Anthony Baker v Ngarda Civil and Mining Pty Ltd

[2015] FWC 3554

[2015] FWC 3554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Baker
v
Ngarda Civil & Mining Pty Ltd
(U2015/4828)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Anthony Baker was employed by Ngarda Civil & Mining Pty Ltd (Ngarda) until his employment was terminated on 31 March 2015. Mr Baker lodged an unfair dismissal application. Ngarda objected to his application because it said Mr Baker earned more than the high income threshold.

[2] At the hearing, I granted permission to Mr Baker to be represented by counsel because I determined that it would be unfair not to permit him to be represented because he would not be able to represent himself effectively. Mr Baker had no experience in Fair Work Commission proceedings, he was a witness in the matter and the matter involved a legal question about the applicability of an enterprise agreement to his employment.

[3] It was not disputed that if Mr Baker was not covered by an enterprise agreement or an award, he earned more than the high income threshold, so this was the only issue that needed to be determined.

Background

[4] Mr Baker was initially employed in 2010 to work at a mine site operated by Rio Tinto and Ngarda was contracted to clean plant and equipment to support Rio Tinto’s operations.

[5] Mr Baker’s offer of employment provided that he was employed as a Supervisor which was classified as a grade 9 employee under the Ngarda Civil & Mining Pty Limited Western Australian & Northern Territory Mining Employee Collective Agreement 2009 (the Agreement).

[6] Mr Baker gave evidence about his responsibilities as a Supervisor. 1 He performed both operational duties and supervisory duties. It was his evidence that while there were other supervisors employed, those supervisors reported to him during this time.

[7] In late 2010 and in 2011, Mr Baker had discussions with Ngarda about a new position. It was his evidence that Ngarda offered to change his job title from Supervisor to Superintendant and to pay him a salary rather than an hourly rate. It was his evidence that he would still perform the same duties in the same manner. 2

[8] It was Mr Baker’s evidence that he rejected this offer because for him, nothing would change and he would not be better off. 3

[9] While Mr Baker said he could not recall signing any documentation, in fact he signed a document on 26 January 2011 headed “change of status notification” which noted that Mr Baker’s position changed from senior supervisor to superintendant and his wage changed from an hourly rate to $150,000 per annum and the reason for the change was described as a promotion. There was no position description attached to this document.

[10] On 8 February 2011, Mr Baker was sent a letter which attached a copy of an employment contract for the position of superintendant. The contract stated that a position description was attached, but no position description was attached to the contract tendered by Ngarda. 4

[11] It provided that the start date of the contract was 27 January 2011 and it noted that the offer was open for acceptance for seven working days and otherwise the offer lapsed. 5 Mr Baker did not sign the contract.

[12] Mr Baker gave evidence that he told Ngarda that he would only agree to the contract if his roster was changed. It was his evidence that Ngarda agreed to change his roster. 6 Mr Baker did not understand that there would be any change to the terms and conditions of his employment until his roster changed.

[13] It was Mr Baker’s evidence that because within a month or so his roster had not changed, he considered his agreement with Ngarda to be void. 7

[14] It was Mr Baker’s evidence that as Superintendant, he performed the same duties which were a mixture of supervision and manual labour. He said he had the same responsibilities and reported to the same person, worked the same hours on the same rotating roster and was earning the same pay. 8

[15] Mr Baker said he was unaware that the way he was paid changed. This is surprising evidence given his pay slips for January 2011 recorded him being paid $47.59 per hour and classified him at PR9 and his payslip for February 2011 had him paid an hourly rate of $75.91 with no grade attached. His latter payslips provide that his position was Superintendant and the cash component of his wage was $150,000 and the amount he was paid monthly did not change. Mr Baker said he did not look at his payslips.

[16] Mr Baker said he became aware of these changes in the middle of 2014 when he undertook some training in a new software program.

[17] It was Mr Baker’s evidence that he continued to be rostered as one of the three supervisors on site and he attached copies of rosters from 2011 to 2012 to support this evidence. Ngarda produced subsequent rosters from 2015 which showed that Mr Baker was rostered as a Superintendant in addition to the three supervisors.

[18] At some point in 2012 or 2013, Mr Baker’s roster changed to a nine days on five days off roster. Mr Baker’s initial oral evidence was consistent with his witness statement that this occurred in 2012, but he subsequently changed this evidence and said it occurred in 2013.

