Michael Loughnan v The Redcliffe Aero Club Pty Ltd

[2015] FWC 6444

[2015] FWC 6444

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Loughnan
v
The Redcliffe Aero Club Pty Ltd
(U2015/5136)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 18 SEPTEMBER 2015

Application for relief from unfair dismissal – jurisdictional objection – high income threshold.

[1] Redcliffe Aero Club Pty Ltd (the respondent) lodged an objection to the application pursuant to section 394 of the Fair Work Act 2009 (the Act) lodged by Mr Michael Loughnan (the applicant) proceeding to arbitration. The respondent’s objection was that the applicant’s salary exceeded the high income threshold and that his employment was not covered by an award. The applicant conceded that his income was above the high income threshold but contended that his employment was covered by the Air Pilots Award 2010 (the award).

[2] I heard the jurisdictional objection in Brisbane on 26 August 2015. I issued a Finding and Order on 7 September 2015. 1 I found that the applicant’s employment with the respondent was covered by the award and dismissed the jurisdictional objection of the respondent. On the same day the respondent sought my reasons for decision which I now provide.

[3] Mr Mossman, solicitor of Macpherson and Kelley Lawyers, appeared with permission for the applicant. Mr Callanan, of counsel, instructed by Cooke and Hutchinson Lawyers, appeared with permission for the respondent.

[4] The respondent provided and relied upon an outline of argument 2 and a statement from Mr Galvin with attachments.3 Mr Galvin was required for cross-examination and gave oral evidence.

[5] The applicant provided written submissions, 4 written submissions in reply to the respondent,5 two statements from the applicant6 and the applicant’s payslip for the period 26 March 2015 to 8 April 2015.7

[6] In determining this issue I applied the principle purpose test to the employment of the applicant. I have considered both the qualitative and quantitative aspects of his employment.

[7] At commencement of his employment the applicant was employed as a Chief Pilot and a Chief Flight Instructor by the respondent. These positions are essential requirements for the lawful operation of the respondent’s business. At a later stage in his employment he also agreed to perform the role of Chief Executive Officer (CEO). It was argued by Mr Mossman that the CEO role was an incidental role to the applicant’s principal roles as Chief Pilot and Chief Flight Instructor.

[8] Mr Mossman made reference to various matters which he said supported the proposition that the applicant was covered by the award. They were:

• contractual references in the employment contract to the CFI/Chief Pilot Role;



• the payslips of the applicant describing his classification as Chief Flight Instructor;



• the references in the employment contract, under the heading Duties, to the applicant’s obligation to manage all aspects of the respondent’s aviation operations in accordance with statutory and regulatory requirements;



• the fact that the only reference to CEO in the contract of employment is on the last page where the issues dealt with are limited to remuneration and;



• the applicant’s evidence in which he states that his duties as CEO were limited to the preparation of a monthly CEO report and attendance at a monthly committee meeting.

[9] Mr Callanan submitted that the CEO position also has legislative requirements 8 and the CEO is placed above the Chief Pilot and the Chief Flying Officer. Mr Callanan argued9 that, because of the manner in which the CEO position is referred to in the regulations, that is, before the Chief Pilot and Chief Flying Instructor, it must be considered the primary purpose of his employment. The roles of Chief Pilot and Chief Flying Officer must be subordinate to the management role of the CEO.

[10] I am not satisfied that the CEO role was the predominant employment role of the applicant. Ambitious objectives for the role were outlined and a significant pay rise was provided. However, the commencement roles of the applicant with the respondent were as Chief Pilot and Chief Flying Officer. Having considered the evidence of Mr Calvin, which added no matter of significance to the issues I had to determine, and that of the applicant, I was satisfied that the CEO role was a lesser duty for which an additional amount was paid. I was not persuaded that the hierarchical listing of positions in the award was sufficient to displace the fact of the arrangements of the parties.

[11] On the facts before me, and in all the circumstances of this application, I was satisfied that the applicant’s employment was that of a Chief Pilot and Chief Flying Instructor and that the role of CEO, whilst not insignificant, was not the principal purpose of the applicant’s employment nor the major or substantial duty or function of the applicant’s employment. The CEO role was an add-on to the pre-existing and dominant roles of Chief Pilot and Chief Flying Officer, the performance of which roles were the principle purpose of the applicant’s employment with the respondent.

SENIOR DEPUTY PRESIDENT

Appearances:

C Mossman, Macpherson and Kelley Lawyers for Mr Michael Loughnan

M K Callanan of Counsel with D Hutchinson, Cooke & Hutchinson Lawyers for The Redcliffe Aero Club Pty Ltd

Hearing details:

2015.

Brisbane:

August 26.

 1   PR571636

 2   Exhibit RAC 1

 3   Exhibit RAC 2

 4   Exhibit L1

 5   Exhibit L2

 6   Exhibit L3 and Exhibit L4

 7   Exhibit L5

 8   Exhibit RAC 1, paragraph 15

 9   Ibid.

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