Cesare Daulerio v Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd
[2023] FWC 1758
•24 JULY 2023
| [2023] FWC 1758 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cesare Daulerio
v
Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd
(U2023/2476)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 JULY 2023 |
Application for an unfair dismissal remedy
Issues and outcome
Mr Cesare Daulerio (the Applicant) applied for an unfair dismissal remedy on 23 March 2023 against the Respondent, Recruitment Solutions (A Division of Chandler Macleod) Pty Ltd, his former employer. The Respondent objected to the application on the basis that the Applicant was not a person protected from unfair dismissal because he earned more than the high income threshold ($162,000) and he was not covered by a modern award or enterprise agreement.[1]
The Applicant initially pressed arguments that his annual rate of earnings and such other amounts (if any) were less than the high income threshold and that he was covered by at least one of the following awards:
a) Professional Employees Award 2020 (PE Award),[2]
b) Mining Industry Award 2020 (MI Award);[3]
c) Building and Construction General On-site Award 2020 (Building Award);[4]
d) Clerks – Private Sector Award 2020 (Clerks Award);[5] and
e) Miscellaneous Award 2020 (Miscellaneous Award).[6]
However, at hearing the Applicant decided to withdraw his argument that he was covered by the Clerks Award. Therefore the question to be determined is whether the Applicant was protected from unfair dismissal by virtue of (a) s 382(b)(i) of the Fair Work Act 2009 (Cth) (the Act), that is, he was covered by one of four awards; or (b) s 382(b)(iii) of the Act, such that sum of his annual rate of earnings and such other amounts (if any) was less than the high income threshold.
For the reasons that follow, I have concluded that the Applicant was not protected from unfair dismissal.
Background
The Applicant was employed by the Respondent as a casual employee on hire initially with BHP Billiton Group Operations Pty Ltd on 26 July 2021 and subsequently with BHP Iron Ore Pty Ltd on 27 January 2022. It was uncontroversial that during the period of his employment, the Applicant worked on a regular and systematic basis pursuant to two Conditions of Assignments.[7]
It was brought to the attention of the Respondent that there had been an incident with the Applicant and a work colleague on the afternoon of 6 February 2023. By letter of 13 February 2023, the Respondent provided the Applicant with allegations of misconduct.[8] By letter of 28 February 2023, the Respondent outlined the allegations that had been substantiated. In doing so, the Respondent observed that the Applicant had received a formal warning on 28 October 2022 in response to which its client, BHP, had facilitated his move to another project. It was further observed that new issues had been identified and the Applicant was provided with a further opportunity to respond due to the new issues raised. Whilst a meeting was said to have occurred between the Applicant and Respondent on 3 March 2023, by letter of 7 March 2023, a decision was made to dismiss the Applicant.[9]
Arising out of that dismissal, the Respondent stated that the Applicant was not protected from unfair dismissal as he was not covered by a modern award. Whilst advancing this objection, neither party provided evidence of the position description or job advertisement of the relevant position. Directions were issued at hearing for the parties to address this point. I turn to those materials now.
The Respondent states that whilst it could not locate a position description for the relevant position, the job advertisement (Job Advertisement) provided:
…
About the role
We are partnering one of Australia’s leading resources companies, is seeking to engage site-based Project Engineers to support the execution and delivery of a ~$100M camp facility upgrade in the WA Pilbara over the course of the next 2 years. Reporting to the Lead Project Engineer, you will take ownership of package planning, schedule, contractor management, QA/QC and safety contributing to the execution of the project to meet KPIs and objectives.If successful, you will be rewarded with:
• Highly competitive industry rates
• 24 Month contract long project life
• Multiple site locations
• 5:2 | 4:3 roster
• 10% Superannuation Contribution on ALL hours workedThis is a wonderful opportunity to expand on your previous experience alongside a fabulous and friendly working environment, within a well-known and highly esteemed organisation.
To be successful in this role, you will require the following work experience:
• A Tertiary qualification in Project Management and/or Engineering are highly desirable – any discipline however a Construction Management qualification would suit
• The ability to work autonomously with distinctive proficiency in executing engineering packages in accordance with small project management framework and best practices.
• Experience in an operational mining environment, previous experience within the mining Non-Process Infrastructure space would be highly advantageous
• Strong operational and process discipline.
• Strong interpersonal and communication skills with the ability to manage a variety of stakeholders effectively.
• Demonstrated high-level negotiation skills with the ability to influence and negotiate with internal and external
• Provision of a current Drivers License and Australian working rights[10]
The Applicant filed a Job Advertisement in PDF format.
Project Engineer | VSP-Stage 1 | PERTH / FIFO 5/2/4/3
About The Role
This is a dynamic role for an experienced Project Engineering professional with excellent stakeholder management skills to fulfil a broad scope of responsibilities across the project lifecycle from Identification to handover; concept study, engineering design, technical, contractual and commercial requirements through to tender execution management and closeout.Reporting to the Lead Project Engineer you will be working on a project to upgrade BHP Village Accommodation Units across the entire BHP Camp and Village Portfolio in accordance with relevant processes and standards. Your responsibilities will include:
• Development of Work package Scopes, budgets, plans and schedules
• Engaging and coordinating stakeholders during the execution of work including operations, maintenance, Project Supervisors, contractors and other functional groups
• Engage and manage external consultants and contractors, ensuring their work is completed within the terms of the Contact and safely achieves the required outcomes
• Providing technical input to the design of Engineering solutions
• Monitoring and regularly reporting on project progress, ensuring action is taken to address deviations from the project program
• Contributing to a safety orientated culture and ensuring the safety and quality of execution activitiesAbout You
This role would suit a team player with strong communication and stakeholder management who can manage a multitude of requirements and resources to successfully coordinate works throughout every room in an operational Camp environment. An eye for detail, an inquisitive mindset to understand and develop execution plans and experience in housing, construction, or other non-process infrastructure projects will see you to success.You may also have the following:
• A tertiary/degree qualification in Project Management and/or Engineering (preferred)
• Substantial experience in delivery of Projects, preferably in a mining environment (although not essential)
• Exemplary interpersonal and communication skills, these will be key components of this role as you will work with closely with a variety of stakeholders
• A proven track record of safety management
• A positive “can do” and “action oriented” attitude within proven Project or Event Management skills
• Experience managing the contractual and commercial components of project management
• Demonstrated high-level negotiation and influencing skills to liaise and negotiate within internal and external departments and contractors
• Experience / Familiar with Primavera P6 (not essential)
• Minimum of C class manual drivers licenceLocation
Initially you will be based in our Perth Office (City Square) as the project moves into the Execution phase and mobilisation of our Contracting teams is planned.
