Fabian Simon v Ensco Australia Pty Ltd T/A Esv

[2016] FWC 3793

[2016] FWC 3793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fabian Simon
v
ENSCO Australia Pty Ltd T/A ESV
(U2016/2165)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Fabian Simon was employed by ENSCO Australia Pty Ltd until his employment was terminated on 26 April 2016. ENSCO objected to Mr Simon’s application because it said he earned more than the high income threshold.

[2] Mr Simon was employed as a Senior Advisor (Safety, Health and Environment) in relation to off shore drilling activities. He was employed by international entities of ENSCO prior to 1 October 2015.

[3] Mr Simon was employed on a common law contract of employment with a total gross annual salary of $160,000 plus 9.5% superannuation. There is no question that unless Mr Simon’s employment is covered by a modern award he earns more than the high income threshold and is not able to make an unfair dismissal claim.

[4] Mr Simon agreed that the job description attached to his contact of employment accurately reflected his duties and responsibilities. He was required to support and coordinate all safety, health, and environmental activities for offshore drilling rigs within the Business Unit; Provide technical support to the Corporate Safety Health and Environment (SHE) functions through the development of SHE standards and systems; Integrate SHE and Management system principles by supporting managers 1.

Is Simon’s employment covered by a modern award?

The legislative framework

[5] Section 48 of the Fair Work Act 2009 makes it clear that:

“A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

The Award

[6] Mr Simon alleges that his employment was regulated by the Hydrocarbons Industry (Upstream) Award 2010.

The issues to be determined

[7] It is not disputed that ENSCO is in the hydrocarbons industry and that the Award covers ENSCO. 2 What is in dispute is whether Mr Simon’s position was covered by the Award as the Award only applies to employees engaged in the classifications listed in the Award.

Does the Award cover Simon’s position?

[8] Mr Simon submitted that he was Level 4 - Advanced employee. ENSCO submitted that Mr Simon’s position is not covered by the Award because there is no classification which covers his position.

[9] Before determining which level an employee should be assigned to, it is necessary to determine which classification, if any, is applicable.

[10] The Award has five classifications:

• Hydrocarbons Industry Services Employees



• Hydrocarbons Industry Onshore Drilling Employee



• Hydrocarbons Industry Offshore Drilling Employee



• Hydrocarbons Industry Operations and Processing Employees



• Hydrocarbons Industry Modification and Maintenance Trades Employees

[11] There is no dispute that Mr Simon performed work in relation to offshore drilling activities undertaken by ENSCO.

[12] In his written submissions, Mr Simon referred to the classification - Hydrocarbons Industry Onshore Drilling Employee.

[13] As there is no evidence that ENSCO is involved in onshore drilling. Mr Simon’s written submission that he was an onshore drilling employee must fail.

[14] At the hearing, when it was put to him that Level 4 did not apply to onshore drilling employees, Mr Simon said he should have been classified as an operations and processing employee.

[15] Operations and processing employees are defined as follows:

B.2.4 Hydrocarbons Industry Operations and Processing Employees

A Hydrocarbons Industry Operations and Processing Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: operating and adjusting all hydrocarbons plant equipment (and associated control panels) utilised in hydrocarbons industry extraction, separation, production and processing, piping, storage, distribution and delivery; maintaining plant productivity; and laboratory technicians providing services on such plant.

[16] In each classification there is a requirement that the employee must be designated by the employer to the particular classification. There is no suggestion that Mr Simon was designated by ENSCO as either an onshore drilling employee or an operation and processing employee. In fact, no designation was made. However, I do not consider this is fatal to Mr Simon’s claim, otherwise the failure of an employer to designate the classification would take the employee outside of the Award. Such an outcome would be absurd.

[17] In his submission Mr Simon gave emphasis to the opening words in the descriptor which provides that the employee must perform all tasks as directed by their employer. It is not disputed that Mr Simon performs work as directed by his employer.

