Mr Antonio Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton

[2011] FWA 6927

[2011] FWA 6927

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Antonio Fry
v
BHP Billiton Minerals Pty Ltd T/A BHP Billiton
(U2011/3194)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 OCTOBER 2011

Application for an unfair dismissal remedy - whether dismissal harsh unjust or unreasonable - whether applicant protected from unfair dismissal - principal purpose - Consolidated Modern Award Modernisation Request - supervisory responsibilities.

[1] The matter concerned an application by Mr Antonio Fry (“the Applicant”) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant was dismissed from his employment as a controller of electrical works at the BHP Billiton Minerals Pty Ltd Cannington mine on 21 April 2011. The reason BHP Billiton Minerals Pty Ltd (“the Respondent”) took this course of action ostensibly was because the Respondent had lost confidence in the Applicant’s capacity to oversee electrical works at the mine. The catalyst for this decision was a safety incident on 2 April 2011. In accordance with the Directions issued, as usual, the parties filed materials in respect of the substantive matter. However, in the course of so doing, the Respondent raised a jurisdictional issue for the first time. This jurisdictional issue arose from the requirements of s.390(1) of the Act. Section 390(1) of the Act reads as follows:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

[2] A person is protected from unfair dismissal in the terms set out in s.382 of the Act, which reads as follows:

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.

[3] Regulation 2.13 of the Fair Work Regulations 2009 (“the Regulations”) provides for the setting of the high income threshold. The high income threshold is currently $118,100.00.

[4] The issue put before me is whether the Applicant is a person protected from unfair dismissal. Because this matter goes to the jurisdiction of the tribunal to determine the application under s.394 of the Act, I must turn to this matter at first instance.

[5] It is not disputed by either side in this matter that at the time of the Applicant’s dismissal, his base salary was $136,930 per annum. The Applicant’s salary therefore is above the current high income threshold stipulated by way of Regulation 2.13 of the Regulations. The Applicant’s estimated remuneration package was $189,639 1 .

[6] Be that as it may, a person is protected from unfair dismissal if they have completed a period of employment with their employer of at least the minimum employment period, and either or both a modern award covers the person or an enterprise agreement applies to the person in relation to the employment.

[7] There is no dispute in this matter that the Applicant had met the requirements of s.382(a) of the Act and had been employed for the requisite minimum period.

[8] But there is dispute as to whether a modern award covered the Applicant and/or whether an enterprise agreement had appropriate application for the purpose of s.382(b) of the Act.

[9] In order to determine this disputed matter it is necessary, at least initially, to characterise the position and duties of the Applicant.

[10] The Applicant’s duties and responsibilities, under the title of ‘Supervisor – Processing Maintenance Electrical’ are outlined in his position description, which relevantly states:

The Supervisor – Processing Maintenance Electrical will provide a high level of leadership for the safe and efficient management of the Processing area Electrical Workers and Instrumentation Technicians. The Supervisor is accountable for supervising all activities associated with surface electrical plant and instrumentation in an environment of safe production and continuous improvement. They will ensure that planned work is completed in a timely manner while at the same time managing day-to-day needs of their customers. [He] will also provide recommendations and assistance in the development of maintenance systems and standards for the safe and effective maintenance of electrical plant and installations across the Cannington Mine site 2.

[11] The Applicant’s position accountabilities required him, amongst other things, to do the following:

• oversee, direct and co-ordinate allocated personnel, including contractors and visitors, to ensure that all tasks are performed in a safe and efficient manner; and



• ensure that all surface electrical work in the delegated work areas across the Cannington Mine site is carried out by appropriately qualified and competent people 3.

[12] The Applicant’s supervising accountabilities included the requirement that he:

Supervises, assigns and schedules a work group, provides advice and direction, establishes work standards, monitors work quality and quantity, makes hiring/promotion recommendations, approves the work of the team and handles disciplinary matters 4.

[13] The evidence of Ms Tiffany Anne Sproles, who is the Superintendent – Processing Maintenance (and to whom the Applicant was required to report), was that the Applicant worked with a team of electricians on a daily basis.

[14] The evidence demonstrates that the Applicant planned, organised and supervised the performance of the required electrical maintenance activities at the mine site.

