Justin Lloyd v AME Mineral Economics Pty Ltd

[2018] FWC 5808

[2018] FWC 5808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Lloyd
v
AME Mineral Economics Pty Ltd
(U2018/4697)

DEPUTY PRESIDENT DEAN SYDNEY, 1 NOVEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – award coverage – whether a modern award covers the applicant.

[1] On 4 May 2018, Mr Justin Lloyd made an application under s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by AME Mineral Economics Pty Ltd (AME).

[2] In its response AME raised a jurisdictional objection which arises from s.382 of the Act, and which sets out the criteria for determining whether a person is protected from unfair dismissal. The section provides:

“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.”

[3] AME contends that Mr Lloyd’s employment was not covered by a modern award or an enterprise agreement and that his annual rate of earnings exceeded the high income threshold.

[4] It is common ground that Mr Lloyd completed the minimum employment period, having been employed with AME from August 2016 until his dismissal on 13 April 2018.

[5] The high income threshold prescribed by Reg 2.13 of the Fair Work Regulations 2009 at the relevant time is $142,000. Mr Lloyd does not dispute that his income ($175,000) exceeded the prescribed high income threshold and that no enterprise agreement covered his employment, but claims that his employment with AME was covered by the Professional Employees Award 2010 (the Award).

[6] The issue for determination is then whether Mr Lloyd was covered by a modern award for the purposes of s.382(b)(i) of the Act.

[7] A hearing to determine the jurisdictional objection was held on 18 September 2018. At the hearing, Mr Lloyd was represented by Ms S Schreier-Joffe and AME by Mr J Mattson. Both parties were granted permission pursuant to s.596 of the Act to be represented.

Issue for determination - Award Coverage

[8] Section 48 of the Act sets out when a modern award applies and relevantly states:

“When a modern award covers an employer, employee, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity”.

[9] The coverage clause of the Award relevantly provides:

“4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees

4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”

[10] Mr Lloyd asserts that he performed professional engineering duties which fell within a classification (Level 4-Professional) in the Award and was therefore a person covered by the Award within the meaning of clause 4.1.

[11] The term ‘professional engineering duties’ in clause 4.1 is defined by clause 3.2 of the Award as follows:

“professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia”

[12] The evidence demonstrates that Mr Lloyd is a person who has qualifications equal to those of a graduate member of Engineers Australia for the purposes of clause 3.2 of the Award.

[13] The description for Level 4-Professional classification reads as follows:

“B.1.11 Level 4—Professional

(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

(b) An employee at this level:

(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;

(ii) gives technical advice to management and operating departments;

(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;

(iv) coordinates work programs; and

(v) directs or advises on the use of equipment and materials.

(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.

(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.

(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.”

[14] For Mr Lloyd to be covered by the Award, I am required to consider whether he performed work within the scope of Level 4 – Professional classification, and whether such work was the principal purpose for which he was employed.

Evidence and Submissions

[15] I have had regard to all of the evidence and submissions provided, and authorities cited, by both parties. The matters set out below are confined to the issues I need to determine.

AME

[16] Mr Browne gave sworn evidence and submitted an affidavit for these proceedings. He is the Chairman and Managing Director of AME.

[17] Mr Browne agreed that Mr Lloyd was initially engaged as a Senior Processing Engineer until he was promoted in February 2017 to Head of Technical Services. An email of 21 February 2017 which he sent to Mr Lloyd reads as follows:

“I am really delighted to appoint you formally as the Head of Technical Services. It is a very interesting role as the Interface between physical end software engineering.

- This is a senior Management role.

- The reporting line is to me.

- Your team compromises of Laurence, Alex, Matt and Tom plus eventually Daniel. This is a really excellent group of guys.

- The key initial role is to implement EVO.

…”

[18] Mr Browne said that Mr Lloyd’s role as the Head of Technical Services was a senior management role which required him to manage the Technical Services team and maintain the interface between the engineering models and the software engineering system that the analysts use to report financial and engineering information for site reviews.

[19] Mr Browne said in his affidavit that the role required a maximum of 50% professional engineering work and 50% management of the staff that reported to him. He said that throughout 2017 there were a number of individuals added to the team and this meant that Mr Lloyd required a greater component of managerial focus and delegation of professional engineering work, rather than conducting that work himself.