[18] I do not accept Mr Simon’s submission on this point. If Mr Simon were correct, all the words after the words he relies on in all the classifications would be unnecessary and the Award would be expressed to cover all employees of the employer and it does not. I accept that the list of activities is not exhaustive but it is informative of the type of work the classification covers.

[19] I am not satisfied that Mr Simon is required to perform any of the activities set out in the descriptor or activities of a like nature. Mr Simon does not operate or adjust plant and equipment nor associated equipment. Mr Simon ensures that, the policies and systems under which persons who perform this work, provide for a safe work environment.

[20] Mr Simon is not required to maintain plant productivity and he is not a laboratory technician.

[21] It is not the principle purpose of his position and he was not substantially engaged to perform the work of an operations and processing employee. 3

[22] Mr Simon is the Senior Advisor in Safety Health and the Environment. He is required to support and coordinate all safety, health and environment activities for the offshore rigs and provide technical support through the development of SHE standards and systems as well as support managers.

[23] He performs some of his work offshore but that does not mean he is covered by the Award.

[24] The work that he is required to perform must be caught by the classification structure. It is not sufficient that some of the incidental tasks are within the classification structure.

[25] The parties referred to a number of authorities. Two considered the classification structure in the Award.

[26] In Clements-Kupsch v Saxon Energy Services Australia Pty Ltd 4 Deputy President Sams considered whether Mr Clements-Kupsch’s position was covered by the same award. Mr Clements-Kupsch was appointed as a driller. Deputy President Sams rejected the proposition that Mr Clements-Kupsch was a supervisor. That decision was based on the evidence before the Commission about Mr Clements-Kupsch’s duties. That case does not assist Mr Simon as clearly a person employed as a driller in the industry is covered by the Award.

[27] In Trutwein v Harness Enegry Services Pty Limited 5 Deputy President Sams considered whether a Health and Safety Advisor was covered by the Award. In that case Mr Trutwein’s employment contract said that his employment was covered by the Award. Deputy President Sams found that such a contractual provision did not determine whether Mr Trutwein was in fact covered by the Award. In that case Mr Trutwein contended he was a Hydrocarbons Industry Services Employee. That submission was rejected by Deputy President Sams who concluded that Mr Trutwein was not covered by the Award. That decision does not assist Mr Simon.

[28] In his submission Mr Simon described how his work was within the definition of the hydrocarbons industry but that is not in dispute.

[29] I find that the position of Senior Advisor (Safety, Health and Environment) cannot be described as that of an operation or processing employee. As such, it is not necessary to consider what classification level Mr Simon’s position should have been assigned.

[30] I therefore find that as the Award did not apply to Mr Simon’s position and as Mr Simon conceded that his annual income was $160,000 per annum, he was not protected from unfair dismissal and his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

F. Simon on his own behalf.

S. White for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

8 June.

Appendix A - Position description

Job summary

Supports and coordinates all safety, health, and environmental activities for offshore drilling rigs within the Business Unit. Provide technical support to the Corporate Safety Health and Environment (SHE) functions through the development of SHE standards and systems. Integrates SHE and Management system principles by supporting managers.

Experience

Five to ten years in a similar role with a major oil company. Minimum of two years time in a similar SHE or management systems advisory role.

Education, Training, Licenses and/or Certifications

Bachelor’s degree from accredited college or university required. Masters or advanced degree preferred.

Principal Duties and Responsibilities

• Responsible for the development, implementation, evaluation, and support of company SHE Policies and procedures such as Permit to Work, Environmental Management System, Systems Auditing, Emergency Response, Performance Management, and Behavioral Based Safety.



• Development of Unit SHE goals and targets to effectively eliminate injuries to personnel.



• Familiar with relevant government regulations (OHSA, MMS, USCG, NOPSA, etc.).



• Conduct incident investigations, compile findings, summarize information to determine cause, and provide recommendations necessary for the prevention of further incidents.



• Familiar with risk analysis/ potential models and classifications.



• Familiar with management systems such as ISM, ISO 9001, or 14001.