Once Execution is to commence, you will be based at one of our Pilbara Camps on a fly-in fly-out 5/2/4/3 roster. Our Camps and Villages are located within the Northern, Central and Eastern Pilbara in Western Australia…[11]
It is not in dispute that the Applicant held the tertiary qualification of Bachelor of Applied Science Construction Management and Economics (Honours) (Degree).
The Applicant stated that his Degree was a pre-requisite for his former role.[12] He further noted that he was involved in the design phase and provided engineering input into the detailed design process which was undertaken in conjunction with an engineering services provider and fabricator.[13] This work also included his final sign off on drawings and specifications to approve the documentation to be issued for construction.[14] In this respect, the Applicant referred to a document titled ‘Door Split Frame Section’, under which there was the title ‘BHPIO to complete’ and ‘Drawing Status Review’, where the Applicant’s signature could be found next to ‘construction may proceed except as noted.’[15]
According to the Applicant, construction works included maintenance works, temporary structures, electrical isolations, electrical modifications, structural modifications, fabrication and engineering, and general building alterations.[16]
As noted, included in the evidence were two ‘Conditions of Assignment’ documents dated 26 July 2021 (First COA) and 22 December 2021 (Second COA). The First COA set out, amongst other matters, the following:[17]
Role Project Engineers – Site- NPI Client company name BHP Billiton Group Operations Pty Ltd Department WAIO Engineering – VSP VSP – Stage 1 Important Details Nature of employment You are employed on a casual basis Start date 26/07/2021 Days/hours available As per client requirements Your pay rate Please see the rates schedule below Award or enterprise agreement Client specific, as varied from time to time. If you would like more information about your award or agreement please visiting the Fairwork website. Casual loading Your rate of pay includes a casual loading. The casual loading is paid to you in full satisfaction of any entitlements under the National Employment Standards (NES), award, enterprise agreement, including but not limited to annual leave, personal leave, notice of termination and redundancy. If the Rate Schedule below contains an entry from Base Rate, this is the rate without casual loading, and Ordinary and Ordinary Day will be your casual rate of pay. Please contact your Consultant if you need further information. Flat rates If you are paid a flat rate, this total hourly rate is in full satisfaction of any and all entitlements payable to you under the applicable industrial instrument, including but not limited to overtime, penalty rates and allowances. Superannuation is paid on all ordinary hours as defined under your industrial instrument. Set off Any casual loading or other employment conditions can be used to off-set any amounts or other benefits that would otherwise be owed to you under any modern award term, condition or entitlement or legislative provision, including annual and personal leave, notice of termination, redundancy, overtime, penalty rates, and loadings. Additional Assignment Information Special conditions Initial engagement 6 months / expected contract duration 24 months
Perth based / 38 hour week + some site travel
Moving to 5:2 / 4:3 roster when site works commence circa October 2021Pay frequency Weekly Rates Schedule Ordinary 80.0000
The Second COA provided:[18]
Role Project Engineers - NPI Client company name BHP Iron Ore Pty Ltd Department WAIO Engineering Important Details Nature of employment You are employed on a casual basis Start date 27/01/2022 Days/hours available As per client requirements Indicative end date 26/07/2022. This date is subject to change based on client requirements. Your pay rate Please see the rates schedule below Award or enterprise agreement Client Specific, as varied from time to time. If you would like more information about your award or agreement please visiting the Fairwork website. Casual loading Your rate of pay includes a casual loading. The casual loading is paid to you in full satisfaction of any entitlements under the National Employment Standards (NES), award, enterprise agreement, including but not limited to annual leave, personal leave, notice of termination and redundancy. If the Rate Schedule below contains an entry from Base Rate, this is the rate without casual loading, and Ordinary and Ordinary Day will be your casual rate of pay. Please contact your Consultant if you need further information. Flat rates If you are paid a flat rate, this total hourly rate is in full satisfaction of any and all entitlements payable to you under the applicable industrial instrument, including but not limited to overtime, penalty rates and allowances. Superannuation is paid on all ordinary hours as defined under your industrial instrument. Set off Any casual loading or other employment conditions can be used to off-set any amounts or other benefits that would otherwise be owed to you under any modern award term, condition or entitlement or legislative provision, including annual and personal leave, notice of termination, redundancy, overtime, penalty rates, and loadings. Additional Assignment Information Special conditions Contract Extension with new hourly rate
Base rate per hour + 10% super
Currently Perth base then site based
Roster 5:2 / 4:3
VSP – Stage 1Pay frequency Weekly Rates Schedule Ordinary 90.0000
Consideration
Whether a person was protected from unfair dismissal is a matter that the Commission must be satisfied about before proceeding to hear and determine the merits of an application for an unfair dismissal remedy.
