Conrad Hunt v Process Minerals International Pty Ltd
[2025] FWC 1276
•7 MAY 2025
| [2025] FWC 1276 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Conrad Hunt
v
Process Minerals International Pty Ltd
(U2025/403)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 7 MAY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – whether applicant covered by a modern award or enterprise agreement – whether earnings above high income threshold
Issues and outcome
Mr Conrad Hunt (the Applicant) applied for an unfair dismissal remedy on 11 January 2025 against his former employer, Process Minerals International Pty Ltd (the Respondent). 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 and he was not covered by a modern award or enterprise agreement.[1]
This decision deals solely with the jurisdictional objection that the Applicant was not covered by a modern award. It is uncontroversial that the Applicant’s annual rates of earnings were not less than the high income threshold, and that an enterprise agreement did not apply to the Applicant in relation to his employment with the Respondent. Further, the modern award in question is the Professional Employees Award 2020 (PE Award),[2] the Applicant having contended that a portion of his duties as a mining superintendent required him to have engineering qualifications – and that he carried out such duties for a period more than five years.
It is further uncontroversial that the Applicant worked for a mining company on a mine site. However, the Applicant did not press that he was covered by the Mining Industry Award 2020 (Mining Industry Award)[3] whilst employed. The Applicant conceded, appropriately in my view, given his duties and responsibilities whilst working for the Respondent as a superintendent, that the coverage of the Mining Industry Award did not extend to his role. It is well established that the Mining Industry Award does not extend to cover supervisory or managerial roles where the principal purpose of the role is not captured by the award.[4]
Briefly stated, I have concluded that the Applicant was not protected from unfair dismissal because the PE Award did not cover the Applicant whilst employed by the Respondent and, as already noted, the Applicant’s annual rate of earnings was not less than the high income threshold.
An Order[5] issues concurrently with these reasons dismissing the Applicant’s application.
My detailed reasons follow.
Background
The broader context in respect of the application has been extracted from the evidence of the Applicant, and the Respondent’s witness, Mr Chris Botha, Manager Mining at the Mount Marion mine site.
2.1 The Applicant
At the time of his dismissal, the Applicant was employed by the Respondent as a superintendent mining at its Mount Marion Lithium Project at Karramindi in Western Australia. The Applicant’s Offer of Employment – Schedule A – Commencement Conditions set out that in respect of an ‘Industrial Instrument’, that the ‘Common law’ applied.[6] Page 18 of the Applicant’s Offer of Employment – Schedule B noted that the Applicant’s remuneration and any other benefits were intended to comply with any modern award as specified in the ‘Commencement Conditions Schedule”.[7]
Attached to the Applicant’s witness statement was Annexure CH-1, which the Applicant said detailed his duties and responsibilities as a superintendent mining. The ‘long term duties’ of the role included the following:
(a) Manage and Mentor Production Mining Supervision and Crews.
(b) Reporting on Daily Production, U of A, INX, Microsoft Teams, Success Factors & Power BI.
(c) Daily Quarry Manager and Mine Site Inspections – including but not limited to Wall Inspections, Wall Failure Analysis and documentation, Waste Dump design and Implementation, Land Clearing and Rehabilitation aligned with Statutory EPA requirements and Heritage Areas (including areas of cultural significance) in conjunction with Local Indigenous communities and Pastoralists.
(d) Safety, Training, and Recruitment GAP Analysis – including Recruiting of personnel.
(e) Maintain Supervisor KPI’s and team goal setting, aligned with key training and mentoring of Supervisors and Leading Hands.
(f) Maintain Mine & Personal Safety through consultation with the Safety Department, HR, Injury Management and the Mines Department.
(g) Directly liaise with all stakeholders including Administration, Maintenance, Drill & Blast, Geology and Geo-Technical Teams.
(h) Maintain High Safety Standards & Production Levels to achieve KPI’s and Ore Production to profitable levels.
(i) Hazard and Critical Risk Inspections – including CCV & FRCV Inspections and Auditing to ensure compliance to all Safety procedures, processes and Standards within the business and in alignment with the WHS Act & Regulations.
