DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Skinner
v
Broadspectrum (Australia) Pty Ltd
(U2020/6500)

DEPUTY PRESIDENT BEAUMONT

PERTH, 25 SEPTEMBER 2020

Application for an unfair dismissal remedy– Jurisdictional objection – s.382(b) – Whether applicant award covered – Professional Employees Award - Applicant not protected – Application dismissed.

[1] Mr Brett Skinner applied for an unfair dismissal remedy. 1 However, his former employer, Broadspectrum (Australia) Pty Ltd (the Respondent), objected to the application on the basis that Mr Skinner was not a person protected from unfair dismissal because he was not covered by an award, he earned more than the high income threshold, and an enterprise agreement did not apply to him in his employment.

[2] It is uncontroversial that Mr Skinner’s earnings exceeded the high income threshold and an enterprise agreement did not apply to him in his employment. The contentious factor is whether he was covered by a modern award, 2 specifically the Professional Employees Award 2010 (the Award).3 If he was not, then he is not protected from unfair dismissal and his application must be dismissed.

Background

[3] Mr Skinner gave evidence that he commenced consulting with the Respondent in February 2019 to assist with the BP Refinery Kwinana Maintenance Services tender. On 27 May 2019, Mr Skinner started in a full-time position working at the BP Refinery Kwinana (the site) in the position of Tank Maintenance Lead . Mr Skinner stated that the Tank Maintenance Lead position was also referred to as Tank Maintenance Manager. 4

[4] Mr Skinner said that at the time of his dismissal, his team consisted of:

(a) two supervisors;

(b) two engineers;

(d) one estimator;

(e) 0.5 QA/QX Inspector; and

(f) twenty tradespersons. 5

Mr Skinner stated that his work encompassed five work fronts and he was looking after 27.5 personnel.

[5] Mr Skinner gave evidence that his employment contract did not expressly exclude coverage by a modern award. Mr Skinner’s employment contract, of 22 May 2019, set out his position title, and that he was to report to the Project Manager. It revealed nothing further about the duties Mr Skinner was to perform.

[6] Mr Skinner said that when he commenced with the Respondent, he was not provided with a position description and did not receive one at a latter point in his employment. However, the Respondent sought to rely on a position description for the position of Tank Maintenance Lead, which it produced for the purpose of the hearing. Mr Skinner observed that the position description did ‘mostly reflect the duties’ which he performed in the role of Tank Maintenance Lead. He stated, however, that the position description neglected to detail the primary reason for the Respondent selecting him for the position. 6

Position Description

[7] As noted, when describing the duties of Mr Skinner, the Respondent sought to rely upon the position description for the Tank Maintenance Lead role. The objective of the position was recorded…

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.

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Details

Case: [2020] FWC 4948
Decision Date: 25 SEPTEMBER 2020

CaseChat Overview and Summary

The applicant, Brett Skinner, sought relief from an unfair dismissal decision against the respondent, Broadspectrum (Australia) Pty Ltd, in the Fair Work Commission. Skinner's application was dismissed on jurisdictional grounds, as the tribunal found that the applicant was not covered by an applicable award under section 382(b) of the Fair Work Act 2009. The primary dispute centred on whether Skinner was protected under the Professional Employees Award 2010, which would have granted him the right to lodge an unfair dismissal claim.

The legal issue for the tribunal was whether Skinner fell within the scope of the Professional Employees Award 2010, which would have afforded him protection and standing to bring an unfair dismissal claim. Broadspectrum contended that Skinner did not meet the criteria outlined in the award, and thus, the tribunal did not have the requisite jurisdiction to hear the matter. Skinner, on the other hand, argued that he was indeed covered by the award and that the tribunal should proceed to determine the merits of his unfair dismissal claim.

In its decision, the tribunal examined the provisions of the Professional Employees Award 2010 and concluded that Skinner did not satisfy the criteria to be considered a "professional employee" under the award. Consequently, the tribunal held that it lacked the jurisdiction to hear Skinner's unfair dismissal application. The tribunal emphasised that the award's definition of a professional employee required a high degree of skill, independent judgment, and responsibility, which Skinner's role and duties did not meet. As a result, Skinner's application was dismissed.

As the tribunal found that Skinner was not covered by the Professional Employees Award 2010, it dismissed his application for unfair dismissal remedy. The tribunal held that it did not have the jurisdiction to entertain the matter under section 382(b) of the Fair Work Act 2009. Consequently, the application was dismissed, and Skinner was not granted relief from his dismissal.

Orders