Award coverage and unfair dismissal

This decision of the Fair Work Commssion is an excellent analysis of the legal principles at play when determining whether an industrial instrument such as a modern award or enterprise agreement applies to the employment of a person.

“1   Issue and outcome

• Mr Lance Boston (the Applicant) has made an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Applicant is a former employee of Selcouth Pty Ltd (the Respondent), having worked there as a ‘supervisor’ during the period of 22 March 2022 to 28 November 2025.

• The Respondent primarily provides services of industrial cleaning and maintenance for mining and industrial sectors. It objected to the application on the basis that the Applicant was not protected from unfair dismissal because his employment was not covered by a modern award, namely the Mining Industry Award 2020¹ (Mining Award), and his annual rate of earnings exceeded the high income threshold of $183,100.00. It was uncontroversial that an enterprise agreement had not applied to the Applicant in his former employment with the Respondent.

• The Applicant initially contended that he was covered by the Mining Award in his former employment and that his annual earnings and non-monetary benefits amounted to

$124,278.00 (comprising of the following: ordinary hours – $30,636.00, Ordinary Hours Remote Uplift – $88,306.00 and Mobilization Allowance – $5,336.00). The Applicant later sought to withdraw his contention that he was award covered; however, he continued to press that his annual rate of earnings was less than the high income threshold.

• Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of their dismissal:

(a) the person is an employee who has completed the minimum employment period; and

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DECISION

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• one or more of the following apply:
  • a modern award covers the person;
  • an enterprise agreement applies to the person in relation to the employment;
  • the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• It was not disputed and I am satisfied, that the Applicant had served the minimum employment period and had been dismissed.

• Therefore, the primary question to be determined is whether the Applicant’s annual rate of earnings exceeded the high income threshold. The annual rate of earnings is to be assessed as at the time of dismissal. It is not an assessment of the actual earnings in the 12 months immediately prior to dismissal.²

• If the Applicant establishes his annual rate of earnings was less than the high income threshold, or rather, if the Respondent is unable to succeed with its argument concerning the Applicant’s earnings, the Respondent’s objection in this regard will be dismissed.

• Briefly stated, having considered the evidence and the submissions provided, I have found the Applicant’s earnings were less than the high income threshold.  Therefore, the jurisdictional objection must be dismissed. As the Applicant is a person protected from unfair dismissal, the matter will be programmed accordingly.

2   Protection from unfair dismissal

[9]   The phrase ‘protected from unfair dismissal at a time if, at that time…’ in s 382 of the Act, means that an employee must show that, at the time of their dismissal, their employment circumstances (i.e. coverage by a modern award, applicability of an enterprise agreement or sum of rate of earnings) met the criteria in s 382 of the Act. The Applicant contends that an enterprise agreement applied to him in relation to his former employment in addition to his income being less than the high income threshold. As observed, the Applicant initially pressed that he was covered by the Mining Award but later withdrew that claim.³ I have, however, for completeness, addressed all factors in s 382(b)(i) and (iii) of the Act, starting first with whether the Applicant was covered by the Mining Award.

3   Modern award

[10]  Past decisions of this Commission have established that supervisors are not covered by particular awards, particularly the Mining Award. The Mining Award is said to only travel ‘to classifications where the supervisory element (of ‘guidance and assistance’) of the relevant positions is very much incidental to the principal purpose of the classifications’.⁴  As was observed in Fry v BHP Billiton Minerals Pty Ltd (‘Fry’):⁵

2 Zappia v Universal Music Australia Pty Limited [2012] FWAFB 6108 (‘Zappia’), [9].

3 Applicant’s submissions in reply filed 28 April 2026, Digital Hearing Book, [49].

4 Fry v BHP Billiton Minerals Pty Ltd [2011] FWA 6927 (‘Fry’), [31]

5 Fry (n 4).

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• Indeed, the supervisory responsibilities do not form part of any of the descriptors for any of the Levels, Entry through to Dual Trade Instrumentation.

• The descriptors appear to at all times apply to employees engaged in the performance of maintenance related trades as such (without reference at all to any supervisory-type functions).

• That said, Level 5 of the Award refers to the Advanced Specialist, and sets out the following descriptors:

An employee at this level will have met the requirements for Level 4 and holds a trade qualification used in the operation and has acquired additional knowledge by having satisfactorily completed a prescribed post trade course appropriate for this level or the achievement to the satisfaction of the employer of a comparable standard of skill and knowledge by other means including in-plant training or on-the-job experience.

