Mr Gino Matera v Guma ICRG JV Pty Ltd

[2016] FWC 5365

[2016] FWC 5365

FAIR WORK COMMISSION

DECISION

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

Mr Gino Matera
v
Guma ICRG JV Pty Ltd
(U2016/4692)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 AUGUST 2016

Application for relief from unfair dismissal—jurisdiction—not covered by a modern award or enterprise agreement—annual earnings exceeded the high income threshold.

[1] On 18 February 2016, Mr Gino Matera filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Guma ICRG JV Pty Ltd (Guma) and that this dismissal was unfair.

[2] Guma objected to the application submitting the Commission does not have jurisdiction to deal with Mr Matera’s application as he earned above the high income threshold prescribed by s.333 of the Act and Regulation 2.13 of the Fair Work Regulations (the Regulations) at the time he was dismissed. Therefore, Guma submits Mr Matera is not protected from unfair dismissal in accordance with the Act.

[3] Mr Matera concedes his annual rate of earnings exceeded the high income threshold, being $136,700, at the time of his dismissal.

[4] It is not disputed that Mr Matera worked for Guma in its civil construction business at the Fortesque Metal Groups (FMG) operation at the Christmas Creek iron ore mine as a supervisor. However, Mr Matera submits because he was performing the duties of a plant operator, the Guma ICRG JV Pty Ltd Base Enterprise Agreement 2013 (the Agreement) applies.

[5] Mr Matera submits in the event the Agreement does not apply to him in his employment then his employment was covered by the Building and Construction General On-Site Award 2010 (the Award).

[6] Guma contends Mr Matera was not employed as a plant operator or performed any duties involving the operation of plant equipment at the time of his dismissal and if he did, it was in breach of his position responsibilities. Guma submits Mr Matera was employed as a supervisor and performed duties associated with the role of a supervisor and therefore the Award does not cover his employment and the Agreement does not apply.

[7] A hearing of the jurisdictional objection was conducted in Melbourne by video conference before me on 12 May 2016.

Immediate statutory context

[8] Section 382 of the Act prescribes when a person is protected from unfair dismissal:

“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.”

[9] It is not necessary to determine if Mr Matera is protected from unfair dismissal in regard to s.382(b)(iii) given it is not in contention that Mr Matera’s earnings are above the high income threshold. It is also agreed that Mr Matera has served the period of employment contemplated in s.382(a) of the Act.

[10] For Mr Matera to be a person protected from unfair dismissal, section 382(b) provides that either he is covered by a modern award or an enterprise agreement must apply to his employment. If neither of these criteria applies, then Mr Matera’s application must be dismissed.

The case presented by the Respondent

[11] Guma contend at the time of Mr Matera’s dismissal he was not covered by the Award nor did the Agreement apply. As a result of this circumstance and his salary level, Mr Matera was not protected from unfair dismissal under the Act.

[12] Guma argued that at the time of his dismissal, Mr Matera’s position and duties were purely those of a supervisor and he was engaged on terms and conditions that excluded him from the Award and the Enterprise Agreement.

[13] Guma argued that Mr Matera’s role was outlined in the position description attached to his contract of employment 1 which he signed on 6 January 2016. The position description, although not comprehensive, generally described Mr Matera’s duties and obligations and he was required to perform those duties consistent with being a genuine supervisor.

[14] Guma called Mr Brittain, site senior superintendent at Christmas Creek Operations to give evidence in support of its case. Mr Brittain’s evidence was that Mr Matera reported directly to him. 2 He had engaged Mr Matera in a supervisory role because he believed at the time that Mr Matera displayed leadership qualities and he felt through mentoring and leadership he would become a good supervisor.

[15] Mr Brittain says prior to Mr Matera being engaged as a supervisor, he was in an acting supervisory role (a step up supervisor), and prior to this a leading hand role. It was Mr Brittain’s evidence that in these leadership roles he did not require Mr Matera to operate mobile plant and equipment.

[16] Mr Brittain’s submission was that he at no time directed Mr Matera to operate or undertake any machine or mobile plant duties or manual labour for FMG or Guma. If Mr Matera did at any time undertake any machine or mobile plant duties or manual labour for FMG, he was not instructed or directed to undertake those duties. 3

[17] Mr Brittain’s oral evidence was that “all supervisors must complete a section 44 under the Regulations of the Mines Safety and InspectionAct” 4(MSI Act) and Mr Matera’s engagement in the position of supervisor was in accordance with section 44 of the MSI Act. As such, he could only be available to perform supervisory tasks and not those involving mobile plant or equipment operation.

