Stephen Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space

[2020] FWC 3124

[2020] FWC 3124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Bury
v
Gilmour Space Technologies Pty Ltd T/A Gilmour Space
(U2019/9929)

DEPUTY PRESIDENT ASBURY BRISBANE, 13 JULY 2020

Application for an unfair dismissal remedy.

Background

[1] This Decision concerns an application by Mr Stephen Bury seeking an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment by Gilmour Space Technologies Pty Ltd T/A Gilmour Space (the Respondent). The Respondent contends that Mr Bury is not a person protected from unfair dismissal as defined in s. 382 of the Act on the basis that a modern award did not cover him and the sum of his annual earnings exceeded the high-income threshold.

[2] Mr Bury was employed in positions variously described as head of Engineering and Head of Operations, and was paid an annual salary of $170,000. It is not in dispute that the sum of Mr Bury’s annual earnings exceeded the high income threshold. Mr Bury contended that he was covered by the Professional Employees Award 2010 and that aspects of the Manufacturing and Associated Industries and Occupations Award 2010 also covered his employment.

[3] In a Decision issued on 17 April 2020 1, I found that the principal purpose of Mr Bury’s employment was as a senior manager and he was not covered by the Professional Employees Award 2010. I also expressed a provisional view that Mr Bury was not covered by the Manufacturing and Associated Industries and Occupations Award 2010. Given the way that Mr Bury’s case was conducted, I decided to give him an opportunity to make further submissions on the basis of the evidence already before me, in relation to whether he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 and to give the Respondent an opportunity to file any submissions in reply.

Consideration

[4] In his further submissions, Mr Bury attempted to revisit the issue of whether he was covered by the Professional Employees Award 2010. For reasons set out in my earlier Decision, I have determined this matter and there is no basis to depart from that concluded view. Mr Bury was not covered by the Professional Employees Award 2010.

[5] In his further submissions, Mr Bury took the same approach that he previously adopted in relation to attempting to establish that he was covered by the Manufacturing and Associated Industries and Occupations Award 2010. It is not sufficient to establish that the Manufacturing Award covers employment, to simply identify tasks within classifications under that Award and assert that those tasks were undertaken. What is required is that the principal purpose of employment is to undertake such tasks.

[6] The fact that a senior manager has technical knowledge or is responsible for the implementation of systems to manage quality, design or some other subject matter, is not of itself sufficient to establish coverage under the Manufacturing and Associated Industries and Occupations Award 2010. Mr Bury was employed as a senior manager to oversee the implementation of systems by others and the fact that he may have undertaken some “hands on” tasks, does not result in him being covered by that Award.

Conclusion

[7] After considering the further submissions made by Mr Bury, I confirm my provisional view. Mr Bury was not covered by the Manufacturing and Associated Industries and Occupations Award 2010 in relation to his employment by the Respondent. For reasons previously provided, Mr Bury was not covered by the Professional Employees Award 2010. The sum of Mr Bury’s annual earnings exceeded the high income threshold. Accordingly, Mr Bury was not a person protected from unfair dismissal, and his application under s. 394 of the Act must be dismissed.

[8] An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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 1   Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space [2020] FWC 2015.