An employee at this level will provide guidance and assistance to others. [my emphasis]

This level applies to the following classification groups:

Mining Industry Underground Mine Employees; and Mining Industry Maintenance Trade Employees.

• It is the reference to an employee in this classification providing “guidance and assistance”

(as highlighted) which is relevant to those proceedings.

• But as the Respondent contends, such a bare reference alone – which also appears in the immediately lower classification – cannot be taken as being a reference to the Award covering employees whose positions are principally supervisory in purpose. If this were to be so, the Award would extend into areas in which award coverage has not extended.

• That is, a reading of the coverage of the Award in these terms would mean the Award had been made in contravention to s.143(7) of the Act and in disregard of the paragraph 2(a) of the Consolidated Award Modernisation Request (“the Request”): both of which indicate that Modern Awards must not be expressed to cover classes of employees who, because of the seniority of their role, have traditionally not been covered by awards.
• Of course, I do not think the Award was made in contravention of the Act or the Request. Instead, in my view, the reference to an employee providing “guidance and assistance to others” is not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision. The evidence demonstrates that this was the principal purpose of the Applicant’s position.

• This is not to suggest that all Modern Awards do not extend into classifications involving supervisory functions of varying degrees. But the coverage of the Mining Industry Award 2010 travels only to classifications where the supervisory element (of “guidance and assistance”) of the relevant positions is very much incidental to the principal purpose of the classifications.

[11]  The view expressed in Fry was mirrored in McMillan v Northern Project Contracting, where the Commissioner expressed that the upper reaches of the Mining Award (as it was then) cannot be said by any reasonable reading to extend to a managerial person or a supervisor whose

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primary task was to provide work.⁶ Similarly, in Scarborough v Sandfire Resources NL, which was undisturbed on appeal, it was found that the applicant was clearly employed at a supervisory level and that the Mining Award did not cover supervisory roles.⁷

• The Applicant, like the Respondent, does not appear to take issue with the abovementioned authorities. However, where the parties initially diverged was on the issue of whether the Applicant was, in a real-life sense, a ‘supervisor’.  It is apparent from the Applicant’s submissions that he initially considered his position title was a misdescription and that it essentially camouflaged his true duties, which he thought were not those of a ‘supervisor’. According to the Applicant, the title ‘supervisor’ was applied by the Respondent solely for the purpose of securing and facilitating operations and projects, and was not a genuine supervisor classification.

• The Applicant submitted that assessing the nature of his work required a quantitative and qualitative assessment of the time he spent performing certain types of tasks, and consideration of his authority levels, responsibilities and duties. The Applicant considered that under the Mining Award, he fell within the classification group cl A.2.1 – Level 3 (cl A.3.4) to 4 (cl. A.3.5) and his responsibilities did not exceed providing guidance and assistance to others. It was the Applicant’s view that he was a leading hand and as such a senior team member who provided day-to-day guidance, while doing the same work as the team.

• It was the Applicant’s evidence that he engaged in labouring, assisting work crews, operation of plant and equipment (mainly mobile plant), conducting maintenance work on plant and equipment, and preparing and cleaning plant and equipment. The Applicant said that work mainly involved operating booms, high pressure pumps, blasting equipment, and driving heavy vehicles. Troubleshooting and tasks were the focus of his role, and, said the Applicant, he had no responsibility for personnel matters and policy enforcement.

• Shane Sullivan, Chief Executive Officer for the Respondent (Sullivan), gave comprehensive evidence about the Applicant’s responsibilities at paragraphs 13, 20, and 27 of his witness statement (inclusive of annexures SS-3, SS-4, SS-10); the training the Applicant had undertaken specific to his role of supervisor at paragraphs 22, 25, and 28; and that the Applicant had performed the role of Statutory Supervisor at Mining Area C of a client site. The evidence presented by Sullivan shows that the Applicant’s responsibilities and duties fell outside of the scope of the Mining Award. Whilst the Applicant had, at times, performed duties that included the provision of ‘lower duties’, I accept Sullivan’s evidence that these were incidental in nature. It was therefore appropriate, in my view, for the Applicant to desist with his argument that he was covered by the Mining Award whilst employed with the Respondent. To the extent that it is necessary to say so, the Applicant was not covered by a modern award when employed by the Respondent.

4   Annual rate of earnings and other amounts less than the high income threshold?

[16]  Assessment of the high income threshold involves two considerations.  First,

consideration needs to be given to the Applicant’s annual rate of earnings, which requires an

6 [2012] FWA 7049, [15].

