How to test area and scope of award in fair work law

One important test in employment law in Australia, whether from the perspective of the Fair Work Act’s application and coverage or various State equivalents is whether or not an award applies to as job. Here is how the law determines that issue in an extract from such a case in the Fair Work Commission.

“Consideration

[11] For the reasons which follow, we find that Ms Zheng was covered by the PE Award at the time of her dismissal and was therefore a person protected from unfair dismissal within the meaning of s 382 of the FW Act.

[12] It is necessary to begin by reiterating some matters dealt with in the appeal decision. Clause 4.1(a) of the PE Award contains, relevant to Ms Zheng’s case, two requirements that must be satisfied in order for her to be covered by the award. First, Ms Zheng must be an employee “performing professional engineering…duties”. The expression “professional engineering…duties” is defined in clause 2.2 of the PE Award as follows:

professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) of a graduate member of Engineers Australia.

[13] It is important to note, as we stated in the appeal decision by reference to previous authorities, that under the definition it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties. 4 Clause 4.1(a) read with the above definition does not require the performance of engineering duties to constitute the majority of the employee’s duties or to constitute the primary purpose of the employee’s employment. In the initial decision, the Deputy President found that the first required element of coverage was satisfied in Ms Zheng’s case:

“[67] Having considered the evidence of both parties, and the submissions made by both, on balance, I have found that the evidence establishes that Ms Zheng’s engineering qualifications and experience were both necessary in the performance of at least some of her work and were relied upon by the Respondent. While it was the case that Mr Pulsford emphasised the project management aspects of Ms Zheng’s duties, at times his account traversed the relevance of engineering qualifications and experience, elevating them, in my view, to the requisite level of ‘professional engineering duties’. In this respect, I refer to paragraphs PN282 and PN284 of the transcript, in addition to PN264 to PN272.

[68] I am satisfied that in her role as a LNG Consultant, Ms Zheng carried out ‘professional engineer duties’ as defined in the Award. Her role as an industry analyst encompassed commercial, technical, and marketing aspects of the LNG supply chain, and she leveraged her technical background perform some of that work. I am therefore persuaded Ms Zheng performed some engineering duties, the adequate discharge of which required the relevant qualification.” (emphasis in original)

[14] As we pointed out in the appeal decision, there was no cross-appeal or notice of contention on the part of Poten in respect of this finding and accordingly, in upholding the appeal, it is not necessary for us to revisit this issue.

[15] The second requirement is that Ms Zheng must be covered by a classification in the PE Award. In respect of this requirement, we said in the appeal decision that the correct approach is to determine the principal purpose of Ms Zheng’s employment based on the nature and circumstances of her work, and then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in clause A.1.9 of Schedule A, without that analysis being conducted through the lens of any requirement that “professional engineering duties” constitute the principal purpose of the employment or a majority of the duties being performed.

[16] As stated earlier, Poten has now submitted that, unless the principal purpose of Ms Zheng’s employment is characterised as being that of chemical engineering, the question of whether the principal purpose of her employment bears a meaningful relationship with any classification in the PE Award should not arise. The basis of this submission was not clearly articulated by Poten. Reference was made in support of this proposition to the decision in Halasagi v George Weston Foods Limited 5 but, as was made clear in the appeal decision, Halasagi was concerned only with the first requirement for coverage under the PE Award we have earlier referred to, and was not concerned with the second requirement of determining coverage under a classification in the PE Award.6 The submission appears to be predicated on the proposition that it is necessary to find that engineering is the principal purpose of the employment, but neither in relation to the first requirement for coverage (having regard to the definition of “professional engineering duties” in clause 2.2) or the second requirement (having regard to the classification descriptors in Schedule A) is any such criterion to be found in the text of the PE Award.

[17] The starting point for the identification of the principal purpose of Ms Zheng’s employment is, we consider, the job advertisement for her position and her contract of employment. The text of the job advertisement and the part of the contract of employment which set out Ms Zheng’s job responsibilities were extracted in the appeal decision. 7 Without repeating the text of the job advertisement, two matters stand out. First, the job (with the title “LNG Consultant”, is described as that of a “technically-oriented LNG and natural gas consultant” in which the successful candidate would be “responsible for technical support of consulting studies in areas such as development of LNG export and import facilities, LNG project technical due diligence, LNG project economic analysis and project costs”. Second, under the heading “Required Qualifications”, the advertisement stated that the ideal candidate “would have a graduate or post-graduate degree in chemical engineering with five or more years of experience in front-end LNG or gas processing project development, preferably with an oil and gas company.”

[18] The job responsibilities identified in the contract of employment place less emphasis on the technical aspects of the position but nonetheless include working with the Merlin technical team, preparing technical analysis and consulting reports in the development of LNG export and import facilities, providing technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments, and researching, analysing and advising clients on technology.

[19] It may be accepted, as Poten submits, that the position must be understood in the context of Poten’s business. Mr Pulsford’s evidence was that Poten provides technical, market, commercial and shipping and marine advice to the LNG and natural gas industries, and does not engage in the engineering design of processes and equipment. He said that Ms Zheng was engaged “for her technical knowledge and experience in LNG and gas asset development”. It may readily be inferred that the technical knowledge for which Ms Zheng was engaged, and the technical requirements for the job, relate to the chemical engineering qualification which was said in the job advertisement to be required or at least ideal and which Ms Zheng held. As Mr Pulsford said in his evidence, Ms Zheng’s “knowledge and work experience was useful to contribute an understanding of the technical aspects of developing an asset in the LNG and natural gas supply chain”.