[20] In October 2017 Mr Lloyd was appointed as the Head of Research. There was no position description but the aspects of this role were described by Mr Browne in his email to Mr Lloyd as follows:

“… You are now on the side of the angels, which means managing, steering and deciding for a large group of very clever and skilled professionals. …We are the guardians of the company strategy.

It’s a challenging role and takes real strength, please think out the issue before meeting your colleagues and THEN develop calm conflict management skills to drive the performance targets.”

[21] According to Mr Browne, this new role was sometimes referred to as the Head of Research & Technical Services, as it incorporated Mr Lloyd’s previous role. Mr Browne said the role required a broader strategic approach, managing projects at a high level, steering and making decisions for a large group of skilled professionals.

[22] Mr Browne said the following in relation to the role:

“The role required managing the KPIs of the team, performance managing other staff, delegating any engineering work to the researchers in the team, managing the research schedule, considering and approving requests for leave, delegating tasks to staff based on their expertise and to comply with research deadlines, managing any conflicts between staff, or issue with the system.

It required dealing with feedback, overseeing recruitment to ensure the team was fully staffed, and a weekly performance review of the team.

At the time, AME had no human resources staff, so all of these responsibilities fell on management. That also explains why there was no job description for any of these roles.

In essence, the role was responsible for managing the technical staff in Research to deliver projects, with some minor engineering responsibilities.

Mr Lloyd should only have been required to do engineering work himself on an occasional basis, for example, to cover absences.”

[23] Mr Browne relied on the LinkedIn profile of Mr Lloyd which lists his role of Head of Research position from November 2017 to April 2018, under the heading Experience, in the following terms:

“I continued to manage the technical services department but in addition, I also managed a team of 30 Research staff. The research team was responsible for gathering site, company and commodity information and writing reports relating to commodity prices forecasting and site cost benchmarking in the metals, mining, oil and gas industries.”

[24] Mr Browne did not dispute that Mr Lloyd had performed engineering duties but maintained that those were not the principal duties for which he was employed. He claimed that it was in fact because Mr Lloyd had spent too much time doing engineering work rather than delegating the work to other professionals that ultimately led to his dismissal.

[25] Mr Browne said that Mr Lloyd’s desire to spend significant time performing engineering responsibilities directed his attention away from his primary responsibilities and this caused him to send an email to Mr Lloyd on 6 March 2018 setting out the tasks that he should undertake as Head of Research. Relevantly, the email reads:

“First, you are not to do anything apart from setting the design brief (very hard thinking), setting the managers to do it, monitor the process, quality control and add wisdom as needed on about 20 separate projects – you must have a list of these projects in front of you. It’s no longer school.

Second, if you do the work yourself you are demoting yourself to Technical Services Manager. At some point you must let me know if this is a task you actually prefer ….

Remember do not do the work do the design thinking and tough pushing and monitoring. You can do this but the transition will be hard.”

[26] Mr Browne said that although the role of Head of Research required a background in engineering to understand the findings of the Research team, the vast majority of the engineering work should be done by the other members of the team. The Head of Research was mostly required to mentor and give guidance to the researchers, with the Head of Research being responsible for the work being delivered on time.

[27] On 27 March 2018, Mr Browne sent an email to Mr Lloyd in the following terms:

“A quick note to say I would like to move you to level three next to Alli so we can get the project development plan out ASAP.

Next I would like to put Tom W and Po next to Daniel Levy and Bill (Sanket and Sena moves to Tom’s old row).

You are the Head of Product Design – this is an important distinction. As it puts to focus on client products.

Our budget is limited due to some sales losses and your staff will need to be trimmed.

The key issues is that we have to build a template for Ajax and the EVO sheets you are working on.

I would like to plan with you how to deliver the cost studies ASAP.”