[18] Mr Brittain’s evidence was that his day to day interaction with Mr Matera entailed the attendance at FMG meetings attended by supervisors and superintendents, pre-start and handover meetings where work was allocated, followed by the Guma specific meeting. From time to time they would meet in Mr Brittain’s office to discuss issues concerning site operations. FMG would delegate what areas needed to be cleaned up and it was the supervisor’s role to delegate this work to his team. Mr Matera was not required to operate mobile plant or equipment as part of his delegated authority.

[19] It was put to Mr Brittain that Mr Matera claims in his role as a step up supervisor and as a supervisor he was operating mobile plant and equipment on a daily basis. Mr Brittain responded stating that it did not surprise him to hear this. He went on to say the matter of Mr Matera’s ability to adequately supervise was addressed on a number of occasions and that is why he is no longer in the role. Mr Brittain says Mr Matera was not authorised in his role as a supervisor to operate mobile plant or equipment.

[20] Mr Brittain also stated the expectation was that if FMG asked Mr Matera to go and clean up an area then Mr Matera was required to direct his crew to do this and if there were no qualified employees available to do the work, then it was not to be done.

[21] Ms O’Neill also gave evidence for Guma. Ms O’Neill’s evidence was Mr Matera was promoted to a supervisory role on 19 January 2016 and at this time entered into a new employment contract. Ms O’Neill submits Mr Matera signed a new position description which outlines his role and responsibilities as a supervisor and was not permitted to operate plant or equipment.

[22] Ms O’Neill’s oral evidence was that leading hands drive plant equipment however supervisors do not. This was partially inconsistent with Mr Brittain’s evidence. Mr Brittain stated neither leading hands or supervisors are required to operate equipment.

[23] Ms O’Neill submits if Mr Matera had been operating mobile plant or equipment in his role as a supervisor, and they had the evidence to support this, he would be subject to disciplinary action as it was in breach of his responsibilities.

The Case presented by the Applicant

[24] It is not disputed that Mr Matera signed an employment agreement on 6 January 2016 accepting the role of a supervisor. Mr Matera also signed a position description declaration for a supervisor role that same day. Mr Matera submits the duties he was performing after accepting the position of supervisor were the same duties he had carried out at the time he was employed and those duties fall within the definition of ‘Plant Operator’ in Appendix 2 of the Agreement.

[25] Mr Matera submits that he considered the increase in salary accompanying the supervisor role was recognition by Guma of the work he had been performing, being the supervision of staff and the operation of mobile plant.

[26] In his witness statement Mr Matera submits he joined Guma as a leading hand at the Ore Processing Facility (OPF) at the Christmas Creek iron ore mine. At the time of his engagement he was driving a loader filling “moxies” (dump trucks) and would go to the waste dump and “flat top” dumping grounds ready for the next level of dumping.

[27] During his role as leading hand Mr Matera submits he performed the following duties:

(a) Organising daily tasks for the work group;
(b) Set up areas; and
(c) Operated bobcats, diggers and loaders to help the crew achieve day or night tasks.

[28] In his witness statement Mr Matera submits he was promoted to an acting supervisor position for approximately a month after a supervisor was dismissed in May 2015. During this period he did prestart meetings, set up daily tasks, liaised with the supervisors of FMG, answered radio inquiries to get jobs done and operated bobcats and diggers.

[29] Mr Matera submits as a lot of the employees working under him were not fully competent in the operation of mobile plant equipment he had to drive a lot of the machinery. He also submits whilst working in his role as supervisor he would oversee the project and at times operated loaders and graders when needed.

[30] Mr Matera submits in his witness statement he was demoted back to the position of leading hand when the new supervisor commenced, however performed the same duties but without the supervisor title.

[31] In his submission Mr Matera states due to the large turnover of employees at Guma, resulting in inexperienced operators, or operators who were not “passed out” (certified to operate) on machines, he at times had no option but to do jobs requiring the operation of mobile equipment himself.

[32] Mr Matera’s oral evidence was in his supervisor role he attended FMG handover meetings and that only supervisors and superintendents attended those meetings. He would then attend a pre-start meeting with FMG. Following this he would meet with the Guma trainees to discuss priorities and allocate work and who was assigned to which equipment.

[33] Mr Matera says he was ticketed to operate all machinery on site and often took instruction from FMG as he rarely saw his own Guma superintendent, unless he saw him at the meetings or bumped into him in the offices.