In Rogers v TMM Group (Operations) Pty Ltd,[19] it was said that the legislative provisions concerning unfair dismissal provide for objections which go to whether a person can make an application at all (e.g. person not protected from unfair dismissal, no dismissal, person not an employee), and other matters where an application that is made by a person entitled to make it, is removed from the unfair dismissal provisions in the Act (e.g. dismissal is consistent with the Small Business Fair Dismissal Code or dismissal is a case of genuine redundancy).[20] Where there is an issue as to whether a person can make an application at all, it is the applicant who bears the onus of proof.[21] Where the issue is whether a validly made application is removed from the coverage of the unfair dismissal provisions, the employer who asserts that it is removed bears the onus.[22]
In the decision of Jain v Infosys Ltd, the Full Bench expressed the following view:
In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.[23]
3.1 High income threshold
As observed, one of the criteria for a person to be protected from unfair dismissal, if not covered by an industrial instrument, is that the sum of their annual rate of earnings, and such other amounts (if any) worked out in relation to them in accordance with the regulations, is less than the high income threshold.
It has been accepted by the Commission that the term ‘earnings’ derives its meaning, in part, from s 332 of the Act.[24] The Act, at s 332, defines ‘earnings’ as follows:
(1) [Meaning of earnings]
An employee’s earnings include:(a) the employee’s wages; and
(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and
(c) the agreed money value of non-monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
(2) [Excluded amounts]
However, an employee’s earnings does not include the following:(a) payments the amount of which cannot be determined in advance;
(b) reimbursements;
(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;
(d) amounts prescribed by the regulations.
(3) [Meaning of non-monetary benefits]
Non-monetary benefits are benefits other than an entitlement to a payment of money:(a) to which the employee is entitled in return for the performance of work; and
(b) for which a reasonable money valued has been agreed by the employee and the employer but does not include a benefit prescribed by the regulations.
(4) [Extent to which subsection applied to superannuation contributions]
This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;
(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;
(c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.
Whilst no regulations have been made for the purposes of s 332(1)(d) or s 332(2)(d) of the Act, regulation 3.05(6) of the Fair Work Regulations 2009 (Cth) (Regulations) has been made in respect of s 382(b)(iii) of the Act. Regulation 3.05(6) provides:
If:
(a) the person is entitled to receive, or has received, a benefit in accordance with an agreement between the person and the person’s employer; and
(b) the benefit is not an entitlement to a payment of money and is not a non-monetary benefit within the meaning of subsection 332(3) of the Act; and
(c) the FWC is satisfied, having regard to the circumstances, that:(i) it should consider the benefit for the purpose of assessing whether the high income threshold applies to a person at the time of the dismissal; and
(ii) a reasonable money value of the benefit has not been agreed by the person and the employer; and
(iii) the FWC can estimate a real or notional money value of the benefit;
the real or notional money value of the benefit estimated by the FWC is an amount for subparagraph 382(b)(iii) of the Act.
In the decision of Sam Technology Engineers Pty Ltd v Bernadou (Sam Technology), the Full Bench concluded that the definition of ‘earnings’ in s 332 is non-exhaustive and as such, ‘earnings’ should be given its ordinary meaning.[25] In the course of its reasoning, the Full Bench qualified that the meaning of ‘earnings’ was subject to the payments and benefits referred to in s 332(1) being included in the meaning of ‘earnings’ and the payment and benefits referred to in s 332(2) being excluded from its meaning.[26]
The Full Bench in Sam Technology further explained that parliament had made a conscious choice to use an employee’s ‘earnings’, rather than their ‘base rate of pay’ or ‘full rate of pay’, to define the cut-off point at which an employee is excluded from protection against unfair dismissal in circumstance where they are not covered by a modern award, or an enterprise agreement does not apply to their employment.[27] The Full Bench clarified that an employee’s ‘earnings’ are higher than the employee’s ‘base rate of pay’ but are narrower in scope than the ‘full rate of pay’ of the employee, because ‘earnings do not include the…payment of amounts which cannot be determined in advance’ such as incentive based payments, bonuses and overtime (unless the overtime is guaranteed).[28]
While the Full Bench in Sam Technology considered the word ‘earnings’ in the context of determining whether a car allowance fell within its scope, its reasoning remains relevant here. Drawing upon what Lord Davey expressed in Midland Railway Co v Sharpe,[29] the Full Bench in Sam Technology stated:
Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or as Lord Macnaghten said in Abram Coal Co v Southern [1903] AC 306, a man’s ‘earnings’ are ‘the full sum for which the man is engaged to work’.[30]
The Full Bench observed that Lord Davey’s definition of ‘earnings’ had been applied in a number of Australian cases. It reiterated that in the context of s 382(b)(iii), ‘earnings’ are what an ‘employee receives for the work done by the employee in the course of their employment, rather than an amount paid to an employee to meet an expense incurred by the employee in undertaking such work…’.[31]
It is therefore clear from s 332 that the word ‘earnings’ is limited to those components of s 332(1) and excludes those payment and benefits referred to in s 332(2). Further, the ordinary meaning of ‘earnings’ is to be adopted and from that meaning it can be concluded that earnings are the fruit of labour, that is, they are whatever is received by way of remuneration for the services provided.
The Respondent stated that the Applicant’s rate of pay when his employment with the Respondent ended was set out in his Second COA at $90.00 per hour.[32] The Respondent relied upon the Applicant’s pay slips to show that for the 12 months prior to his employment ending the Applicant’s gross earnings totalled $209,922.50.[33]
The Respondent further observed that the Second COA showed that the Applicant’s roster was five on and two off and four on and three off across a nine-day fortnight.[34] However, said the Respondent, if the Applicant’s payslips were considered, they showed that the Applicant worked almost exclusively a ten-day fortnight. The Respondent continued that the payslips showed that excluding weekends, when the Applicant appeared to have worked additional hours, the Applicant only worked less than ten hours per day on 29 days, 16 of which were Fridays (which looked like additional hours), hence supporting the proposition that the Applicant’s expected roster pattern was a nine-day fortnight.[35]
The Respondent observed that if the Applicant’s expected hours were ten per day over a nine-day fortnight and his hourly rate was $90, then his annual rate of earnings, even after allowing for 5 weeks of unpaid leave per annum, was $210,150.00, which is almost exactly what the Applicant actually earned in the last 12 months of his employment.[36]
The Applicant claimed that his gross earnings for the current financial year of 2022/23 of $127,440.00 were below the high income threshold. The Applicant said that he was employed as a casual employee on an initial hourly rate of $80 per hour with no guarantee of days/hour, or end date and no guarantee of ongoing work.[37] The Applicant clarified that his employment was regular and systematic as could be seen from his past payslips, however his employment was subject to a level of doubt if one considered his COA and the terms in respect of his roster, location and hours.
