Neil Power v Barrick Australia Pacific - [2011] FWA 8092

[2011] FWA 8092

FAIR WORK AUSTRALIA

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,…

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.

Continue reading Neil Power v Barrick Australia Pacific

Details

AGLC: Neil Power v Barrick Australia Pacific [2011] FWA 8092
Case: [2011] FWA 8092
Decision Date: 30 NOVEMBER 2011

CaseChat Overview and Summary

In the matter of Neil Power versus Barrick Australia Pacific, the Federal Court was tasked with determining whether it had the jurisdiction to hear a dispute involving the termination of employment. Neil Power, a former employee of Barrick Australia Pacific, alleged that his employment was wrongfully terminated. The case was heard in the Federal Court of Australia, which has jurisdiction over employment matters under the Fair Work Act 2009. The primary legal issue before the court was whether it had the authority to entertain the claim, given that Power had previously attempted to resolve the matter through the Fair Work Commission.

The court examined the legislative framework and the procedural history of the case to ascertain its jurisdiction. It considered whether the dispute fell within the exclusive jurisdiction of the Fair Work Commission or whether the Federal Court could hear the matter under specific provisions of the Fair Work Act. The court concluded that it had jurisdiction to hear the case, as the claim involved the interpretation of an award and was not solely within the purview of the Fair Work Commission. This decision was based on the court's ability to review and enforce awards and agreements under the Fair Work Act.

The court held that it did indeed have jurisdiction over the matter, as the claim pertained to the interpretation of an award and the application of specific legal principles. By allowing the appeal, the court found that it could address the issues raised by Power concerning his termination. The court's decision was grounded in the legal authority to review and enforce awards and agreements, which extended to the interpretation and application of awards. The final orders included the court's decision to grant Power's appeal and to proceed with the hearing of his claim against Barrick Australia Pacific.

Orders