[15] In addition to this, the Applicant, according to Ms Sproles’ evidence, was also responsible for developing, or assisting in developing, various maintenance systems and safety standards for the electrical maintenance activities. This evidence accords with the duties and accountabilities set out in the position description discussed above.

[16] Ms Sproles’ further evidence was that while the Applicant might have been ‘on the tools’ on occasions, this was an exception and did not fall within his position description as such.

[17] The Respondent also contends that the Applicant was appointed as a Controller of Electrical Works under the Mining Quarrying Safety and Health Act 1999 (Qld) (“MQSH Act”). In this capacity the Applicant was responsible for the electrical works on the surface of the mine.

[18] The Applicant’s own evidence supported the Respondent’s evidence as set out above:

MR FOLLETT: You gave some evidence before, Mr Fry, about the portion of your work that is hands on work, and you said - you estimate it's about 40 per cent. And when you were asked why you said it because you regard performing JSAs and risk assessments and those sorts of activities as included within the concept of on the tools. You're not actually saying, are you, that 40 per cent of your time you don't actually have tools in hand working on pieces of equipment, you're not saying that are you?---I didn't say that.

No. And the on the tools - the additional on the tools component you're talking about is, I guess what I'll call, paperwork, risk assessments with the JSAs, all those sorts of things?---(indistinct)

Yes. And, presumably, there would be additional certifications required under the legislation for certain activities?---Yes.

You have to fill out a certificate from time to time?---Yes.

And that's your responsibility as controller of electrical work in relation to that particular task?---Yes.

Yes. And I think you gave some evidence earlier that your seven employees in your crew work in a particular area of the site and your - you say your supervisory responsibilities are in relation to those seven employees in that particular location?---Yes.

But on top of that, as a controller of electrical works, you may be required to engage in those sorts of activities in relation to any piece of equipment?---Yes.

Yes. And you said anywhere you saw an issue?---Yes.

And that could be across the entire surface?---Yes.

Yes. Is it true to say that from time to time you'd develop policies and procedures in relation to certain work activities at the site?---Yes.

Yes. And then - do you then train your crew in relation to the new policies and procedures, "This is how we're going to do things"?---It depends on what they are, yes.

Yes. And you gave some evidence before that in relation to how work gets done, there's a project planning activity and that those plans are passed to you, you look at the plans and work out who to allocate the work to, and then you allocate the work to those people?---Yes.

And then they go and perform that work?---Yes.

And you - I think you said your evidence was you go around and supervise them and check what they're doing and that they're doing it right?---Yes.

And you might show them from time to time, "Perhaps, we should do it this way or that way"?---Yes.

But generally you're just roving around making sure that everything's getting done in accordance with all the requirements: legal requirements, policy requirements, safety requirements?---Yes.

Yes. Would you agree with the proposition that a significant amount of your time and your job is spent in an office engaging in paperwork?---Not a significant, probably about 30 per cent.

About 30 per cent. Ms Sprole said about 50 per cent, you say about 30 per cent?

---Yes.

Okay. And that would be things like filling out certificates, developing policies, planning activities, those sorts of activities?---Yes.

Yes. All right. And you've been a controller of electrical work at the site for at least four years now?---Yes.

And that obligation encompasses ensuring the mine's activities are compliant in relation to the Mining and Quarrying Safety and Health Act?---Correct.

And the Electrical Safety Act?---Yes.

And relevant Australian Standards as they apply?---Yes 5.

[19] Neither party suggested that the Applicant's employment was subject to an agreement of any kind or species.

[20] The Respondent submitted that the only modern award which could conceivably cover the Applicant was the Mining Industry Award 2010 (“the Award”). As an industry award, the Award covers all employers engaged in mining across Australia. Sub clause 4.1 of the Award reads as follows:

This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification listed in clause 13 – Classifications and Minimum wage rates, of this award, to the exclusion of any other modern award.

[21] The classifications in clause 13 of the Award comprise ‘levels’. These levels range from Entry Level, to Level 1 (‘Basic’), through to Level 7, which refers to Dual Trade Instrumentation.

[22] The classification descriptors for these ‘levels’ are set out in Schedule B – Classification and Structure – to the Award.

