Kieran Emery v Cape Australia Holdings Pty Ltd
[2014] FWC 1659
•12 MARCH 2014
[2014] FWC 1659 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kieran Emery
v
Cape Australia Holdings Pty Ltd
(U2013/15552)
COMMISSIONER WILLIAMS | PERTH, 12 MARCH 2014 |
Termination of employment - jurisdiction.
[1] This matter involves an application made by Mr Kieran Emery (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Cape Australia Holdings Pty Ltd (the respondent or Cape Australia).
[2] The matter was the subject of a conciliation conference before a Fair Work Commission conciliator however the matter was not resolved and has been referred to me for determination.
[3] The respondent objects to the application on the grounds that the applicant does not satisfy the requirements under section 382(b) of the Act specifically:
a) The applicant is not covered by a modern award;
b) An enterprise agreement does not apply to the applicant in relation to his employment with the respondent; and
c) The sum of his annual rate of earnings and such other relevant amounts is greater than the high income threshold.
[4] The parties were invited to provide written submission with any supporting evidence or materials and have done so.
The legislation
[5] The relevant section of the Act is set out below.
“382 When a person is protected from unfair dismissal
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.
Note: High income threshold indexed to $129,300 from 1 July 2013”
Submissions
The respondent
[6] In support of its objection the respondent makes the following submissions.
[7] The respondent provides multi-disciplinary industrial services within the construction and oil and gas industries. The multi-disciplinary services include access systems, insulation, refractory linings, painting, blasting and scaffolding throughout the lifecycle of industrial assets.
[8] The applicant was employed by the respondent as Lead Scaffolding and Rigging
Trainer and Assessor from 29 October 2012 to 22 October 2013.
[9] The terms and conditions of the applicant’s employment were set out in a common law contract between the applicant and the respondent dated 29 October 2012 (the contract).
[10] A copy of the contract signed by the applicant in November 2012 attached to a covering offer of employment letter dated 29 October 2012 was submitted by the respondent.
[11] The contract at point 7 says the base salary is $140 000 per annum.
[12] In his position as Lead Scaffolding and Rigging Trainer and Assessor, the applicant was expected to deliver workplace training in scaffolding, rigging and safety, conduct verification of competencies of new and existing employees and ensures the quality of Cape Australia’s training continues to be of the highest standard within the industry.
[13] The applicant’s day-to-day responsibilities included:
a) Coordinate and deliver workplace training and assessment in scaffolding, rigging and safety for employees;
b) Develop workplace training resource material including assessment tools for accredited and non-accredited training and assessment for employees;
c) Deliver Cape Australia’s general inductions and safety inductions which include “Cape’s Golden Rules”, Job Hazard Analysis and High Risk Verification of Competency;
d) Manage the up-skilling traineeship program; and
e) Ensure training resources are current and up to date.
[14] The relevant “industry” that an enterprise operates in is determined by asking “what is the substantial character of the industrial enterprise in which the employer and employee are concerned?” 1
[15] The “substantial character” of the industrial enterprise in which the respondent and its employees are involved in is within the construction industry. This description also falls within the definition of “general building and construction” under the Building and Construction General On-site Award 2010 [MA000020] (the Building Award), which is defined to mean:
a) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers;
b) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works; and
c) the installation in any building, structure or works of fittings and services.
[16] The respondent submits it clearly operates within the “general building and construction” industry. It is therefore submitted that the Building Award is the only relevant modern award in relation to the applicant’s employment.
[17] Having regard to the coverage and the classification provisions of the Building Award, it is evident that, based on his responsibilities and duties, the applicant’s position as a Lead Scaffolding and Rigging Trainer and Assessor is not included in the scope of the Building Award.
[18] Whether or not the applicant was covered by a classification under the Building Award is to be determined by reference to the “principal purpose” test. It is settled authority that the determination of whether an employee is covered by an Award requires an assessment of the principal purpose for which the employee was employed.
[19] In Carpenter v Corona Manufacturing Ply Ltd 2(the Carpenter case), the Full Bench relevantly stated:
“...in determining whether or not a particular Award applies to identified employment, more is required than a mere quantitative assessment of the time spent 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.” (Emphasis added)
[20] In the Carpenter case, the Full Bench found that the appellant’s duties were principally managerial in nature, and that while the applicant may have performed tasks under the headings of “obtaining sales leads” or “promoting sales”, such tasks formed a minor part of the work he was required to perform.
[21] In the applicant’s case, having regard to his responsibilities and duties, the respondent observes the following:
a) the applicant was employed as Lead Scaffolding and Rigging Trainer and Assessor;
b) the applicant’s main function was to deliver workplace training in scaffolding, rigging and safety and to conduct verification of competencies of new and existing employees; and
c) the applicant reported to the Training Manager.
