James Davey v BHP Minerals Pty Ltd - [2022] FWC 3128

[2022] FWC 3128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Davey
v

BHP Minerals Pty Ltd

(U2022/8820)

DEPUTY PRESIDENT BEAUMONT

PERTH, 21 DECEMBER 2022

Application for an unfair dismissal remedy – jurisdictional objection – s 382(b) – whether earnings less than high income threshold, award covered, or enterprise agreement applied – Professional Employees Award did not cover – applicant protected – jurisdictional objection dismissed.

Introduction

Mr James Davey (the Applicant) applied for an unfair dismissal remedy on 30 August 2022.[1] BHP Minerals Pty Ltd (the Respondent), his former employer, objected to the application on the basis that he was not a person protected from unfair dismissal because he earned more than the high income threshold ($162,000) and he was not covered by a modern award (Professional Employees Award 2020[2]) or enterprise agreement.[3]

Whilst the Applicant initially pressed arguments that his annual rate of earnings and such other amounts (if any) were less than the high income threshold and he was covered by the Professional Employees Award 2020,[4] he dispensed of his latter argument before the hearing. It followed that by the time the matter came on for hearing, neither party suggested that the Applicant was covered by an enterprise agreement or modern award. Therefore, the question to be determined is whether the Applicant is prevented from being protected from unfair dismissal by virtue of s 382(b)(iii) of the Fair Work Act 2009 (Cth) (the Act).

It was not in dispute between the parties that the Applicant received the payments detailed in the Form F3, namely:

a)base salary of $128,870;
b)work allowance of $25,774;
c)education assistance of $18,140; and
d)superannuation payments above the superannuation guarantee of $4,510.

These amounts were more than what was provided in the Applicant’s employment contract. However, it was uncontroversial that at some point the Applicant had received a salary increase.

Whilst the parties agreed that for the purpose of s 332 of the Act the base salary formed part of the Applicant’s ‘earnings’, the parties remained in dispute about the other payments received.

For the reasons that follow, I have concluded that the Applicant earned less than the high income threshold. Therefore, the jurisdictional objection of the Respondent on the ground that the Applicant’s annual rate of earnings exceeded the high income threshold is dismissed and an Order[5] to that effect accompanies my decision.

Background

At the time of his dismissal, the Applicant was employed by the Respondent as an Engineer – Mining at the Jimblebar mine site in the Pilbara.[6] The Applicant worked in the Production Scheduling department.[7] It was uncontroversial that the Applicant performed his duties at the mine site.

The Applicant’s direct manager or line leader at the time of his dismissal was Mr Nicholas Butel.[8] Mr Butel managed a team of mining engineers in the Production Scheduling team at the Jimblebar mine.[9] The Applicant was one of those engineers. The key deliverables of the team were said to be mine production schedules…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading James Davey v BHP Minerals Pty Ltd

Details

AGLC: James Davey v BHP Minerals Pty Ltd [2022] FWC 3128
Case: [2022] FWC 3128
Decision Date: 21 DECEMBER 2022

CaseChat Overview and Summary

In James Davey v BHP Minerals Pty Ltd, the Fair Work Commission was required to determine whether the Applicant was protected from unfair dismissal under the Fair Work Act 2009 (Cth). The Respondent, BHP Minerals Pty Ltd, raised a jurisdictional objection that the Applicant was not protected from unfair dismissal because his annual rate of earnings exceeded the high income threshold of $162,000. The Applicant argued that his earnings were less than the threshold, as certain payments he received, such as education assistance, were not to be included in the calculation of his earnings. The Commission held that the Applicant's earnings, including his base salary, work allowance, and superannuation payments, amounted to $159,154. The Commission concluded that the education assistance did not form part of the Applicant's earnings because it could not be determined in advance and was therefore excluded from the calculation under s 332(2)(a) of the Act. As a result, the Commission dismissed the Respondent's jurisdictional objection and found that the Applicant was protected from unfair dismissal. An Order will issue with this decision, and further directions will be provided in respect of the Applicant's application.

Orders