7 [2017] FWC 947 [34]–[36].

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examination of several factors, including those set out in s 332 of the Act, and, because of a reference in that section, potentially factors included in the Fair Work Regulations 2009 (Cth) (the Regulations). Second, and separately, consideration needs to be given to whether there are any amounts to be added to the person’s annual rate of earnings because of factors included in the Regulations. The sum of these two considerations is what is compared against the high income threshold.

[17]  The word ‘Earnings’ is described at s 332 of the Act, as:

332 Earnings

• An employee’s earnings include:

• the employee’s wages; and

• amounts applied or dealt with in any way on the employee’s behalf or as the

employee directs; and

• the agreed money value of non-monetary benefits; and

• amounts or benefits prescribed by the regulations.

• However, an employee’s earnings do not include the following:

• payments the amount of which cannot be determined in advance;
  • reimbursements;

• contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

• amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

• Non-monetary benefits are benefits other than an entitlement to a payment of money:

• to which the employee is entitled in return for the performance of work; and
  • for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

• This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

• the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

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• the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

• the employer is required to contribute to the fund for the employee’s benefit under a

law of the Commonwealth, a State or a Territory.

• Whilst no regulations have been made for the purposes of s 332(1)(d) or s 332(2)(d) of the Act, regulation 3.05(6) of the Regulations has been made in respect of s 382(b)(iii) of the Act. However, Regulation 3.05(6), which addresses non-monetary benefits, is not relevant for current purposes

• The term ‘annual rate of earnings’ in s 382(b)(iii) of the Act refers to the annual rate of earnings at that time, and not the annual earnings to that time (that is the amount earned in the 12 months to that time).⁸

• The Respondent submits that the Applicant is not protected from unfair dismissal because his annual rate of earnings (and other such amounts) exceeds $183,100.00 being the high-income threshold as at the date of termination. The Respondent pressed that the Applicant typically received the following benefits under the terms of the Applicant’s employment contract:

• ordinary rate of pay;
  • Remote Uplift Allowance;
  • Mobilisation/Demobilisation Allowance; and
  • penalty rates and overtime.

[21]  The Respondent contends, in its submissions, that based on the Applicant’s working

hours and location, the Applicant received the following annual earnings:

[22]  Sullivan stated that the Applicant worked onsite at client locations including sites in the Pilbara and Kwinana (Alcoa) for the majority of his employment with the Respondent. He gave further evidence regarding the Applicant’s earnings, which I have summarised as follows:

8 Zappia (n 2) [9].

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1. when the Applicant travelled to the Pilbara for onsite work, he was paid a mobilisation and demobilisation allowance of $184 per swing (being four hours of travel at his ordinary rate of pay) and a Remote Uplift Allowance of $21 per hour;
2. while working onsite in the Pilbara, the Applicant worked long shifts of no less than 12 hours per day and in most instances 13 hours per day, as is common in the industry and the Respondent paid for the Applicant’s overtime for the hours additional to his ordinary hours;
3. when the Applicant worked at the Alcoa site, he was paid a Remote Uplift Allowance, and similarly worked long shifts of no less than 12 hours per day, as is common in the industry, with the Respondent paying for his overtime for the hours additional to his ordinary hours.

• In his witness statement, Sullivan stated that from December 2024 to December 2025, the Applicant earned $212,690.00 with $78,885 attributable to overtime payments.

• The Applicant does not dispute that he received the benefits of: (a) ordinary rate of pay;

(b) Remote Uplift Allowance; (c) Mobilisation/Demobilisation Allowance; and (d) penalty rates and overtime. Furthermore, the Applicant accepts that ordinary time earnings, the Remote Uplift Allowance and the Distant Worker Allowance (mobilisation/demobilisation) are included in the calculation of earnings as they are guaranteed payments in the amount of which can be pre-determined in advance.

• The Applicant’s employment contract provided the following in respect of remuneration

and hours of work:

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4.1  Location allowances

• The Respondent and Applicant consider that the Remote Uplift Allowance and the Mobilisation/Demobilisation Allowances are amounts that are known and can be determined in advance and therefore constitute part of the Applicant’s earnings.

• The Respondent states that the Applicant worked the majority of his employment onsite, including in the Pilbara and Alcoa sites, and only worked in the Perth office on very limited occasions.⁹  This appears to be reflected in the evidential materials at Annexure SS-17 to Sullivan’s witness statement (Annexure SS-17) – a document evincing the payroll activity of the Applicant from 4 December 2024 to 3 December 2025.

