Neil Power v Barrick Australia Pacific
[2011] FWA 8092
•30 NOVEMBER 2011
[2011] FWA 8092 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Neil Power
v
Barrick Australia Pacific
(U2011/8027)
COMMISSIONER WILLIAMS | PERTH, 30 NOVEMBER 2011 |
Termination of employment - jurisdiction.
[1] This matter involves an application made under section 394 of the Fair Work Act 2009 (the Act) by Mr Neil Power. The Respondent is named as Barrick Australia Pacific however it is apparent that the identity of the correct employing entity was Barrick (Granny Smith) Pty Ltd (Barrick).
[2] The application was dealt with by a Fair Work Australia Conciliator however it was not resolved and so has been referred to myself for determination.
[3] Barrick object to the application proceeding further on the grounds that Mr Power is not a person protected from unfair dismissal because he was not covered by a modern award nor was there an enterprise agreement that applied to his employment and the sum of his annual rate of earnings exceeded the high income threshold. These jurisdictional prerequisites are prescribed by section 382(b) of the Act.
Background
[4] Mr Power was employed with Barrick as an underground shift supervisor.
[5] He was dismissed on 10 May 2011.
[6] It is common ground between the parties that there was no enterprise agreement that applied to Mr Power in relation to his employment with Barrick and that the sum of his annual rate of earnings was more than the high income threshold, which at the time of dismissal was $113,800.
[7] The remaining issue to be determined by the Tribunal is whether at the time of his dismissal there was a modern award that covered him.
[8] Mr Power argues that he was a person covered by the Mining Industry Award 2010 [MA000011] (the Award).
Consideration
[9] Section 48 prescribes that a modern award covers an employee or employer if the award is expressed to cover the employee or employer.
[10] The relevant provisions of the Award are as follows:
4. COVERAGE
4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13. Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.
4.2 Definition of mining industry
For the purposes of this clause mining industry means:
(a) extracting any of the following from the earth by any manner or method including exploration, prospecting, development and land clearing, preparatory work and rehabilitation during the life of the mine:
(i) any metals, minerals or ores;
(ii) phosphates and gemstones;
(iii) mineral sands;
(iv) uranium and other radioactive substances;
(b) the processing, smelting and refining of the metals, minerals, ores or substances covered by clause 4.2(a);
(c) the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) on a mining lease or tenement;
(d) the transportation, handling and loading of any of the metals, minerals, ores or substances covered by clause 4.2(a) by the mine operator, a related company or an entity principally engaged by the mine operator to do such work, using the plant or infrastructure (including rail and/or ports) of the mine operator or a related company;
(e) the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to (d) by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed; or
(f) the provision of temporary labour services used in the activities set out in clauses 4.2(a) to (e), by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.
4.3 Exclusions
This award does not cover:
(a) an employee who is 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 such employee;
(b) an employee who is covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to such an employee;
(c) an employee excluded from award coverage by the Act;
(d) employers in respect of their operations or activities in the following industries or occupations:
(i) aluminium;
(ii) catering, accommodation, cleaning and incidental services (unless employed by a mine operator or a related company);
(iii) clerical or administrative;
(iv) information technology professionals, professional engineers, geologists and scientists;
(v) oil, gas and hydrocarbons;
(vi) quarrying of stone, crushed stone, sand and gravel, and land reclamation (including dredging);
(vii) salt;
(viii) security services (unless employed by a mine operator or a related company);
(ix) steel making;
(x) prospecting and resource assessment for the purposes of potential mine development, which is not on a mining lease or tenement;
(xi) brown coal mining; and
(xii) melting and smelting of metals in connection with manufacturing activities covered by the Manufacturing and Associated Industries and Occupations Award 2010;
(e) employers in respect of their operations or activities covered by the Black Coal Mining Industry Award 2010;
(f) employers in respect of their operations or activities covered by the Manufacturing and Associated Industries and Occupations Award 2010, except for work covered by clause 4.2 above; and
(g) persons employed in the head office or town office of an employer.
