Gregory Tapp v Evolution Mining
[2015] FWC 1738
•13 MARCH 2015
| [2015] FWC 1738 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory Tapp
v
Evolution Mining
(U2014/15706)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 13 MARCH 2015 |
Application for relief from unfair dismissal.
[1] Mr Gregory Tapp alleged that the termination of his employment by Evolution Mining was unfair.
[2] Edna May Operations Pty Ltd filed an employer response. It objected to Mr Tapp’s application on the basis that he earned more than the high income threshold. It also contended that it, rather than Evolution Mining, was Mr Tapp’s employer.
[3] Mr Tapp was employed as a Mine Operations Supervisor. In September 2014, Mr Tapp, in addition to those duties, took on the responsibilities of the Quarry Manager for which he was paid an additional $10,000 per annum. Mr Tapp accepted that the role description for the Mine Operations Supervisor position accurately reflected his job.
[4] While there was a dispute about what Mr Tapp’s earnings were, Mr Tapp gave evidence that at the date of his dismissal his base salary was $133,097 per annum. Given that admission, it is not necessary for me to determine if the disputed allowances should be included in the calculation of Mr Tapp’s earnings.
[5] Unless Mr Tapp’s employment was covered by a modern award or an enterprise agreement, he is not protected from unfair dismissal.
[6] In those circumstances, the questions to be answered are:
1. Was Mr Tapp’s employment covered by the Mining Industry Award 2010? 1[7] 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.
[8] There is no dispute that Edna May is engaged in the mining industry.
[9] 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.
[10] Schedule B contains five subgroups and within each subgroup there are seven levels. Edna May submitted that the classification structure applies to operators and maintenance workers, not supervisors.
[11] Employees classified at level 4 Advanced and level 5 Advanced Specialist are required to “provide guidance and assistance to others.” 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
[12] 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
[13] It is clear from the role description that the principal purpose of Mr Tapp’s position was to supervise others. I therefore find that Mr Tapp’s position was not covered by the Mining Industry Award 2010.
2. Was Mr Tapp’s employment covered by the Evolution Mining - Edna May Operations - Enterprise Agreement?
[14] That enterprise agreement applies to all employees engaged in the positions detailed in Appendix A of the Agreement.
[15] Appendix A provides for the following:
Classifications and Minimum Salaries
Level | Classification | Description | Minimum Salary |
Level1 | Basic | New starters Process Technicians, Mine Technicians and Support Technicians (non trade) | $50,000- |
Level2 | Intermediate | Process Technicians, Mine Technicians and Support Technicians competent in parts of operation | $53,000- |
Level3 | Competent | Experienced and fully skilled Process Technician, Mine Technician or Support Technician | $55,000- |
Level4 | Advanced | Base level Tradesperson and top level Process Technician, Mine Technician or Support Technician who are appointed as such | $56,000- |
Level5 | Advanced Specialist | Experienced and skilled tradesperson or person with advanced specialist skills | $58,000- |
Definitions
Process Technician | Includes but is not limited to Metallurgical Technician, Control Room, Gold Room |
Mine Technician | Includes but is not limited to Mining Technicians (including Truck driver, Shovel Operator, Excavator operator, Loader Operator, Dozer operator, De Watering) Drill and Blast Operator, Geology Technician, Survey Technician, Shot firer, Driller, Drillers Offsider, Nipper, Charge Up Operator, Shotcrete sprayer, Winder Driver, Long hole driller, Cable bolter, Jumbo Operator, Development Specialist, Production Specialist, Offsider, Labourer, General Hand |
Support Technician | Includes but is not limited to Laboratory Technicians, Warehouse Officer, Storeperson, Driver, Crane Driver, Rigger, Dogman, Scaffolder, Trades Assistant, Serviceperson, Clerk and Administrative Assistant |
Tradesperson | Includes but is not limited to tradesperson who has attained a trades certificate which is recognised in WA and which is required to be used in the role for which the Employee is engaged. |
[16] It was submitted that a Mine Operations Supervisor is not included in these classifications. No submissions were made to the contrary.
[17] While the classification structure is not well written, I am unable to conclude that Mr Tapp’s position is caught by level 5 of the Agreement. Mr Tapp’s position was clearly a supervisory position. There is nothing to suggest that the expression “a person with advanced specialist skills” was intended to capture supervisors. The qualifications for Mr Tapp’s position are as follows:
- Holds or has the capacity to hold a restricted quarry manager’s certificate
- Certificate IV in Frontline Management or equivalent
- Certificate IV in Training and Assessment.
[18] I do not consider that these are the qualifications of a tradesperson. Further, there is nothing in Mr Tapp’s position description that required him to have attained a trade certificate to be used in the role of Mine Operations Supervisor.
[19] I therefore conclude that Mr Tapp was not covered by the Agreement.
[20] Mr Tapp submitted that his contract of employment was a form of enterprise agreement. Mr Tapp’s contract of employment was dated 15 February 2010. This was a common law contract of employment and cannot be characterised as an enterprise agreement.
Conclusion
[21] On Mr Tapp’s own evidence he earned more than the high income threshold. His employment was not covered by an award or an enterprise agreement and as such he was not protected from unfair dismissal and his application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
J. Haywood for the Applicant.
B. Robinson for the Respondent.
Hearing details:
2015.
Melbourne and Perth, by video link.
12 March.
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.
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