The Applicant submitted that his tenure with the Respondent unfolded as follows:
a. for approximately four and a half months, the Applicant worked at BHP Perth Head Office on approximately a 38-hour week with an occasional site visit;
b. for approximately one and a half months, the Applicant worked from home, and was not given a reason as to why;
c. for approximately six months, the Applicant had a 5:2 4:3 roster on site;
d. for approximately three months, the Applicant worked from home, having been abruptly removed from site and not given a reason why, and his 5:2 4:3 roster was cancelled;
e. after the Applicant’s removal from site, he received medical treatment and did not work for two weeks;
f. for approximately two months, the Applicant worked both from home and site, with site visits weekly; and
g. for approximately one month, the Applicant worked a 5:2/4:3 roster on site up to the termination of his employment.
The Applicant’s case rests, in part, on the proposition that as a casual employee he did not have a guarantee of annual earnings and therefore was not subject to the high income threshold exempting him from the unfair dismissal provisions in the Act.
In Dirkis v Staffing and Office Solutions Pty Ltd (Dirkis),[38] the appellant asserted that as his weekly hours were not fixed, his annual rate of earnings could not be determined ‘in advance’ (s 332(2)(a)) by the use of the 40 hours a week multiplier, and the better guide to his income was to look at the pattern of hours worked to establish his rate of earnings, being approximately 27 hours a week, or $140,600.00 per year. The appellant noted that clause 45 of the agreement he was covered by provided that exact work hours were to be agreed between his manager and himself.
In reaching its decision, the Full Bench in Dirkis referred to the decision of Zappia v Universal Music Australia Pty Ltd (Zappia)[39] where the Full Bench of Fair Work Australia had considered the term ‘annual rate of earnings’. The Full Bench in Dirkis extracted the following passages. The first passage was paragraph [9] of Senior Deputy President Hamberger’s reasons at first instance in Zappia and the second, the conclusion of the Full Bench on appeal:
…His Honour dealt with the annual rate of earnings aspect thus:
[9] ... The most natural way of construing the expression annual rate of earnings in s.382 is by reference to the annual rate of earnings at the time of the applicant’s dismissal. If Parliament had wished to refer to the average amount earned over the previous 12 months it could easily have done so. I note, for example, that in setting the compensation cap in relation to unfair dismissal, s.392 specifically refers to the amount that the employee received (or was entitled to) during the 26 week period immediately before the dismissal.
…
[46] The Full Bench went on to conclude:
...In our view his Honour was clearly correct. Section 382 of the Act relevantly provides that a person is protected from unfair dismissal at a time if, at that time, the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person's employment. What needs to be ascertained is the annual rate of earnings at that time, not the annual earnings to that time (the amount earned in the 12 months to that time).
(original emphasis)[40]
At paragraph [49] of Dirkis, the Full Bench confirmed, by reference to Zappia, that what was required to be ascertained was the annual rate of earnings at the time of the termination of employment. To determine this, the Full Bench considered the appellant’s letter of appointment noting that it was clear as to the rate of pay and the standard working week, and it followed that the Commissioner’s finding as to that rate was correct and unexceptional.[41] At first instance, the Commissioner calculated remuneration based on an hourly rate of $10.00 for a 40-hour week, annualised:
…I am cognisant of the evidence that even though the applicant was advised that the standard working week would be 40 hours there was other evidence indicating that the applicant did not, over the course of his placement at DVA, necessarily or routinely work 40 hours a week and, for example, took periods of unpaid leave (I reiterate, it is unclear to me the basis upon which the applicant contended some of those absences were annual leave, personal/carer’s leave or long service leave). Nonetheless, as at the date of dismissal, had the applicant worked what was described as the “standard working week” and received his rate entitlement of $100.00 an hour, that took him beyond the high income threshold when annualised.[42]
At paragraph [94] of the decision at first instance, the Commissioner observed that the contention that the applicant (appellant) may have worked fewer hours than the standard of 40 hours a week or what working pattern he might have performed if he had not been dismissed was beside the point. The Commissioner concluded that such matters were irrelevant to ascertaining the annual rate of earnings as at the date of dismissal.
Turning first to the Applicant’s contention that because he was employed on a casual basis with no guarantee of work provided, his annual rate of earnings cannot be determined in advance.
Section 332(2) of the Act provides that a person’s earnings do not include payments the amount of which cannot be determined in advance.
Whilst on the one hand, the Applicant purports that the nature of his employment relationship meant that he had no guarantee of work for the purpose of ascertaining his annual rate of earnings, on the other, it is implicit from his application and from his express assertion that he asks this Commission to find that he was a regular casual employee who held a reasonable expectation of continuing employment on a regular and systematic basis.
The Applicant’s argument is somewhat perplexing. It is well understood that employees employed on a casual basis are not necessarily excluded from the protections afforded by Part 3-2 of the Act, that is the protection against unfair dismissal. The protection arises in circumstances where the casual employee is found to have worked as a regular casual employee and that the same employee had a reasonable expectation of continuing employment on a regular and systematic basis. If the work performed by the Applicant was regular and he held the requisite expectation, it is difficult to conceive why it is he says that his annual rate of earnings could not be determined in advance.
