Whether a federal award employee

News

Whether a federal award employee

An employee was found to be neither covered by a federal award nor a federal agreement operating at his workplace.

WantToReadMore

Get unlimited access to all of our content.

An employee was found to be neither covered by a federal award nor a federal agreement operating at his workplace. However, he was found to be covered by a State award and was therefore denied a remedy for unfair dismissal under the federal Workplace Relations Act 1996.

The employee had been dismissed by the employer and sought a remedy for unfair dismissal under the federal legislation. However, the employer submitted the employee was not a federal award employee for the purposes of the Act(Bertei v G & M Construction Pty Ltd t/a Western Construction Pty Ltd; Print R3632, [1999] 343 IRCommA).

It was agreed between the parties to the matter that a federal certified agreement applied at the particular worksite but the employer submitted that the employee was employed in a classification (Tool and Material Storeperson) which was not covered by the agreement. However, the employee did do some other work as an unlicensed rigger; however this was as a result of a private agreement and in effect it was coincidental that it equated to the unlicensed rigger classification under the agreement.

It was submitted that the employee's work was covered by a relevant State award if it was not covered by any other federal award or agreement, especially as it was found that the major and substantial duties performed by the employee were as a Tool and Material Storeman.

The employee argued that the federal agreement applied to the work he performed because the agreement states that where the agreement is silent, it incorporates the provisions of the State award. It was also submitted by the employee that it was the intention at the time of making the agreement that all employees would be covered to minimise inter-union rivalry.

The Australian Industrial Relations Commission found that the federal agreement in question did not contain a Storeman classification. It was considered that:

"the employment was not covered by the agreement and therefore [the employee] was not a Federal Award Employee. ... the coverage of a certified agreement is restricted by the agreement and unless specified it does not necessarily cover the same employees as the relevant award. It follows that the Commission has no jurisdiction upon which it may deal with the application."

The Commission dismissed the application.

 

Post details