Glen Lewis v Nomad Digital

[2013] FWC 6531

[2013] FWC 6531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen Lewis
v
Nomad Digital
(U2013/7305)

DEPUTY PRESIDENT MCCARTHY PERTH, 9 SEPTEMBER 2013

Application for relief from unfair dismissal.

Background and Legislation

[1] An Application was lodged by Mr Glen Lewis (the Applicant) claiming that he was unfairly dismissed from his employment with Nomad Digital Pty Ltd (the Respondent).

[2] The Respondent lodged an objection in the Fair Work Commission (FWC) to determine the application on the grounds that the Applicant was not a person protected from unfair dismissal.

[3] I conducted a conference to deal with the Respondent’s objection. My notes of the conference indicated that it was not disputed that the Applicant earned above the income high threshold. This concession seems to have been later withdrawn.

[4] What was disputed was whether the Applicant was covered by an enterprise agreement or an award. The parties agreed that I should deal with that objection on the papers. Witness statements were provided together with submissions and other documentation relevant to my considerations in accordance with directions that I had issued.

[5] The Fair Work Act2009 (the FW Act) provides that a person is not protected from unfair dismissal unless:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) 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.

The Respondent asserts that none of those requirements are met by the Applicant.

[6] In Mr Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting  1 a Full Bench of FWC dealt with the issue of how to approach a determination of award coverage pursuant to s.382(b)(i) as follows:

“the determination on the basis of whether or not the Appellant was employed in the above classification by reference to the principal purpose test as articulated in the Full Bench decision of the Australian Industrial Relations Commission (as it then was) in R Brand v APIR Systems Limited. That decision, in turn, cited the decision of the Full Bench of the Australian Industrial Relations Commission (as it then was) in Carpenter v Corona Manufacturing Pty Ltd, which stated relevantly as follows:

In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.²⁹ In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award.”

[7] The approach then is one of examining the principal purpose for which the employee is employed and whether an award covers an employee based on that examination.

The Contentions

The Applicant

[8] The Applicant contended that his role was principally that of a technician engaged in engineering type duties. They Applicant asserts that his duties were of the nature which have historically been performed by award covered employees.

[9] The Applicant identified four separate awards which could apply to the his employment as:

● Manufacturing and Associated Industries Award 2010
● Electrical, Electronic and Communications Contracting Award 2010
● Telecommunications Services Award 2010
● Professional Employees Award 2010.

[10] The Applicant provided a witness statement that indicated his position title was that of Rail Systems/Communications Technician. It stated that his duties included project delivery and engineering, and provision of on-site support to the Respondent’s clients. It stated that his knowledge skills and abilities included 2 to 3 years experience in a similar role delivering projects to the resources industry and engineering, procurement and construction management. It identified his qualifications education and experience for the role as an engineering degree (advantageous but not essential) and rail systems experience.

[11] The Applicant was seconded to work for BHP Billiton Iron Ore (BHP Billiton) at Port Hedland, in Western Australia. His main duties as BHP Billiton consisted of Reliability Engineering and Technician Duties. He says that his main duties were:

● Reliability Engineering duties included:

• Analysing all defects of all BHP trains (this was achieved by downloading and viewing downloaded data from all BHP trains). With any defects that were proven to be not Locomotive related, I would inform the relevant department whose equipment was at fault (eg Ore Car Defects Department, Track and Signal Faults, etc)



• Formatting a repair for all Locomotive defects found and requesting (via BHP computer system) the engineers to carry out relevant repairs when the locomotive would next be in the Locomotive Service Centre)



• Monitor all repaired Locomotives to ensure any repairs were successful and any defects did not reoffend.

● Technician duties:

• Carry out any repairs to the Locomotive Automatic Train Protection (ATP) system faults, including hardware box replacements, antenna replacements, cable repairs, etc.



• It was a requirement of BHP that at least 25% of my shift was to be carried out on the workshop floor.

[12] He also says he was involved in chairing meetings, although he did not manage or control other employees. When he began he worked under the supervision of a BHP superintendent, although for six months he apparently had no superintendent and appears not to have been supervised. Following a restructure of BHP’s operations he was again overseen by a BHP superintendent.

[13] The Applicant says his previous work experience has been as an aircraft engineer and that he was engaged for his technical expertise and experience. Further he says that the remuneration he was paid was in effect a wage with guaranteed overtime paid at overtime rates.

