Salaried building employee fails to convince FWC he was covered by the Building and Construction General On-Site Award

Salaried building employee fails to convince FWC he was covered by the Building and Construction General On-Site Award

Salaried building employee fails to convince FWC he was covered by the Building and Construction General On-Site Award

A terminated salaried manager in the building industry has failed to convince the Fair Work Commission that as he was primarily undertaking building work covered by an award, he should be a person protected from unfair dismissal. The manager also conceded before Deputy President Abbey Beaumont that his annual rate of earnings exceeded the high-income threshold.

The manager’s sole argument was to challenge his dismissal on the basis that the work he undertook fell under a Construction Worker level 3, pursuant to the Building and Construction General On-site Award 2020 (the Building Award). Ultimately, he was unsuccessful in his claims.

The manager, ‘Mr D’ was initially employed by a company called Mycologia Pty Ltd in January 2013 in the position of Asbestos and Training Manager. Mycologia contracted his services to a company called Hazwork Pty Ltd, which changed its trading name to ANZ Enviro Pty Ltd in June 2015.

On 8 March 2014, Mr D accepted a role working directly for Hazwork as an Asbestos Operations and Training Manager. He continued to be employed by Hazwork until his dismissal on 13 December 2023.

Mr D claimed that in the course of his employment, he had worked at various sites undertaking construction, maintenance, renovation, structural alterations and demolition. Consequently, he claimed he was covered by the Building Award and, therefore, should be able to contest his dismissal.

However, Deputy President Beaumont respectfully disagreed.

While he did occasionally work on the tools, in her view, Mr D was not a leading hand, and in reality, the principal or primary function that his employer engaged him for was to manage projects or sites.

As she explained, “The Applicant’s role within the Respondent business was that of Operations Manager. Consequently, the Applicant had procurement responsibilities, operational control of sites, human resources and other commercial responsibilities”. Further, as she noted, “The Applicant gave evidence that his role was primarily the on-site supervision of employees and contractors, and his evidence by way of supporting examples and documents – adequately demonstrates that was the case”.

Relevantly, as the Deputy President also noted, there are no supervisory classifications contained within the Building Award; quite simply, “There is no classification in the Building Award for the Applicant, and accordingly, it does not cover him”.

The Deputy President also considered whether Mr D’s employment could have been covered by the Waste Award 2020. Again, she could not find an applicable classification under this award that related to the work or functions he undertook.

She ultimately rejected the application, concluding that the circumstances of his dismissal were not covered by a modern award.

SD v ANZ Enviro Pty Ltd (U2023/12854) 12 March 2024

For queries about award classifications, employing managerial staff, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 413.0324

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