[22] The principal purpose of the applicant’s position was to manage the delivery of workplace training and assessment in scaffolding, rigging and safety for Cape Australia employees. To the extent that he engaged in any other occupation during the course of his employment (which it is denied), such tasks formed a minor part of the work he was required to perform.
[23] Having regard to the classification provisions of the Building Award, it is evident that, based on his responsibilities and duties, the applicant’s position as a Lead Scaffolding and Rigging Trainer and Assessor is not included in the classification provisions of the Building Award.
[24] In the applicant’s submissions, the applicant relies solely on the following with respect to his skills and duties to assert that his position was covered by a classification under the Building Award:
a) the provision of “group training” under clause 4.7 of the Building Award; and
b) assisting with the provision of on-the-job training for the purpose of falling within the classification of “Construction worker level 2/Engineering construction worker level 2” under Schedule B.
[25] The respondent submits that these tasks formed a minor part of the work required to be performed by the applicant. Further, and in any event:
a) the principal purpose of the applicant’s position was to manage the delivery of workplace training and assessment in scaffolding, rigging and safety for Cape Australia employees;
b) the “group training” activities undertaken were not provided to apprentices and/or trainees and were not provided to employees engaged by a group training service as contemplated under clause 4.7 of the Building Award. Furthermore, the respondent is not a Group Training Organisation (GTO); and
c) the applicant’s position and skill level does not fall within section (b) (iii), (c) or (d) of Schedule B (B.2.2) of the relevant classification under the Building Award.
[26] Having regard to the classification provisions of the Building Award and the responsibilities and duties of the applicant, it is clear the applicant’s position as a Lead Scaffolding and Rigging Trainer and Assessor did not fall within the classification provisions of the Building Award.
[27] The applicant also has argued his employment is covered by the Educational Services (Post-Secondary Education) Award 2010 [MA000075] (the Educational Award).
[28] Pursuant to clause 4 of the Educational Award, it is an industry Award that covers employers throughout Australia in the post-secondary educational services industry and their employees employed in the relevant classifications.
[29] The term “post-secondary” educational services industry is defined broadly on an inclusive basis. However, it is clear that this must be read in context. In this case, it is relevant that in publishing the Exposure Draft of the Educational Award, the Full Bench of the AIRC 3 (as it then was) described the educational sectors as follows:
“[54] The educational services sector, excluding the universities, covers a wide range of institutions and occupations. These include teachers in a preschool setting and organisations which offer non-accredited courses to adults through community based teaching and instruction.
...
[62] The range of organisations offering education and instruction to adults in post-secondary education is extremely diverse. At one end of that spectrum are institutions which offer degree level education but which are not universities and at the other community organisations offering unaccredited training. Award coverage in this sector is limited. The exposure draft has been developed on the basis of three teaching streams: academic teachers, who are equivalent to university teachers, teachers who are qualified to teach in institutions such as English language schools and tutor/instructors, who may have no teaching qualifications but possess expertise which qualifies them to instruct students in a particular subject. The draft also includes classifications and minimum wages for non-teaching staff based on other modern awards providing for similar classifications and taking internal relativities into account.”
[30] The Educational Award definition of “post-secondary educational services industry” is relevantly identical to that published in the Exposure Draft. The “substantial character” of the industrial enterprise in which the respondent and its employees are involved in is within the construction industry. Indeed, the applicant appears to concede this on page 2 of the applicant’s submissions.
[31] The respondent is a Registered Training Organisation (RTO). An RTO delivers training, conducts assessments and grants qualifications to individuals. They are registered by the Australian Skills Quality Authority (confirmation of which was provided by the annexure to the applicant’s submissions).
[32] Whilst the respondent provides some occupational training for staff to whom it is relevant, it is not offering courses to adults through community based teaching and instruction. It is not an employer in the post-secondary educational services industry, having regard to the context of this expression in the Educational Award set out above, and is therefore not covered by the Educational Award in respect of any of its employees.
[33] The applicant relies on paragraph 4.1(a) of the Educational Award, which includes vocational education and training teaching leading to qualifications recognised within the Australian Qualifications Framework (AQF), and the fact that the respondent is licensed to provide certain qualifications recognised by the AQF. This does not alter the “substantial character” of the industrial enterprise.
[34] In any event, the respondent considers that even if the Educational Award were to apply (which is denied for the reasons set out above), the applicant’s role would not fall within the classifications in the Educational Award.