Casual employment may consist of engagement under hourly or daily fixed term contracts and be used for the performance of short-term and/or intermittent work on an ‘on-call’ basis. It may also consist of longer-term contracts or an ongoing contract of indefinite duration (terminable in either case on short notice) and be used for the performance of long-term work with regular, rostered hours.
Having heard from the Applicant and in light of the submissions and direct evidence provided, I am persuaded it is the latter arrangement that the Applicant was engaged in – long-term casual work with regular, rostered hours.
The Second COA does not provide the number of hours worked in a shift. However, it does set out that the roster was 5:2/4:3 and that the hourly rate of pay was $90.00 per hour. At page 13 of the Digital Hearing Book Part 1, the Applicant has provided his final payslip from the Respondent which sets out hours worked on 13, 14, and 15 February 2023. The hours worked were 10 hours, 11 hours, and 12 hours respectively.[43] The Respondent has provided the Applicant’s payslips over the course of the year which show that he routinely worked either a 10-hour, 11-hour or 12-hour day.[44]
At the time of his dismissal and in circumstances where a conservative approach is adopted, it is more likely than not that the Applicant’s hours of work were 10 hours per day over a nine-day fortnight (90 hours). Furthermore, the Applicant’s hourly rate was $90.00 per hour. This equates to an annual rate of earnings of $210,600.00. If one was to deduct amounts for four or five weeks’ leave, the annual rate of earning would still remain not less than the high income threshold. It is therefore the case that the Applicant’s earnings exceeded the high income threshold and this aspect of the jurisdictional objection must be upheld. It follows that the Applicant’s second argument that he was covered by one of five modern awards must be considered.
3.2 Award coverage
Turning to the Applicant’s first contention that he was covered by at least one of several awards.
First, it is observed that the Applicant was self-represented, as was the Respondent. To that end, the Applicant’s submissions proved to be of limited assistance, so for example, the Applicant’s purported classification under the PE Award, MI Award or the Building Award was not sufficiently addressed in the Applicant’s written materials.
Second, the approach to determining award coverage was described by a Full Bench of the Commission in Gourabi v Westgage Medical Centre in the following terms:
For relevant purposes, each modern award has a ‘coverage’ clause that determines ‘the employers, employees, organisations and outworker entities’ that are covered by it. The determination of whether a particular employment falls within the coverage clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.[45]
Third, generally speaking, the appropriate test for determining award coverage is the principal purpose test, which requires assessment of the principal or primary function for which the employee was employed.[46] In interpreting an award provision, the words of the relevant clause are to be given their ordinary meaning.[47] Award history and subject matter may be considered to resolve any ambiguity.[48] In considering whether a modern award covers a person the test has been stated as: to discern the objective meaning of the words bearing in mind the context in which they appear and the purpose they are intended to serve.[49]
Fourth, as already highlighted, where there is an issue as to whether a person can make an application at all (e.g. person not protected from unfair dismissal, no dismissal, person not an employee), it is the applicant who bears the onus of proof.[50]
3.2.1 Professional Employees Award 2020
The Applicant contends that he was covered by the PE Award on the basis that he fell within the engineering stream. As noted, in his written materials the Applicant did not identify the classification under which he fell under. However, at hearing when alerted to the point that he had not identified the classification under which he fell, the Applicant attempted to identify the classification. At best, the exercise was speculative and premised on assertion.
For the following reasons, I have determined that the Applicant was not covered by the PE Award.
Clause 4.1 of the PE Award defines the scope of its coverage as follows:
4. Coverage
4.1 This industry and occupational award covers employers throughout Australia as follows:(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A—Classification Structure and Definitions of the award and those employees.
(b) Employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A—Classification Structure and Definitions.
(c) Employers throughout Australia principally engaged as medical research institutes with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B—Medical Research Employees and those employees.
It follows that clause 4.1(a) of the PE Award contains, relevant to the Applicant’s case, two requirements that must be satisfied in order for him to be covered by the award. First, the Applicant must be an employee ‘performing professional engineering…duties’. The expression ‘professional engineering…duties’ is defined in clause 2.2 of the PE Award as follows:
professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) of a graduate member of Engineers Australia.
Under the abovementioned definition, it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties.[51] Clause 4.1(a) read with the above definition does not require the performance of engineering duties to constitute the majority of the employee’s duties or to constitute the primary purpose of the employee’s employment.
Clause 2.2 of the PE Award also defines the expression ‘professional engineer’ as follows:
Professional engineer means a person qualified to carry out professional engineering duties as defined. The term professional engineer includes graduate engineer and experienced engineer as defined in clause 2.2.
Experienced engineer means a Professional engineer with the undermentioned qualifications engaged in any particular employment where the adequate discharge of any portion of the duties requires qualifications of the employee as (or at least equal to those of) a member of Engineers Australia. The qualifications are as follows:
(a) membership of Engineers Australia; or
(b) having graduated in a 4 or 5 year course at a university recognised by Engineers Australia, 4 years’ experience on professional engineering duties since becoming a Qualified engineer; or
(c) not having so graduated, 5 years of such experience.
Graduate engineer means a person who is the holder of a university degree (4 or 5 year course) recognised by Engineers Australia or is the holder of a degree, diploma or other testamur which:
(a) has been issued by a technical university, an institute of technology, a European technical high school (technische hochschule) or polytechnic or other similar educational establishment; and
(b) is recognised by Engineers Australia as attaining a standard similar to a university degree; and has been issued following:
(i) a course of not less than 4 years’ duration for a full-time course after a standard of secondary education not less than the standard of examination for matriculation to an Australian university; or
(ii) a part-time course of sufficient duration to obtain a similar standard as a 4 year full-time course after a similar standard of secondary education.