[28] Mr Browne in his oral evidence explained the basis for reassigning Mr Lloyd as ‘Head of Product Design’ as follows:

“There was quite a lot of change going on because there were many people in this area of research and technical services and they'd got a bit lost in terms of direction.  So product design, which is actually technical services, is essentially one component of the activity, so we are trying to regroup, get the structure working again and then start to come back and rebuild.  But no one quite knew what the priorities are, who was doing what to whom, what the work flow was, so it's a matter of trying to get the scheduling, and the scheduling is really driven by what is the product that we are trying to provide the client. … We're trying to work through the role to make it very clear, concise, we're trying to get to the point where all of the staff that were working in research at that time for Justin were clear about what they were doing and to do that we needed to make sure they knew what the products are they were trying to build.” 1

[29] Mr Browne stated that the role Mr Lloyd performed was essentially “Head of Technical Services, which is product development, product development/product design”. 2

[30] Mr Browne maintained that Mr Lloyd’s role did not require professional engineering qualifications and that the role was previously and presently not performed by an engineer. 3

[31] Despite Mr Browne stating in his affidavit that the role required some professional engineering work, his oral evidence was that Mr Lloyd was not required to perform any such duties. He said that Mr Lloyd was so keen on doing the engineering work that “it was very difficult to stop him focusing on the minutia of the job, as opposed to looking after so many people.” 4

[32] In cross examination, the following exchanges took place:

Ms Schreier-Joffe: I put it to you that and Mr Lloyd's evidence was that he was actually creating the models, putting them together and actually doing the work that you say is work done by engineers, and he was required to do that to complete the tasks you have set out in these emails?

Mr Browne: I accept that Lloyd was doing some of the engineering models.  Also it's vitally important that he didn't do any of the engineering models, which is why the staff were mismanaged, which is why we ended up being in this position. 5

[33] AME submitted that Mr Lloyd’s role was principally one of management and does not fall within the classifications listed in Schedule B to the Award. Further, the duties Mr Lloyd performed did not constitute the principal purpose of Mr Lloyd’s position with AME. It argued that Mr Lloyd’s opinion as to the requirements of the role was inconsistent with the contemporaneous documents, which indicated that Mr Lloyd was “on the side of the angels, which means managing, steering and deciding for a large group of very clever and skilled professionals’ and that he was not to “focus on single issues”, but instead to be one of “the guardians of the company strategy”. 6

[34] It was submitted that Mr Lloyd’s role was to manage the teams which are responsible for the professional engineering work. AME asserted that it was because Mr Lloyd spent too much of his time doing engineering work that he failed to perform the requisite managerial aspects of the role for which he was employed and this ultimately led to his dismissal.

[35] AME submitted that any change to Mr Lloyd’s duties toward the end of his employment were an attempt to preserve the team due to his failure to perform his managerial responsibilities and were part of the performance management which preceded his dismissal. Mr Lloyd’s salary did not change between November 2017 and when his employment ended on 13 April 2018.

Mr Lloyd

[36] Mr Lloyd said that throughout his employment with AME he was not provided with a formal written job description. The position he applied for was advertised as being required to build engineering models for the base and precious metal industry.

[37] Mr Lloyd’s evidence was that when he was promoted to the Head of Technical Services he supervised a team up to 10 engineers, 5 geologists and scientists and 2 non-technical team members.

[38] Mr Lloyd said that his duties as the Head of Technical Services included building and debugging engineering models for EVO (a database system), rectifying client and research software issues, developing new software product design, training, mentoring and supervising other engineers to build and eventually merge the EVO system with another system, known as AJAX. Mr Lloyd said that about 70% of this work required him to apply knowledge from his chemical engineering qualification in order to adequately discharge his duties.

[39] According to Mr Lloyd, from the end of June to November 2017, he was tasked with additional projects and more than 50% of his duties during this time required him to apply chemical engineering concepts.

[40] When he was promoted to the position of Head of Research, he was required to manage and supervise 20 engineers, 11 geologists and scientists and 3 accountants. Mr Lloyd said that his duties further expanded in November 2018 and the majority of his work during this period consisted of professional engineering duties.

[41] Mr Lloyd said that from around February 2018 Mr Browne commenced restructuring and changed the direction of the company in order to concentrate on product development. Mr Browne asked Ms McCutcheon, a Mining Engineer, to assist him with the research managerial tasks so that he was tasked to focus on the product development work. His managerial responsibilities were further reduced following the appointment of Mr Levy, who previously reported to him, as Oil and Gas Manager.