[35] The applicant has suggested that the Category D Teacher or General Staff Level 4 classifications are appropriate. However, having regard to the purpose and function of the applicant’s role, it differs significantly from either Award classification for the following reasons:
a) The applicant’s key day to day responsibilities are set out at above. Although a portion of the training is “nationally recognised competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework” this does not represent the majority of training delivered or the principal focus of the role. (It is acknowledged that work delivering or assessing nationally recognised competency based training of this kind is work to which the Educational Award applies, consistent with San Remo (Southland) Pty Ltd v Farrell 4, the primary duties of the applicant were in fact duties of an award-free nature and as such the applicant was award-free).
b) The major and substantial function of the applicant’s role is set out at above. Primarily this role is concerned with ensuring that scaffolders and riggers can do their jobs and do them safely.
c) The principal purpose of the engagement is not the delivery and/or assessment of “nationally recognised competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework”, which comprises only a small fraction of the duties and is of limited importance overall.
d) The respondent’s main focus was on non-accredited Verification of Competency (VOC) and induction, with only a small percentage of the activity being nationally accredited units. Those nationally accredited units are not intended to lead to qualifications, but merely enable an employee to meet client expectations, such as working at heights and confined space entry trainings.
e) To the extent to which the applicant carried out any duties under the Educational Award, this only formed a minor part of the work required to be done. The applicant mainly developed and delivered the Cape Australia Induction and VOC for Scaffolders joining Cape Australia (both of which were not accredited training). A large portion of the applicant’s role was administrative and concerned the development of Cape Australia’s courses.
f) The respondent employed up to 8 contract trainers and 2 permanent trainers, including the applicant who supervised the activities of the other trainers. Those supervisory duties are substantially different to anything contemplated by the Educational Award classification. In this respect, we submit the applicant’s role was analogous to the decision of Taylor-Hunt v Downer EDI Works Ply Ltd 5.
g) Based on his responsibilities and duties, the applicant’s position as a Lead Scaffolding and Rigging Trainer and Assessor is not included in the classification provisions of the Educational Award.
[36] The respondent submits that the applicant is therefore an award-free employee.
[37] At no point during his employment was the applicant covered by an enterprise agreement.
[38] The applicant’s annual rate of earnings was $140 000 per annum.
[39] The applicant contends that his past earnings are determinative of the issue. This is contrary to clear decisions of the Fair Work Commission, such as the recent decision of Shannon Priem v Priority Building Pty Ltd 6, which make it clear that the rate payable at the time of dismissal is the appropriate rate.
[40] The applicant’s annual rate of earnings is over the high income threshold of $129 300 per annum.
[41] Consequently this application should be dismissed.
The applicant
[42] The applicant submits that he satisfies the requirements under section 382 of the Act that must be demonstrated for the Fair Work Commission to hear the merits of the case. Specifically the applicant’s role had coverage under the following modern awards:
- the Building Award
- the Educational Award
[43] The applicant does not dispute that the respondent operates within the Building Award.
[44] The applicant points out that the Building Award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry.
[45] Further he points to the fact that classification B.2.2 Construction worker level 2/Engineering construction worker level 2 (CW/ECW 2)of the Building Award expressly identifies one of the skills and duties included in the classification as “assists with the provision of on-the-job training”.
[46] Therefore the applicant argues this classification covered his employment and he was accordingly covered by the Building Award.
[47] With respects to the Educational Award clause 4.3 says:
“To avoid doubt, the post-secondary educational services industry includes:
(a) Vocational Education and Training (VET) teaching leading to qualifications recognized within the AQF.”
[48] Cape Australia it is submitted has a business model incorporating training functionality in the way of an RTO under the ABN/ACN of Cape Australia Holdings Pty Ltd.
[49] The RTO license number is 7131 and is positioned within the VET sector to provide non-trade(s) qualifications recognized by the AQF.
[50] There is clear evidence that Cape Australia operates in the VET sector and had employed the applicant solely to service the functionality of the RTO’s capacity to deliver VET courses and conduct training.
[51] Rigging and Scaffolding Qualifications are bound to the AQF for VET delivery. As an RTO, Cape Australia has scoped to deliver a range of dogging, rigging and scaffolding courses.
[52] With regards to classifications in the Educational Award it is submitted that classification C.3 Teachers other than TESOL teachers, Category D is defined to include:
“...a Vocational Education and Training (VET) tutor who has the qualifications required by the accredited curriculum or training package and who delivers and/or assesses nationally recognized competency based training which may result in a qualification or Statement of Attainment under the Australian Recognition Framework (ARF).”
[53] In addition it is submitted that the applicant’s employment was covered by the D.1.7 General Staff Level 4 classification in the Educational Award.
Consideration
[54] The parties agree that Cape Australia is in the industry of “general building and construction” as defined in the Building Award. I agree this is the case.
[55] I find that the Building Award did cover Cape Australia at the time of the applicant’s dismissal.
[56] I find that the applicant was employed as a Lead Scaffolding and Rigging Trainer and Assessor.
