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

1. Issues and outcome

1. 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]

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. 

1. 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.

1. Background

1. 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]

1. 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]

1. 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]

1. On the 8 March 2014, Hazworx provided an employment contract to the Applicant offering him the role of Asbestos Operations and Training Manager working directly for them. The Applicant accepted that employment, and relevant extracts of the Applicant’s employment contract are set out below:

1.       PARTIES

1.1. This contract shall be between:

a)   Hazworx Pty Ltd (ABN 98 146232724), referred to as ‘the Company’; and

b)   The employee specified below and hereafter referred to as ‘you’ or ‘the employee’

and shall be on the terms set out in the attached Schedule A and in this contract. These terms and conditions are in full satisfaction of any entitlement under any award, law or industrial instrument which would otherwise apply to your employment.

Accordingly, this contract contains flexibility arrangements contemplated by section 144(4) of the Fair Work Act and Clause 7 of the Building and Construction General On-Site Award 2010 (MA000020) (the Award)…

2.2Subject to the requirements of the 457 Long-Stay Temporary Business Visa, your contract will be for a fixed period of four years from the date the visa is approved…

3.   RATE OF PAY

3.1       Your annual base rate of pay shall be as specified in Schedule A.

3.2Your base rate of pay has been determined so as to provide for any and all allowances in recognition of all the disabilities associated with work to be performed including but not limited to heat, dirty work, work with asbestos, and other hazardous materials and special conditions, industry and travel allowances and work in distant or remote locations. Your rate of pay also includes provision for annual leave loading.

3.3Your base rate of pay incorporates an allowance to cover working 40 hours per week, instead of 38 hours per week.

3.4You shall be paid overtime and penalty rates in accordance with the Award for work beyond 40 hours per week or for work conducted on Saturdays, Sundays and/or Public Holidays.

3.5       All leave is paid at your base rate of pay.

…

3.10The rate of pay and allowances provided for in this clause are in substitution for rates of pay, allowances and loadings in the Award

4.    HOURS OF WORK

…

4.2As noted above if you are required to work approved overtime, you shall be paid overtime and penalty rates in accordance with the Award for work beyond 40 hours per week or for work conducted on Saturdays, Sundays and/or Public Holidays.

…

4.4The arrangements for hours of work referred to in this clause are in lieu of the arrangements for hours of work provided for under the Award.

1. The Applicant’s leave entitlements, such as annual leave and personal/carer’s leave were to be taken in accordance with the National Employment Standards and the Building Award.  Regarding public holidays, the employment contract provided at clause 17.2 that work on a public holiday attracted penalty rates in accordance with the Building Award.

1. At Schedule A of the employment contract, the Applicant’s ‘Annual Base Rate of Pay’ was $110,000.00 per annum for 40 hours/week and the ‘Applicable Modern Award’ was said to be the Building Award.

1. On the 19 June 2015, Hazworx changed its trading name from Hazworx to ANZ Enviro Pty Ltd (ABN 98 146 232 724).[8]

1. The Applicant gave evidence that in the course of his employment, he had worked at various sites and projects which included construction, maintenance, renovation, structural alterations, structural steel installations, H Vac cleaning, coil cleaning, asbestos removal, soil remediation, soft strip demolition dismantling internal and external structures, canopies and full buildings and works that form part of contaminated land and site clearance.[9]

1. The Applicant said his role was primarily focused on the on-site supervision of employees and contractors and ‘working on the tools’.[10]  Duties inside the Respondent’s office took up approximately 10-20% of his work time.[11]  These duties included quoting, budgeting, planning and scheduling projects, labour materials and maintenance of plant.

1. At hearing, the Applicant expanded upon his duties and responsibilities noting that his work included the on-site supervision of contractors, subcontractors, operatives and site supervisors. 

1. The Applicant described that he understood the scope of work from project start to finish.  He had responsibility for training of operatives (direct reports), holding daily toolbox meetings and meetings with clients, project managing on the site such that he undertook the scheduling, ordered equipment, organised labour, allocated tasks, moved site operatives to different sections, managed four to five other jobs whilst working on a site, and organised subcontractors.  In respect of the number of workers he supervised, the Applicant said that it varied – sometimes it was 18-28 people, including site subcontractors and other times it might be six people.