[42] Mr Lloyd said that although he raised his concerns with Mr Browne that he might not be the appropriate person for the Head of Product Design role, Mr Browne told him that the role was critical to the business. The sole focus of his duties shifted towards new product development and planning, which included the design and testing of systems such as:

a. Stairway to Heaven, a non-engineering system or a planning chart for work in Excel;

b. EVO pricing and underground models;

c. Company database; and

d. Print Matrix.

[43] Mr Lloyd asserted that from early 2018 until his employment ended, the work he performed consisted of 90% engineering duties through the development of new products for the commodities industry, which required him to exercise his engineering skills and knowledge.

[44] Mr Lloyd accepted that he was required to undertake administrative and managerial functions such as resolving client and staffing issues but argued that this aspect of his role was ancillary to his engineering duties. Mr Lloyd did not regard himself as being in the executive team. Mr Lloyd said Mr Browne was the decision maker in the business in respect of all matters and the extent of his management duties at all times was with respect to the team of people he managed and in particular the Technical Services Team.

[45] In cross examination, Mr Lloyd agreed that he could delegate work to his team 7 and that his LinkedIn page stated that he managed a team of 30 research staff.8

[46] Mr Lloyd accepted that Mr Browne wanted him to manage the individuals in the business units that he was at the head of and provide them with strategic direction. 9 He agreed that he had a large group of very clever and skilled professionals that would do the work.10

[47] Mr Lloyd was asked if he was required to have management and leadership skills in his role and said “No, I wouldn't say that was the case because Shaun [Browne] was aware that I was a chemical engineer, I had no previous managerial experience, no leadership experience … I understood this email to be an expectation of what I would become in this role.” 11

[48] However, he later said: “I realised in the role, subsequent to getting the role, that I required management and leadership skills.” 12

[49] Mr Lloyd further agreed that Mr Browne wanted him to be the head of a number of different teams and provide strategic direction and leadership. 13

[50] Mr Lloyd denied it was his preference to do the technical work. He said: “Shaun [Browne] set the requirements that I complete projects and I deliver research material. I basically decided, based on the resources I had available and I didn’t have a lot of resources and there was a lot of work to do. I then delegated the work, and where possible, I got stuck in as well, to ensure that the work was completed. 14

[51] When asked if he understood his role was to provide strategic direction and leadership, Mr Lloyd said: “I couldn’t provide strategic direction. I didn’t have the skills, I didn’t have all the necessary information. The leadership, I could – I would lead them in the projects in the sense that I would drive the projects, so if they faced issues, I would push it through. My understanding was really that basically there were requirements, so there was certain projects we needed to deliver and there was certain research material. I had resources available to me to ensure that those materials were produced. That included myself as well, getting involved and making sure that it gets done.” 15

[52] He agreed that Mr Browne wanted him to perform more of a managerial role and emphasised that on a number of occasions. 16

[53] Ms Schreier-Joffe contended that there was inconsistency in Mr Browne’s affidavit and oral evidence as to whether Mr Lloyd’s role required any engineering duties and submitted that Mr Lloyd’s evidence should therefore be preferred.

[54] It was submitted on behalf of Mr Lloyd that, at the time his employment came to an end, Mr Lloyd was appointed as the Head of Product Development and in this role he did not perform any managerial tasks. It was further submitted that given his managerial responsibilities were removed, Mr Lloyd’s employment at the time became fell within level 3 of the Award.

[55] In essence, it was submitted that throughout the entirety of Mr Lloyd’s employment with AME, he was required to perform professional engineering duties which were directly related to and required the use of his engineering qualification and he was covered by the classifications in Schedule B of the Award.