[34] Mr Matera says “I had no options sometimes I just had to operate the machinery myself. I was given a job to do, FMG would allocate a task, I just had to operate the machinery myself”.

[35] Mr Matera says 99% of his direction comes from FMG superintendents and supervisors. He would do whatever was requested of him by FMG. Basically whatever they wanted done he would get it done.

[36] It was put to Mr Matera that the position description states the superintendent is the person who gives him the authority to do his tasks. Mr Matera says although he accepts this, he took his instruction from FMG. Mr Matera accepted that when he did operate machinery it was not under instruction from his superintendent.

[37] The submission put forward on behalf of Mr Matera was that the position description had little to do with the duties Mr Matera was actually performing, although it was made clear the submission was not going as far as to say there was a deliberate attempt to avoid award coverage. Mr Matera submits the duties that were actually being performed should be determined to be the principal role.

[38] Mr Matera says after signing the employment contract the duties of his role did not change and he operated mobile plant in the period after he became a supervisor.

Relevant Test

[39] The parties agree whether or not Mr Matera is employed in a classification in an Award is to be determined by reference to the “principal purpose” test as set out in the decision of McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting. 5 The decision, which in turn cited the Full Bench decision of the Australian Industrial Relations Commission (as it then was) in Carpenter v Corona Manufacturing Pty Ltd,6which stated relevantly as follows:

“[9] 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. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’ and was not, therefore, covered by the Award.” (endnotes not reproduced)

[40] The Full Bench in McMenemy 7 then stated the following:

“[37] …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’.”

[41] Mr Matera also relied on the decision of Bateman at paragraph 26

“[26] It may be accepted that in circumstances where an employer has misdescribed the duties of a position in an employment offer, position description or other relevant document in an attempt to avoid award coverage, little weight would be placed on any such document in ascertaining the actual work performed by the employee. However, that was not the situation here. It was not contended by Mr Bateman, either at the hearing before the Commissioner or on appeal, that either the letter of offer or the job description did not accurately describe the actual duties of his position as Senior Project Manager with CDM. That Mr Bateman was employed on the basis that he was a project manager is confirmed by his own curriculum vitae, which described him as an ‘outcome focused project manager’, referred to positions held as a project manager since 2007, and identified that he was qualified as a Project Management Professional by the Project Management Institute in 2007 and was a member of the Australian Institute of Project Management. This was therefore not a case of an engineer’s position being dressed up as something else; Mr Bateman held himself out to be a project manager and was employed as such.”

What was Mr Matera’s role, the nature of work at the time of his dismissal?

[42] In order to consider the jurisdictional objection raised by the respondent, it is necessary to determine, what was the nature of the work and the circumstances in which Mr Matera was employed to do the work, at the time of his dismissal.

[43] I consider each of the witnesses gave their evidence in truth and to the best of their recollection. There are differing perspectives however in the way the parties view the matters. This was evident in Mr Matera’s submission that FMG instructed him as to the work he was to perform and this often meant he had no option other than to operate mobile plant and equipment. Whereas Guma’s perspective is FMG instructed what work had to be done however this did not place the direct obligation or requirement on Mr Matera to operate plant or equipment, but rather for him to delegate the task to his crew. Mr Matera’s perspective is the crew were not qualified to do the work, placing the obligation on him to perform the duties. Guma’s perspective was if there were insufficiently qualified resources then the work could not be performed.

[44] Although Guma are the employer of Mr Matera and his position description specifically states authority is as directed by his superintendent, Mr Matera submits in operation he took instruction from FMG. Guma submits Mr Matera has misconceived his duty in relation to his responsibility to FMG. I accept Mr Matera in practice may have taken instruction from FMG and this was evident in the evidence advanced by both parties in relation to how the shift change over / pre-start meetings with FMG are conducted. However in accepting this, I do not make the decision that FMG instructed Mr Guma to operate plant or any equipment in his role as a supervisor. I consider the evidence of Mr Matera in which he stated he took direction from FMG in regards to what had to be done, however this left him with no “choice” but to operate equipment. I am of the view this is something Mr Matera decided for himself and was not instructed to do by FMG. I am of the view Mr Matera was cognisant of this in the way he worded his evidence.

[45] Guma argued that Mr Matera’s role was consistent with one being a genuine supervisor with significant responsibilities under the MSI Act and these responsibilities go beyond those applicable to award-based employees.

