Steven Delnon v ANZ Enviro Pty Ltd - [2024] FWC 625

[2024] FWC 625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Steven Delnon
v

ANZ Enviro Pty Ltd

(U2023/12854)

DEPUTY PRESIDENT BEAUMONT

PERTH, 12 MARCH 2024

Application for an unfair dismissal remedy

Issues and outcome

Mr Steven Delnon (the Applicant) applied for an unfair dismissal remedy on 21 December 2023 against ANZ Enviro Pty Ltd (the Respondent), his former employer. The Respondent objected to the application on the basis that the Applicant was not a person protected from unfair dismissal because he earned more than the high income threshold ($167,500.00) and he was not covered by a modern award or enterprise agreement.[1]

The Applicant conceded that his annual income was approximately $176,800.00 and therefore, his annual rate of earnings and such other amounts (if any) were not less than the high income threshold. However, the Applicant pressed that he fell under a construction worker level 3 under Schedule A of the Building and Construction General On-site Award 2020.[2] (the Building Award). The Applicant submitted that he was, therefore, covered by a modern award and protected from unfair dismissal.

Therefore, the question to be determined is whether the Applicant was protected from unfair dismissal by virtue of s 382(b)(i) of the Fair Work Act 2009 (Cth) (the Act), that is, was he covered by a modern award. Neither party suggested that an enterprise agreement had applied to the Applicant in relation to his employment.

For the reasons that follow, I have concluded that the Applicant was not covered by a modern award, an enterprise agreement did not apply to him in relation to his employment, and the sum or his annual rate of earnings (and such other amounts) was less than the high income threshold. It follows that the Applicant was not protected from unfair dismissal and accordingly his application is dismissed. An Order[3] to that effect issues concurrently with this decision.

Background

The Respondent in this matter is a National System Employer. According to the Applicant, the Respondent is in the business of asbestos removal, demolition of asbestos contaminated buildings and structures, construction, and site clearance.[4] The Respondent similarly asserts that it is an asbestos removal, hazardous material remediation, demolition works and regeneration company operating in Australia and New Zealand. The Respondent added that its speciality is in hazardous remediation including Class A and B asbestos removal, contaminated land and building refurbishment.[5]

It appears uncontroversial that the Applicant was initially employed by a company called Mycologia Pty Ltd (ABN 69 109 935 711) (Mycologia) in the position of an Asbestos Operations and Training Manager. The Applicant commenced in this position on 8 January 2013.[6]

According to the Respondent, Mycologia contracted the services of the Applicant to a company called Hazworx Pty Ltd (ABN 98 146 232 724) (Hazworx) and the Applicant was required to report to a supervisor, who was employed by Hazworx.[7]

On the 8 March 2014, Hazworx provided an employment contract to the Applicant offering him…

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: [2024] FWC 625
Decision Date: 12 MARCH 2024

CaseChat Overview and Summary

Steven Delnon applied for an unfair dismissal remedy against ANZ Enviro Pty Ltd, his former employer. The Respondent argued that the Applicant was not protected from unfair dismissal as he earned more than the high income threshold ($167,500.00) and was not covered by a modern award or enterprise agreement. The Applicant conceded that his annual income was approximately $176,800.00 but argued that he was covered by the Building and Construction General On-site Award 2020, which would protect him from unfair dismissal. The central issue for the court to determine was whether the Applicant was covered by a modern award and thus protected from unfair dismissal.

In addressing the issue of award coverage, the court noted that the Applicant bore the onus of proving that he was covered by a modern award. The court examined the Building Award, which covers employers in the on-site building, engineering, and civil construction industry. The court found that while the Respondent performed work that could be classified under the Building Award, the Applicant's role as Operations Manager was not covered by the award. The Applicant's primary function was managing projects and sites rather than performing construction work on the tools, which would have aligned with the 'construction worker level 3' classification under the Building Award. Additionally, the court found that the Waste Management Award 2020, which the Respondent suggested covered the Applicant, did not apply because the Respondent's work did not fall under the definition of 'waste management industry' as interpreted by the court.

Given that the Applicant was not covered by a modern award and his annual earnings exceeded the high income threshold, the court concluded that the Applicant was not protected from unfair dismissal. Therefore, the Applicant's claim for unfair dismissal was dismissed for lack of jurisdiction.

Orders