[20] On the basis of the evidence referred to, the principal purpose of Ms Zheng’s employment may reasonably be characterised as that of a LNG and natural gas industry consultant requiring technical knowledge, expertise and analysis derived from her chemical engineering qualifications and experience. The evidence given by Ms Zheng and Mr Pulsford about the details of the work performed by Ms Zheng affirmed this characterisation. Mr Pulsford sought in his evidence to downplay the technical engineering aspect of Ms Zheng’s role, but he was the subject of an adverse credit finding by the Deputy President. 8 In any event, the evident intent of his evidence was to deny that Ms Zheng was employed as an engineer or performed engineering design. As the Deputy President found, his evidence in fact supported the proposition that Ms Zheng’s chemical engineering qualifications and experience were required or “leveraged” to perform the technical aspect of her consulting role.9

[21] We turn now to the classification structure in Schedule A of the PE Award. As earlier discussed, the Deputy President’s analysis in the initial decision was primarily concerned with whether Ms Zheng was covered by the Level 3 classification. The submission made by Poten before us to the effect that a degree of professional leadership or innovation in a particular area of specialisation is required of a Level 3 employee has some force. However, it is ultimately not necessary for us to consider this further because we are comfortably satisfied that Ms Zheng’s role as a LNG and natural gas industry consultant required her to utilise the technical knowledge, expertise and analysis derived from her chemical engineering qualifications and experience would at least fall within Level 2 as an “Experienced engineer”. The classification descriptor for Level 2, contained in clause A.1.7 of Schedule A of the PE Award, is as follows:

Following development, the Experienced engineer, Experienced information technology employee and Experienced scientist plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.

[22] An analysis of the job advertisement and the employment contract amply demonstrates that Ms Zheng conducted professional work “without detailed supervision but with guidance on unusual features” and was “usually engaged on more responsible assignments requiring substantial professional experience”. We have already discussed the extent to which Ms Zheng was required to draw upon her professional qualifications and experience to perform the technical aspect of her role. The contract of employment required her to:

  • “take an active role” in ensuring the success of client engagements and building Poten’s reputation and profitability;
  • “Work as a team” with other employees of Poten and associated entities “to ensure that assignments are executed to the highest standards and in an efficient and profitable manner”;
  • “Lead assignments at the direction of management”;
  • prepare client studies and reports, including technical and commercial analysis and consulting reports, and “leading assignments allocated”;
  • “Lead” the business development process with selected clients at the direction of management, and
  • provide technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments and research, analyse, and advise clients on technology and cost-related issues.

[23] All these matters bespeak of a role which included a requirement to perform technical work of a professional engineering nature as part of responsible assignments carried out on a largely autonomous basis. The evidence of Ms Zheng and Mr Pulsford about Ms Zheng’s actual work was, we consider, consistent with this. The principal purpose of Ms Zheng’s employment as we have identified it therefore meaningfully relates to the Level 2 classification descriptor.

[24] The Level 2 classification descriptor also requires the employee to be, relevantly, an “Experienced engineer” as defined in clause 2.2. That definition provides as follows:

Experienced engineer means a Professional engineer with the undermentioned qualifications engaged in any particular employment where the adequate discharge of any portion of the duties requires qualifications of the employee as (or at least equal to those of) a member of Engineers Australia. The qualifications are as follows:

(a) membership of Engineers Australia; or

(b) having graduated in a 4 or 5 year course at a university recognised by Engineers Australia, 4 years’ experience on professional engineering duties since becoming a Qualified engineer; or

(c) not having so graduated, 5 years of such experience.

[25] Poten’s contention that Ms Zheng did not meet the criteria in this definition was the only aspect of the Level 2 classification descriptor which it specifically addressed in its submissions. On one view, this issue ought not now be an issue in contention since the Deputy President made a finding, not the subject of any cross-appeal or notice of contention, that Ms Zheng held the “required qualifications to perform work as an experienced engineer”. 10 In any event, we consider it is clear that Ms Zheng satisfies the definition. We have earlier referred to the Deputy President’s finding, not the subject of challenge in the appeal, that the adequate discharge of part of Ms Zheng’s employment duties required her engineering qualifications. As to those qualifications, there is no dispute that Ms Zheng obtained a 4-year Bachelor’s degree in Chemical Engineering for the National University of Singapore, and also obtained a Masters degree in Molecular Engineering of Biological and Chemical Systems from the same institution. The Skills Report prepared by Engineers Australia in 2016 shows that Ms Zheng’s Masters degree was assessed as comparable to AQF Level 9-Masters Degree, and that her qualifications also met the ANZSCO requirement for the occupational definition of Chemical Engineer. This demonstrates, we consider, that Engineers Australia “recognised” her university course. In any event, Ms Zheng had the requisite professional experience to satisfy paragraph (c) (as well as (b)) of the definition, making the “recognition” of her university course inessential. The Skills Report found that she had completed overseas and Australian skilled employment relevant to her designation as a qualified Chemical Engineer for periods totalling well in excess of 9 years since Ms Zheng’s graduation as at the date of the report. Poten’s contention that the relevant professional experience must post-date the Engineers Australia assessment finds no support in the text of the definition and is rejected.

Conclusion

[26] We find that Ms Zheng was, at the time of her dismissal, covered by the PE Award and was therefore a person protected from unfair dismissal within the meaning of s 382 of the FW Act. Pursuant to s 607(3)(c) of the FW Act, we remit matter U2020/13343 to Deputy President Beaumont for hearing and determination on the basis of this finding.”

Zheng v Poten & Partners (Australia) Pty Ltd (2021) FWCFB 6041 delivered 3 November 2021 per Hatcher VP, Cross DP and Lee C