[57] The respondent has submitted, which the applicant has not challenged, that the applicant was employed to deliver workplace training in scaffolding, rigging and safety, conduct verification of competencies of new and existing employees and ensure the quality of Cape Australia’s training continues to be of the highest standard within the industry. His day-to-day responsibilities required him to:
a) Coordinate and deliver workplace training and assessment in scaffolding, rigging and safety for employees;
b) Develop workplace training resource material including assessment tools for accredited and non-accredited training and assessment for employees;
c) Deliver Cape Australia’s general inductions and safety inductions which include '”Cape’s Golden Rules”, Job Hazard Analysis and High Risk Verification of Competency;
d) Manage the up-skilling traineeship program; and
e) Ensure training resources are current and up to date.
[58] The test the Fair Work Commission is required to apply to ascertain whether an employee fits into a particular classification in an Award requires the examination of what has variously been described as the major and substantial employment or the principal purpose of the employment or its primary function. This has recently been usefully summarised in the decision of Judge Driver in the Federal Circuit Court of Australia decision, TWU v Coles Supermarkets of Australia Pty Ltd. 7
[59] Having considered the parties’ submissions I find that the principal purpose of the applicant’s position was to manage the delivery of workplace training and assessment in scaffolding, rigging and safety.
[60] The classifications in the Building Award as the applicant correctly points out do include references to employees assisting with on the job training. The point however is that assisting with on the job training was not what the applicant’s major and substantial employment was not was it the principal purpose of his employment or his primary function.
[61] Assisting with on the job training is a commonly used catch all phrase in Award classifications. This generic duty envisages the lowest possible level of training of other employees any employee could be asked to do and is commonly expected of employees across many industries in many different classifications of work. The applicant’s employment in contrast involved a highly sophisticated and skilled involvement in training. I do not accept that the applicant’s employment was covered by any of the classifications in the Building Award.
[62] I find the Building Award did not cover the applicant at the time he was dismissed.
[63] With respect to the Educational Award, the industry Cape Australia is in is the general building construction industry. Cape Australia is not in the post-secondary educational services industry as it is defined in clause 4.3 of the Educational Award. Consequently I am satisfied that that the Educational Award did not cover the applicant.
[64] With respect to the applicant’s income, the applicant’s contract states he was receiving a base salary of $140 000 per annum. The applicant’s submission is that in no financial year has he received income greater than $129 300 and so he submits he has not earned income above the high income threshold. This submission however involves a misunderstanding of the legislations provision.
[65] In Slavin v Horizon Holdings Pty Ltd 8 the applicant whom was arguing against a respondent’s objection concerning the high income threshold had argued that her annual rate of earnings should not be considered across two separate financial years but rather her earnings for the financial year in which she was dismissed should only be considered and this amount should not be annualised.
[66] Commissioner Bissett rejecting this argument held that:
“[14] On the second matter it does not make sense to suggest that earnings should be determined with respect to actual earnings in the financial year in which the termination took place. To not annualise the wages or other benefits of the Applicant would provide an unfair advantage to employees dismissed early in the financial year and disadvantage those dismissed in June of any year. Further, it seems to me that it would not be logical to determine an Applicant’s annual rate of earnings by reference to any period except that period preceding the termination of her employment. Section 382 of the Act is directed at protection from unfair dismissal if, at that time, (that is the time of the dismissal) the sum of the person’s annual rate of earnings and such other amounts as prescribed by the regulations is less than the high income threshold. Consideration of annual rate of earnings in the most recently completed financial year would not allow for the determination of an annual rate of earnings at the time of the dismissal.”
[67] I agree with Commissioner Bissett that section 382 of the Act is not concerned with financial years but with the annualised rate at which the person was earning at the time they were dismissed. As an example a person who had only worked for 8 months when dismissed and whose contract required they be paid $60 000 for this period would therefore have an entitlement to $90 000 if they had worked for a full year. In this example this amount, $90 000 is their annual rate of earnings. (Emphasis added)
[68] In the applicant’s case his contract required he be paid $140 000 per annum (per year) and this was his annual rate of earnings. I am consequently satisfied the applicant’s annual rate of earning exceed the high income threshold at the time of his dismissal.
Conclusion
[69] The applicant at the time of his dismissal was not covered by an Award or Agreement and his annual rate of earnings exceeded the high income threshold. Consequently the applicant is not able to make the application and this application will be dismissed. An order to that effect will be issued is conjunction with this decision.
COMMISSIONER
Final written submissions:
Applicant, 17 February 2014
Respondent, 4 February 2014 and 25 February 2014
1 (1948) 77 CLR 123
2 (2002) 122 IR 387
3 [2009] AIRCFB 450
4 [1987] 22 IR 291
5 [2010] FWA 4626
6 [2013] FWC 7042
7 [2014] FCCA 4 at paragraphs [128] to [133]
8 [2012] FWA 2424
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