Modern award coverage; fair work cases

There are many implications of the question whether a modern award covers the employment of an employee. Here is a useful extract from a decision of the Fair Work Commission in the context whether an employee was protected from unfair dismissal by reason of modern award coverage.

“[21] The relevant provisions of the Award were set out extensively in the Decision. The Decision records that Appellant contended he was a ‘Level 2 – Experienced Engineer’ at classification Level 2. 16  The Notice of Appeal does not contend differently. Extracts of the Award limited to that classification are below.

2.2 Engineering stream

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.

Graduate engineer …

Professional engineer means a person qualified to carry out professional engineering duties as defined. The term professional engineer includes graduate engineer and experienced engineer as defined in clause 2.2.

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.

  1. Coverage

4.1 This industry and occupational award covers employers throughout Australia as follows:

(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A—Classification Structure and Definitions of the award and those employees.

(b) …

Schedule A—Classification Structure and Definitions

For employment involving the performance of professional duties except professional medical research duties, the following classification definitions apply:

A.1 Professional responsibility levels

A.1.7 Level 2—Experienced engineer, Experienced information technology employee and Experienced scientist

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] Zheng was a decision of the Full Bench of the Commission that specifically considered an unfair dismissal claim where Award coverage was disputed.

[23] Zheng confirmed that coverage by the Award requires a ‘two-step’17 process:

(a) First, the employee must be within the ‘coverage clause’, being in this case clause 4.1(a) set out above; and

(b) Second, the employee must be covered by one of the classifications in Schedule A, being in this case the Level 2 classification at A.1.9 set out above.

[24] The first step requires that an employee be performing ‘professional engineering duties’, as defined. The test for whether an employee was performing ‘professional engineering duties’ was set out in Halasagi v George Weston Foods Limited 18 (Halasagi) for the predecessor of the Award. Halasagi was confirmed by Zheng19 in relation to the Award. That step is:

“[23] ….

  • Particular duties will not be ‘professional engineering duties’ as defined unless it is almost invariably the case that a qualification of the sort referred to in the definition is needed for the adequate discharge of some portion of those duties.
  • The qualification must relate directly to the duties in question. That is, it is not enough that an employee holds a qualification as (or at least equal to those of) a graduate member of Engineers Australia, the qualification must be a qualification of the sort that is almost invariably needed to perform duties of the sort that are said to be the ‘professional engineering duties’ of the employee. In other words, an employee would generally not be able to rely upon, say, a degree in mechanical engineering to claim coverage by the Professional Employees Award 2010 in a position that involves duties in the field of chemical engineering.
  • If the advertisement for an employee’s position identifies a relevant qualification as required this would be prima facie evidence that the position involved “professional engineering duties” for an employee who held that qualification.
  • The reference in the definition to ‘the adequate discharge of any portion of’ the relevant duties is intended to ensure that engineers who advance in their career and assume an increasing load of administrative duties remain covered if they still perform some engineering duties, the adequate discharge of which requires the relevant qualification and the definition should be construed accordingly.”

[25] The second step involves the application of what is sometimes referred to as the “principal purpose” test. That step was summarised in Zheng as follows:

[47] It remains necessary to consider what the application of the “principal purpose” test requires. As was stated in Carpenter, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor. Thus, in Brand, the approach taken by the member at first instance and endorsed by the Full Bench on appeal was to identify the principal purpose of the relevant employee’s employment as being that of “the development of the business of the company including business planning marketing and sales planning manager”, and then to determine that this did not fit within the Level 4 classification descriptor.

[26] It can be seen from the above that the principal purpose test itself involves two elements. The first – “a question of fact” – is an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the “principal purpose” for which the employee is employed.

[27] Once that factual finding is made, the principal purpose for which the employee is employed is compared to the relevant classification descriptors to determine which (if any) classifications apply.

[28] In Zheng, we note that there was a finding at first instance that the employee did perform “professional engineering duties”, which was not challenged on appeal. 20 That was not the position in the present case.

[29] We also note in Zheng that the Full Bench ultimately went on to determine the “principal purpose” test in that matter. The applicant in that case contended she was covered by the Level 3 – Professional classification in the Award as a chemical engineer. The respondent in that case contended she fitted no classification. In a subsequent decision (Zheng No 2), it was held that the applicant was covered by the Award at the Level 2 classification descriptor. 21

The decision on appeal

[30] It is not practicable, nor necessary, to set out extensive extracts of the findings from the Decision. The following summary is far from complete but it provides a flavour of the breadth and nuance of some of the factual matters in dispute.