Consideration

[56] In Carpenter v Corona Manufacturing Pty Ltd 17, a full bench of the then Australian Industrial Relations Commission provided guidance on the correct approach in determining whether a particular award applies to an employee: 

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. …”

[57] There are a number of factors which may be taken into account in undertaking a principal purpose assessment, none of which are singularly determinative. In an analogous matter, Tucker v Digital Diagnostic Imaging 18, the Commission opined that factors relevant to determining whether the duties of the applicant in that case aligned to the description provided in the Award for the Level 4-Professional classification included:

“•  the contents of any job description, person specification or job advertisement

•  the level of remuneration assessed against award levels of remuneration and also considered in the context of remuneration levels within the employing organisation

•  the actual time occupied in different duties (a substantive role/function analysis)

•  the status and level of the position occupied within the organisational structure

•  possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed

•  the exercise of authority and direction over others including in particular, the extent of such authority

•  the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose

•  the level of decision-making capacity in the context of the employing organisation’s overall operation

•  the nature and extent of any role as representative of the employing organisation to third parties”. 19

[58] These factors will be considered in turn below.

Contents of Job Description

[59] There was no position description provided to Mr Lloyd. The evidence and submissions from the parties depicted different aspects of Mr Lloyd’s role and responsibilities.

[60] Mr Lloyd did not dispute that Mr Browne required him to be “a manager and leader driving, leading and guiding a large group of clever and skilled professionals to deliver the engineering work” but said that this “might have been his expectation, but that was not the reality of the role”. 20

[61] Having considered the evidence and submissions, I am satisfied that Mr Lloyd, from his promotion as the Head of Technical Services, was engaged to perform a senior managerial role. This was evidenced by the written communications between the parties.

[62] Mr Browne did not want Mr Lloyd to perform engineering work and this was specifically raised in his email to Mr Lloyd on 6 March 2018 where he said:

“… if you do the work yourself you are demoting yourself to Technical Services Manager. At some point you must let me know if this is a task you actually prefer … Remember do not do the work do the design thinking and tough pushing and monitoring.” 21

Remuneration

[63] Mr Lloyd’s base salary at the relevant time was $175,000. Clause 15 of the Award sets out the minimum annual wage payable to full-time employees in accordance with the classifications defined in Schedule B. Relevantly, the minimum wage payable to a Level 4-Professional is $72,704. This is significantly lower than Mr Lloyd’s annual income.

[64] The fact that an employee may earn more than the Award provides does not itself preclude the operation of the Award. 22 However, Mr Lloyd’s salary had been substantially increased since his promotion, which indicated the expectation of a higher level of responsibilities.

Time spent performing different duties

[65] Mr Lloyd set out in great detail the list of duties he performed in his role at various times during his employment with AME.

[66] In my view there is little doubt that Mr Lloyd had performed engineering work and in doing so he relied on his engineering qualifications. This was not disputed by AME. However, I am not satisfied that those duties were those he was engaged to perform as the Head of Technical Services.

[67] In McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting 23, a Full Bench of the Commission held:

“… in an own employee’s estimation of the quantification of their workload is not determinative of the classification, if any, in an award, into which they might fall. One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform. This is why the Full Bench articulated the task of ascertaining the principal purpose of the employment as requiring “an examination of the nature of the work [...] the employee is employed to do”. 24

[68] The evidence demonstrates that Mr Browne had asked Mr Lloyd not to do the engineering work and to concentrate on “design thinking and tough pushing and monitoring”. This was consistent with Mr Lloyd’s evidence that he was tasked with the objectives of the business by Mr Browne, and needed to deliver these projects and products and would delegate and ensure that work was being undertaken. 25 Mr Lloyd agreed in cross examination that he had a large group of skilled professionals under him and he could delegate work to them.26

[69] I accept the criticisms from Ms Schreier-Joffe of the inconsistency of Mr Browne’s evidence with respect to the requirements of Mr Lloyd to perform engineering work. In my view, Mr Browne downplayed such requirements in his oral evidence when he claimed that Mr Lloyd was not required to perform any such work. To the extent of inconsistency, I prefer Mr Browne’s earlier statement that Mr Lloyd’s role required a background in engineering but the majority of the engineering work should be done by members of his team. I am satisfied, on balance, that Mr Lloyd’s role and responsibilities were above and beyond the work which he was expected to delegate to his team of professionals.

Status/level of position

[70] On the material and evidence before me, I am satisfied that Mr Lloyd held a senior managerial position with AME, reporting directly to the Managing Director.

[71] Mr Lloyd did not dispute the expectation Mr Browne placed on him was to “set strategic vision, monitor the process, quality control and add wisdom”. He simply said he lacked the experience and training to fulfil those responsibilities.

