Is High Income Employee Award Covered and Therefore Entitled To Pursue Unfair Dismissal Claim?

Mr Anthony Taylor-Hunt (the Applicant) placed an unfair dismissal claim with Fair Work Australia (Mr Anthony Taylor-Hunt v Downer EDI Works Pty Ltd). Downer EDI Pty Ltd (the Respondent) objected to the claim because the Applicant earned above the High Income Threshold, therefore Fair Work Australia had to initially determine whether the Applicant had a right to apply.

The Applicant was earning $125,000 per annum in his position as a ‘Supervisor’ for the Respondent’s civil construction business in the Northern Territory. The dispute revolved around the true nature of the applicant’s role and whether as a result he was covered by a modern award and/or an enterprise agreement….

The Respondent submitted that the Applicant was not covered by a Modern Award or the Company’s Enterprise Agreement, because he was engaged in a staff position with a salary and benefits…….well in excess of that applying to employees under the Award or Enterprise Agreement.

It was further submitted by the Respondent that the Award and Agreement applied to employees that were principally undertaking hands-on roles and this did not apply to the Applicant’s role.

The Applicant submitted that he was a leading hand under the Award, arguing that he was predominantly performing hands-on work although he did accept that his duties did involve additional responsibilities and paperwork after moving to Darwin.

Commissioner Hampton had to consider the true nature of the Applicant’s position by reviewing the evidence submitted. The Commissioner found that the Applicant’s position held significant supervisory responsibilities and that the Applicant formed part of the regional management team.

In finding that the Enterprise Agreement did not apply to the Applicant, the Commissioner noted that the Applicant’s salary was significantly more than the rates contained in the Agreement but more importantly, the nature of the positions contemplated in the classification structure [in the Agreement] are different in substance to that as occupied by the Applicant…

The Commissioner considered the relevant modern award and sections of the Fair Work Act 2009 (the Act) in relation to when a modern award applies to an employee. This involved checking the coverage clause and classifications of the Award. The Commissioner found that the Applicant did not fall within the scope of the Award, partly because … The responsibilities of the applicant extended to groups of employees and contractors and this in [the Commissioner's] view is beyond the scope of responsibilities reasonably ascribed to the concept of a leading hand as contemplated in the … Award.

The application was dismissed for lack of jurisdiction because the Applicant was not Award or Agreement covered and because he earned more than the High Income Threshold.