[46] It is important I give consideration to Mr Matera’s appointment as an authorised person for the purposes of s.44 of the MSI Act. Mr Matera did not dispute that he had been engaged in accordance with s.44 of the MSI Act and therefore I accept in his engagement he played an essential role, had duties and obligations, and accordingly he was only authorised to perform the role of a supervisor, he was not permitted to operate machinery, although he did.

[47] I have considered all of the evidence before me in this matter. In making my findings I note that Mr Matera conceded in cross examination that at the relevant point in time he was engaged in the role of supervisor. He had signed a position description to that effect, he gave evidence that he understood the authority he had in his role and he directly reported to the Guma superintendent and not FMG.

[48] Mr Matera concedes he was performing the role of a supervisor, although in a manner as he understood it to be. It was put on behalf of Mr Matera that the position description may have been a mere token of what a supervisor’s role should be, and Mr Matera in reality was performing in a supervisory role but as a plant operator.

[49] Ascertaining the actual work performed by Mr Matera, I considered the evidence not contested by either of the parties which included attending supervisor meetings and allocating and directing work, and the responsibility for managing projects assigned to him. I have also considered the contested evidence and it is clear to me at the time of his dismissal, Mr Matera’s role was that put by Guma, the role of a Supervisor as those tasks I have stated above and are not tasks required to be performed by a plant operator.

[50] At the time of his dismissal the role Mr Matera occupied not only carried the title of supervisor but also required duties separate to a plant operator as defined in either the Agreement or the Award. Mr Matera’s oral evidence was in general terms he did perform the duties of a supervisor. This included attending the handover and prestart meetings, organising and delegating daily tasks for the work group, supervising the work of his crew, overseeing the project and at certain times operating loaders and graders.

[51] Mr Matera did not advance evidence that at any time he was instructed to operate mobile plant or equipment. Rather, and I accept, he felt a genuine obligation to do so in order for the work to be performed under the various constraints he was facing in his role. Given the relatively small size of the crew and the circumstances Mr Matera outlined in both his witness statement and oral evidence, the difference between acting as a leading hand and a supervisor was at times indistinct. However, on balance I find that Mr Matera did hold all of the responsibilities of a supervisor and in the short period of transitioning from the role of leading hand to supervisor, some of the practices of plant operation to which he was accustomed, at least initially, were still performed. It is clear from Mr Matera’s oral evidence this was as a result of him feeling “obliged” and not one of being instructed to do so.

[52] The reporting arrangements in place at the time of the dismissal were also consistent with the role of a supervisor. Mr Matera concedes although he did not take instruction from Mr Brittain, he did report to him and Mr Brittain was his manager.

Did the Enterprise Agreement apply to Mr Matera?

[53] Guma submits the duties Mr Matera was performing prior to his engagement as a supervisor are not relevant to the consideration of whether the Agreement applied. It is the role he is engaged in at the time of his dismissal that holds relevance. I am satisfied Mr Matera was operating mobile plant and equipment at the time of his dismissal, and accordingly the Agreement would have applied to Mr Matera if his position fell within the classification structure of the Agreement.

[54] Section 52 of the Act provides when an enterprise agreement applies to an employer, employee or employee organisation:

“52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1)  An enterprise agreement applies to an employee, employer or employee organisation if:

(a) the agreement is in operation; and
(b)  the agreement covers the employee, employer or organisation; and
(c)  no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

…”

[55] In terms of the application of the Agreement, it is clear and not contested the Agreement applied to Guma as the respondent and employer in this matter.

[56] Clause 4.1 of the Agreement provides that no award has application to the employees engaged under the Agreement. The approval of the agreement therefore excluded the Award.

[57] Pursuant to section 5.1 of the Agreement, the Agreement only applies to employees of Guma while they are engaged in the classifications contained within the Agreement. Appendix 1 of the Agreement contains the list of classifications and Appendix 2 provides a more detailed definition of the classifications.

[58] Section 6.1 of the Agreement states that the Agreement only applies to employees of Guma that are engaged in one of the classifications contained at Appendix 1 of the Agreement on work that falls within the scope of the Agreement.

[59] Appendix 1 of the Agreement provides that the Agreement applies to the following class of employees (together with the relevant grade of employee as described in Appendix 2):

● Construction Workers
● Plant Operators
● Metal Tradesmen
● Rigging/Scaffolding Positions
● Electrical and Plumbing Trades
● Crane Operators; and
● Building Trades

[60] Guma submits the role of supervisor is not listed in any of the classifications contained in Appendix 1 (or Appendix 2) and consequently Mr Matera’s engagement was pursuant to the Employment Contract under which he was engaged and therefore the Agreement does not apply.

