Glenn Miller v WesTrac Pty Ltd

[2014] FWC 9310

[2014] FWC 9310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Miller
v
WesTrac Pty Ltd
(U2014/12725)

COMMISSIONER WILLIAMS PERTH, 23 DECEMBER 2014

Termination of employment - high income threshold.

[1] Mr Glenn Miller (Mr Miller or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is WesTrac Pty Ltd (the respondent).

[2] The respondent has moved for the dismissal of the application on the basis that the applicant’s annual rate of earnings was above the current high income threshold of $133 000 applicable from 1 July 2014 and the applicant’s employment was not covered by a modern award nor did any agreement apply to him.

[3] The relevant section of the Act is set out below:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(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.”

[4] Submissions have been provided by both parties regarding the issues set out in section 382 of the Act.

Consideration

[5] From the information provided I am satisfied that the sum of the applicant’s annual rate of earnings specified in his contract which was signed by him on 28 March 2012 was $131 167.81 excluding superannuation. This amount was increased by 3% from 31 December 2012 and so was above the high income threshold of $133 000 per annum at the time of his dismissal. This is not contested by the applicant.

[6] The respondent’s offer of employment to the applicant dated 27 March 2012 and his contract of employment show he was employed as a MineStar Support Representative in the respondent’s Corporate Services Division within their Technology Department.

[7] In this role the applicant was responsible for providing support and technical advice to the respondent’s clients that have MineStar technology installed in their Caterpillar mining equipment.

[8] The respondent submits that the applicant’s employment was not covered by a modern award nor an enterprise agreement.

[9] Having reviewed the Commission’s modern awards I am satisfied that there is no award that covers the applicant’s employment.

[10] The applicant argues that the WesTrac Pty Ltd (Western Australian Service Operations Enterprise Agreement 2013 [AE403134] (the Agreement) applies to him in relation to his employment.

[11] The employees covered by the Agreement, according to clause 4−Coverage of the Agreement and the definition of “Employees” in clause 3−Definitions, are employees who are covered by the classifications in Annexure A or Annexure C of the Agreement.

[12] The classifications in Annexure A and Annexure C are apprentices, trainees, crane drivers, trades persons, service persons, calibrations officers, track press operators, forklift and truck drivers, maintenance and NDT technicians and tool store persons.

[13] Considering these classifications I am satisfied that none of these cover the applicant’s employment. Consequently I find that the Agreement did not apply to the applicant’s employment.

[14] In conclusion I am satisfied that there was no modern award that covered the applicant’s employment nor an enterprise agreement that applied to his employment. I am also satisfied that the sum of the applicant’s annual rate of earnings was more than the high income threshold. As a result of this the applicant was not protected from unfair dismissal and so is not able to make this application.

[15] This application will be dismissed and an order to that effect will now be issued.

COMMISSIONER

Final written submissions:

Respondent, 5 November 2014.

Applicant, 17 November 2014.

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