Mr Richard Baldock v Squiz Pty Ltd
[2012] FWA 6223
•23 JULY 2012
[2012] FWA 6223 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Richard Baldock
v
Squiz Pty Ltd
(U2012/7898)
COMMISSIONER BULL | SYDNEY, 23 JULY 2012 |
Application for an unfair dismissal remedy - jurisdictional objection - high income threshold - not covered by modern award or enterprise agreement.
[1] This matter originates from a s.394 unfair dismissal application by Mr Richard Baldock (the Applicant) against his previous employer Squiz Pty Ltd (the Employer).
[2] The Employer opposes the application on the basis that Mr Baldock’s annual rate of earnings at the time of his dismissal, being 30 April 2012, was in excess of the high income threshold. The Employer submits that he is therefore not an employee who is protected from unfair dismissal under the Fair Work Act 2009 (the Act).
[3] It is not in dispute that at the time of termination Mr Baldock’s annual salary was $119, 266 plus superannuation.
[4] It is further argued by the Employer that the Applicant is not covered by a modern award or enterprise agreement which would allow the Applicant to proceed with an unfair dismissal claim despite earning an annual salary over the prescribed high income threshold.
[5] The Act sets out at s.382 when a person is protected from unfair dismissal which I reproduce below:
Division 2—Protection 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.
(My underline)
[6] The high income threshold was indexed to $118, 100 from 1 July 2011, and indexed to $123, 300 from 1 July 2012 (see Fair Work Regulations 2009, Reg 2.13).
[7] Mr Baldock submits that up until his dismissal he had earned less than the threshold amount and further that had he been employed for the full financial year his annual income would have only been marginally over the threshold amount. Similarly had he been terminated after 1 July 2012 his annual salary would have been less than the increased threshold amount.
[8] Unfortunately for the Applicant the Act does not allow the Tribunal to have regard to any discretionary considerations when considering the high income threshold. An employee’s salary is either above or below the stipulated amount. In the Applicant’s case it is above.
[9] In maintaining the jurisdictional objection the Employer also argues that the Applicant is not covered by a modern award or employed under an enterprise agreement. The Employer made reference to the Professional Employees Award 2010 (the Award) which is a modern award that includes at clause 4.2 the following:
This award covers employers throughout Australia principally engaged in the information technology industry ... and their employees who are covered by the classifications in Schedule B.
[10] The Employer does not dispute that it operates in the information technology industry, but disputes that the Applicant was employed under a classification listed in Schedule B, as his position is not of a technical nature but one requiring the exercise of business management and leadership skills.
[11] Whether the Applicant is employed under the Award is a question of fact, requiring an examination of the terms of the Award and the Applicant’s tasks and responsibilities.
[12] The Award makes reference to a ‘Professional information technology employee’ at clause 3.3 being an adult person qualified to carry out professional information technology duties as defined. A Professional information technology employee includes an Experienced information technology employee as defined. The Award definition of an Experienced information technology employee states:
Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:
(a) that they have graduated with a university degree, with a science or information technology major (three, four or five year course) and had four years’ experience on professional information technology duties since graduating; or
(b) that they, not having so graduated, have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society plus a further four years’ experience on professional information technology duties.
[13] Mr Baldock referred to his previous membership of the Australian Computer Society and his depth of technical experience and skills. I have no difficulty in concluding that Mr Baldock’s experience and qualifications meets the Award definition of Experienced information technology employee.
[14] Coverage of the Award requires an employee to be engaged in one of the classifications listed Schedule B. The most appropriate classification based on the Applicant’s skills and experience is a Level 2 Experienced professional:
Following development, the Experienced professional plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.
[15] The Experienced Award Levels 3 and 4 make reference to a superior technical knowledge and provision of technical advice.
[16] The Employer argues that the Applicant’s position of Business Manager is not encompassed by the Award classification of Level 2 Experienced professional which requires the possession and application of technical skills. The Employer drew attention to the Business Manager position description and a job advertisement for the position. In recruiting for the position the Employer submitted that commercial skills were what was required and that evidence of the Applicant’s technical qualifications were not sought.
[17] The key accountabilities of the Business Manager position include behavioural competencies such as leadership, commercial acumen, service focus, communication skills; there is notably no reference to a technical skill competency. The Employer referred to an employee appointed to a Business Manager position whose background was in the fashion industry to highlight the lack of technical knowledge required to perform the role of Business Manager.
[18] The job advertisement for the Business Manager position pays scant regard to the necessity to hold or exercise technical skills.
[19] I have had regard to the AIRC Full Bench decision in Brand v APIR Systems Limited (2003) 1 in concluding that the Applicant is not covered by the modern Professional Employees Award 2010.
[20] While Mr Baldock possesses the necessary skills and experience to fulfil the role of a Professional information technology employee, the duties of his role as a Business Manager do not fall within the scope of the Award classifications. The position of Business Manager is not technical in nature but that of a corporate business role outside the coverage of the Award.
[21] The application under s.394 must therefore be dismissed as he is not an employee protected from unfair dismissal being an employee whose annual rate of earnings is above the high income threshold.
COMMISSIONER
Appearances:
R Baldock on his own behalf.
M Luton and E Rapinett on behalf of Squiz Pty Ltd.
Hearing details:
2012.
Sydney.
20 July.
1 PR938031.
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<Price code A, PR526715>
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