[61] Mr Matera submits the duties he was performing whilst employed with Guma fall within the definition of Plant Operator contained in the Agreement. Further to this, the duties he carried out after accepting the position of supervisor were the same as the duties he had carried out prior to the engagement as a supervisor.

[62] On closer analysis of the classification of plant operator at Grade 1, 2 and 3, none of the duties Mr Matera submits he performed in his role as supervisor (other than those of plant and machinery operation) form part of the classification description.

[63] Here it is important to note in the closing submission for Mr Matera it was stated there is no confusion Mr Matera was engaged as a supervisor however he was acting as a plant operator and he was performing the duties of a plant operator, albeit a highly paid plant operator. Mr Matera’s duties during his temporary role as a supervisor and his permanent position were not limited to those duties described in the Agreement. The duties incumbent upon Mr Matera in his supervisor role do not fall within the classification of plant operator.

[64] The classifications in Appendix 1 and Appendix 2 do not include the role of a supervisor by way of definition or description. Mr Matera is clearly not a plant operator by description or definition, and by Mr Matera’s own evidence he performs a number of primary tasks in his role as supervisor which are not included in the definition of plant operator. Some of these duties have been outlined in the evidence of both Mr Matera and Guma and as stated previously, include his delegation responsibilities and his attendance at the supervisors meetings. Most significantly, his engagement is in accordance with s.44 of the MSI Act.

[65] I do not consider the Agreement applied to Mr Matera at the time of his dismissal.

Did the Award cover Mr Matera?

[66] Sections 47 and 48 of the Act provides as follows:

“47 When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1)  A modern award applies to an employee, employer, organisation or outworker entity if:

(a)  the modern award covers the employee, employer, organisation or outworker entity; and
(b)  the modern award is in operation; and
(c)  no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Modern awards do not apply to high income employees

(2)  However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.

Modern awards apply to employees in relation to particular employment

(3)  A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

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

When a modern award covers an employee, employer, 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.

Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWC orders or court orders on coverage

(2)  A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:

(a)  a provision of this Act or of the Registered Organisations Act;
(b)  an FWC order made under a provision of this Act;
(c)  an order of a court.

(3)  Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:

(a)  a provision of this Act;
(b)  an FWC order made under a provision of this Act;
(c)  an order of a court.

Modern awards that have ceased to operate

(4)  Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.

Modern awards cover employees in relation to particular employment

(5)  A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”

[67] The requirement that the modern award covers Mr Matera in s.382(b)(i) of the Act necessitates the application of s.48 of the Act. Accordingly, the Award will have covered Mr Matera if the award is expressed to do so.

[68] It is an agreed position of the parties in order for the Commission to determine if Mr Matera’s employment with Guma was covered by the Award it is necessary to assess the nature of the work and the “principle purpose” for which Mr Matera was employed. I previously found, and for the reasons stated earlier, the “principal purpose” for which Mr Matera was employed was that of a supervisor.

[69] The Commission must give consideration to Clause 4: Coverage of the Award which relevantly provides:

“4. Coverage

4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award.

4.2 Without limiting the generality of the exclusion, this award does not cover employers covered by:

(a) the Manufacturing and Associated Industries and Occupations Award 2010;
(b) the Joinery and Building Trades Award 2010;
(c) the Electrical, Electronic and Communications Contracting Award 2010;
(d) the Plumbing and Fire Sprinklers Award 2010;
(e) the Black Coal Mining Industry Award 2010;
(f) the Mining Industry Award 2010; or
(g) the Quarrying Award 2010; or
(h) the Pre-Mixed Concrete Award 2010.

4.3 The award does not cover an employee excluded from award coverage by the Act.

4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
…

4.9 For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.

4.10 For the purposes of clause 4.1:

(a) general building and construction means:

(i) 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 covered by clause 4.1 of such buildings, structures or works;
(ii) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.10(a)(i); and
(iii) the installation in any building, structure or works of fittings and services;

(b) civil construction means:

(i) the construction, repair, maintenance or demolition of:

• civil and/or mechanical engineering projects;



• power transmission, light, television, radio, communication, radar, navigation, observation towers or structures;



• power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries;



• silos; and/or



• sports and/or entertainment complexes;

(ii) road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt;
(iii) the prefabrication and installation of geomembranes, geotextiles and appurtenances;
(iv) dredging or sluicing work for or at premises provided for persons mentioned in or in connection with work under clause 4.10(b)(i);
(v) the testing of soil, concrete and aggregate when it is carried out at a construction site in or in connection with work under clause 4.10(b)(i);
(vi) batch plants and precast yards at a construction site in or in connection with work under clause 4.10(b)(i);
(vii) traffic management in or in connection with work under clause 4.10(b)(i);
(viii) construction and/or establishment of landscape gardens in or in connection with work under clause 4.10(b)(i), provided that this award does not apply to the:

