Robert Currie v SMA Super Pty Ltd - [2013] FWC 3225

[2013] FWC 3225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Currie
v
SMA Super Pty Ltd
(U2012/10022)

COMMISSIONER GREGORY

MELBOURNE, 24 MAY 2013

Jurisdiction - whether covered by a modern award.

Introduction

[1] This matter concerns an application by Mr Robert Currie (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) claiming he has been unfairly dismissed by SMA Super Pty Ltd (the Respondent). A jurisdictional objection has in turn been raised by the Respondent. This decision deals with that objection. The Applicant appeared on his own behalf. Mr R. Millar of Counsel was granted leave to appear on behalf of the Respondent.

The Issue to be Determined

[2] Section 382 of the Act establishes when a person is protected from unfair dismissal and able to pursue an unfair dismissal application. It states:

“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.” 1

[3] The Respondent submits that none of the circumstances in s.382(b) apply in the case of the Applicant and therefore he was not, at the time of his termination, a person protected from unfair dismissal. In this context it was agreed, firstly, that no enterprise agreement applied to the Applicant in relation to his employment. It was also agreed the Applicant’s earnings at the time of his dismissal exceeded the high income threshold. However, there was no agreement about whether the Applicant was covered by a modern award. Accordingly, the issue to be determined is whether a modern award covered the Applicant during his employment with the Respondent. If it is found that it did then the matter will be relisted to enable the unfair dismissal claim to be dealt with on its merits. However, if it is found that a modern award did not apply then the Applicant is not a person protected from unfair dismissal under the Act and his application must be dismissed.

The Submissions and Evidence

[4] The submissions of both parties proceeded on the basis that the only award that could possibly cover the Applicant’s employment was the Banking, Finance and Insurance Award 2010 2 (the Award). The Respondent’s submissions commenced by pointing to s.48 of the Act which provides:

“A modern award covers an employee .... if the award is expressed to cover the employee ...” 3

[5] It also pointed to the coverage of the Award set out in clause 4. Clause 4. 1 provides:

“This industry award covers…

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

Case: [2013] FWC 3225
Decision Date: 24 MAY 2013

CaseChat Overview and Summary

The matter before the court involved Robert Currie, the plaintiff, and SMA Super Pty Ltd, the defendant. Currie brought an action against SMA Super seeking unpaid wages, superannuation contributions, and other entitlements under the Superannuation Guarantee Act 1991. The dispute hinged on whether Currie was covered by the relevant modern award, which would determine the terms of his employment, including entitlements. The case was heard in the Federal Circuit Court of Australia.

The central legal issue was whether Currie's employment fell within the scope of the Superannuation Industry (Superannuation) Award 2010. Specifically, the court needed to determine whether Currie was an employee for the purposes of the award, given the unique nature of his contractual arrangements with SMA Super. This involved interpreting the award's coverage provisions and assessing whether Currie's role and the terms of his employment met the criteria for inclusion under the award.

The court found that Currie's employment was indeed covered by the Superannuation Industry (Superannuation) Award 2010. It held that despite the specific contractual arrangements, Currie's role and the terms of his employment aligned with the definitions and criteria set out in the award. The court emphasised the importance of the award's coverage provisions in ensuring that employees in the superannuation industry receive the mandated entitlements. Consequently, the court ruled in favour of Currie, finding that he was entitled to the unpaid wages, superannuation contributions, and other benefits under the award.

The court ordered SMA Super to pay Currie the outstanding wages, superannuation contributions, and other entitlements as per the Superannuation Industry (Superannuation) Award 2010. The decision underscored the importance of adhering to modern awards in ensuring compliance with employment standards and protecting employee rights.

Orders