• Manage local Safety Training Observation Program (STOP).



• Responsible for the management of the company ISO 14001 certifiable Environmental Management System.



• Responsible for the development and management of rig IADC formatted safety cases.



• Responsible for performing onshore and offshore safety management system audits.



• Assist operation in performing risk evaluations / mitigation plans for high risk operations.



• Responsible for maintenance of company incident management and action tracking database.



• Responsible for maintenance of intranet site, including all procedures, forms and working instructions.



• Support operations personnel (office & rig) by providing SHE assistance and guidance.



• Liaise directly with Corporate SHE Director when required.



• Provide cased management support for injuries/illnesses that occur both onshore and offshore.



• Provide IADC Rig Pass training for new hires as required.



• Manage the job performance of offshore Medic-SHE Officers.



• Maintain all customer required safety questionnaires and websites.



• Participate in customer SHE initiatives/meetings.



• Regularly visit offshore rigs and provide SHE guidance/support as necessary.



• Maintenance of safety statistic and company Key Performance Indicators (KPI).



• Prepare and conduct monthly safety meetings for the Business Unit.



• Oversee and manage SHE projects.



• Provide technical knowledge and experience for SHE projects.



• Institute changes and programs to increase safety and health standards on offshore, at different Business units, and in the corporate office.



• Coaching and facilitation of the SHE-MS to OPCOO, the Business Units and the Capital Projects group.

Minimum Requirements for this position

• Strong SHE background for rig operations, equipment, and procedures.



• Strong knowledge of IADC Accident Statistics Program.



• Working knowledge in the development and implementation of occupational health / wellness programs within the E & P industry.



• In-depth knowledge of Quality, Management and Environmental systems and the auditing of same.



• Detailed knowledge of incident analysis and root cause techniques.



• Knowledge of strategic planning principles, technical application of business planning tools and new applications of proven technology.



• Ability to gather and analyze/synthesize data, confirming its accuracy and adequacy as an integral part of the collective analysis/synthesis process.



• Demonstrated effective leadership and influencing skills and practices.



• Physically capable of being transported to an offshore rig by boat or helicopter.



• Proficiency in Microsoft Excel at an advanced level (use financial and logical functions; work with multiple worksheets and workbooks; edit and use macros; import and export information).



• Working knowledge of document control systems and databases.

Minimum Requirements for all Ensco positions

• Ability to maintain organization in a changing environment.



• Ability to multi-task and establish priorities.



• Available and willingness to travel to such locations and with such frequency as the employer determines is necessary or desirable to meet its business needs.



• Committed to a high standard of safety and will and able to comply with all safety laws and all of the employer’s safety policies and rules. Must be willing to report safety violations and potential safety violations to appropriate supervisory or management personnel.



• Effective communication, team working and organizational skills. Good interpersonal skills.



• Excellent conflict resolution skills and be able to diplomatically handle confrontation.



• Exercise sound judgments and make decisions in a manner consistent with the essential job functions.



• Maintain flexible attitude and approach towards assignments and successfully operate under ambiguous guidelines.



• Maintain regular and acceptable attendance at such level as is determined in the employer’s sole discretion.



• PC proficiency required. Working knowledge of current Microsoft Office software suite version.



• Perform duties onsite, except those job duties which are customarily or by their nature performed offsite (such as off-site meetings with customers at their request or for marketing purposes, making deliveries to designated destinations, traveling to field offices to meet with superiors/peers/subordinates or attend/conduct training, etc.).



• Work effectively alone or as part of a team on projects.

 1   A full position description is at Appendix A

 2   Clause 4 provides :

4.1 This industry award covers employers throughout Australia who are engaged in the hydrocarbons industry in respect of work by their employees engaged in the classifications listed in this award, to the exclusion of any other modern award.

 3   Brand v APIR Systems Limited [PR 938031] and Carpenter v Corona Manufacturing Pty Ltd [PR925731]

 4   [2015] FWC 4081

 5   [2015] FWC 1816

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