1. The Applicant gave three examples of projects that he had worked on in 2023.  At hearing, the Applicant emphasised that much of his time was spent on the ‘tools’.

1. The first, was referred to as ‘Austral Bricks’. It involved a job to remediate kilns prior to their demolition in May 2023 to July 2023.[12] Whilst the Applicant described in detail his involvement in the project, an abridged version of that evidence follows:

a)   the Applicant supervised a team of six people on-site, working from the ‘front’ he worked on the tools alongside the team, wearing personal protective equipment throughout the work;

b)   the first stage of the job involved pre-cleaning the kilns and surrounding warehouse areas and floors to enable a seal to be placed on the kiln surface;

c)   the second stage required enclosures around the kilns to be built by constructing a wooden frame cut to size, joining the frame and lining it with polyethylene. The Applicant attached a decontamination unit and a negative pressure air unit (NPU) and performed smoke tests on the enclosures to ensure they were airtight;

d)   the Applicant thereafter wrapped waste parcels and labelled them, and handled and loaded approximately 100 sheets of asbestos and a few thousand bags of bricks from the internal walls of the kiln;

e)   ‘H type’ hazardous vacuums and low pressure spray and damp rags were used by the Applicant to clean the surfaces to an industry standard, ready for the independent hygienist to complete his clearance;

f)   the aforementioned frame was disassembled and the tops of the former brick arched kilns were decontaminated;

g)   the Applicant conducted a final inspection of the job, the first stage of the job took nine weeks and the second stage took six days; and

h)   the Applicant was also responsible for the completion of paperwork as per ‘WorkSafe’ requirements and the Respondent’s requirements.[13]

1. The second, was referred to as ‘Bull Creek Primary School’.  It involved the remediation and removal of friable asbestos at Bull Creek Primary School.[14]  As was the case for the Austral Bricks example, an abridged version of the Applicant’s evidence follows:

a)   the Applicant supervised a team of three people on-site, wearing personal protective equipment throughout the work;

b)   the first stage of the job involved building enclosures within a classroom and corridor by constructing a wooden framework using timber, drill, saw and fixings, and then lining the framework with polyethylene to form a sealed enclosure;

c)   the Applicant set up a mobile decontamination unit in the onsite truck and attached NPUs to the enclosure and tested them.  Smoke tests were performed to ensure the enclosures were airtight;

d)   the Applicant removed floor tiles and surface ground the concrete floor within the enclosure;

e)   all waste was removed, and contaminated material was loaded into a separate waste truck ready for transportation to licensed landfill; and

f)   the Applicant disassembled the enclosure, conducted a final inspection, completed paperwork, and returned equipment to the Respondent’s base, conducting maintenance on power cords on the grinder, and tagging them as safe.[15]

1. The third, was referred to as ‘Murray Street’.  It involved the preparation of surfaces for concrete blasting and to expose concrete surfaces.  As was the case for the Austral Bricks and the Bull Creek Primary School examples, an abridged version of the Applicant’s evidence follows:

a)   the Applicant conducted a test patch for the engineer’s report in August 2023, by marking out four test patches and setting the machine at four different mix ratio to create an agitated surface from 0.1 – 0.4. The client inspected the work and selected 0.3 for the project;

b)   the Applicant held a pre-start meeting with the client and subcontractors to work out a schedule; and

c)   in addition, the Applicant:

i.set up and maintained the hoses and machinery – particularly the Torbo M-L 120 used for the job prior to the blasting every day;

ii.set up boundary signs and warning of blasting in progress signs on all seven levels of the building;

iii.exposed the aggregate to each column to an agreed depth of 0.3 exposure by creating a mixture of compressed air / recycled glass particles and water all set at the desired mixture to achieve the 0.3 specification finish to the concrete;

iv.blasted approximately 1400m2 of concrete with the Torbo M-L 120 on the concrete, with a mixture set correctly made from recycled glass as specified above;

v.carried the concrete and mixed waste glass in and out of the lifts and to the localised area for silica dust disposal; and

vi.completed paperwork.[16]

1. In contrast to the position of the Applicant, the Respondent contends that it is not in the industry of general building and construction, albeit from time to time, the Respondent provides services to the construction industry in the same way an electrician or plumber may service such industry.

