Rohan Brittain v BHP Iron Ore Pty Ltd - [2022] FWC 922

[2022] FWC 922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rohan Brittain
v

BHP Iron Ore Pty Ltd

(U2021/11202)

DEPUTY PRESIDENT BEAUMONT

PERTH, 3 MAY 2022

Application for an unfair dismissal remedy

This decision concerns a jurisdictional objection raised by BHP Iron Ore Pty Ltd (BHP) in response to an unfair dismissal application brought by Mr Brittain under s 394 of the Fair Work Act 2009 (Cth) (the Act).

The issue before the Commission is whether Mr Brittain’s annual rate of earnings, and such other amounts (if any) worked out in accordance with the regulations, was less than the high income threshold.[1] This is a pertinent issue. Whether Mr Brittain was a person protected from unfair dismissal turns on this point. It was not in dispute between the parties that Mr Brittain had completed the minimum period of employment, was not covered by a modern award, and was not covered by an enterprise agreement.

BHP submitted that Mr Brittain earned more than the high income threshold. It arrived at this conclusion on the basis that Mr Brittain’s fixed remuneration at the time of his dismissal comprised of: (a) an annual ‘Base Salary’ or $136,980.00; and (b) a ‘Work Allowance’ of $27,396.00. Accordingly, at the time of his dismissal, Mr Brittain’s total fixed remuneration was $164,376.00.

Mr Brittain conceded that if the Work Allowance formed part of his ‘annual rate of earnings’ for the purposes of s 382(b)(iii) of the Act, then he had earned in excess of the high income threshold and BHP’s jurisdictional objection must be upheld.

I considered it appropriate to determine the jurisdictional objection on the papers given the views of the parties who had consented to such anapproach, the discrete nature of the contentious issue, and the obligation under the Act to deal with matters quickly and in a manner that avoids unnecessary technicalities.

I note that an amendment to the name of the Respondent was permitted under s 586 of the Act, in light of the incorrect employing entity (BHP Group Limited) having been initially identified on the unfair dismissal application.

Background

It is uncontroversial Mr Brittain commenced with BHP in around August 2011 in the role of Supply Service Technician in Port Hedland. In around August 2017, he accepted a role with BHP Minerals Pty Ltd (a related entity of BHP) as a Maintenance Planner in the Non Processing Infrastructure Department, and in around March 2020, he entered into an employment contract with BHP for the role of Officer Materials Logistics (Contract). The latter role was situated in Port Hedland on a residential basis.

In accordance with the Contract, Mr Brittain’s fixed remuneration initially comprised of a Base Salary of $129,420.00 and a Work Allowance of $25,884.00. However, as observed, at the time of his dismissal Mr Brittain’s total fixed remuneration was $164,376.00, with both his Base Salary and Work Allowance having been increased.

Legislation

Section 382 sets out when a person is protected from unfair…

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 Rohan Brittain v BHP Iron Ore Pty Ltd

Details

AGLC: Rohan Brittain v BHP Iron Ore Pty Ltd [2022] FWC 922
Case: [2022] FWC 922
Decision Date: 3 MAY 2022

CaseChat Overview and Summary

Rohan Brittain applied to the Fair Work Commission for an unfair dismissal remedy against BHP Iron Ore Pty Ltd. The dispute centred around the determination of Mr Brittain's annual rate of earnings and whether it fell below the high income threshold, as set out in section 382(b)(iii) of the Fair Work Act 2009 (Cth). The jurisdictional issue was whether Mr Brittain's Work Allowance should be considered part of his annual earnings. BHP argued that it should be, while Mr Brittain contended that it was akin to reimbursement and therefore should not be included.

The Fair Work Commission examined the definition of 'earnings' under section 332 of the Act and the ordinary meaning of the term. The Court found that 'earnings' referred to the sum received for services provided, excluding certain payments and benefits. BHP submitted that the Work Allowance was a guaranteed payment made in consideration for Mr Brittain's role and working conditions, and therefore should be included in his earnings. Mr Brittain argued that the Work Allowance was a recognition of the difficulties faced by Pilbara-based employees and not a payment for work done.

The Commission held that the Work Allowance was part of Mr Brittain's earnings as it was compensation for the working hours and hardship associated with his role. The Work Allowance was calculated as a percentage of his Base Salary, and the Commission rejected Mr Brittain's argument that it was a reimbursement for expenses. Therefore, the Work Allowance was considered part of Mr Brittain's annual earnings, which exceeded the high income threshold.

Mr Brittain's application for an unfair dismissal remedy was dismissed as he did not meet the criteria for protection from unfair dismissal under the Act. An order was issued concurrently with the decision.

Orders