Coverage of the Mining Industry Award

This extract from an unfair dismissal case deals with the legal issue of the coverage of the Mining Industry Award.

 

“Covered by a Modern Award or Enterprise Agreement

[29]    In his application, the Applicant contends that he was covered by the Mining Industry Award 2020 [MA000011] (the Mining Award) and as a result of s.382(b)(i) of the Act he is a person protected from unfair dismissal.

Mining Award

[30]    It was uncontested that no Enterprise Agreement applied. The Applicant contended in his application2 that his work falls within the Mining Award classification structure.

 

[31]    Based on the information before me, including the contract of employment showing the Applicant’s engagement as a “Shift Supervisor”3 the lengthy and comprehensive position description,4 and witness statements,5 I am satisfied that the Applicant was employed at a Supervisory level, as opposed to undertaking maintenance work and providing some supervision.

 

[32]    There are a number of decisions of the Commission which confirm that the classification structure in the Mining Award does not cover Supervisory roles, the most recent being Nigel Scarborough v Sandfire Resources NL T/A Sandfire Resources NL.6 Others include, Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton7 where Senior Deputy President Richards found that the reference to ‘providing guidance and assistance to others’ at Level 4 and Level 5 of the classification structure 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, as well as McMillan and Norman v Northern Project Contracting T/A NPC8 where Commissioner Gay found that a genuine supervisor is not covered by the Mining Award, which was endorsed in Suleski v Rio Tinto Iron Ore Dampier,9 a decision of Deputy President Gooley.

 

[33]    In light of my finding that the Applicant is engaged on a salary that exceeds the high- income threshold and that the Applicant’s role does not fall within an Award or an Enterprise Agreement, it appears that the Applicant is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application. On that basis, I am satisfied that the application has no reasonable prospects of success.

[34]    In the alternative, I note that the words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a),

(b) and (c).

 

[35]    In the present circumstances, should it have become necessary to do so, I would have otherwise decided that I would dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

 

[36]    The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed.”

 

Axford v AIC Copper Pty Ltd (2024) FWC 1110 delivered 29 April 2024 per Dobson DP