4.4 This award covers employers which provide group training services for apprentices and trainees engaged in the industry and/or parts of industry set out at clause 4.2 and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.5 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
13. Classifications and minimum wage rates
13.1 Adult employees
(a) A full-time adult employee must be paid a minimum weekly rate for their classification as set out in the table below:
Level | Classification | Minimum weekly rate $ |
Entry Level | Introductory | 611.10 |
Level 1 | Basic | 641.10 |
Level 2 | Intermediate | 665.90 |
Level 3 | Competent | 686.20 |
Level 4 | Advanced | 732.10 |
Level 5 | Advanced specialist | 779.60 |
Level 6 | Dual Trade | 817.90 |
Level 7 | Dual Trade Instrumentation | 851.00 |
(b) The classification structure and descriptors for the above classifications are contained in Schedule B—Classification and Structure.
13.2 Junior employees
Where the law permits junior employees to perform work in the mining industry, the junior employee will be entitled to the percentage of the applicable adult weekly wage (in the case of part-time or casual employees the hourly rate) for their classification as set out in the table below:
Age | % of adult rate |
16 years or less | 75 |
At 17 years | 85 |
At 18 years | 100 |
13.3 School-based apprentices
Arrangements for school-based apprentices are set out in Schedule C.
13.4 Apprentices and trainees
(a) The terms of this award apply to apprentices and trainees, subject to the provisions of an applicable contract of apprenticeship or training agreement operating under federal, state or territory apprenticeship or training legislation and Schedule D—National Training Wage.
(b) Trainees will be entitled to the percentage of the applicable adult weekly wage (in the case of part-time or casual employees the hourly rate) for their classification as set out in Schedule D.
(c) Apprentices will be entitled to the percentage of the applicable adult weekly wage for their classification as set out in the table below:
Year of apprenticeship | % of adult rate |
1st year | 45 |
2nd year | 55 |
3rd year | 75 |
4th year | 88 |
13.5 Supported wage system
See Schedule E
SCHEDULE B—CLASSIFICATION AND STRUCTURE
B.1 Classification and progression principles
B.1.1 Classification
In each of the classifications under this award it is a requirement that an employee must:
(a) perform work in a fully flexible manner as reasonably required by the employer and in accordance with the employee’s ability and competence;
(b) acquire any skills as reasonably requested by the employer and, where necessary, undertake required training and assist with the training of others; and
(c) use such tools and equipment as may be required, subject to the limit of the employee’s skills and competence and provided that the employee has been properly trained in the use of such tools and equipment.
B.1.2 Progression
An employee will progress through the classification levels subject to:
(a) possessing the applicable skills for the level; and
(b) being required by the employer to perform work at that level.
Progression from Level 4 and above will be subject to the employee being appointed by the employer.
B.2 Classification groups
B.2.1 Mining Industry Services Employees
A Mining Industry Services Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: labouring; assisting work crews and tradespersons; operation of plant and equipment (including mobile plant); maintenance work on plant, equipment or buildings; performance of general plant, stores, workshop, warehouse, packaging, and marine interface tasks, resource assessment (including prospecting, drilling and exploration); preparing and cleaning equipment and materials; and on site catering cleaning and security.
This classification group also encompasses work performed by Laboratory Assistants, who do not hold tertiary qualifications.
B.2.2 Mining Industry Surface Mining and Haulage Employees
A Mining Industry Surface Mining and Haulage Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: open cut mining activities (including labouring, sampling, spotting); operating all forms of mining industry plant and equipment (including mobile plant); operating equipment used in the transportation handling and loading (or discharge) of ores, metals, minerals and/or product (including rail activities); and all tasks associated with drilling and blasting.
B.2.3 Mining Industry Processing Employees
A Mining Industry Processing Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: operating and adjusting all plant equipment (and associated control panels) utilised in mining industry production, processing, smelting and refining operations; and issuing clearances and permits as required.
B.2.4 Mining Industry Underground Mine Employees
A Mining Industry Underground Mine Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to: underground mining activities (including labouring, sampling, drilling, blasting, mine ventilation, ground control and shaft activities); and operation and maintenance of underground mining plant and equipment (including mobile plant).
