Unfair dismissal; how to apply the high income threshold

These passages from an unfair dismissal case contain an explanation about how the Fair Work Commission determines whether an employee pursuing an unfair dismissal case is covered by a modern award or enterprise agreement, which of course is critical if the sum of the employee’s earnings exceeds the high income threshold.

“[40]  The Commission only has jurisdiction to hear and determine an unfair dismissal application if the employee is a person “protected from unfair dismissal”. Section 382(b) of the FW Act provides:

 

“382 When a person is protected from unfair dismissal

 

A person is protected from unfair dismissal at a time if, at that time:

 

(a)      the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

 

(b)     one or more of the following apply:

 

(i)      a modern award covers the person;

 

(ii)     an enterprise agreement applies to the person in relation to the employment;

 

(iii)    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.”

 

Was Mr Bond covered by an award?

 

[41]    It is not contended by Mr Bond that an enterprise agreement applied. Rather, he contends that he was covered by one of either:

 

  • the Mining Industry Award 2020;
  • the Firefighting Industry Award 2020;

 

  • the Health Professionals and Support Services Award 2020; or
  • the Ambulance and Patient Transport Industry Award 2020.

[42]    During the course of his employment, Mr Bond did not hold the view that he was covered by an award and that neither Oz Minerals (nor its successor BHP) held out that he was so covered.

[43]    Be that as it may, that neither an employer nor employee operated on the basis that the employment relationship, whilst it existed, was not award covered does not make it so. Whether a person is or was award covered is a question of fact based on the application of the coverage provisions of a relevant award to employment that exists or existed. It matters not in answering this question that such a contention is not made or assessed until after the employment has ceased.

 

 

 

[44]    A person is covered by an award if the principal or primary purpose of their employment is to perform work within the stated coverage of the award and if in fact they perform that work.6

 

[45]    It is necessary to make some further findings about the work for which Mr Bond was employed and undertook.

 

[46]    Mr Bond was Senior Emergency Services Officer and Paramedic at the Carrapateena mine. He was the senior mine officer responsible for all matters associated with emergency services. This included co-ordinating emergency training and readiness, emergency drills, emergency events (including evacuations) and liaising with and assessing the nature and level of external emergency and support services needed to support an emergency event, including rescue and government agencies. Mr Bond was responsible for performing these duties consistent with Oz Minerals (now BHP) emergency policies and protocols and providing inputs into the application of those policies based on his experience at the mine site.

 

[47]    Although Mr Bond’s duties were extensive, no single position description could be located by Mr Bond or Oz Minerals. A position description produced by Oz Minerals for the position of ‘Senior Emergency Services Officer’ at a related mine (Prominent Hill) is in evidence but as it did not specifically relate to Mr Bond’s position at Carrapateena, I refer to it as guidance only in assessing Mr Bond’s direct evidence, which I prefer.

 

[48]    Mr Bond reported to BHP’s Senior Adviser – Health, Emergency and Registered Nurse.

 

[49]    I now turn to consider whether Mr Bond was covered by a modern award. Mr Bond presents one of four award options.

 

[50]    Mining Award: Mr Bond submitted that he was covered by the Mining Award but at the hearing did not press this submission. Oz Minerals submit that Mr Bond was not covered by the Mining Award.

 

[51]    Clause 4 of the Mining Award provides:

 

“This industry award covers employers throughout Australia in the mining industry and their employees in the classifications listed in clause 15 – Minimum rates and classifications to the exclusion of any other modern award.”

 

[52]    There is no doubt that Oz Minerals operated in the mining industry as defined by the award. However, I do not find that Mr Bond was employed in one of the classification groups set out in Schedule A to the award. There are five classification groups. The one relied upon by Mr Bond is “Mining Industry Service Employees”. This classification is defined in Schedule A2.1 as:

“Mining Industry Services Employees

A Mining Industry Services Employee is designated as such by their employer and performs all tasks as directed by their employer which include but are not limited to:

 

 

 

  • labouring;

 

  • assisting work crews and tradespersons;
  • operation of plant and equipment (including mobile plant);
  • maintenance work on plant, equipment or buildings;
  • performance of general plant, stores, workshop, warehouse, packaging, and marine interface tasks, resource assessment (including prospecting, drilling and exploration);
  • preparing and cleaning equipment and materials; and
  • on site catering cleaning and security.

 

This classification group also encompasses work performed by Laboratory Assistants, who do not hold tertiary qualifications.”

 

[53]    The emergency services work, the paramedic work and the qualifications of Mr Bond do not fall within any of these descriptors, nor were one or other of those descriptors the principal purpose of his employment, nor designated by Oz Minerals as such.