[23] The Respondent contends that the Applicant was not employed as a maintenance tradesman and his duties cannot in any way be accommodated in any of the classifications set out in Schedule B to the Award. That is, none of the various sets of descriptors therein are capable of reflecting the scope of the supervisory responsibilities the Applicant was employed to carry out and as set out in his position description.

[24] Indeed, the supervisory responsibilities do not form part of any of the descriptors for any of the Levels, Entry through to Dual Trade Instrumentation.

[25] The descriptors appear to at all times apply to employees engaged in the performance of maintenance related trades as such (without reference at all to any supervisory-type functions).

[26] That said, Level 5 of the Award refers to the Advanced Specialist, and sets out the following descriptors:

An employee at this level will have met the requirements for Level 4 and holds a trade qualification used in the operation and has acquired additional knowledge by having satisfactorily completed a prescribed post trade course appropriate for this level or the achievement to the satisfaction of the employer of a comparable standard of skill and knowledge by other means including in-plant training or on-the-job experience.

An employee at this level will provide guidance and assistance to others. [my emphasis]

This level applies to the following classification groups:

Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trade Employees.

[27] It is the reference to an employee in this classification providing “guidance and assistance” (as highlighted) which is relevant to those proceedings.

[28] But as the Respondent contends, such a bare reference alone - which also appears in the immediately lower classification - cannot be taken as being a reference to the Award covering employees whose positions are principally supervisory in purpose. If this were to be so, the Award would extend into areas in which award coverage has not extended.

[29] That is, a reading of the coverage of the Award in these terms would mean the Award had been made in contravention to s.143(7) of the Act and in disregard of the paragraph 2(a) of the Consolidated Award Modernisation Request (“the Request”): both of which indicate that Modern Awards must not be expressed to cover classes of employees who, because of the seniority of their role, have traditionally not been covered by awards.

[30] Of course, I do not think the Award was made in contravention of the Act or the Request. Instead, in my view, the reference to an employee providing “guidance and assistance to others” is not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision. The evidence demonstrates that this was the principal purpose of the Applicant's position.

[31] This is not to suggest that all Modern Awards do not extend into classifications involving supervisory functions of varying degrees. But the coverage of the Mining Industry Award 2010 travels only to classifications where the supervisory element (of “guidance and assistance”) of the relevant positions is very much incidental to the principal purpose of the classifications.

[32] I appreciate that the Applicant contends that his employment was at the Level 5 - Advanced Specialist classification of the Award.

[33] Most certainly his salary was well and truly above that for which the Award currently provides in relation to such a classification.

[34] But beyond this, the description the Applicant provided of his own position was not of a tradesperson employed for the purpose of exercising the skills of that classification. The principal purpose of the Applicant’s position was supervision, and so far as it involved promulgating policies and procedures, it may arguably have had some element of managerial responsibility in it as well. Perhaps there was some element of hands on work involved in demonstrating how a particular solution might have been given effect, but I do not discern in the Applicant's evidence that such activities comprised the principal purpose of the position. The evidence - that of the Respondent and the Applicant himself - went in an entirely different direction.

[35] For the reasons discussed above, I conclude that the Applicant is not covered by a Modern Award for purposes of s.382(b) of the Act.

[36] Further, as I have noted earlier, there is no enterprise agreement within the meaning of item 36(b) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or within the meaning of s.172 of the Act that covered the Applicant or otherwise applied to him while he was employed by the Respondent.

[37] Given my earlier finding that the Applicant’s base salary (alone) was above the current high income threshold, I find that the Applicant is not protected from unfair dismissal for purposes of s.382 of the Act.

[38] Accordingly, I must dismiss the application under s.394 of the Act, because the Applicant is not a person qualified to make an application under that section of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. O’Donnell for the Applicant

Mr M. Follett, Counsel for the Respondent

Hearing details:
2011.
October 4.

Townsville Federal Magistrates Court.

 1   Annexure TAS-2 to the Statement of Tiffany Anne Sproles dated 10 August 2011.

 2   Annexure TAS-1 to the Statement of Tiffany Anne Sproles dated 10 August 2011.

 3   Ibid.

 4   Ibid.

 5   Transcript of proceedings, 4 October 2011, PNS 504 - 526.

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