James Bradley v Navigator (Bronzewing) Pty Ltd

[2013] FWC 1838

[2013] FWC 1838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Bradley
v
Navigator (Bronzewing) Pty Ltd
(U2011/11389)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 MARCH 2013

Unfair dismissal - jurisdictional objection high income threshold - application dismissed.

Background

[1] Mr James Bradley (the Applicant) made an application for an Unfair Dismissal Remedy (the Application) from his employment with Navigator (Bronzewing) Pty Ltd (the Respondent).

[2] The Respondent lodged an Employer’s Response and raised a jurisdictional objection asserting that the Applicant's annual rate of earnings was above the high income threshold and was not covered by a modern award and an enterprise agreement did not apply to him. The Respondent therefore asserted that the Applicant was not a person who was protected from unfair dismissal at the time he was dismissed. It is not in dispute that earnings of the applicant were above the high income threshold.

[3] The Applicant disputed that he was not a person protected from unfair dismissal asserting that the Navigator Resources Enterprise Agreement 2010 1 (the Agreement) applied to him in relation to his employment by the Respondent.

[4] The Applicant asserts that he was either a mining industry services employee as defined in the Agreement or alternatively a mining industry surface-mining or haulage employee. The Applicant also argued that if he was wrong about the agreement applying to the Applicant that an Award will have covered him.

[5] The Respondent argued that the Applicant was a mining shift supervisor and therefore the Agreement did not apply to him. They also argue that an Award did not cover him

[6] This decision therefore deals with the initial matter of whether the Applicant was a person protected from unfair dismissal.

Evidence and Submissions

[7] The Applicant was initially employed as a Dozer Operator at the Bronzewing Gold Project (the Project). In August 2010, the Applicant was offered and he accepted what was described as a "New Appointment" to the position of Mining Shift Supervisor. The duties were outlined in the terms of Primary Duties in a letter of appointment on 6 August 2010 in the following terms:

“ Operate the dozer fleet in accordance with mining and operational schedules.

Undertake pre-start checks prior to every shift and ensure all defects and hazards are reported to the Mining Shift Supervisor.

• Monitor and make adjustments to operating variables and equipment to maintain optimum output.



• Monitor and record all relevant data on the shift log sheets as appropriate.”

[8] The position reported to the Mine Superintendant. Persons that reported directly to the Mine Shift Supervisor were the Operators of Dozers, Graders, Watercarts and Dump Truck Operators. The specific Duties and Responsibilities were outlined but basically involved the organisation and the operations of and overseeing the functioning and performance of a Mining Crew.

[9] The Applicant evidenced that there were three crews in two pits at the project and three supervisors including him, in each pit. The Applicant immediately prior to his dismissal worked on the smaller of the…