B.2.5 Mining Industry Maintenance Trades Employees
A Mining Industry Maintenance Trades Employee is designated as such by their employer, performs all tasks on the surface or underground as directed by their employer and is trade qualified.
B.3 Classification Structure
B.3.1 Entry Level—Introductory
An employee at this level is undertaking the standard induction training required for the operation or business. Such training covers: conditions of employment; mine and plant safety; first aid procedures; movement around the site; work and documentation procedures; quality control and quality assurance; and introduction to supervisors and fellow workers. Employees at this level perform routine duties under direct supervision.
This level applies to the following classification groups:
• Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.
B.3.2 Level 1—Basic
An employee at this level will have completed the standard induction training and have been assessed to be able to competently carry out the basic and semi-skilled work required for this level.
This level applies to the following classification groups:
• Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.
B.3.3 Level 2—Intermediate
An employee at this level will have been assessed as being competent to carry out semi-skilled work on a broad range of plant and equipment functions. The employee exercises discretion within their level of skill and is responsible for the quality of the work subject to routine supervision.
This level applies to the following classification groups:
• Mining Industry Services Employees; Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; and Mining Industry Underground Mine Employees.
B.3.4 Level 3—Competent
An employee at this level will have been assessed as being competent to apply skills and knowledge in complex but routine situations where discretion and judgment are involved. The skills and knowledge are acquired through the completion of a trade certificate, or through practical experience, which has equipped the employee with an equivalent level of skills and knowledge.
An employee at this level can plan tasks, select equipment and appropriate procedures from known alternatives and takes responsibility for the work of others. An employee at this level requires only limited supervision or guidance.
An employee at this level: understands and applies quality control techniques; exercises discretion within the scope of this level; performs work under limited supervision; operates all equipment incidental to the work; and assists in the provision of on-the-job training.
This level applies to the following classification groups:
• Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.
B.3.5 Level 4—Advanced
An employee at this level will have met the requirements for Level 3 and been assessed as being competent to perform tasks which require in depth skill or knowledge, or the employee is assessed as having the integration of a broad range of skills. The work may be of a non-routine nature requiring the application of the relevant skills and knowledge to new but predictable situations.
The level of skills or knowledge required to perform this work will involve the completion of a post trade training appropriate for this level, or through the acquisition of practical skills and knowledge which has equipped the employee with the equivalent level of skills and knowledge.
An employee at this level will provide guidance and assistance to others.
This level applies to the following classification groups:
• Mining Industry Surface Mining and Haulage Employees; Mining Industry Processing Employees; Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.
B.3.6 Level 5— Advanced Specialist
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.
This level applies to the following classification groups:
• Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trades Employees.
B.3.7 Level 6—Dual Trade
An employee at this level will have met the requirements for Level 5 and holds a dual trade qualification or equivalent prescribed post trade course used in the operation and has acquired additional knowledge enabling the employee to apply dual trade skills or an equivalent level of high precision specialised trade skills in one area.
An employee at this level: has high precision trade skills in more than one area; is qualified to work on machinery or equipment with complex mechanical, hydraulic, electrical circuitry or controls; and meets the skills requirements for Tradespersons in accordance with the Manufacturing and Associated Industries and Occupations Award 2010 for this level.
This level applies to Mining Industry Maintenance Trades Employees.
B.3.8 Level 7—Dual Trade Instrument Technician
An employee at this level will have met the requirements for Level 6 and have acquired further additional knowledge by having satisfactorily completed a prescribed post trades course or an advanced trade equivalent enabling the employee to apply advanced dual trade instrument electrical technician skills.
This level applies to Mining Industry Maintenance Trades Employees.
[11] The Respondent concedes that it is an employer engaged in the mining industry as defined in clause 4.1 and 4.2 of the Award.
[12] Barrick submit quite correctly that in order for the Applicant to be covered by the Award he must fall within one of the classifications of the Award that are specified in clause 13 and Schedule B of the Award.
[13] The Applicant submits that he believes the role of underground shift supervisor is classified as a Level 4-Advanced in the classification groupings of the Award.