• In giving his evidence, the Applicant explained that ‘OTE Base Hourly’ as referred to in Annexure SS-17 was paid when working in the Perth office in comparison to ‘OTE Remote Rate’, which was paid whilst working onsite. It is apparent that during the abovementioned period, the Applicant worked in the Perth office during 20 of the 35 weeks recorded. However, it is not the case that the Applicant would have worked in the Perth office for the entirety of the week on all occasions mentioned, but, instead, may have worked one day, part day or a few days of the week in the office – whilst also working onsite.

• Based  on  the  evidence,  I find  that  the  Remote Uplift  Allowance and  the Mobilisation/Demobilisation Allowance are amounts that are known and could be determined in advance.

4.2  Overtime

• When working on site, the Applicant was said to have worked at least 12-hour shifts and in most cases 13-hour shifts.¹⁰ According to the Applicant’s employment contract, hours worked outside of the ordinary hours (eight) were to be paid at the overtime rates for the shift allocated. The first two ‘ordinary hours’ after eight hours worked attracted a loading of 150% and the next two ordinary hours after ten hours attracted a loading of 200%. During the course of the hearing, it became apparent that whilst the Applicant initially pressed that he did not consistently work 12-to-13-hour shifts on site, Sullivan’s evidence was to the contrary.

• Section 332 establishes that an employee’s earnings do not include payments the amount of which cannot be determined in advance. The ‘Note’ to s 332 provides some examples of payments that cannot be determined in advance, which includes ‘overtime (unless the overtime is guaranteed)’.

• The issue of whether payments received for overtime are ‘payments the amount of which cannot be determined in advance’ within the meaning of s 332(2)(a) of the Act and therefore are not included as part of the ‘employee’s wages’ under s 332(1) (a), was considered by the Full Bench in Foster v CBI Constructors Pty Ltd (‘Foster’).¹¹

9 Witness Statement of Shane Sullivan dated 8 May 2026, [13], [14].

10 Ibid [37]–[39].

11 [2014] FWCFB 1976.

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• In Foster, the Full Bench, considering the Act at that time, and in particular the ‘Note’

at s 332(2) which reads the same today, explained

• The starting point in relation to legislative notes, in accordance with s 13(1) of the Acts Interpretation Act 1901 (Cth), is that they form a part of the Act. However, while the note may form part of the Act, it may not lead the Commission to depart from the ordinary meaning of the words of a section that are unambiguous and not inconsistent with any other provision in the statute. Further, it should be noted that the legislative note provides an example. This example must be read in light of s.15AD of the Acts Interpretation Act 1901 (Cth) which provides:

“15AD Examples

If an Act includes an example of the operation of a provision:

• the example is not exhaustive; and
  • the example may extend the operation of the provision.”

[37] There is, therefore, nothing to suggest that the only exception to the example of overtime that is provided for in the legislative note is overtime that is guaranteed, particularly in light of the ordinary meaning of the words of s.332

• Thereafter, the Full Bench distilled the relevant test as one of whether overtime payments received by the appellant for his attendance at regular pre-start meetings were able to be determined in advance.¹² In that regard, the Full Bench observed that whether or not the payments were guaranteed in the sense that the employer had a legal obligation to allocate 2.5 hours of overtime each week to the appellant, or whether the appellant had a legal right to the allocation of that overtime, was of no assistance in determining whether or not the payments for the pre-start meeting could be determined in advance.¹³
• Having considered the evidence before the Commissioner, the Full Bench concluded that it was clear that the overtime payments that were made to the appellant as a result of daily pre-start meetings could be determined in advance.¹⁴ The Full Bench noted that the appellant was subject to an ongoing direction from his employer that he must work half an hour’s overtime every day that he worked.¹⁵

• In Cross v Bechtel Construction (Australia) Pty Ltd¹⁶ (‘Cross’), the key contention between the parties was similarly in relation to the issue of overtime and whether it formed part of the applicant’s wages for the purpose of s 332 of the Act. The respondent contended that the applicant was contractually obliged to work 58 hours a week, comprising of a 40 hour work week and 18 hours overtime.¹⁷ This 18 hours was part of what was called an Extended Work Week (EWW).¹⁸ According to the applicant, the 18 hours was not guaranteed overtime.¹⁹

12 Ibid [40].

13 Ibid.

14 Ibid [41].

15 Ibid.

16 [2015] FWC 3639.

