Adrian Finch v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore

[2015] FWC 7664

[2015] FWC 7664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Finch
v
BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore
(U2015/11950)

COMMISSIONER ROE MELBOURNE, 6 NOVEMBER 2015

Application for relief from unfair dismissal-high income threshold.

[1] Mr Finch has made an unfair dismissal application and BHP Billiton argues that there is no jurisdiction to hear the application because Mr Finch earned more than the high income threshold of $136,700 and is not covered by an Award or Agreement.

[2] It is not disputed that Mr Sinclair’s earnings were as follows:

a. Base salary of $261,158 per annum; and

b. Work allowance of 30% of the base salary or $78,347 per annum.

[3] Mr Finch earns more than the high income threshold and hence is not protected from unfair dismissal unless his employment is covered by an Award or Agreement. Mr Finch alleges that his employment is covered by:

● The Mining Industry Award 2010 as a Level 4 Advanced Specialist (Mining Industry Processing Employee); or

● The Whaleback Fly-In Fly-Out Agreement 2013 (the Agreement), under the classification “non-trades employee”.

[4] The Agreement covers BHP Billiton WAIO Pty Ltd and employees in the classifications of “non-trades” and “trades” who are engaged on a fly-in fly-out basis at the Whaleback operations. Mr Finch was employed by BHP Billiton Iron Ore Pty Ltd (BHP Billiton) and not by BHP Billiton WAIO Pty Ltd. The Agreement did not cover his employment. Furthermore the Agreement at Schedule 1 defines the non-trades classification as “operations support roles”, “operating heavy mobile equipment or shot firing” and “non-trade qualified technicians” Mr Finch was employed as a manager. I am satisfied that the principal purpose of his employment was management. His functions did not include the roles covered by “non-trades” employees under the Agreement.

[5] Mr Hoare is Manager Employee Relations for BHP Billiton and he gave evidence that the role profile document produced was an accurate reflection of the position in which Mr Finch was employed. He accepted that the role profile document was in need of updating. I accept the evidence of Mr Finch that the document fails to fully reflect the extent of his responsibilities for productivity, tonnage, and management of people. However, Mr Finch agreed that otherwise broadly speaking the document reflected his roles and responsibilities.

[6] I have no hesitation in concluding that the role profile, as amended by Mr Finch’s evidence, is the profile of a management position. The direct reports to the position are various senior supervisors or superintendents. Mr Finch was the number two person at the site and he had four superintendents and twelve supervisors reporting to him. The role is clearly well removed from direct production and maintenance work. The key responsibilities are leadership and production management. Even if the role profile does not capture all duties and responsibilities it is sufficient to satisfy me that the role is overwhelmingly a role whose principal purpose is management. Mr Finch accepted that he was not required to directly operate plant or equipment. He was responsible for the management of those who did operate the plant and equipment and for the training and other production systems.

[7] The Mining Industry Award (the Award) only applies to those employed in the classifications. The classification Advanced Specialist (Mining Industry Processing Employee) at Level 4 must be read in conjunction with the definition of “Mining Industry Processing Employees”.

“A Mining Industry Processing Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: operating and adjusting all plant equipment (and associated control panels) utilised in mining industry production, processing, smelting and refining operations; and issuing clearances and permits as required”. 1

[8] The essential character of Mr Finch’s job is not work of the type in the indicative list. He was not primarily employed to operate or adjust equipment or to issue clearances or permits. He signed off on permits and clearances issued by others.

[9] It is also clear from reading the definitions of the employment types in Schedule B of the Award and the definitions of the various levels that the roles are essentially production, production support and trades roles and are not essentially management or supervisory roles. The Level 4 employee provides “guidance and assistance to others”. This is quite different to the concept of supervision or management at the level expected of Mr Finch.

[10] I am not satisfied that Mr Finch’s employment was covered by the Agreement or the Award. Given this finding, and as Mr Finch earned more than the high income threshold he is not protected from unfair dismissal.

[11] The Application is dismissed and an Order to this effect will be issued.

COMMISSIONER

Appearances:

Mr A Finch representing himself

Mr R Wade on behalf of the Respondent

Hearing details:

2015

Melbourne (by video)

November 6

 1   MA000011 – Schedule B.2.3

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