(j) Monthly report to Management and Safety & Production Issues and concerns and documenting all issues for due diligence and continuous improvements as required.[8]
The weekly duties of the role encompassed the following:
1. Presence of Site
·Attend mining pre-shift meetings on-site daily (rotating between crib rooms).
·Being present for all employees, listening to and understanding their concerns and coaching Supervisors on delivering clear, meaningful briefings.
2. Mine Inspections
·Conduct daily inspections of the mine, including: Material dump locations.
·Roads and accessways.
·Digging locations.
·Other working areas.
·Any sub-standard conditions must be immediately addressed.
3. Field Interactions & Coaching
·Complete at least two field interactions per shift.
·One must be with a supervisor in a coaching capacity.
·Identify actions needed, communicate them, and implement them.
4. Daily Compliance Review
·Conduct a daily review of the past 24 hours to ensure adherence to the operational plan.
·Identify and investigate non-compliances.
·Implement actions to prevent recurrence.
·Assess dig and dump locations for suitability in the next 24 hours.
5. Workforce Management
·Manage workforce recruitment, annual leave, personal leave approvals, and unexpected absences.
·Ensure that primary equipment is always fully manned to maintain operational efficiency.
6. Mine Development & Planning Compliance
·Oversee mine development activities, ensuring alignment with the two-week planning cycle.
·Compliance with planned activities is essential.
7. Incident and Accident Investigation
·Immediately investigate all reported incidents and damage.
·Conduct interviews, gather evidence, and implement corrective actions.
·Ensure that outstanding investigations are completed before employees fly out.
Collaborate with:
·Safety Department
·HR Advisors
·Injury Management Advisors
·Return to Work Plan Management
·Oversee the review, approval, and management of injured employees’ Return to Work plans.
9. Supervisor Development & Performance Management
·Conduct documented coaching, development, and performance management for supervisors.
10. Workplace Health & Safety (WHS) Compliance
·Ensure that Section 26 supervisors (those responsible for safety and compliance) conduct daily WHS inspections.
·All inspections to be documented in INX.
11. Integration with Planning & Compliance
·Fully integrate with the two-week planning process.
·Ensure compliance reporting and develop robust actions to prevent future non-compliance.
12. Key Performance Indicators (KPIs)
Deliver key metrics, including:
·Safety lead indicators.
·Mining team efficiencies.
·Fleet utilisation & availability.
·Payload tolerance checks.
·Achievement of production targets.
·High ore quality – Low Contamination outcomes.
Conclusion
·The document sets clear expectations for the Mining Superintendent role, focusing on safety, compliance, workforce management, operational efficiency, and leadership. It highlights the need for proactive engagement, structured supervision, and continuous performance and improvement.[9]
The Applicant detailed his knowledge of heavy earth moving operations and surface mining equipment, in addition to noting his qualifications.[10] Those qualifications included an Unrestricted Quarry Manager’s Certificate, a Double Diploma in Surface Operations Management and Business Management, and a Diploma of Quality Auditing.[11]
In the Applicant’s curriculum vitae, the Applicant describe his duties as a mining superintendent in the following terms:
·Manage and Mentor Production Mining Supervision and Crews.
·Reporting on Daily Production & U of A, INX, Microsoft Teams and Power BI.
·Day to day production and work area inspections aligned with mentoring of Supervisory teams.
·Safety, Training and Recruitment GAP Analysis.
·Maintain Supervisory KPI's and team goal setting, aligned with Key training and mentoring of Supervisors and Leading Hands.
·Maintain Mine & Personnel Safety through consultation with the Safety Department.
·Directly liaise with all stakeholders including Administration, Maintenance, Drill & Blast, Geology, Geo-Technical Teams.
·Maintain High Safety Standards & Production Levels to achieve KPI's and Ore Production to profitable levels.
·Hazard and Risk Analysis.