17 Ibid [11].

18 Ibid.

19 Ibid [12].

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• Having considered the material before him, the Vice President observed that the applicant raised two arguments as to why overtime did not form part of his wages. The first, was that the applicant was not entitled to overtime while on unpaid leave.²⁰ The second was that overtime was not available in inclement weather conditions.²¹  The Vice President expressed, but for the taking of sick leave, the applicant would have been obliged to work 58 hours and would have been paid regular overtime and a weather event which was outside of the employer’s control, was not an indicator of whether overtime is guaranteed and constituted a misapplication of the test.²² The Vice President concluded at paragraph [16]:

The correct test for determining the annual rate of earnings for the purposes of s. 332 of the Act, is to determine the rate of earnings at the time of termination of employment, not the actual earnings up to that time. As such, the relevant consideration is whether he would have been expected to work a 58 hour week if he had been otherwise fit, excluding any extraordinary circumstances. The evidence of the Respondent makes it is clear that the Applicant was required to regularly work 58 hours a week, as he had done prior to going on sick leave and he would have been paid for every one of those hours based on the hourly rate equivalent of the base salary.

• The circumstances before me are unlike those in Foster and Cross. Here the Applicant, it would seem, works at a minimum, 12 hours whilst working onsite – whether in the Pilbara or at Kwinana. However, the number of days on site each week do not appear predictable. Whilst Sullivan spoke to the Applicant being notified in advance of the hours for the project (roster) whether via email or via a job pack, such notification appeared to immediately precede mobilisation to a project and the evidence does not suggest that the Applicant worked a set roster on a week by week or even monthly basis.

• The Applicant’s employment contract provides for 38 hours per week Monday to Friday of 7.6 hours per day. Overtime is clearly contemplated as hours worked outside of the ordinary hours of (eight) are paid at overtime rates, whether 150% loading for the first two hours of overtime or 200% for the next two hours. However, the employment contract specifies that project working hours (presumedly work performed on site for a client) ‘are subject to operational requirements, which may change at any time subject to project requirements and may include overtime and weekend work’. That the project working hours were unpredictable is evinced in Annexure SS-17. The week by week payroll activity of the Applicant showed varied amounts of overtime payment whether at the rate of ‘Remote OT x 1.5’ (first two hours of overtime) or ‘Remote OT x 2’ (overtime in excess of two hours). For example, if one refers to the following tables that have been extracted from Annexure SS-17, the issue of the fluctuating overtime amounts becomes evident:

20 Ibid [15].

21 Ibid.

22 Ibid.

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• Given the fluctuation in the overtime amounts of monies attributed to the Applicant each week and in light of the evidence regarding projects and the terms of his employment contract, it is not apparent that the Applicant worked a fixed or an otherwise predictable roster whilst assigned to projects.

• The fact that the contract did not oblige the employer to provide the Applicant with overtime work does not detract from the reality that overtime appeared to be a feature of the Applicant’s work on site. In cross examination, the Applicant accepted that whilst on site he consistently and predictably worked 12-hour shifts.  However, what was not consistent or predictable was the amount of time the Applicant spent working on site on a week-to-week basis. It is reasonably open to infer from Annexure SS-17 that the amount of overtime worked each week was not consistent, predictable or able to be ascertained in advance as contemplated by the term ‘determined in advance’ in s 332(a) of the Act.  It therefore follows that I am satisfied that the overtime payments constituted the payment of amounts which could not be determined in advance.

6 Conclusion

[42]  The Respondent pressed that its jurisdictional objection should be upheld because when the earnings afforded to the Applicant were taken into account, the Applicant was earning not less than the high income threshold, and the Applicant was not covered by a modern award whilst employed and an enterprise agreement had not applied to him in relation to his former employment. I consider that two of these assertions correct; a modern award did not cover the Applicant when employed and an enterprise agreement had not applied to the Applicant in relation to his former employment. However, when the overtime payments, as presented by the Respondent in its submissions or in the evidence of Sullivan, are removed from the Respondent’s figure of $243,938.00 or $212,690.00 (as referred to by Mr Sulliavan) respectively, the Applicant’s annual rate of earnings is less than the high income threshold and it therefore follows that he is protected from unfair dismissal by virtue of s 382 of the Act.

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[43]  The Respondent’s jurisdictional objection is dismissed and the matter will be

programmed to address the merits of the application.”

Boston v Selcouth Pty Ltd – [2026] FWC 2415 – 29 June 2026 – Beaumont DP