Emma Louise Woolcock v Eyecare and Vision Services T/A Eyes and Vision

[2015] FWC 1641

[2015] FWC 1663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Spase Suleski
v
Rio Tinto Iron Ore Dampier
(U2014/8726)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Spase Suleski alleged that the termination of his employment at Rio Tinto Iron Ore Dampier was unfair.

[2] Pilbara Iron Company (Services) Pty Ltd trading as Rio Tinto Iron Ore filed an employer response form. It objected to Mr Suleski’s application on the basis that he earned more than the high income threshold.

[3] On 9 October 2014, the Fair Work Commission sent Mr Suleski a letter recording that during the conciliation, Mr Suleski indicated that he would discontinue the application.

[4] On 29 October 2014, Mr Suleski advised that he wished to proceed with his application. Mr Suleski was advised on the same date that his application could not be reactivated. He replied advising that he had not signed the notice of discontinuance and he believed that he was misled during the conference and wanted to seek independent legal advice. Further correspondence ensued and on 30 December 2014 Rio Tinto advised that it considered the matter had been discontinued. It submitted that Mr Suleski had independent legal advice, including during the conciliation conference, and it opposed the matter being reinstated.

[5] The parties were advised that I would hear from them on whether the matter had been discontinued.

[6] At the hearing, Rio Tinto did not press its objection to Mr Suleski’s matter proceeding. It did however press its high income threshold objection.

[7] If Mr Suleski’s employment was covered by a modern award, it was not disputed that the Mining Industry Award 2010 1 was the relevant modern award.

[8] Mr Suleski was employed as a Cranage & Transport Supervisor. While Mr Suleski stated that he had not seen the relevant job description, he accepted that it accurately described his responsibilities.

[9] Rio Tinto produced pay slips for Mr Suleski which showed a base salary of $8,075.42, $2,099.17 work pattern allowance and $2,235.50 site allowance per month which totals $148,921.08 per year. It was put that the work pattern allowance had increased slightly in March 2014 and Mr Suleski’s base salary plus work pattern and site allowance totalled $149,121.00 This amount exceeds the high income threshold.

[10] In those circumstances, the questions to be answered are:

1. Was Mr Suleski’s employment covered by the Mining Industry Award 2010?

[11] The Mining Industry Award 2010 provides at clause 4 for the coverage of the award as follows:

4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13—Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.

[12] There is no dispute that Rio Tinto is engaged in the mining industry.

[13] Clause 13 provides for the following classifications:

a) A full-time adult employee must be paid a minimum weekly rate for their classification as set out in the table below:

Level	Classification	Minimum weekly rate $
Entry Level	Introductory	664.50
Level 1	Basic	697.20
Level 2	Intermediate	724.10
Level 3	Competent	746.20
Level 4	Advanced	796.10
Level 5	Advanced specialist	847.80
Level 6	Dual Trade	889.40
Level 7	Dual Trade Instrumentation	925.50

(b) The classification structure and descriptors for the above classifications are contained in Schedule B—Classification and Structure.

[14] Schedule B contains five subgroups and within each subgroup there are seven levels. Rio Tinto submitted that the classification structure applies to operators of the machinery that Mr Suleski supervised and does not cover Mr Suleski’s supervisory role.

[15] Rio Tinto submitted that while employees classified at level 4 Advanced and level 5 Advanced Specialist are required to “provide guidance and assistance to others” this is incidental to their primary duties and is not the principal purpose of the role. It was submitted that the principal purpose of Mr Suleski’s role was to supervise others performing work and not be doing the work himself.

[16] In Fry v BHP Billiton Minerals Pty Ltd 2 Senior Deputy President Richards held that these words are “not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision. ...... the coverage of the Mining Industry Award 2010 travels only to classifications where the supervisory element (of “guidance and assistance”) of the relevant positions is very much incidental to the principal purpose of the classification.”3 Commissioner Gay concluded that a genuine supervisor is not covered by the Mining Industry Award 2010.4 Deputy President McCarthy also concluded that an applicant who had substantial supervisory responsibilities and whose primary purpose was to ensure that the work was performed by others under his responsibility and who oversaw and allocated work was not covered by the classification structure in the Mining Industry Award 2010.5 The same conclusion was reached by other members of the Commission.6

[17] It is clear from the role description that the principal purpose of Mr Suleski’s position was to supervise others. I therefore find that Mr Suleski’s position was not covered by the Mining Industry Award 2010.

2. Should the site allowance and the work pattern allowance be included in the Mr Suleski’s annual rate of earnings?

[18] Section 332 of the Fair Work Act 2009 defines earnings as:

332 Earnings

(1) 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) However, an employee’s earnings do 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.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) 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 value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) 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.

[19] The site allowance is paid to all employees living in certain locations and it is to compensate for the isolation, lack of services and additional costs associated with living at a remote location. It is not a reimbursement allowance and it is determined in advance.

[20] The work pattern allowance is payable to full time residential band K and L supervisors and some technical roles. It is to compensate for a requirement to work mandatory additional hours above an average of 40 hours per week, plus nights, weekends, public holidays, handovers and call outs as part of a continuous roster. This amount can vary depending on the position occupied by the employee. However for any position it can be determined in advance.

[21] Mr Suleski was paid these amounts when on annual leave, personal leave and long service leave.

[22] Mr Suleski submitted that these amounts should not be included as the site allowance was compensation for the difficult conditions under which they had to work and live. He also submitted that the work pattern allowance could be removed at Rio Tinto’s absolute discretion.

[23] While it is clear that “the application, calculation and quantum of allowances are reviewed regularly and may be changed from time to time by the Company”, there is nothing in the documentation before me which would permit the Company to reduce remuneration for a particular position after the employee had accepted a position on the terms set out in the offer of employment. Of course, the employee can accept a transfer to a different position with a different package but I do not accept that Rio Tinto can unilaterally change Mr Suleski’s package.

[24] I therefore conclude that these amounts should be included as part of Mr Suleski’s annual rate of earnings. As a consequence, Mr Suleski earned more than the high income threshold and as his employment is not covered by an award or an enterprise agreement, he is not protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

S. Suleski on his own behalf.

D. Cronin for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

26 February.

 1   MA000011.

 2   [2011] FWA 6927.

 3   Ibid at [30]-[31].

 4   McMillan and Norman v Northern Project Contracting T/A NPC [2012] FWA 7049 at [15].

 5   Bradley v Navigator (Bronzewing) Pty Ltd [2013] FWC 1838 at [35].

 6   Pennell v Cobar Management Pty Ltd T/AS CSA Mine Glencore [2014] FWC 1193; Pickering v Pilbara Hire Group Pty Ltd [2014] FWC 4760.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561852>