·Report to Management with Safety & Production Issues and concerns.[12]
The Applicant contended that he was frequently required to act as the quarry manager, which by its very nature, required him to do professional engineering work, and as the resident mine manager.[13] The Applicant provided further detail about the ‘WHS Quarry Manager’ responsibilities and supervisory control.[14]
Furthermore, the Applicant said he had involvement in the following:
a) developing the two weekly schedule and weekly plan;
b) discussions with workshop regarding equipment maintenance plans and timing, in conjunction with compliance with the weekly plan;
c) travel planning with administration – regarding rostering, annual leave, personal leave, unplanned leave and working out flight times for people under his duty of care;
d) pre-planning meetings with the main Engineering Team, Geotechnical, Geology and mine engineers; and
e) mining superintendent/QM with the ability and/or power to override aspects of the two-weekly plan if considered unsafe or at the detriment of the workforce.[15]
The Applicant stated that as part of his role he was required to sign off on: (a) the two weekly schedule; (b) drill design approvals; (c) blast design approvals; and (d) blasting exclusion plans.[16]
2.2 Mr Botha
Mr Botha gave evidence that in his role he managed the open pit quarry operations at the mine site to ensure the safe and efficient extraction of ore using mining methods. Mr Botha listed his responsibilities as: (a) ensuring safety on site; (b) ensuring safety inspections were completed in accordance with statutory obligations; (c) ensuring suitable, qualified and competent people were appointed to roles; (d) ensuring the implementation of company policies and procedures; and (e) managing a team of direct reports.[17]
Reporting into him were five superintendents and one site administrator.[18] Regarding the superintendents, Mr Botha identified that there were three types: (a) superintendent mining; (b) superintendent technical services; and (c) superintendent drill & blast.[19]
Mr Botha said that he expected the superintendents at Mount Marian to carry the daily responsibility of ensuring their direct reports (the supervisors) and mining workgroups were executing the mine plan.[20] In addition, superintendents were required to carry out work environment inspections to ensure safety policies and procedures were being complied with.[21]
Turning to the role of superintendent technical services, Mr Botha explained that this role was responsible for mine design and development of the mine plans.[22] To be able to develop the mine design and plan, the superintendents drew upon their mining engineer qualifications, skills and practices.[23] According to Mr Botha, all mining engineers on site reported to the superintendents technical services, and it was a pre-requisite for employment that these superintendents held tertiary qualifications in engineering and had demonstrated competence in using mine design and planning software.[24] At paragraph [23] of his witness statement, Mr Botha referred to what appeared to be a job advertisement for a technical services superintendent at Annexure CB-02 to his witness statement.[25] That document set out, amongst other things, the following:
Reporting to the Technical Services Manager, you will be responsible for managing the development and delivery of mine plans and technical services to key stakeholders in relation to mine engineering, mine geology, survey, laboratory and technical services. Complete integration with the mining operations team allows you to resource your plan through to delivery…
What you’ll bring to the team
· A Degree in Mine Engineering or related disciplines
· 10 years’ mine operations experience in the resources industry in a mix of technical and leadership roles in a bulk commodity
· Competency with recognised mining software package – Surpac, XACT…
Mr Botha further noted that mine design at Mount Marion was done using specialist mining engineering software.[26] He added that only the superintendents technical services and mining engineers at the site had access to the relevant software – which was issued under the company’s software licenses to such dedicated positions.[27] This meant that only those employees were capable of performing mine engineering work at the site.[28]
Mr Botha essentially contrasted the position of superintendent technical services to that of superintendent mining. In respect of the latter position, he gave evidence that superintendents are provided with a position description at the time they apply for a job and then the position description is reviewed again face to face with the mining manager at the start of the role.[29] Mr Botha made particular reference to Annexure CB-3 of his witness statement, a document that was described as a position description for the superintendent mining at the Mount Marion site.[30]
Annexure CB-3 set out that the purpose of the role was as follows:
The purpose of the Mining Superintendent roles is to ensure a safe place of work is provided and always maintained. Compliance with all statutory requirements on behalf of the Senior Site Executive (SSE) and ensure all company policies and procedures are followed. Provide leadership and direction to respective mining teams (Supervisors) to ensure the Mine plan an optimal mining performance is achieved.
The scope of the role was described in Annexure CB-3 in the following terms:
Overall supervision and coordination of all Mining operations on site. Working with Mining Manager, peers and other key stakeholders within the business, to ensure all work is appropriately coordinated in a safe, efficient and productive manner.