It was controversial whether the Applicant held, at the relevant time, the necessary academic qualifications to be a graduate member of Engineers Australia. In his Outline of Argument, the Applicant provided that he was a member of Engineers Australia and cited a membership number.[52] However, whilst the Applicant gave evidence that he could furnish his membership certificate, he had not sought to tender it in support of his case. Furthermore, the Applicant conceded, appropriately in my view, that he had not become a member until May of this year. That is, after he was dismissed. Based on the evidence before me, I am unable to conclude that at the relevant time, the Applicant held the necessary academic qualifications or experience to be a ‘Graduate engineer’, ‘Professional engineer’ or ‘Experienced engineer’.
Notwithstanding, for the sake of fulsomeness, I have considered the duties carried out by the Applicant which were said to include executing engineering packages in accordance with small project management framework and best practices, and providing technical input to the design of engineering solutions. The Applicant gave evidence that he was involved in the design phase of works and provided engineering input into the detailed design process. The Applicant stated that there was collaboration by the team as a whole into detailed design engineering tasks, whether through various design workshops or inspections at site or at the fabricators workshops – where the Applicant provided technical input. By way of example, the Applicant referred to his signature on a final sign off on drawings and specifications to approve the documentation to be issued for construction.[53] Whilst a document was provided to show that the Applicant had signed off on ‘construction may proceed except as noted’, under the ‘Drawing Status Review’, that same document required the ‘Designer/Contractor’ to sign the part which stated, ‘Design & HSCE Approved by’, in addition to another person, other than the Applicant, signing off the ‘Designed by’ and ‘Drawn by’ sections.
Whilst it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties, on balance, I am unable to find on the evidence adduced that the Applicant carried out duties, the adequate discharge of which required qualifications as (or at least equal to those of) a graduate member of Engineers Australia. I note that holding an engineering degree was not a pre-requisite of the role. The Job Advertisement provided for ‘[a] Tertiary qualification in Project Management and/or Engineering are highly desirable – any discipline however a Construction Management qualification would suit’.
I have, however, addressed the second requirement, that is the requirement that the Applicant must be covered by a classification in the PE Award. In respect of this requirement, the correct approach is to determine the principal purpose of the Applicant’s employment based on the nature and circumstances of his work. I must then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in Schedule A of the PE Award, without that analysis being conducted through the lens of any requirement that ‘professional engineering duties’ constitute the principal purpose of the employment, or a majority of the duties being performed. It is noted that the Applicant did not elucidate the classification relevant to his former position or assist the Commission with argument concerning principal purpose.
In this case, certain documents are relevant to the proper characterisation of the nature of the Applicant’s employment. Two documents were of particular significance, namely the Job Advertisements.
Without repeating the text of the Job Advertisements, they advised that the candidate would ‘take ownership of package planning, schedule, contractor management, QA/QC and safety contributing to the execution of the project to meet KPIs and objectives’. Whilst responsibilities, as referred to in one of the Job Advertisements, extended to providing technical input into the design of engineering solutions and cited ‘engineering design’ and ‘technical’, on the whole the job responsibilities identified in the Job Advertisement placed less emphasis on the technical aspects of the position.
On the basis of the evidence referred to including, specifically, the evidence of the Applicant, the principal purpose of the Applicant’s employment may reasonably be characterised as that of a project manager requiring technical knowledge and expertise in the project management of construction scopes of work. That is, the primary purpose of the Applicant’s role was to manage the project life cycle of the upgrade to BHP Village Accommodation Units and specifically the design, planning and execution of the Donga sliding door lock systems. Having considered that primary purpose, I do not consider that it bears a meaningful relationship with the classification criteria in clauses A.1.2 or A.1.9 of Schedule A. Although, the job responsibilities identified in the Job Advertisements may lend themselves to the work so described in clause A.1.7. In this respect, I refer to job responsibilities including the development of work packages, in addition to the following:
• Engaging and coordinating stakeholders during the execution of work including operations, maintenance, Project Supervisors, contractors and other functional groups
• Engage and manage external consultants and contractors, ensuring their work is completed within the terms of the Contact and safely achieves the required outcomes
• Providing technical input to the design of Engineering solutions
• Monitoring and regularly reporting on project progress, ensuring action is taken to address deviations from the project program
• Contributing to a safety orientated culture and ensuring the safety and quality of execution activities
However, the Level 2 classification refers to the person covered being an ‘Experienced engineer’ and on this point I note it cannot be said that the Applicant was an ‘Experienced engineer’.
3.2.2 Mining Industry Award 2020
The Applicant submitted that the construction works on site were undertaken in a township (Newman), and on remote mining leases that incorporated accommodation villages. The Applicant continued that construction works included maintenance, temporary structures, electrical isolations, electrical modifications, structural modifications, fabrication and engineering, and general building alterations.
Clause 4.1 of the MI Award states, in respect to coverage:
This industry award covers employers throughout Australia in the mining industry and their employees in the classifications listed in clause 15 — Minimum rates and classifications to the exclusion of any other modern award.
Clause 4.2 of the MI Award defines the term ‘mining industry’ in the following terms:
For the purposes of clause 4 mining industry means:
(a) extracting any of the following from the earth by any method including exploration, prospecting, development and land clearing, preparatory work and rehabilitation during the life of the mine:
(i) any metals, minerals or ores;
(ii) phosphates and gemstones;
(iii) mineral sands;
(iv) uranium and other radioactive substances;
(b) the processing, smelting and refining of any of the metals, minerals, ores or substances covered by clause 4.2(a);
(c) the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a):
(i) on a mining lease or tenement; or
(ii) by the mine operator, a related company or an entity principally engaged by the mine operator to do such work, using the plant or infrastructure (including rail and/or ports) of the mine operator or a related company;
(d) the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to 4.2(c) by employees principally employed to perform work on an ongoing basis at a location where those activities are being performed; or
(e) the provision of temporary labour services used in the activities set out in clauses 4.2(a) to 4.2(d), by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.
