Batov v Invensys Rail Pty Ltd - [2010] FWA 1510

[2010] FWA 1510

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Batov
v
Invensys Rail Pty Ltd
(U2009/14198)

COMMISSIONER WHELAN

MELBOURNE, 24 FEBRUARY 2010

[1] This matter concerns an objection to jurisdiction by the respondent to the application made by Mr Batov for an unfair dismissal remedy. The objection is bought on the basis that the applicant’s annual rate of earnings exceeded the high income threshold and he was not covered by a modern award (or in this case an award based transitional instrument) and no enterprise agreement applied to him.

[2] Mr Batov does not contest that his annual rate of earnings exceeded the high income threshold. He claims however that his employment is covered by the Information Technology Industry (Professional Employees) Award 2001, 1 and in particular the Common Rule Declaration for the state of Victoria made from 1 January 2005.2

[3] The respondent produced no evidence in support of its objection. The applicant referred to the terms of the Common Rule Declaration and to the company’s website, for a description of what it did.

[4] The applicant’s contract of employment states that he was employed as a ‘Senior Software Engineer/Systems Architect’ and that he was a professional engineer within the classifications covered by the Award. He submitted that clause 2.2 of the Common Rule Declaration stated that it was ‘binding on all employers in respect of the employment by them of employees’ who performed work of the kind covered by the Award.

[5] The respondent submitted that it was not an employer ‘in the information technology industry’ and therefore the applicant was not covered by the Award.

CONCLUSIONS

[6] The only evidence before me of the nature of the work performed by Mr Batov and the nature of the business is that provided by him. Mr Batov is a software engineer who was employed to design and develop software. The respondent is part of the Invensys group of companies described on its website as ‘a global technology group, supplying solutions, software, consultancy and equipment to monitor control and automate processes in a wide range of environments’. 3

[7] Invensys Rail is described as a ‘multinational leader in delivering state of the art railway control and communication solutions’. It goes on to say, ‘We design, manufacture, supply, install, commission and maintain a range of safety related rail information and control systems and equipment.’

[8] I have taken the opportunity to look at the history of the Common Rule Declaration in this matter. In particular I have read the decisions of Smith C in proceedings relating to an application by the Australian Industry Group to vary the terms of the Declaration. 4 It is apparent from these decisions that the terms of the Common Rule Declaration were intended to be wider in its coverage than IT professionals working for IT industries. I note in this regard that the Modern Award Full Bench in proceedings concerning an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to vary the Professional Employees Award 2010 stated in reference to the proceedings before Smith C with respect to the Common Rule Declaration, ‘In further proceedings the Commission decided, however, that the Common Rule Declaration should apply to the occupation of information technology professionals.’ 5

[9] On this basis I am satisfied that Mr Batov was covered by the Award at the time of the termination of his employment. In any event, on the material before me, I would be satisfied that the respondent is in the information technology industry by virtue of its activity in the design and manufacture of computer software.

[10] For these reasons the objection to jurisdiction is dismissed and the matter is referred for conciliation.

COMMISSIONER

Appearances:

V. Batov, applicant in person.

G. Connell, for Invensys Rail Pty Ltd.

Hearing details:

2010

Melbourne:

February 19.

1 AW812692CAV.

2 PR953298, 18 November 2004.

3 < PR965268, 17 November 2005; PR968123, 27 January 2006.

5 [2009] AIRCFB 938 at [14].

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