The authorities of the role encompassed that of quarry manager, procurement in accordance with the Respondent’s ‘Purchasing Delegation of Authority’, and authority for recruitment for approved roles within the structure.[31]
As to the requirements of the role, Annexure CB-3 provided the following detail:
· Promote and monitor the use of company safety systems, including the relevant tools and documentation, such as Take Times and job hazard analyses (JHAs) to meet site safety standards.
· Actively lead and promote processes directed at delivering safety and production goals.
· Conduct Daily workplace inspections to ensure high safety standards are maintained.
· Inform SSE of any WHS legislative related matters as soon as they occur.
· Asist [sic]/support Supervisor in incident and event reporting and investigations, as required.
· Identify and recommend continuous improvement initiatives which help improve safety, reduce project costs, and/or improve productivity.
· Assis [sic] Supervisors with the coordination of all pre-start, toolbox, safety, and any other relevant meetings as required.
· Assist with the planning, coordinating, and allocation of physical and human resources to achieve weekly outputs.
· Instruct and assist Supervisors regarding their daily assignments and goals.
· Coach and support Supervisors and respective teams to effectively manage team performance.
· Actively coordinate and follow all relevant HR procedures including recruitment and the management of medium risk substandard performance matters.
· Ensure all mining/maintenance plans and work are compliant with all company policies, procedures and standards.
· Accurately maintain and report all weekly production/plant and equipment data in a timely manner in accordance with company procedures.
· Identify gaps and resolve operational problems within training and capability, and as required escalate medium to high-risk matters to Mine manager without delay.
· Complete other tasks within training and capability as directed.
Mr Botha said that about a month after a superintendent mining had commenced employment at Mount Marion, he would provide them with a ‘Role Expectations letter’.[32] According to Mr Botha he provided such a letter to the Applicant[33] – albeit I note that at hearing there was disagreement about whether the aforementioned letter had been provided to the Applicant in that timeframe and there was an issue regarding the date of the letter. The letter, dated 22 May 2024, pre-dated the Applicant’s Offer of Employment.[34]
The ‘Role Expectations letter’ set out a non-exhaustive list of personal deliverables for a mining superintendent within the Respondent business. The expectations were listed as follows:
· Attend mining pre-shift on site (alternating between crib rooms) each day. This is the opportunity to be present for the employees, understand raised hazards/concerns, and coach supervisors on how to deliver a succinct, meaningful briefing.
· Daily inspection of the mine, including material dump locations, roads and accessways, digging locations and all other working areas. Less than adequate standards must be addressed immediately.
· Two field interactions per shift completed, one in company with the supervisor as a coaching opportunity. Actions identified, communicated and implemented.
· Daily review of the previous 24 hour period to ensure compliance to plan. Non-compliances investigated and actions to prevent recurrence. Dig and dump locations identified as suitable for the next 24 hours.
· Daily workforce management, including recruitment, annual leave approval, personal leave management, and any unplanned absences to ensure primary equipment is fully manned at all times.
· Mine development activities completed in compliance to the two week planning horizon.
· All reports of incident and accident damages are investigated immediately. Interviews conducted, evidence gathered and reviewed, and corrective actions implemented. Outstanding Investigations are completed before fly-out. Consultation and notification to Safety Department, HR advisors and where applicable, Injury Management advisors throughout the Investigation process.
· Review, approval and management of injured employee’s Return to Work plans.
· Documented coaching, development, and performance management of supervisors.
· Ensure WHS inspections for Section 26 supervisors reporting to you and your Quarry Manager Inspections are conducted and documented daily.
· Full integration with the two-week planning processes, including reporting on compliance to plan with robust, deliverable actions to prevent future non-compliance.
· Delivery of key performance indicators, including safety lead indicator metrics for the mining team, utilisation of primary fleet, payloads, achievement of production targets, ore quality.
· Every resigning employee is interviewed to understand actual motivations, and to develop associated action plans to reduce turnover.
