[2011] FWA 7018 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.394—Application for unfair dismissal remedy Mr Donald Coventry v Southern Gulf Catchments Limited (U2011/9680) COMMISSIONER SMITH MELBOURNE, 19 OCTOBER 2011 Jurisdiction; Australian Workplace Agreement; Enterprise Agreement; high income threshold. INTRODUCTION [1] Pursuant to s.394 of the Fair Work Act 2009 (the Act), Mr D. H. Coventry sought relief in relation to his termination of employment by Southern Gulf Catchments Limited (Southern Gulf). Mr Coventry’s employment was terminated on 30 June 2011. His application was lodged on 11 July 2011. [2] By notice dated 29 July 2011, Southern Gulf lodged an objection to the application on the basis that the applicant was not covered by a modern award and that his earnings exceeded the high income threshold. Southern Gulf submitted that Mr Coventry was not a person protected from unfair dismissal pursuant to s.382 of the Act. [3] Mr Coventry argues that he is a person protected from unfair dismissal in accordance with s.382 of the Act, as he was, at the time of his termination of employment covered by an Australian Workplace Agreement. This is not a simple matter and I now turn to the legislation governing the jurisdiction. THE LEGISLATION [4] Section 382 defines when a person is protected from unfair dismissal and provides: 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. Note: High income threshold indexed to $118,100 from 1 July 2011. [5] Item 36 of Division 3 in Part 5 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the T&C Act), provides: Part 3-2 of the FW Act (which deals with unfair dismissal) applies, on and after the WR Act repeal day, as if: (a) the reference in subparagraph 382(b)(i) and paragraph 389(1)(b) of that Act to a modern award included a reference to an award-based transitional instrument; and (b) the reference in subparagraph 382(b)(ii) and paragraph 389(1)(b) of that Act to an enterprise agreement included a reference to an agreement-based transitional instrument. [6] It can be seen that the operation of the T&C Act means that s.382(b)(ii) includes a reference to an agreement-based transitional instrument. I note in passing that if it had been established that Mr Coventry had been covered by an award-based transitional instrument then item 3(3) of Part 2 of Schedule 3 of the T&C Act would mean that the high income threshold applied. However this is not the case as he only argues that he was covered by an Australian Workplace Agreement. [7] Under item 2(5)(d)(iii) of Part 2 of Schedule 3, an Australian Workplace Agreement is defined as an individual agreement-based transitional instrument. [8] It follows that if Mr Coventry was covered by an Australian Workplace Agreement at the time of his termination of employment, he would have been a person protected from unfair dismissal. WAS AN AUSTRALIAN WORKPLACE AGREEMENT IN PLACE? [9] Mr Coventry’s Australian Workplace Agreement was lodged with the Workplace Authority on 16 November 2007 and began operating from that day. By letter dated 4 June 2008, the Workplace Authority notified Southern Gulf that given Mr Coventry’s salary the Fairness Test would not be applied. [10] The Workplace Relations Act 1996 (incorporating amendments from the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 ) (the WR Act) provided how a workplace agreement may be terminated: 381 Types of termination (1) A workplace agreement may be terminated: (a) by approval (see Subdivisions B and C); or (b) unilaterally (see Subdivision D); or (c) by the Commission (see Subdivision DA). (2) A workplace agreement is terminated when: (a) a termination of the agreement is lodged with the Workplace Authority Director in accordance with section 389; or (b) a declaration to terminate the agreement in accordance with subsection 392(2) is lodged with the Workplace Authority Director in accordance with section 395; or (c) in the case of an ITEA—a declaration to terminate the agreement in accordance with subsection 393(2) is lodged with the Workplace Authority Director in accordance with section 395; or (d) in the case of a collective agreement—an order by the Commission under section 397A takes effect. [11] At no stage has action been taken to terminate the Australian Workplace Agreement. Southern Gulf argues that the Australian Workplace Agreement lapsed because it passed its expiration date and another agreement was made. Mr Coventry disputes the nature of any changes to the Australian Workplace Agreement but in any event argues that, to the extent there were changes, they were not reflected in any agreement under the statute. [12] Moreover, item 2 of Schedule 7(A) of the WR Act relevantly maintains the continued operation of the Australian Workplace Agreement. CONCLUSION [13] Mr Coventry entered into an Australian Workplace Agreement which remains in place and pursuant to the T&C Act is a person protected from unfair dismissal. It follows that I dismiss the jurisdictional objection and the matter will now be referred for action in accordance with the Act. COMMISSIONER Appearances : D. Coventry on his own behalf. S. Pate, Solicitor on behalf of Southern Gulf Catchments Ltd. Hearing details: 2011. Melbourne: September, 19. Printed by authority of the Commonwealth Government Printer <Price code A, PR515670>