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 two pits and had a crew of a digger operator, three truckies, a dozer operator, grader operator and water truck operator working under him.

[10] There were two mine superintendants with one working at any given time. The Mine Superintendants reported to the Mine Manager who reported to the General Manager who in turn reported to the Chief Operating Officer.

[11] The Applicant says that he was working on the smaller of the two operating pits at the time of his dismissal with the expectation or promise that he would be a supervisor in the bigger pit but that this did not eventuate.

[12] The Applicant says that the title of “Mining Shift Supervisor“ was not an interchangeable title with “Leading Hand” but that the duties were. He says that the duties were the same but that a Mining Shift Supervisor was considered to be a higher ranking employee.

[13] The Applicant says that “there were many occasions” when he “performed duties other than supervision”. Some examples he gave were when there were not enough people to start the shift he would get on a bulldozer and occasionally he would operate the water truck. This could involve performing those duties for up to six hours a day. This could occur for 3 or 4 days on a week but there were other weeks when he would not work on the machines at all.

[14] There were also occasions where the applicant would “hot seat’ an excavator operator, meaning that he would operate that plant whilst the usual operator had a break. This happened two or three times a week whilst he was Mining Shift Supervisor.

[15] The applicant further stated that as Mining Shift Supervisor he performed these types of duties when there were personnel shortages or for lunch breaks.

[16] The Applicant described his duties as:

“(a) to coordinate and communicate between the Mine Superintendent and the crew;

(b) to attend a pre-start meeting with the crew each day;

(c) to drive around during the day and look at where everyone was working to make sure they were digging in the right places;

(d) to complete paperwork at the end of each day, including keeping the start and finish times for all members of the crew, and to drop the paperwork off at the mine office or give it to the Mine Superintendent depending on the shift I worked; and

(e) to make sure that nobody was breaching any safety rules.”

[17] He also says that he received little or no supervision form the Mine Superintendent when he was doing his day to day tasks.

[18] Mr Olorenshaw, the Mine Superintendent at the project gave evidence. He outlined the history of operations and explained that when the mining operations first commenced there was one pit namely, the central pit. There were no Leading Hand Operators at that time. When operations commenced at Success Pit (in May 2010) Leading Hand Operators were appointed, which included the Applicant.

[19] He explained that the roles of Leading Hand Operator and Shift Supervisors are distinct. The primary role of the Supervisor is as the title describes, namely to supervise. They do not have equipment allocated to them that they are directly responsible to operate although they will, from time to time, operate the equipment themselves. Leading Hands do assist the supervisor but are very much under the direction of the supervisor.

[20] Shift Supervisors report to the Mine Superintendant but leading hands do not. Shift Supervisors attend a shift meeting at the start of shift to discuss the mining plan for that shift, leading hands do not. The Applicant described this as “getting a heads up” on the work plans for that shift and the blasting schedule. He also explained that once or twice a week the Mine Superintendant would stay for the Supervisors pre-start meeting with operators once or twice a week if there was any problem.

[21] Shift Supervisors attend an end of shift meeting with the Mine Superintendent, leading hands do not. Shift Supervisors are allocated a four wheel drive light vehicle to oversee safety inspections in the pit, leading hands do not have a vehicle allocated. The Applicant also evidenced that he completed his paperwork in that vehicle.

[22] Mr Olerenshaw says that the roles were not as clear-cut in the Success or Challenger Pits as they were remote and availability at the time caused a less clear delineation of roles.

The Agreement

[23] The Agreement was approved on 27 April 2010 and has a nominal expiry date of 4 May 2014. The Agreement applies "to all employees of the Company engaged to work in the classifications detailed in Schedule 1 - Rates of Pay." 2

[24] Schedule 1 provides a list of employee Classifications and Descriptions of the work performed in each of those classifications. The classifications range from Entry/Introductory and Level 1 to a Classification Level 7.

[25] Each of the Classification Levels identifies the skill requirements for that level and the classification groups from the relevant award to which the level applies.

[26] Levels 1 and 2 refer to probationary and introductory types of work. Clearly, the Applicant did not fall within those categories.

[27] Levels 6 and 7 refer solely to mining maintenance employees. Level 5 refers to Mining Industry Underground Mining Employees and Mining Industry Maintenance employees. It seems clear enough to me that the Applicant would not fit within the classification descriptions for levels 5, 6 or 7 as he was not involved in maintenance of the type that those Levels refer to, and neither was he working in an underground mine.