Whilst clause 4.2 of the MI Award contemplates a definition of ‘mining industry’ that extends to the provision of labour services used in certain activities, those activities are only those defined in subclauses 4.2(a) to (d), and coverage is limited to temporary labour personnel principally engaged to perform work at a location where the activities above are being performed.
The evidence before me fails to demonstrate that the Respondent was, more likely than not, an employer in the ‘mining industry’. Put another way, on balance, the evidence does show that the Respondent provided the Applicant to its client to perform work so described in subclauses 4.2(a) to (d). Whilst subclause 4.2(d) refers to servicing and maintaining, it does so in respect of repairing plant and equipment utilised in the activities referred to in subclauses 4.2(a) to (c).
I note, in addition, that the evidence does not suggest that the Applicant falls within one of the classifications set out in clause 15 and thereafter Schedule A of the MI Award. In my opinion, the Applicant is not a ‘Mining Industry Services Employee’, ‘Mining Industry Surface Mining and Haulage Employee’, ‘Mining Industry Processing Employee’, ‘Mining Industry Underground Mine Employee’ or a ‘Mining Industry Maintenance Trades Employee’. I further note that the Applicant has not advanced an argument to suggest in his written materials as to the classification he would fall within.
3.2.3 Building and Construction General On-site Award 2020
The Building Award has a coverage that is industry based. By virtue of clause 4.1 it covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule A – Classification Definitions, to the exclusion of any other modern award. By virtue of clause 4.4, the Building Award does not cover employers covered by the MI Award, Electrical, Electronic and Communications Contracting Award 2020 or the Manufacturing and Associated Industries and Occupations Award 2020. Clause 4.3 defines ‘general building and construction’, ‘civil construction’ and ‘metal and engineering construction’.
Concerning the work undertaken by the Applicant, it is evident that ‘civil construction’ and ‘metal and engineering construction’, as defined in clause 4.3 of the Building Award, did not apply to the work that the Applicant performed. However, the Applicant has in his written submissions, in bold font, seemingly highlighted that his work for the Respondent fell within the meaning of ‘general building and construction’. From the evidence adduced, it would be reasonable to find that the Applicant performed work associated with the construction of a building or structure.
Furthermore, it is evident that the coverage of the Building Award extends to any employer which supplies labour on an on-hire basis in the on-site building, engineering and civil construction industry in respect of on-hire employees in classifications covered by the Building Award, and those on-hire employees, whilst engaged in the performance of work for a business in that industry.
However, when one considers the classifications under the Building Award and the Applicant’s submissions on the same, it is difficult to discern the Applicant’s argument as to the classification within which he falls. The Applicant has cut and paste into his submissions the definition of ‘General supervision’ (A.1.12(a)), ‘Limited supervision’ (A.1.12 (b)), ‘Work in a technical field’ (A.1.13), and ‘Trade’ (A.1.14). Furthermore, the Applicant has referred to his completed trade studies in Electronic Digital Servicing and that his duties included supervision and quality testing/inspections tasks generally related to constructions works on site and specifically related to electronic locks.[54]
However, when one considers the Applicant’s former responsibilities as detailed in the Job Advertisement, such responsibilities do not appear consistent with any of the classifications under the Building Award. Whilst the Applicant may have performed some quality testing and inspections, there is no evidence to support his contention. Furthermore, and perhaps more importantly, it is not apparent that such work formed the principal or primary function for which the Applicant was employed.
Having regard to the above matters, I am not satisfied on the material advanced that the Applicant was covered by the Building Award.
3.2.4 Miscellaneous Award 2020
The Miscellaneous Award covers employers throughout Australia and their employees in the classifications listed in clause 15 — Minimum rates who are not covered by any other modern award.[55]
Clause 4.2 provides that: ‘The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists’.
In United Voice v Gold Coast Kennels Discretionary Trust,[56] the Full Bench stated the following regarding the interpretation of clause 4.2 of the Miscellaneous Award:
[36] It is necessary at the outset therefore to construe cl 4.2 having regard to its context and purpose. Before we turn directly to the text of cl 4.2, two observations may be made about the apparent purpose of the Miscellaneous Award based on the context of the award’s terms as a whole. First, the title of the award, the terms of cl 4.1, and the broad and generic nature of the classifications descriptors in Schedule B suggest that the purpose of the award is to provide minimum (and minimalistic) conditions of employment for a miscellaneous range of employers and employees, not identified by reference to any industry, business function or occupation, who are not covered by any other modern award. Second, the classifications descriptors make it clear that no classification applies to persons with a professional qualification or managerial responsibilities,19 that Levels 3 and 4 were to apply to trade-qualified employees, and that Levels 1 and 2 were to apply to low skilled employees with no particular work qualification at all. Thus it may be inferred that the award was not intended to cover professional or managerial employees, and that it was intended to cover low skilled employees as well as trade-qualified employees not covered by any other award. In respect of low-skilled employees, the low minimum rates of pay prescribed also tend to suggest that the award was intended to capture low paid workers not covered by another award.
[37] We consider that cl 4.2 has a plain meaning based on the ordinary meaning of the words used. The exclusion in cl 4.2 has two requisite elements. Stated in reverse order, they are:
(1) the classes of employees must not have been traditionally covered by
awards; and
(2) this must have been because of the nature or seniority of their role.
[38] That is, it is not sufficient for the exclusion to apply that a particular class of employees has not traditionally been covered by awards where this is not attributable to the nature or seniority of the employees’ role.