• maintenance or horticultural establishment work following practical completion of work as specified under the terms of the construction contract or project; and/or



• laying-out, construction, cultivation or keeping in order of gardens in connection with private houses;

(ix) the industry or calling of either or both catering and cleaning for or at premises provided for persons mentioned in clause 4.10(b)(i);
(x) car parks excepting car park buildings and car parks within the alignment of a building; and
(xi) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;

(c) metal and engineering construction means:

(i) metal trades work performed in the work of construction, fabrication, erection and/or installation work or work incidental thereto when it is carried out at a construction site which is specifically established for the purpose of constructing, fabricating, erecting and/or installing the following:

• power stations, oil refineries, terminals and depots; chemical, petro-chemical and hydrocarbon plants; and associated plant, plant facilities and equipment;



• major industrial and commercial undertakings and associated plant, plant facilities and equipment including undertakings for the processing and/or smelting of ferrous and non-ferrous metals, the processing of forest products and associated by-products, acid and fertiliser plants, cement and lime works, and other major industrial undertakings of a like nature;



• plant, plant facilities and equipment in connection with the extraction, refining and/or treatment of minerals, chemicals and the like;



• transmission and similar towers, transmission lines and associated plant, plant facilities and equipment;



• lifts and escalators as prescribed in clause 42—Lift industry;



• facilities and equipment in other engineering projects; and

(ii) maintenance and/or repair and/or servicing work carried out on-site by the employees of contractors or subcontractors in connection with contracts for on-site construction work referred to in clause 4.10(c)(i). This does not include any work which is incidental to or of a minor nature in relation to the work normally performed by an employee of an employer not engaged substantially in metal and engineering construction.”

[70] The scope of the Award is broad enough to cover the nature of the work Mr Matera submits he was performing, being mobile plant and equipment operation. However for the Award to cover Mr Matera, clause 4.1 requires that the work in question be in one of the classifications listed in Schedule B - Classification Definitions.

[71] Mr Matera submitted the duties described in his witness statement and those given in oral evidence fall within Schedule B of the Award - Classification Definitions. Specifically those in schedule B.1.2 and B.1.5 which are as follows:

“B.1.2 Civil construction stream includes all related skills involved in earthmoving, plant operation and associated activity and does not extend beyond the scope of this award.

B.1.5 General construction stream includes all fields of work principally concerned with general building and construction, includingthe erection of new structures or buildings (including demolition and pre-construction) and fitout and finishing activities relating to newly constructed or existing buildings or structures, and does not extend beyond the scope of this award.”

[72] I previously found for the reasons outlined above, that Mr Matera was principally engaged as a supervisor. Schedule B of the Award does not cover employees who are employed as supervisors or on a supervisory level. Further, no reference is made in the Award to the duties and responsibilities described in Mr Matera’s position description. Even if I was to set aside the position description as Mr Matera submitted Guma has misdescribed the duties of his position as a supervisor and considered all other evidence advanced by Mr Matera and Guma, I would still find Mr Matera’s principal purpose was that of a supervisor.

Conclusion

[73] Considering the submissions and evidence before me, I am satisfied Mr Matera, at the time of his dismissal, was engaged principally to perform the role of supervisor. I have therefore concluded there was no award coverage of Mr Matera’s position at the date of termination of employment.

[74] I am satisfied the Agreement did not apply to Mr Matera at the time of his dismissal and therefore Mr Materia is not protected from unfair dismissal in accordance with the Act.

[75] Guma’s jurisdictional objection is upheld and Mr Matera’s application is dismissed. An Order 8 dismissing the application will be issued with this decision.

COMMISSIONER

Appearances:

Mr A Gill for the Applicant

Mr C Clifton solicitor for the Respondent

Hearing details:

2016.

Melbourne and Perth (video hearing):

May 12.

 1   Exhibit R2 – Attachment A.

 2   Exhibit R1, paragraph 6.

 3   Exhibit R1, paragraph 8.

 4   Mines Safety and InspectionAct 1994 (WA).

 5   [2012] FWA 4955.

 6   Williams SDP, Lacy SDP, Tolley C, 17 December 2002 [PR925731].

 7   [2012] FWAFB 7184.

 8   PR583736.

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