  • The Appellant held a Bachelor of Engineering (Electrical Power Engineering) and Masters of Applied Project Management.
  • From December 2011, he worked as a student engineer and then steadily progressed his career in engineering or project management jobs before accepting employment with the Respondent.
  • The letter of offer from the Respondent dated 14 February 2019 referred in the opening paragraph to the position being that of “Senior Engineer – Projects”. The role description included a role title of “Senior Project Engineer (Electrical/Instrumentation)”.
  • The role description also referred to a Bachelor Degree in Electrical/Instrumentation Engineering being “essential”.
  • In his emails, the Appellant signed off as “Senior Project Engineer”.

[31] In addition, each of the parties led evidence broadly directed to the Appellant’s work and responsibilities as each party contended was undertaken by the Appellant. The Appellant gave evidence on his own behalf and was subject to cross-examination as were a number of witnesses called by the Respondent. An extensive summary of that evidence is set out by the Commissioner is at [17] – [81] of the Decision.

[32] There are aspects of the above-referred evidence that was more significant to the Commissioner’s ultimate conclusions. In particular:

  • The Respondent led evidence from the Appellant’s supervisor (Ms Beck) to the effect that the Appellant’s job description required an engineering degree so the Appellant would have an understanding of concepts to carry out his duties as a project manager, not as an engineer. She also said the Appellant was not allowed to sign off technical engineering work and those tasks were contracted out. She said the Appellant’s role was to manage contractors.
  • Ms Beck did not hold an engineering degree. Ms Beck also gave evidence of another member of the Appellant’s team (Mr Rogan), who was also employed as a “Senior Project Engineer”. She said Mr Rogan did not have an engineering degree (not disputed) but performed “exactly the same” job as the Appellant (a matter disputed by the Appellant).

[33] There was evidence, much disputed, about the Appellant’s role in projects (and whether any aspects of those projects involved the Appellant performing engineering work of a necessary kind). One project that featured prominently in the Appellant’s evidence was referred to as the “SPS” project, which related to replacing a switchboard and installing new cabling at the 3.3kV Secondary Power Station. While the design component of that project was awarded to a contractor – AECOM – the Appellant’s position was that he needed to be a professional electrical engineer in order to be assigned to the project. The Appellant contended he frequently wore ‘two hats’: one as a project manager and the other as an electrical engineer.

[34] The Commissioner also set out in some detail the respective submissions of the parties, which included written submissions directed at the tests in Zheng.

[35] The Commissioner then proceeded to state various findings he made on the evidence and how those findings applied to the tests in Zheng. Specifically:

[155] The Applicant’s evidence did not include clear examples of him undertaking professional engineering duties. The limited examples he gave in support of his generalised assertions to this effect were contested by the Respondent’s witnesses. Where the Applicant’s evidence about his duties conflicts with the evidence of Ms Beck and Mr Hollier I prefer the evidence of Ms Beck and Mr Hollier.

[156] The evidence as a whole confirms the Respondent’s position that for Capital Sustaining Projects engineering design was undertaken by the contractors and engineering queries of a technical kind were dealt with by the engineers within the Respondent’s engineering department but were sometimes referred through the Applicant or in some instances raised by the Applicant. The Applicant may have marked up engineering drawings that had been completed by others, for the information of other stakeholders.

……………………………………………..[157] Considering all the evidence, I do not accept the Applicant was required to nor did he do engineering design, nor did he make engineering drawings, nor did he answer engineering technical queries. Consequently, I find that the Applicant’s engineering qualification was not necessary in the performance of any of his duties. The Applicant did not perform professional engineering duties.

[158] Consistent with this the evidence is that two other employees who do not have engineering qualifications are employed in roles by the Respondent that also have the word “Engineer” in their titles.

[159] Specifically, the evidence is that there is another project manager at Telfer, Mr Rogan, who does the same job as the Applicant whose role is also titled “Senior Engineer – Projects” who does not have an engineering qualification.

[160] The evidence clearly demonstrates that the principal purpose for which the Applicant was employed was to manage projects.

[161] Turning then to the tests for the Award coverage.

[162] Regarding the engineering duties test the Applicant’s engineering qualification was not necessary in the performance of at least some of his work.

[163] Separately, regarding the principal purpose test, the evidence is that the principal purpose for which the Applicant was employed was to manage projects. The principal purpose of his role was not as an experienced engineer, not as a graduate engineer, and not as a professional engineer, nor was the principal purpose that of any other classification in the Award.

[164] Consequently, the Applicant’s employment was not covered by the Award. Therefore, the Applicant was not by virtue of section 382 of the Act protected from unfair dismissal and so was not able to make this application.”

Bwalya v Newcrest Mining Limited –(2022) FWCFB 41 delivered 24 March 2022 per Catanzariti VP, Masson DP, Lake DP and Bell DP