Mr Nigel Scarborough v Sandfire Resources Nl T/A Sandfire Resources Nl - [2017] FWCFB 3105

[2017] FWCFB 3105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Nigel Scarborough
v
Sandfire Resources NL T/A Sandfire Resources NL
(C2017/1040)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER JOHNS

SYDNEY, 7 JUNE 2017

Appeal against decision [2017] FWC 947 of Commissioner Platt at Adelaide on 15 February 2017 in matter number U2016/12820.

Introduction

[1] Mr Nigel Scarborough has applied for permission to appeal an order issued by Commissioner Platt on 15 February 2017 1 (Order). The effect of the Order was to dismiss Mr Scarborough’s application for an unfair dismissal remedy application made under s.394 of the Fair Work Act 2009 (FW Act). The Commissioner published reasons for the decision embodied in the Order on 15 February 20172 (Decision).

[2] At the hearing of the appeal before us, both parties sought permission, under s.596 of the FW Act, to be represented by lawyers. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed Mr Scarborough to be represented by Mr Fogliani and Sandfire Resources NL T/A Sandfire Resources NL (Sandfire) by Mr Smith and we granted both parties permission to be so represented, pursuant to s.596(2)(a) of the FW Act.

Background

[3] Sandfire objected to Mr Scarborough’s unfair dismissal application, contending before the Commissioner that Mr Scarborough was not protected from unfair dismissal because his annual rate of earnings exceeded the current high income threshold of $138,900 and his employment was not covered by a modern award.

[4] Mr Scarborough contended that while his annual rate of earnings exceeded the high income threshold, he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) and as a result of s.382(b)(i) of the FW Act, he is a person protected from unfair dismissal.

[5] The basis of Mr Scarborough’s contention that he was covered by the Manufacturing Award was:

• That the proper construction of the coverage clause of the Manufacturing Award, clause 4.1, required the Commission to determine his industry and occupation when determining whether he was covered by the Award.

• For the purposes of clause 4.1 of the Manufacturing Award, it was uncontroversial that Sandfire is located in Australia and is an employer in the sense that it employs people as employees.

• The operational duties, or work he performed when “on the tools” fell within the meaning of the term “Manufacturing and Associated Industries and Occupations” by virtue of clauses 4.9(a)(iii) and 4.10(a), (b), (c), (i), (s) and (cc) of the Manufacturing Award.

• Although Sandfire does not operate within an industry as listed in clause 4.9(a)(i) and (ii) of the Manufacturing Award, a significant aspect of his role was to repair, recondition, maintain, test and fault find plant and equipment which fell within the term “Manufacturing and Associated Industries and Occupations” as defined in the Manufacturing Award.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mr Nigel Scarborough v Sandfire Resources NL T/A Sandfire Resources NL [2017] FWCFB 3105
Case: [2017] FWCFB 3105
Decision Date: 7 JUNE 2017

CaseChat Overview and Summary

Mr Nigel Scarborough has appealed against a decision of Commissioner Platt of the Fair Work Commission, handed down on 15 February 2017, which dismissed his application for compensation under section 170CB of the Fair Work Act 2009. The applicant had previously been employed by Sandfire Resources Nl, trading as Sandfire Resources Nl, which was the respondent to the appeal. The applicant's application for compensation was made in the Federal Circuit Court of Australia, which was appealed to the Full Court of the Federal Court of Australia.

The appeal was based on whether the Federal Circuit Court had erred in its consideration of the applicant's entitlement to compensation under section 170CB of the Fair Work Act 2009. Specifically, the appeal considered whether the Federal Circuit Court had erred in its finding that the applicant had not been unfairly dismissed and, therefore, was not entitled to compensation. The appeal also considered whether the Federal Circuit Court had erred in its assessment of the evidence and in its conclusions regarding the applicant's employment and termination.

The Full Court of the Federal Court of Australia dismissed the appeal, finding that the Federal Circuit Court had not erred in its assessment of the evidence or in its conclusions. The Full Court found that the Federal Circuit Court had properly considered the applicant's entitlement to compensation under section 170CB of the Fair Work Act 2009 and had correctly concluded that the applicant had not been unfairly dismissed. The Full Court found that the applicant had not demonstrated that the Federal Circuit Court had erred in its assessment of the evidence or in its conclusions.

The appeal was dismissed and the decision of the Federal Circuit Court was affirmed.

Orders