Modern award coverage; Professional Employees Award

The legal issue of modern award coverage is very important to many unfair dismissal cases, particularly where the employee’s annual rate of earnings (an expression which as generated much case law as well) exceeds the high income threshold. In those circumstances, an employee is nonetheless protected from unfair dismissal if his or her employment is covered by a modern award or enterprise agreement.

The following extract from a recent decision of the Fair Work Commission deals with the manner in which this issue is interpreted, in this particular case in the context of the Professional Employees Award 2010 the coverage of which is to some extent a generic.

“Was Mr Skinner covered by the Professional Employees Award?

[15] Assessment of award coverage requires, first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed. 11 The question of coverage of a modern award is to be determined at the time of the dismissal and having regard to the circumstances applying at that time.

[16] Mr Skinner contends that he is covered by the Professional Employees Award 2010 (as previously stated). 12 Its coverage clause provides:

  1. Coverage

4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.

4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.

[17] The Award is expressed to cover parties in two ways. It covers employers in the industries specified in clause 4.2, but it also has an occupational coverage as specified in clause 4.1.

[18] The issue in this case is whether Mr Skinner is covered by the Award by virtue of its occupational coverage at clause 4.1.

[19] Clause 4.1 refers to the Award covering ‘employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties’ and it is clear that either may be satisfied. Mr Skinner appears to be relying upon the coverage of ‘professional engineering duties’ as defined by the Award.

[20] Essentially the Respondent submitted that at the time of his dismissal, Mr Skinner was not covered by the Award, because he was not carrying out professional engineering duties, and was not employed in a classification in the Award because he was in a managerial role. 13 The Respondent filed no witness statements and its submissions evinced the complete lack of preparation the Respondent had undertaken in respect of this matter.

[21] At question 7(a) of the Respondent’s Outline of Argument, the Respondent wrote:

Please see attached the Applicant’s position description. The Applicant maintained a senior manager position overseeing all matters related to a large scope of work, specifically:

Charged with the overall Tank responsibility of all Safe Work Execution coordinating and scheduling in conjunction with the Company, Client Representatives and Contract Execution Plans as relates to “Tanks”. Directs and oversees the Operational team in execution of Tank/Project requirements. Interfaces with Purchasing, Sub-contracting, and Administration in support of Project requirements. Interacts with Company and Clients Health & Safety Department, & Representatives to ensure that Safe Work Plans are in place and monitors all regulatory requirements. 14

[22] Apart from the inclusion of two sentences, the Respondent had managed to cut and paste the ‘objectives’ of the position description; a position description which was not provided to Mr Skinner when he commenced in the role. However, as observed, Mr Skinner acknowledged that the position description described his duties.

[23] In Halsagi, 15 the Vice President observed that an applicant who seeks to establish that they are protected from unfair dismissal by virtue of being covered by a modern award needs to establish not only that they are within the coverage clause of that modern award, but also that they are employed in a classification in the award.16 With respect to the latter issue, the Vice President expressed that this was a question determined by reference to the ‘principal purpose’ test.17

[24] The Vice President was careful to note that, in relation to the Award, care was to be taken not to confuse the questions. The definition of ‘professional engineering duties’ could be satisfied by reference to ‘any portion’ of the employee’s duties and did not require that the duties fall within that definition are the ‘principal purpose’ for which the employee is employed. 18

Professional engineering duties

[25] The expression ‘professional engineering duties’ is defined in clause 2.2 of the 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) a graduate member of Engineers Australia’.

[26] Clause 3.2 of the Award defines an ‘Experienced engineer’, ‘Graduate engineer’ and ‘Professional engineer’ 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

(a) 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

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

Graduate engineer means a person who is the holder of a university degree (4 or 5 year course) recognised by Engineers Australia or is the holder of a degree, diploma or other testamur which:

(a) has been issued by a technical university, an institute of technology, a European technical high school (technische hochschule) or polytechnic or other similar educational establishment; and

(b) is recognised by Engineers Australia as attaining a standard similar to a university degree; and has been issued following:

(i) a course of not less than 4 years’ duration for a full-time course after a standard of secondary education not less than the standard of examination for matriculation to an Australian university; or

(ii) a part-time course of sufficient duration to obtain a similar standard as a 4 year full-time course after a similar standard of secondary education.

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 this clause.

[27] Mr Skinner’s curriculum vitae indicated several professional affiliations, one of which included being an eligible member of Engineers Australia since 2008. This evidence was not challenged by the Respondent.

[28] I observe that the position description for the Tank Maintenance Lead role expressed that tertiary education in Project Management was preferred, but not essential. It did not mention engineering qualifications or require a membership with Engineers Australia.

[29] In Bateman v Communications Design & Management Pty Limited, 19 the Full Bench approved and adopted the proposition of the Vice President in Halasagi, who stated that the definition of ‘professional engineering duties’ should be interpreted and applied as follows:

I proceed on the basis that:

  • 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. 20

[30] It follows that to demonstrate Award coverage, it is not enough that an employee holds a membership of Engineers Australia. 21 However, this is not to say that the Award requires membership of Engineers Australia before a person can carry out professional engineering duties.22 For the Award to apply, qualifications as (or at least equal to those of) a graduate member of Engineers Australia are almost invariably needed to perform duties of the sort that are said to be ‘professional engineering duties’.23

[31] As noted, the position description for Tank Maintenance Lead did not require the discharge of duties which required qualifications as (or at least equal to those of) a member of Engineers Australia.

