 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".[9]

• [22] While Corona cautioned there should not be "a mere quantitative assessment" of time spent on various duties, the Federal Circuit Court of Australia accepted in Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd[10] that some consideration to time allocation should nonetheless be given:

"The task of the Court or Tribunal is to examine the major, substantial or principal aspect of the work performed by the employee. That will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title."[11]

• [23] The Full Bench in Brand v APIR Systems Ltd (Brand)[12] considered there may be alternative tests:

"[13] We note that the Commissioner adopted and applied a test based on the principal purpose for which the Applicant was employed. She relied upon the Full Bench decision in Carpenter v Corona Manufacturing Pty Ltd in that respect. An analysis of the authorities referred to in that case shows that industrial courts and tribunals have at different times adopted different formulations of the test to be applied in determining whether the work of an employee or group of employees is within a particular occupation or classification. One formulation requires that the question should be decided by reference to the major and substantial employment of the employee. Another formulation requires that the principal purpose or purposes of the employment be identified. In some cases the formulations have both been referred to. In one case a Full Bench of the Commission held that the principal purpose formulation was a refinement of the major and substantial employment formulation. A Full Court of the Federal Court of Australia, without reference to other authorities, adopted a test based on whether the employees were "engaged substantially" in the duties of the relevant occupation.[13]" (references omitted)

• [24] I do not consider these alternatives lead to a different conclusion on my part.

• [25] As with the interpretation of all parts of a modern award, the meaning of the coverage clause of a modern award "begins with a consideration of the natural and ordinary meaning of its words", however, that "is not to say the words must be interpreted in a vacuum divorced from industry realities".[14]

• [26] On the basis of the evidence before me I find that the principal purpose of Mr Chawla's employment was to be a manager and to undertake tasks well beyond those that may be found within the Award's classification descriptors,

• [27] As a result, I find that Mr Chawla's employment was not covered by an award at the time his employment was terminated.

• [28] The high income threshold, established by s.333 and given effect to for the purposes of an unfair dismissal application by s.382 is presently $175,000 per year.

• [29] Section 382 provides that a person is protected from unfair dismissal at a time if they have completed the minimum employment period and;

(ii) an enterprise agreement applies to the person in relation

(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."

• [30] In relation to these matters, no modern award or enterprise agreement covered Mr Chawla's employment and his annual rate of earnings is greater than the high income threshold.

• [31] It follows that Mr Chawla is not a person protected from unfair dismissal and that I must dismiss his unfair dismissal application. An order[15] doing so is issued at the same time as these reasons for decision.

[2] See https://www.fwc.gov.au/high-income-threshold

[3] MA000073.

[7] McCullagh v Acciona Infrastructure Australia Pty Ltd [2018] FWC 2997, [58] - [62].

[8] [2002] AIRC 1562; (2002) 122 IR 387; followed in McMenemy v Thomas Duryea Consulting, [2012] FWAFB 7184, at [37].

[10] [2014] FCCA 4.

[12] (2003) (unreported, AIRC (FB)), PR938031.

[14] Re City of Wanneroo v Holmes [1989] FCA 369; 30 IR 362, at [43]

[15] PR786361

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