[19] In February 2014, Mr Baker said Ngarda required him to sign a copy of the Agreement but he did not know why that request was made. Mr Baker attached the email noting that he had not signed the attached document but Mr Baker did not tender the attachment.

[20] Mr Baker also gave evidence that he was charged out to Rio Tinto as a supervisor.

[21] Mr Baker said that shortly after he started questioning the information he discovered as part of his software training, he was presented with a copy of a position description for the position of Superintendant. He said the position description contained some of the duties he actually performed but did not include any manual labour.

[22] Ngarda did not challenge key elements of Mr Baker’s evidence. Further, it called no evidence itself to contradict his evidence. Ms Pollard made statements from the bar table but she accepted that she was not employed when Mr Baker commenced employment and she did not have any supervisory role of Mr Baker. Ms Pollard had no direct knowledge of the work performed by Mr Baker at any time during his employment. She had no direct knowledge of the events surrounding the proposed change to Mr Baker’s contract of employment.

The Agreement

[23] The Agreement provides at clause 3.0 that it applies to “all employees within the classifications covered in this Agreement who are employed to undertake work that originates from and/or is managed by the Western Regional Office of the Company of 185 Great Eastern Highway, Belmont, Western Australia.” It applies in Western Australia and the Northern Territory.

[24] The Agreement provides at clause 4 for rates of pay. It was accepted that the applicable rates were set out in table 2 and 3.

[25] There are 6 bands of employees and one band is headed supervision and the only grade applicable to this band is grade 9 which has the words acting supervisor associated with it.

[26] Appendix 1 sets out the classification descriptors and an acting supervisor is defined as follows:

“This level is assigned to an employee who is acting frequently or infrequently in the role of Supervisor.

Progression to this level must be approved by the Project Manager or a Senior representative of the Company. An experienced employee who has risen in classification or position due to additional service with the Company or time spent in the role. The Employee undertakes the assigned duties to an exceptional standard, with the ability to take on additional responsibilities and requires minimal or no supervision. The Employee has a high level of understanding of safety and production requirements and impact to business.”

[27] Ms Pollard accepted that supervisors are in effect leading hands. She accepted that when Mr Baker was employed as a supervisor that he was classified at grade 9 and his duties fitted the classification set out above. There was no dispute before the Commission that the Agreement applied to Mr Baker at this time.

[28] It is not necessary for me to resolve the issue of whether Mr Baker and Ngarda entered into a new contract in 2011. Mr Baker certainly agreed to a change in his title and a change in his remuneration. So much is evidenced by the document he signed.

[29] However, that document did not set out what the duties of a Superintendant were. Mr Baker did not sign the offer made on 8 February 2011 and it lapsed in accordance with its terms after seven days.

[30] While I found some of Mr Baker’s evidence confusing and self serving, I accept his primary evidence that his duties did not change when his title and remuneration changed.

[31] It is trite to say that parties cannot contract out of an enterprise agreement. The only way Mr Baker could move outside of the coverage of the Agreement was if:

(1) he was no longer employed in a classification covered by the Agreement; or

(2) the work performed did not originate from and/or is managed by the Western Regional Office of the Company of 185 Great Eastern Highway, Belmont, Western Australia; or

(3) the work was not performed in WA or NT.

[32] No submissions were made in relation (2) or (3).

[33] A change in the title given to Mr Baker’s position is not enough to remove him from the Agreement. It is the work that Mr Baker performed and the classification structure that is relevant. Nor does someone cease to be covered by an agreement because the employee is described as staff.

[34] It was Mr Baker’s uncontested evidence that his work did not change when his title changed. It was his uncontested evidence that prior to the change, he supervised the other supervisors and after the change of title, he supervised the other supervisors.

[35] I find therefore that throughout his employment Mr Baker was acting frequently or infrequently in the role of Supervisor and hence the Agreement applied to Mr Baker.

[36] As such, Mr Baker was protected from unfair dismissal and his claim will proceed to arbitration.

DEPUTY PRESIDENT

Appearances:

Dr A Hoel of counsel for the Applicant.

Ms D Pollard for the Respondent.

Hearing details:

2015.

Melbourne and Perth via video link:

21 May.

 1 Exhibit A1 at [15].

 2 Ibid at [21].

 3   Ibid at [22]-[25].

 4   Exhibit R1.

 5   Ibid.

 6 Exhibit A1 at [30].

 7 Ibid at [34].

 8 Ibid at [36].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567721>