[28] Level 4 provides that:

“An employee at this level will have met the requirements for Level 3 and been assessed as being competent to perform tasks which require in depth skill or knowledge, or the employee is assessed as having the integration of a broad range of skills. The work may be of a non-routine nature requiring the application of the relevant skills and knowledge to new but predictable situations.

The level of skills or knowledge required to perform this work will involve the completion of a post trade training appropriate for this level, or through the acquisition of practical skills and knowledge which has equipped the employee with the equivalent level of skills and knowledge.

An employee at this level will provide guidance and assistance to others.

This level applies to the following classification groups:

Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.”

[29] Level 3 provides that:

“An employee at this level will have been assessed as being competent to apply skills and knowledge in complex but routine situations where discretion and judgment are involved. The skills and knowledge are acquired through the completion of a trade certificate, or through practical experience, which has equipped the employee with an equivalent level of skills and knowledge.

An employee at this level can plan tasks, select equipment and appropriate procedures from known alternatives and takes responsibility for the work of others. An employee at this level requires only limited supervision or guidance.

An employee at this level: understands and applies quality control techniques; exercises discretion within the scope of this level; performs work under limited supervision; operates all equipment incidental to the work; and assists in the provision of on-the-job training.

This level applies to the following classification groups:

Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.

[30] The Respondent asserts that the Agreement does not cover Supervisors but rather applies to the actual operators of the various types of equipment and to the maintenance employees who are generally trades qualified.

[31] The Respondent also relies on the history of application of industrial instruments in the metalliferous and gold mining industries and that supervisors have not been award or agreement covered. This is in contrast to the coal mining industry where supervisors have had a history of coverage.

[32] It is clear that the Applicant does have the capacity to perform the functions as described in the classification levels in the Agreement. In a sense and on a literal use of the words of the agreement one might say that the Agreement then covers the Applicant. But it would also mean that it would cover the Mine Superintendents, Mine Supervisors and probably the Registered Mine Manager whether he or she was the Mine Superintendent or not as those persons would likely to have the skills to perform the duties in classifications described in Schedule 1.

[33] It is also clear that the Agreement is intended to apply to persons who were actually performing the tasks described as distinct from being capable of performing those tasks.

[34] There is little doubt the Applicant is capable of performing tasks in Levels 3 and probably 4 but that is insufficient in my view. In my view, the Agreement is structured on the basis of it applying to a person who performs the relevant tasks and that those tasks are the major and substantial nature and purpose of their employment.

[35] Here the Applicant was a supervisor and manager of others. The principal purpose of his role was one of supervising others in their performance of their tasks. Even on his own evidence, it was clear that he had substantial supervisory responsibilities and that the primary purpose of his duties and responsibilities was to ensure that the work was performed by others under his responsibility and direction. Additionally, he oversaw and allocated work. He also performed at certain times substantial work that was operators work, but that in itself would not classify his employment as an operator. Nor was he in my view a leading hand. Mr Olerenshaw explained the nature of the operations and responsibilities and it was clear from both his evidence, and that of the Applicant, that the Applicant was substantially more than a leading hand. The classifications in Schedule 1 do not extend to the supervisory duties of the nature that the Applicant was performing.

[36] I therefore do not consider that the agreement either covers or applies to the Applicant

The Award

[37] The Mining Industry Awardcovers employers throughout Australia who are engaged in the mining industry in respect of work by their employees. In a classification in this award, their employees would be engaged in the classifications listed in clause 13 (Classifications and minimum wage rates) to the exclusion of any other modern award.

[38] The Classification Groups for the Award relevant here are Mining Industry Surface Mining and Haulage Employees. They are described as

“A Mining Industry Surface Mining and Haulage Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: open cut mining activities (including labouring, sampling, spotting); operating all forms of mining industry plant and equipment (including mobile plant); operating equipment used in the transportation handling and loading (or discharge) of ores, metals, minerals and/or product (including rail activities); and all tasks associated with drilling and blasting.”

[39] The classification levels are then similar to those in the Agreement. Whilst the levels describe skills in terms of competencies to apply the skills acquired, it is clear to me that it is in the context of those skills not just being acquired and capable of being used, but actually being used within the relevant classification level, that is the relevant issue. Importantly, the levels do not extend to the supervisory levels of the nature that the Applicant was performing.

[40] I therefore do not consider that the Mining Industry Award either covered, nor applied to the Applicant immediately prior to his dismissal.

[41] I therefore find that the Applicant was not a person protected from unfair dismissal and accordingly his application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Howlett for the Applicant

Mr A Cameron for the Respondent

 1   AE877483 (AG2010/6351)

 2   Clause 2.1

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