1. The Applicant provided a detailed exposition of his certificates and prior training both in Australia and the United Kingdom.[17]

1. The Applicant continued to be employed by ANZ Enviro Pty Ltd up until his dismissal on 13 December 2023.[18]

1. Consideration

1. Whether a person was protected from unfair dismissal is a matter that the Commission must be satisfied about before proceeding to hear and determine the merits of an application for an unfair dismissal remedy.

1. In Rogers v TMM Group (Operations) Pty Ltd,[19] it was said that the legislative provisions concerning unfair dismissal provide for objections which go to whether a person can make an application at all (e.g. person not protected from unfair dismissal, no dismissal, person not an employee), and other matters where an application that is made by a person entitled to make it, is removed from the unfair dismissal provisions in the Act (e.g. dismissal is consistent with the Small Business Fair Dismissal Code or dismissal is a case of genuine redundancy).[20] Where there is an issue as to whether a person can make an application at all, it is the applicant who bears the onus of proof.[21]  Where the issue is whether a validly made application is removed from the coverage of the unfair dismissal provisions, the employer who asserts that it is removed, bears the onus.[22]

1. In the decision of Jain v Infosys Ltd, the Full Bench expressed the following view:

In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.[23]

3.1      Award coverage

1. Turning to the Applicant’s contention that he was covered by the Building Award.

1. First, it is observed that the Applicant was self-represented, albeit the Respondent was not and had sought assistance of a paid agent to assist with the preparation of its case.  To that end however, the Respondent’s initial submissions proved to be of limited assistance as they primarily addressed the high income threshold with a bare assertion made that the Applicant was not award covered.  Hence the Applicant’s purported classification under the Building Award was not appropriately addressed in the Respondent’s initial written materials.

1. In filing its submissions in reply, the Respondent sought leave to file additional evidence in response to the Applicant’s contention that he fell within the ‘construction worker level 3’ Building Award classification and was therefore covered by the Building Award in respect of his employment.  Given the Respondent pressed that the Applicant was not covered by a modern award and that the modern award that underpinned the Respondent’s employees was the Waste Management Award 2020 (Waste Award),[24] I considered it appropriate to grant leave to file the additional evidence to ensure that any power exercised in respect of the application was done so in a manner that was fair and just.  In this respect, I note that the Applicant had three clear days in which to consider the additional evidence and parties were afforded the opportunity to provide closing submissions in writing.  As such, neither party suffered prejudice regarding the granting of such leave.

1. Second, the approach to determining award coverage was described by a Full Bench of the Commission in Gourabi v Westgate Medical Centre in the following terms:

…For relevant purposes, each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” that are covered by it. The determination of whether a particular employment falls within the “coverage” clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.[25]

1. Third, generally speaking, the appropriate test for determining award coverage is the principal purpose test, which requires assessment of the principal or primary function for which the employee was employed.[26]  In interpreting an award provision, the words of the relevant clause are to be given their ordinary meaning.[27]  Award history and subject matter may be considered to resolve any ambiguity.[28]  In considering whether a modern award covers a person, the test has been stated as: to discern the objective meaning of the words bearing in mind the context in which they appear and the purpose they are intended to serve.[29]

1. Fourth, as already highlighted, where there is an issue as to whether a person can make an application at all (e.g. person not protected from unfair dismissal, no dismissal, person not an employee), it is the applicant who bears the onus of proof.[30]

3.2      Building Award

1. Turning first to the contention that the Applicant was covered by the Building Award. The Building Award has a coverage that is industry based.  By virtue of clause 4.1 it covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule A – Classification Definitions, to the exclusion of any other modern award.  By virtue of clause 4.4, the Building Award does not cover employers covered by the Manufacturing and Associated Industries and Occupations Award 2020, the Joinery and Building Trades Award 2020, the Electrical, Electronic and Communications Contracting Award 2020, the Plumbing and Fire Sprinklers Award 2020, the Black Coal Mining Industry Award 2020, the Mining Industry Award 2020, the quarrying industry as defined in clause 4.3 of the Cement, Lime and Quarrying Award 2020 or the Premixed Concrete Award 2020.

