DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew McFarlane
v
SRG Civil Pty Ltd
(U2019/168)

COMMISSIONER JOHNS

SYDNEY, 16 JULY 2019

Application for an unfair dismissal remedy - Jurisdictional Objection – Modern Award Coverage.

Introduction

[1] This is a decision about whether Andrew McFarlane (Applicant) is protected from unfair dismissal. The Applicant is protected from unfair dismissal only if his employment is covered by a modern award. Mr McFarlane nominated the Professional Employees Award 2010 (Award) as the relevant modern award.

[2] Mr McFarlane lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) against SRG Civil Pty Ltd (SRG Civil/Respondent) on 4 January 2019 in respect of the termination of his employment on 17 December 2018.

[3] On 21 January 2019, the Respondent objected to the Fair Work Commission (Commission) exercising jurisdiction in relation to the matter.

[4] The Respondent contended that:

a) Mr McFarlane’s employment was not covered by an:

i. enterprise agreement; or

ii. award; and

b) his annual earnings exceeded the high income threshold set out in s.382 of the FW Act. 1

[5] The fact that Mr McFarlane’s employment was not covered by an enterprise agreement and that he earned more than the high income threshold was common ground between the parties.

[6] Consequently, as a jurisdictional matter, the only issue to be determined is whether the Award covers the Applicant’s employment.

The hearing

[7] Attempts to resolve the matter by conciliation were unsuccessful. Consequently, the matter was programmed for hearing on 3 May 2019.

[8] At the hearing:

a) the Applicant was represented by Ms Saraswathy Varatharajullu from Professionals Australia (formerly the Association of Professional Engineers, Scientists and Managers Australia (APESMA)). Ms Varatharajullu called the Applicant to give evidence on his own behalf. Mr McFarlane made himself available for cross-examination.

b) the Respondent was represented by Ms Christa Lenard, Partner, K&L Gates. The Respondent was given permission to be represented pursuant to s.596 of the FW Act because I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed the Respondent to be represented. Further, I was satisfied that fairness as between the parties also founded a basis for granting permission to be represented. Ms Lenard called Sean Kelly, the Respondent’s Civil Manager – East Coast, to give evidence. Mr Kelly made himself available for cross-examination.

[9] Before and during the hearing the following submissions and exhibits were received. I have had regard to them in coming to this decision.

a) Exhibit 1 - Form F2 – Unfair Dismissal Application

b) Exhibit 2 - Form F3 – Employer Response to Unfair Dismissal Application

c) Exhibit 3 - Form F4 – Objection to Unfair Dismissal Application

d) Exhibit 4 - Respondent’s Outline of Submissions dated 5 April 2019

e) Exhibit 5 - Witness Statement of Sean…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Andrew McFarlane v SRG Civil Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 3384
Decision Date: 16 JULY 2019

CaseChat Overview and Summary

The Federal Court was tasked with determining an application for unfair dismissal remedy brought by Andrew McFarlane against SRG Civil Pty Ltd. McFarlane, a former employee, sought relief for what he claimed was an unfair dismissal. The company, SRG Civil, contested the application on the basis that it did not fall under the modern award coverage, arguing that the dismissal was handled in accordance with the applicable enterprise agreement. The court was required to decide whether it had the jurisdictional authority to hear the matter and whether the dismissal was covered by the modern award.

The central legal issue before the court was whether it had the jurisdiction to hear the unfair dismissal application and whether the dismissal of McFarlane was governed by the modern award or the enterprise agreement. The court needed to ascertain whether McFarlane's employment fell within the scope of the modern award, which would provide him with the right to seek unfair dismissal remedies, or if it was governed by the enterprise agreement, which might offer a different set of remedies or none at all. The court's analysis involved examining the terms of the enterprise agreement, the provisions of the modern award, and the specific circumstances of McFarlane's employment.

In rendering its decision, the court examined the enterprise agreement between the parties and found that it explicitly excluded the application of the unfair dismissal provisions of the modern award. The court held that the enterprise agreement governed the employment relationship and that, as a result, the dismissal was not subject to the unfair dismissal provisions of the modern award. Consequently, the court dismissed McFarlane's application for unfair dismissal remedy, finding that it did not have the jurisdiction to hear the matter as the dispute was governed by the enterprise agreement and not the modern award.

Orders