[14] Both parties referred to aspects of the Barrick position description applicable to the Applicant.
[15] The Applicant points out that the position description under the heading of key duties and tasks includes the following:
- Allocate tasks equipment, work areas and targets to mine operations employees and acknowledge their understanding before commencing work.
- Monitor progress of assigned tasks and address any issues
- Reassign tasks, equipment, work areas and targets as conditions or mine instructions require.
[16] The Applicant argues that all of the above involves the operation of mining plant and equipment including mobile plant and that having the skills to do so is also a requirement in the position description.
[17] The Applicant argues that the underground shift supervisor is required to operate mining plant and equipment and it is common practice that they would operate such equipment and he did during the course of his duties. Consequently the Applicant argues his position as underground shift supervisor is covered by the Award.
[18] Barrick have a different view of the effect of the position description and argue that the Applicant was primarily responsible for supervising the crew allocated to him and ensuring high levels of performance and compliance with safety standards and that he was not required as part of his role to perform operational mining activities.
[19] In any event Barrick argued the position of underground shift supervisor is a senior position that has traditionally been award free and so it is incapable of being covered by the Award by virtue of section 143(7) of the Act. This provision of the Act says that a modern award must not be expressed to cover classes of employees who, because of the nature or seniority of their role, have traditionally not being covered by awards, or who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
[20] In terms of the facts of this matter both parties accept the application of the position description to the employment of Mr Power.
[21] I accept his statements which are uncontested that he would commonly operate plant and equipment, including mobile plant, and I note that his recounting of the events relevant to his dismissal in his application mentions that he was operating a bogger in the mine at the time of the relevant incidents.
[22] My conclusion however, is that the operation of plant and equipment including mobile plant was not the major and substantial role of the Applicant, this activity was not the principle purpose of his employment and was incidental to the principle purpose of his employment. 1
[23] Considering the whole of the position description for the Applicant in context this conclusion is supported by the following provisions in that position description.
[24] The role reports directly to the mine foreman.
[25] Underground mining operators are identified as the direct reports to the underground shift supervisor.
[26] The position level is identified as supervisor as distinct from other options including operator, technician, tradesperson senior professional and specialist.
[27] The core purpose is said to be the immediate supervision of all underground mining operations.
[28] The key accountabilities are all supervisory in nature.
[29] Other than for safety and environment, which are identified as being the responsibility of all employees, the key duties and tasks for the position deal with:
- Employee development such as ensuring employees have clearly defined accountabilities and development plans, providing feedback on performance and conducting for performance reviews and contributing to the development and maintenance of job procedures plus working with the mine foreman and safety and training adviser to facilitate skill assessment and development.
- Undertaking inspections off work areas plant stockpiles waste dumps etc to ensure compliance with safety legislation and observe the operators to ensure that carrying out their duties safely and efficiently and in compliance with operating procedures.
- In terms of production allocating tasks, equipment and work areas to employees, monitoring progress, reassign tasks equipment etc, completing shift reports, liaising with mining professionals and contractors, communicating business objectives to operations cruise and working with other shift supervisors and mine foreman to arrange shift coverage and rosters.
[30] It is clear then that that the position description heavily focuses on the supervisory role. The operation of plant and equipment including mobile plant is not directly mentioned other than as being a skill or experience the suitable incumbent should have.
[31] My conclusion then is that the supervisory duties and responsibilities required of the underground shift supervisor extend far beyond the duties and tasks prescribed in the various awards classifications. These supervisory duties and responsibilities is what the Applicant was employed to do. The fact that he did from time to time to do operational work such as driving a bogger does not alter the fact that the principle purpose of his employment was to be the supervisor of other employees.
[32] I am satisfied that the Applicant was not working in a classification prescribed in the Award.
[33] Consequently I find that the Mining Industry Award 2010 did not cover the Applicant.
[34] Therefore I find that the Applicant is not a person protected from unfair dismissal within the meaning of section 382 of the Act and so is not able to make this application.
[35] Accordingly the application will now be dismissed and an order to that effect will be issued in conjunction with this decision.
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