1. Clause 4.3 defines ‘general building and construction’, ‘civil construction’ and ‘metal and engineering construction’. For current purposes, the first two terms appear relevant and are extracted as follows:

4.3       For the purposes of clause 4.2:

(a)       general building and construction means:

(i)the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;

(ii)site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.3(a)(i); and

(iii)the installation in any building, structure or works of fittings and services;

(b)       civil construction means:

(i)the construction, repair, maintenance or demolition of:

• civil and/or mechanical engineering projects;

• power transmission, light, television, radio, communication, radar, navigation, observation towers or structures;

• power houses, chemical plants, hydrocarbons and/or oil treatment plants or refineries;

• silos; and/or

• sports and/or entertainment complexes;

(ii)road making and the manufacture or preparation, applying, laying or fixing of bitumen emulsion, asphalt emulsion, bitumen or asphalt preparations, hot pre-mixed asphalt, cold paved asphalt and mastic asphalt;

(iii)the prefabrication and installation of geomembranes, geotextiles and appurtenances;

(iv)dredging or sluicing work for or at premises provided for persons mentioned in or in connection with work under clause 4.3(b)(i);

(v)batch plants and precast yards at a construction site in or in connection with work under clause 4.3(b)(i);

(vi)traffic management in or in connection with work under clause 4.3(b)(i);

(vii)construction and/or establishment of landscape gardens in or in connection with work under clause 4.3(b)(i) , provided that this award does not apply to the:

• maintenance or horticultural establishment work following practical completion of work as specified under the terms of the construction contract or project; and/or

• laying-out, construction, cultivation or keeping in order of gardens in connection with private houses;

(viii)the industry or calling of either or both catering and cleaning for or at premises provided for persons mentioned in clause 4.3(b)(i);

(ix)car parks excepting car park buildings and car parks within the alignment of a building; and

(x)railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;

1. Concerning the work undertaken by the Respondent, it is evident that term ‘metal and engineering construction’, as defined in clause 4.3 of the Building Award, did not apply to the work performed by the Respondent business.  However, I am unpersuaded that the same can be said for ‘general building and construction’ work. It is apparent from the evidence of the Applicant and the submissions of the Respondent that the Respondent business performs work in the alteration, demolition and dismantling of structures, and remediation. The Applicant’s evidence outlines jobs undertaken in his role as the Operations Manager, jobs that included soft strip demolition and the dismantling internal and external structures, canopies and full buildings and works that form part of contaminated land and site clearance.  The Applicant’s evidence in this respect was unchallenged.

1. Having considered all the evidence and submissions of the parties, I find that the alteration, demolition or dismantling of structures or works that form, or are to form, part of land, is work undertaken by the Respondent.

1. However, when one considers the classifications under the Building Award and the Applicant’s submissions and evidence on the same, in addition to those of the Respondent, the Applicant’s argument that he falls within ‘construction worker level 3’ of the Building Award cannot be sustained.

1. A ‘construction worker level 3’ may be responsible for the supervision of one or more employees working at the ‘CW/ECW 1’ or ‘CW/ECW 2’ level.[31]  Whilst the Applicant placed emphasis on him having worked on the tools, it is evident, in my view, that he was not a leading hand and that the principal or primary function for which the Applicant was employed was to manage the projects or sites, where work was being undertaken by the Respondent.