Qualifications

[72] Mr Lloyd possessed tertiary qualifications and was eligible to become a member of Engineers Australia, consistent with the Award definition of ‘professional engineer’.

[73] Mr Lloyd accepted that his role required management and leaderships skills but said that he did not realise until after taking up the role. Mr Lloyd said that Mr Browne was aware that he had no previous managerial and leadership experience.

Authority and direction over others

[74] Mr Lloyd agreed in cross examination that he had managers reporting to him and those managers in turn had employees under them. 27 He also agreed that he was responsible for managing the business units that he was the Head of and providing them with strategic direction.28

[75] Mr Lloyd did not dispute that he stated in his LinkedIn profile that he managed a team of 30 research staff. 29

[76] I accept Mr Browne’s evidence as to Mr Lloyd’s authority to ‘hire and fire’. 30 It is consistent with the senior level of the role that being the Head of a team of professionals Mr Lloyd had authority and direction over the individuals in his teams.

Importance/relevance of role

[77] Mr Lloyd was clearly in a senior role. He reported directly to the Managing Director and was expected to perform senior management functions within the organisation.

[78] Mr Lloyd arguably may not have been a suitable person for the role given his own admission of lack of management and leadership skills. However, this was the role he was offered and accepted.

[79] I accept Mr Browne’s evidence in relation to the circumstances in which Mr Lloyd was asked to perform different duties towards the end of his employment (from 27 March 2018) and was given a new title (Head of Product Design). The fact that there was no indication of a demotion, and Mr Lloyd was not told that he was no longer in the management team and he continued to receive the same remuneration, lead to the conclusion that he remained at the same level of seniority within the company.

Decision making capacity

[80] Mr Lloyd argued that he had no decision making role as all decisions were made by Mr Browne, the Managing Director.

[81] Despite Mr Lloyd’s contention, I am satisfied, on balance, that given his seniority he had the authority to make decisions even though he may not have exercised such authority.

Role as representative of Respondent

[82] On the material before me I am satisfied that Mr Lloyd’s role was a senior managerial position within AME’s business and represented a key role of the company.

Findings and Conclusion

[83] Having considered the various factors above, I am satisfied that the principal purpose of Mr Lloyd’s position was a senior leadership role, and was not to perform the duties of the nature described in Level 4 (or any other level) of the Award.

[84] The evidence leads me to the conclusion that Mr Lloyd’s role at the time of his dismissal was one of senior management, with his team members being responsible for the professional engineering work, and not himself. His role required him to exercise a significantly higher level of authority and direction over and above other persons in the Level 4 classification under the Award.

[85] Accordingly, I find that Mr Lloyd’s employment with AME was not covered by the Award for the purpose of s.382(b)(i) of the Act and he is therefore not a person protected from unfair dismissal. As a result, I uphold AME’s jurisdictional objection and dismiss Mr Lloyd’s application.

[86] An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S Schreier-Joffe for the applicant.

J Mattson forAME Mineral Economics Pty Ltd.

Hearing details:

2018.

Sydney:

September 18.

Printed by authority of the Commonwealth Government Printer

<PR700419>

 1   Transcript PN365-366.

 2   Transcript PN378.

 3   Transcript PN358, 412 and 517.

 4   Transcript PN426.

 5   Transcript PN519.

 6   See Attachment SB-3 to Exhibit 5.

 7   Transcript PN110.

 8   Transcript PN114.

 9   Transcript PN125-126.

 10   Transcript PN130.

 11   Transcript PN138.

 12   Transcript PN141.

 13   Transcript PN213.

 14   Transcript PN215

 15   Transcript PN216.

 16   Transcript PN217-219.

 17 (2002) 122 IR 387 at [9].

 18   [2011] FWA 1767.

 19 Ibid at [22].

 20   Transcript PN134.

 21   Attachment SB-3 to Exhibit 5.

 22   Brand v APIR Systems Limited. [2003] AIRC 1161.

 23   [2012] FWAFB 7184.

 24 Ibid at [37].

 25   Transcript PN131.

 26   Transcript PN99 and 130.

 27   Transcript PN142-143.

 28   Transcript PN125.

 29   Transcript PN114.

 30   Transcript PN362.