[39] It may be accepted, as submitted by AAA Pet Resort, that the remainder of cl 4.2, “… including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”, cannot be read as exhaustively stating the scope of the exclusion. Nonetheless it is plain that the identified classes of employees are intended both to serve as examples to guide the interpretation and application of the clause and to constitute the principal classes of employees excluded. Thus “managerial employees” are a class of employees traditionally excluded from award coverage because of the “seniority of their role”, and the other identified classes are specialist white collar professionals traditionally not covered because of the “nature … of their role”. To read the clause this way is consistent with the overall context of the award to which we have referred, including the lack of any classifications applicable to managerial or professional employees.
Having had regard to the Job Advertisements and the evidence provided, I am satisfied that in the performance of his duties the Applicant was best characterised as a project managerial employee – that is a ‘white collar’ professional. This is evidenced by the Applicant’s responsibility for taking ownership of package planning, schedule, contractor management, QA/QC and safety contributing to the execution of the project to meet KPIs and objectives. The position therefore falls within the ambit of clause 4.2 with the result that the Miscellaneous Award did not apply to the Applicant.
For completeness, I am satisfied that the classification levels contained in the Miscellaneous Award do not align with the Applicant’s role. This is because the most senior of the levels in the Miscellaneous Award covers an employee that has advanced trade qualifications and is carrying out duties requiring such qualifications, or is a sub-professional employee. The Applicant was not required, in my view, to exercise advanced trade qualifications, notwithstanding his assertion regarding the quality testing and inspections.
3.2.5 Clerks – Private Sector Award 2020
It would be evident at this point that the Applicant has adopted an approach of referring to multiple awards that might have either a tenuous connection to the work he previously performed or perhaps an arguable connection. In respect to the Clerks Award, it is the former.
The Applicant’s tasks and responsibilities, as described in the Job Advertisements, do not align with the coverage of the Clerks Award.
Conclusion
The Applicant is only afforded protection from unfair dismissal in circumstances where he was covered by a modern award, an enterprise agreement applied in relation to his former employment or he earned less than the high income threshold. Given my conclusion that there was no modern award that covered the Applicant in respect of his employment, and in circumstances where his annual rate of earnings was not less than the high income threshold, the Applicant’s unfair dismissal application cannot proceed for want of jurisdiction. Therefore, the Applicant’s application is dismissed. An Order[57] to this effect issues concurrently with this decision.
DEPUTY PRESIDENT
Appearances:
C Daulerio, Applicant.
R Harden for the Respondent.
Hearing details:
2023.
Perth (by telephone):
13 June.
[1] Fair Work Act 2009 (Cth) s 382.
[2] MA000065.
[3] MA000011.
[4] MA000020.
[5] MA000002.
[6] MA000104 (Miscellaneous Award).
[7] Respondent’s document list, annexures RS1 and RS2; Digital Hearing Book Part 2, 34–9 (DHB Part 2).
[8] Digital Hearing Book Part 1, 41 (DHB Part 1).
[9] Ibid 109–10.
[10] Correspondence from the Respondent to Chambers dated 13 June 2023.
[11] Correspondence from the Applicant to Chambers dated 13 June 2023.
[12] DHB Part 2 (n 7) 9.
[13] Ibid.
[14] Applicant’s Outline of Arguments, [11]; DHB Part 1 (n 8) 73.
[15] DHB Part 2 (n 7) 13.
[16] Ibid 9.
[17] Ibid 34–6.
[18] Ibid 37–9.
[19] [2020] FWC 5506, [14] (Rogers).
[20] Ibid [15].
[21] Ibid.
[22] Ibid.
[23] [2014] FWCFB 5595, [37].
[24] Sam Technology Engineers Pty Ltd v Bernadou (2018) 275 IR 419 (Sam Technology).
[25] Ibid 432 [54].
[26] Ibid.
[27] Ibid 435 [65].
[28] Ibid 435–6 [65].
[29] [1904] AC 349.
[30] Sam Technology (n 24) 433 [58], quoting ibid 351.
[31] Ibid 436 [66].
[32] Respondent’s Outline of Submissions, [31]; DHB Part 1 (n 8) 115.
[33] Respondent’s Outline of Submissions, [33]; Respondent’s document list, annexure RS6; DHB Part 1 (n 8) 115.
[34] Respondent’s Outline of Submissions, [34]; DHB Part 1 (n 8) 115.
[35] Respondent’s Outline of Submissions, [34]; DHB Part 1 (n 8) 115.
[36] Respondent’s Outline of Submissions, [36]; DHB Part 1 (n 8) 115.
[37] Applicant’s Outline of Argument: Objections, [4]; DHB Part 1 (n 8) 82.
[38] [2021] FWCFB 154 (Dirkis).
[39] (2012) 225 IR 122.
[40] Dirkis (n 38) [45]–[46], quoting Zappia v Universal Music Australia Pty Ltd[2012] FWA 3208, [9]; ibid 125 [8].
[41] Ibid [49].
[42] Dirkis v Staffing and Office Solutions Pty Ltd [2020] FWC 4684, [92].
[43] DHB Part 1 (n 8) 13.
[44]Ibid 50–97.
[45] [2019] FWCFB 3874, [26].
[46] Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 39, 401–2 [25].
[47] The Clothing Trades Award (1950) 68 CAR 597, cited in City of Wanneroo v Holmes [1989] FCA 369, [43] (Holmes).
[48] Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9, cited in Holmes (n 47) [43].
[49] Transport Workers’ Union of Australia v Coles Supermarkets Pty Ltd (2014) 245 IR 449, 455 [22].
[50] Rogers (n 19) [15].
[51] Ibid [36]–[37].
[52] Applicants Outline of Arguments [8]; DHB Part 1 (n 8) 73.
[53] Applicant’s Outline of Arguments, [11]; DHB Part 1 (n 8) 73.
[54] Applicant’s Outline of Arguments, [28]; DHB Part 1 (n 8) 77.
[55] Miscellaneous Award (n 6) cl 4.1.
[56] (2018) 277 IR 367.
[57] PR764381.
Printed by authority of the Commonwealth Government Printer
<PR764379>
0
12
0