The Respondent

[14] The primary function of the Respondent's enterprise is the provision of electronic communication systems on transport systems and consultancy services to transportation companies. The Respondent does not manufacture the products that it provides to its clients or for use in designing and developing the electronic systems.

[15] The Respondent says that the nature of its business is to provide consultants to its clients, such as the Applicant, for the purposes of being a representative of the Respondent. The consultants’ role includes providing reliability services and support and to ensure project delivery is on time and in accordance with client requirements. The Respondent does not provide any further and separate service that relates to or requires utilisation of the products and systems designed by the Respondent and provided to the client. The Respondent also does provide and install products and systems that may facilitate an external party to provide a telecommunications carrier service through it. Furthermore, the Respondent does not and cannot provide any telecommunications carrier service.

Evidence and consideration

[16] The Applicant commenced employment with the Respondent in the position of a Rail Systems/Communications Technician. The purpose of the position is to provide consultative services. By agreement with the Applicant, he was subsequently on-hired by the Respondent to Chandler Macleod Group, a recruitment/labour hire agency, who offered his consultancy services to BHP Billiton. This was discussed and agreed with the Applicant at the time of entering into the contract.

[17] Throughout his employment with the Respondent, the nature of the Applicant's role involved working autonomously and providing independent consultancy services to the Respondent's clients which were independent from any project or operation of the Respondent.

[18] The Respondent states that the Applicant’s salary was high, which was in recognition of the representative nature and seniority of the consultancy services that he was required to provide and the autonomous nature of his role. The Applicant asserted that the nature of the make-up of the overall salary included a component for overtime and therefore he may not exceed the high income threshold. I find that it does. The role required him to attend and work remotely at a Port Hedland site operated by BHP Billiton, for the purposes of providing onsite representation for the Respondent and consultative support for systems designed and operated by BHP Billiton on their locomotives.

[19] The Respondent also stated that the Applicant's consultative role while working with BHP Billiton was largely an unsupervised role that required him to undertake (often at his own initiative) tasks such as chairing meetings at BHP Billiton and addressing, directly with management at BHP Billiton, issues and faults that he identified were relevant to their functional areas. Thus the Applicant acted as an intermediary between management of the Respondent and management of BHP Billiton and also included the following types of tasks:

● Review and analyse fault data on the DP System to determine the root cause of the fault and the appropriate department to rectify the fault.
● Log and investigate the faults for relevant departments to rectify.
● Produce reports, both written and verbal, which set out particular trends or patterns relating to types of fault for the Respondent and BHP Billiton.
● Refer the faults and analysis to the relevant department for rectification.
● In some limited circumstances, provide advice on preventative actions and solutions that may assist in reducing the fault incidence.

[20] The Respondent submitted that it was evident from the Applicant's high remuneration, seniority and the nature of his representative and consultative role, that the Applicant was an employee excluded from award coverage and that the duties performed by the Applicant have traditionally not been covered by awards. They referred to s.143A(8) of the FW Act which provides that:

“(8) A modern enterprise award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards.”

[21] The Applicant says that he was employed as a technician and engineer and that his contract of employment expressly identified that role. He argues in a series of alternatives that either of four awards cover his employment.

[22] The approach the Applicant takes in this exercise is to identify the nature of the industry and then the nature of some parts of classification descriptions that he says are the types of duties he performed. For an award to cover a person the test is whether the person fits within a class of employees in an industry that his employer is engaged in that the award relates to. It is also clear from s.143A(8) of the FW Act that persons that have traditionally not been covered by awards; or who perform work that is not of a similar nature to work that has traditionally been regulated by such awards may not be covered by an award.

[23] The title of the Applicant may have been indicative of a classification covered by an award but the actual duties and role of the Applicant’s work indicate something different to the type of work that the awards related to. His duties were clearly defined in his contract and extended to what the Respondent evidenced. His primary role was not one of a technician but one of a consultant as a high level representative of the Respondent.

[24] In my view the primary role and purpose of the Applicant was not such that the Applicant was an employee covered by any of the awards or for that matter any other award.

[25] I find that the Applicant is not a person protected from unfair dismissal.

DEPUTY PRESIDENT

Final written submissions:

Applicant’s submission received 25 June 2013

Respondent’s submission received 25 June 2013

 1   [2012] FWAFB 7184

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541220>