1. The Applicant’s role within the Respondent business was that of Operations Manager. Consequently, the Applicant had procurement responsibilities, operational control of sites, human resources and other commercial responsibilities.  The Applicant’s own evidence was that he understood the scope of projects from start to finish and hence would assume responsibility for arranging labour, organising subcontractors, holding toolbox meetings, meeting with clients, training site operatives and providing guidance.  The Applicant gave evidence that his role was primarily the on-site supervision of employees and contractors, and his evidence by way of supporting examples and documents – adequately demonstrates that was the case.

1. Relevantly then, there is no supervisory classification in the Building Award albeit a ‘construction worker level 3’ contemplates a lower level of supervision than that of a supervisor or manager. While there are allowances within the Building Award for leading hands, the Applicant was not employed as a leading hand. The Applicant’s supervisory duties related to the work being performed by those he was supervising as well as the supervision of the persons performing that work.  Contrary to the submissions of the Applicant, he cannot be classified as a ‘construction worker level 3’ under the Building Award, on the basis that this is not the principal purpose for which he was employed.  There is no classification in the Building Award for the Applicant and accordingly it does not cover him.

1. Having regard to the above matters, I am not satisfied on the material advanced that the Applicant was covered by the Building Award.

3.3      Waste Award 2020

1. Whilst the Respondent pressed that it was covered by the Waste Award, I am unpersuaded that was the case based on the evidence before me.

1. The Waste Award states:[32]

4.1This industry award covers employers throughout Australia in the waste management industry and their employees in the classifications listed in clause 12 — Classifications to the exclusion of any other modern award.

4.2The waste management industry means the collection, transportation, handling, recycling and disposal of any waste material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed or in any other state or form and including all domestic, trade and industrial waste) and includes the operation of transfer stations, landfill sites, incinerators, recycling depots, yards or terminals, treatment plants, compost facilities, alternative waste treatment facilities and the operation of other facilities of the same kind.

1. Of relevance is the reference to the ‘waste management industry’ meaning the collection, transportation, handling and so forth of domestic, trade and industrial waste.  Whilst the Respondent may contend that it ‘collects’ waste, that word is to be interpreted within the context in which it is used.  The Waste Award covers both employers throughout Australia in the waste management industry and employees as set out in the classifications at clause 12 of that award.  Clause 12 comprehensively lists nine levels of classification, which I have set out below:

12.       Classifications

The classifications covered by this award are as follows:

12.1      Level 1

An employee engaged as a depot hand in training.

12.2      Level 2

An employee performing one or more of the following functions:

(a) Labourer or depot hand at any waste management facility including but not limited to transfer stations, landfills, recycling centres, alternative waste treatment facilities and incinerators;

(b) Waste treatment and/or handling and/or disposal facility attendant and/or process worker; and

(c) Offsider (includes Runners) to a Driver in all waste management systems.

12.3     Level 3

An employee performing one or more of the following functions:

(a) Weighbridge operator;

(b) Trainee driver of vehicle up to and including 14 tonnes GVM; and

(c) Driver (not elsewhere included) of a waste management vehicle up to and including 4.5 tonnes GVM.

12.4      Level 4

An employee performing one or more of the following functions:

(a) Driver of a vehicle with a truck mounted loading crane;

(b) Driver/operator of a mechanical road sweeper;

(c) Incinerator operator;

(d) Operator of earthmoving plant at a waste management facility up to and including 150 BHP (estimated 112kW);

(e) Trainee driver of vehicle exceeding 14 tonnes GVM; and

(f) Driver of a waste management vehicle exceeding 4.5 tonnes GVM and up to and including 14 tonnes GVM.

12.5      Level 5

An employee performing one or more of the following functions:

(a) Driver of a waste management vehicle exceeding 14 tonnes GVM and up to and including 30 tonnes GVM being:

(i) Rear end loading vehicles;

(ii) Roll on/roll off vehicles including hook lift, dino and cable;

(iii) Side lift vehicles (commercial collections);

(iv) Liquid waste rigid vehicles;

(v) Lift on skip or morrell vehicles;

(vi) Pantechnicon; and

(vii) Vehicle carrying septic tanks, chemical closets, Portaloo, etc.