 

[54]    I do not find that Mr Bond was covered by the Mining Award 2020.

[55]    Firefighting Industry Award 2020: Mr Bond submits that he was covered by the Firefighting Industry Award 2020 “due to the wide variety of work performed by the Senior Emergency Services Officer / Paramedic” and “due to my wide range of work taskings”.7

 

[56]    Clause 4.1 of the award provides:

 

“This industry award covers employers throughout Australia in the firefighting industry and their employees in the classifications listed in clause 10 —Classifications to the exclusion of any other modern award.”

[57]    The “firefighting industry” is defined in cl 4.2 as:

 

(a)      the suppressing and extinguishing of fires.

 

(b)     the provision of rescue services (other than by police, ambulance, a State Emergency Service, or the military) at the scene of accidents, explosions, or other emergencies.

 

(c)      the handling of spillages of toxic or hazardous materials in emergency situations (other than in a marine environment or by an employer in relation to its own property, premises, or products); and

 

(d)     the prevention of fires and the sale, supply, installation, maintenance, repair and/or inspection of fire protection equipment other than fixed or semi-fixed fire protection

 

 

 

systems by an employer otherwise in the firefighting industry by virtue of clause 4.2(a).”

 

[58]    It is clear that the Firefighting Industry Award 2020 is an industry award, not an occupational award. Clause 4.1 states as much.

 

[59]    Whether an employer is ‘in’ a particular industry for modern award purposes is a question of fact to be determined by the ‘substantial character’ of the employer.8

 

[60]    Oz Minerals does not have the substantial character of being a business in the firefighting industry. Its substantial character is as a mining company operating in the mining industry. The character of Oz Minerals is not altered simply because a small number of employees (such as Mr Bond) may not perform mining work.9

 

[61]    Mr Bond relies on cl 4.4 of the Firefighting Industry Award which provides “where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.” This provision is of no assistance to Mr Bond. It only operates if Oz Minerals was covered by the Firefighting Industry Award 2020, which it was not.

 

[62]    I do not find that Mr Bond was covered by the Firefighting Industry Award 2020.

 

[63]    Ambulance and Patient Transport Industry Award 2020: Mr Bond submits that he may have been covered by the Ambulance and Patient Transport Industry Award 2020.

 

[64]    Clause 4.1 of the award provides:

 

“This industry award covers any employers throughout Australia in the ambulance and patient transport industry and their employees in the classifications listed in Schedule A – Classification Definitions to the exclusion of any other modern award.”

[65]    The “ambulance and patient transport industry” is defined in cl 4.2 to mean “the provision of ambulance and patient transport services and ambulance and patient transport education and training”.

 

[66]    It is clear that the Ambulance and Patient Transport Industry Award 2020 is also an industry award.

 

[67]    As noted, Oz Minerals operates in the mining industry. Its principal character is not in the industry of ambulance and patient transport.

 

[68]    As the Ambulance and Patient Transport Industry Award 2020 does not apply, Mr Bond was not covered by that award.

 

[69]    Health Professionals and Support Services Award 2020: Mr Bond submits that he may have been covered by the Health Professionals and Support Services Award 2020.

 

 

 

[70]    This award is both an industry and occupational award. Clause 4.1 provides: “This industry and occupational award covers:

(a)      employers throughout Australia in the health industry and their employees in the classifications listed in Schedule A – Classification Definitions to the exclusion of any other modern award; and

(b)     employers engaging a health professional employee in the classifications listed in Schedule A – Classification Definitions.”

[71]    Clause 4.2 provides that the “health industry” means employers “whose business and/or activity is in the delivery of health care, medical services and dental services.”

 

[72]    The principal character of Oz Minerals is mining natural resources, not as a health industry employer. The industry test is not met.

 

[73]    Was Mr Bond “a health professional employee” within the meaning of cl 4.1(b)?

 

[74]    The classifications in Schedule A to the award refer to gradings of “health professionals”. Schedule B provides an indicative list of health professionals for the purposes of the award. No mention is made in those descriptors to an emergency services officer or a paramedic. The principal purpose of Mr Bond’s employment was the co-ordination of site emergency and paramedic services. Mr Bond’s principal purpose of employment was not as a “health professional” as defined by the award.

 

[75]    Mr Bond was not covered by the Health Professionals and Support Services Award 2020.

[76]    For each of the foregoing reasons, I do not find that Mr Bond was covered by a modern award.”

Bond v OZ Minerals Carrapateena Pty Ltd (2024) FWC 1470 delivered 6 June 2024 per Anderson DP