· Every instance of contravention to our Safe and Respectful Behaviours policy is escalated to HR and Mining Manager, investigated, and reported to INX and a report prepared for the regulator…[35]
According to Mr Botha, because superintendents mining are not required or expected to do mining engineering work, they are not granted access to the software the Respondent’s engineers use to develop mine plans (APS and Vulcan).[36]
However, Mr Botha gave evidence that superintendents mining are required to hold an Unrestricted Quarry Manager Certificate and a Certificate IV in Frontline Leadership, and mining engineering qualifications are desirable as holding those qualifications generally means the team members have a good understanding of the mining cycle and pit development strategies.[37] Mr Botha stated that engineering qualifications, whilst being desirable, were not a requirement.[38]
In respect of the mining superintendents at Mount Marion, Mr Botha explained that the Applicant’s back-to-back had not held an engineering qualification, and the other two mining superintendents had not held an engineering qualification – nor was it necessary for the mining superintendents to hold one.[39]
Award coverage
Turning to the Applicant’s contention that he was covered by the PE Award.
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 – to the extent that there is an onus.[40]
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.[41]
The Applicant contends that he was covered by the PE Award on the basis that he fell within the engineering stream. In his written materials, the Applicant submitted that an analysis of his qualifications and experience establishes that he fulfilled the definition of an ‘Experienced Engineer’ under 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.
Clause 4.1(a) of the PE Award includes two requirements that must be satisfied in order for the Applicant to be covered by the PE 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.
As was observed by the Full Bench in Lingli Zheng v Poten & Partners (Australia) Pty Ltd,[42] under the definition it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties.[43] Clause 4.1(a) of the PE Award 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.
The second requirement is 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, and then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in clauses A.1.7 and/or A.1.9 of Schedule A, 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.[44]
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.
Consideration
It was uncontroversial that the Applicant did not hold at the relevant time, the necessary academic qualifications to be a graduate member of Engineers Australia.
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 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 that an Unrestricted Quarry Manager’s Certificate was mandatory and that that candidate should be obtaining a Schedule 26 Statutory Supervisor Certificate, and whilst reference was made in the position description at Annexure CB-03 that tertiary qualifications in mining engineering or a related discipline were desirable, again what was essential was a Quarry Manager’s Certificate of Competency, and, as noted previously, a Certificate IV in Frontline Leadership or equivalent.
I have considered the duties carried out by the Applicant, as described by the Applicant and Mr Botha. Whilst appreciative that there was disagreement between the parties regarding whether the Applicant was required, and did in fact sign off on the two-weekly schedule, or was involved in its development, at its highest the Applicant’s evidence does not demonstrate that this aspect of his work involved the performance of engineering duties. It was apparent from the evidence, particularly that of Mr Botha, that the superintendent technical services and the mining engineers were those responsible for the design and development of the two-weekly schedule. Whilst the Applicant gave evidence of ensuring sign-off on the schedule and ensuring compliance with the same, his evidence did not suggest that this involved the performance of engineering duties.
Turning to the Applicant’s evidence that he was responsible for signing off drill design approvals, blast design approvals, and blasting exclusion plans, Mr Botha gave evidence that
drill and blast engineers set up various parameters on a blast exclusion map of the areas where people can or cannot access. The quarry manager then reviews the exclusion maps to ensure that workgroups are safe. This contrasts to the engineering work that is undertaken by drill and blast engineers who have access to the software to conduct the engineering work. The focus of the superintendent mining, acting in the capacity as the quarry manager, is to ensure the safety of workgroups from a management point of view. Mr Botha gave an example that, for example, the superintendent mining will check to seek if there are any additional access roads that might have been omitted from the map – effectively acting as a secondary backstop – forming part of risk management.
Mr Botha acknowledged that the Applicant would have been responsible for signing off on the blasting exclusion plans, as detailed above, but was adamant that the Applicant did not sign off on the drill design approval.
Having considered the totality of the evidence presented (and noting my reasons at paragraph [49] as to the weight to be afforded to the ‘Role Expectations letter’), I am unable to find that the Applicant performed some engineering duties.
I have, for the sake of completeness, 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.