12.6      Level 6

An employee performing one or more of the following functions:

(a) Driver of an articulated vehicle;

(b) Driver of a rigid vehicle exceeding 30 tonnes GVM;

(c) Driver of a front lift vehicle; and

(d) Driver of a vehicle collecting containers of solid waste and/or recyclable materials by means of a one-man side operated grab and lifting device (SOLO) in accordance with local government contracts.

12.7      Level 7

An employee performing the following functions:

• Driver/instructor (all systems).

12.8      Level 8

An employee performing one or more of the following functions:

(a) Intermodal facility operator and tipping platform operator only;

(b) Operator of earth moving plant at a waste management facility over 150 BHP (estimated 112 kW).

12.9      Level 9

Driver of a double articulated vehicle (B double).

1. What is striking about those classification levels is that several of the levels require the operation of a vehicle - whether articulated, rigid, front lift, double articulated, or otherwise earth moving equipment.  Therefore, the word ‘collection’, understood in this context, should be afforded its ordinary meaning, that is the ‘act of collecting’.[33]  ‘Collecting’ is to gather together or to fetch.[34]  Inclusion of the operation of vehicles within the classification structure would arguably be the means by which the waste material is collected and thereafter transported.  ‘Collected’ in this sense of the word is not synonymous with dismantling, demolishing, or the alteration of structures.  That work is the precursor to the ‘collecting’ and it is the work, based on the evidence before me, that I have found was undertaken by the Respondent.  However, if I am wrong on this point, it is nevertheless the case that the Applicant’s principal or primary function for which he was employed does not fall within the classification levels of the Waste Award.

1. Conclusion

1. The Applicant is only afforded protection from unfair dismissal in circumstances where he was covered by a modern award, an enterprise agreement applied in relation to his former employment or he earned less than the high income threshold.  Given my conclusion that there was no modern award that covered the Applicant in respect of his employment, and in circumstances where his annual rate of earnings was not less than the high income threshold, the Applicant’s unfair dismissal application cannot proceed for want of jurisdiction.  Therefore, the Applicant’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

S Delnon, on his own behalf
J Besson for ANZ Enviro Pty Ltd

Hearing details:

2024.
Perth (by video):
5 March.

[1] Fair Work Act 2009 (Cth) s 382.

[2] MA000020.

[3] PR772205.

[4] Witness Statement of Steven James Delnon, [5] (Delnon Statement). 

[5] Respondent’s Outline of Reply Submissions, [16]. 

[6] Respondent’s Outline of Submissions, [2] (Respondent's Submissions). 

[7] Ibid [3].

[8] Ibid [6], [7].

[9] Delnon Statement (n 4) [6].

[10] Ibid [7].

[11] Ibid [8].

[12] Ibid [9].

[13] Ibid [9]-[26].

[14] Ibid [27].

[15] Ibid [27]-[39].

[16] Ibid [40]-[49].

[17] Ibid [52]-[54].

[18] Respondent’s Submissions (n 6) [8].

[19] [2020] FWC 5506, [14] (Rogers).

[20] Ibid [15].

[21] Ibid.

[22] Ibid.

[23] [2014] FWCFB 5595, [37].

[24] MA000043.

[25] [2019] FWCFB 3874, [26].

[26] Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394, [25].

[27] The Clothing Trades Award (1950) 68 CAR 597, cited in City of Wanneroo v Holmes (1989) 30 IR 362, [43] (Holmes).

[28] Picard v John Heine & Son Ltd (1924) 35 CLR 1, 9, cited in Holmes (n 27) [43].

[29] Transport Workers Union of Australia v Coles Supermarkets Pty Ltd (2014) 245 IR 449, 455 [22].

[30] Rogers (n 19) [15].

[31] Building Award (n 2) Schedule A – Classification A.2.3. 

[32] Waste Award (n 24) cls 4.1-4.2.

[33] Macquarie Dictionary (online at 8 March 2024) ‘collection’ (def 1). 

[34] Macquarie Dictionary (online at 8 March 2024) ‘collecting’.

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