In this case, certain documents are relevant to the proper characterisation of the nature of the Applicant’s employment. The documents of particular significance were Annexure CH-1, which the Applicant said detailed his duties and responsibilities as a superintendent mining, the Applicant’s curriculum vitae insofar as it described his duties as a mining superintendent, and Annexure CB-3 of Mr Botha’s witness statement, a document that was described as a position description for the superintendent mining at the Mount Marion site. In respect of Annexure CB-4 of Mr Botha’s witness statement, the ‘Role Expectations letter’, the evidence is highly suggestive that at some point of the Applicant’s employment, Mr Botha discussed role expectations with the Applicant, but such discussion did not occur at the time so described by Mr Botha. I am not persuaded that the ‘Role Expectations letter’, as adduced by the Respondent, was that which was provided to the Applicant – and have considered that in assessing the weight to be afforded to it, which is less than that of the other documents relied upon by the parties.
Without repeating the text of the aforementioned documents, it is apparent that the Applicant’s role was predominantly supervisory and managerial with minimal original contribution to the design or development of the mine plan or in respect of establishing professional standards and procedures. The Applicant’s leadership responsibilities extended to directing mining supervisors to ensure the mine plan was adhered to and that an optimal mining performance was achieved – that is work was to be coordinated in a safe, efficient and productive manner. Whilst the Applicant supervised supervisors, I am not persuaded that such personnel constituted professional or technical staff for the purposes of the PE Award. However, I accept that the Applicant’s role incorporated leadership responsibility for ensuring a safe place of work and compliance with all statutory requirements and company policies and procedures. Amongst other duties, the Applicant had reporting responsibilities, the management of labour – including recruitment, supervision, mentoring, coaching, conducting inspections, assessment as to adherence to KPIs, and liaison with various internal and external stakeholders. The Applicant’s document Annexure CH-1, which the Applicant said detailed his duties and responsibilities as a superintendent mining, in addition to the other evidence given, demonstrated that the primary purpose of his role, did not bear a meaningful relationship with the classification criteria in clauses A.1.7 or A.1.9 of Schedule A (or, insofar as it is relevant A.1.11).
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, the Applicant’s unfair dismissal application cannot proceed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
P Mullally for the Applicant
B Bettin of the Respondent
Hearing details:
2025.
Perth (by telephone)
7 April.
[1] Fair Work Act 2009 (Cth) s 382.
[2] MA000065.
[3] MA000011.
[4] See Axford v AIC Copper Pty Ltd[2024] FWC 1110 at [32]; Scarborough v Sandifer Resources NL [2017] FWC 947 [35]-[37]; Suleski v Rio Tinto Iron Ore Dampier[2015] FWC 1663 [16]-[17]; McMillan v Northern Project Contracting[2012] FWA 7049 [15]; Fry v BHP Billiton Minerals Pty Ltd t/as BHP Billiton[2011] FWA 6927 [23]-[35].
[5] PR787108.
[6] Digital Hearing Book, 52 (DHB).
[7] Ibid, 67.
[8] Witness Statement of Conrad Hunt, [CH1].
[9] Ibid.
[10] Ibid [10]-[11].
[11] Ibid [14].
[12] DHB (n 6) 73.
[13] Witness Statement of Conrad Hunt in Reply, [8].
[14] Ibid [24].
[15] Ibid [16].
[16] Ibid [17].
[17] Witness Statement of Chris Botha, [12].
[18] Ibid [13].
[19] Ibid [14].
[20] Ibid [19}.
[21] Ibid [20].
[22] Ibid [21].
[23] Ibid [22].
[24] Ibid [23].
[26] Ibid [24].
[27] Ibid.
[28] Ibid [25].
[29] Ibid [27].
[30] Ibid.
[31] Ibid [CB-03].
[32] Ibid [29].
[33] Ibid [29], [CB-4].
[34] Ibid [CB-4].
[35] Ibid.
[36] Ibid [33].
[37] Ibid [34]-[35].
[38] Ibid [35].
[39] Ibid [37]-[38].
[40] Rogers v TMM Group (Operations) Pty Ltd [2020] FWC 5506, [15].
[41] [2019] FWCFB 3874, [26].
[42] [2021] FWCFB 6041.
[43] Ibid at [13]
[44] Ibid [15].
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