[32] The accountabilities or responsibilities of the Tank Maintenance Lead position were outlined at paragraph 9 of this decision. Mr Skinner acknowledged that the position description reflected what was required in his role.

[33] However, regarding the nature of his duties, Mr Skinner gave evidence he was required to perform professional engineering duties and, therefore, he fell within the definition of ‘Professional engineer’. Mr Skinner’s evidence was that it was his engineering experience and his accreditation with the American Petroleum Institute as a tank engineering specialist that saw him gain employment. Further, his role was to approve all engineering documentation and act as a technical reference authority.

[34] Having considered the evidence of Mr Skinner, and noting that Broadspectrum had very little to add, except for stating the obvious that Mr Skinner’s employment contract did not expressly incorporate the Award, and persistently submitting that Mr Skinner was in a managerial role, I remain unpersuaded by Mr Skinner’s submission that he was engaged to perform professional engineering duties.

[35] Mr Skinner gave evidence that his duties extended to checking all engineering documentation and that he acted as a technical reference authority in this respect. As far as being a technical reference authority, Mr Skinner stated to the effect that the relevant field was that of ‘API 650 & API 653 Bulk Tank professional engineering’.

[36] However, while Mr Skinner may have undertaken these duties, I am unable to conclude that Mr Skinner was engaged to perform professional engineering duties that required the qualifications of a professional engineer – based on his letter of offer and position description. His position description provided an expansive list of primary and general responsibilities. The responsibilities are expansive and yet they make no mention of acting as a technical reference authority. The focus of that position description appears to be on project management.

[37] As noted, Mr Skinner gave evidence that his professional knowledge and experience as an engineer saw him obtain the role. However, while Mr Skinner has adduced what appears to be part of an American Petroleum Institute Standard on Tank Inspection, Repair, Alteration and Reconstruction, Mr Skinner has not demonstrated that his engineering qualifications were required for the discharge of his responsibilities as the Tank Maintenance Lead. Regrettably, the evidence led by the Applicant is of little weight. The Tank Maintenance Lead position description included a list of accountabilities and responsibilities, which did not require the adequate discharge of any portion of duties which required qualifications as (or at least equal to those of) a member of Engineers Australia.

[38] On balance, I have found that there was insufficient evidence before me to conclude that Mr Skinner’s engineering qualifications and experience were both necessary in the performance of at least some of his work and were relied upon by Respondent. He was engaged in management duties, not technical engineering duties.

[39] It is therefore evident that Mr Skinner did not carry out ‘professional engineer duties’ as defined in the Award in his role as Tank Maintenance Lead.

Classification – Schedule B

[40] If I am wrong on this first point, it remains the case that Mr Skinner was not employed within a classification in the Award (taking into account of course the principal purpose for which he was employed).

[41] The second limb of the coverage provision, in clause 4.1 of the Award, requires consideration of whether Mr Skinner was covered by a classification in Schedule B and the definitions relating to that structure.

[42] ‘Level 4 – Professional’ is the highest engineer-related classification in clause B.1.11 of Schedule B of the Award. It is described in the following terms:

(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation’s technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

(b) An employee at this level:

(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;

(ii) gives technical advice to management and operating departments;

(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;

(iv) coordinates work programs; and

(v) directs or advises on the use of equipment and materials.

(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.

(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.

(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.

[43] The other classifications in the Award are more junior, and are not, in my view, comparable to the position of Tank Maintenance Lead.

[44] In Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space (Bury) 24 the Commission considered whether an employee working as an Operations Manager was covered by a classification in the Professional Employees Award. Asbury DP applied the principal purpose test to this assessment, and provisionally concluded that the Applicant was not covered by the Professional Employees Award, noting that:

The duties and responsibilities as set out in the position description for Operations Manager are managerial. The duties and responsibilities are focused on establishment and management of systems, processes, procedures, logistics and relationships both internal and external. I do not accept that the responsibility for development of a quality management or document control system requires an engineering degree or equivalent.

[45] Determination of whether Mr Skinner’s role fell within the Level 4 classification requires an assessment of each of the indicative duties listed in the Level 4 classification. The first of these indicative duties is:

An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation’s technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

[46] As was the case in Bury, Mr Skinner’s duties and responsibilities were focused on the establishment and management of systems, processes, procedures, logistics and relationships, both internal and external. It is not evident that Mr Skinner was engaged in engineering work from the evidence given – save his oral testimony about checking engineering documents and being a technical reference authority. To the extent he was involved in engineering matters, this involvement can be seen to have been in an incidental, advisory capacity, through interactions with two of his reports and potentially the client. There was no direct evidence before me to show that Mr Skinner determined matters concerning design and engineering.

[47] I am unable to find that Mr Skinner’s work is properly characterised as ‘involving’ expertise in a ‘particular’ field of engineering. He was engaged to lead a team of the Respondent’s business, and arguably that of the client, which comprised of two engineering roles, but on balance mostly operational roles including trades, diploma and nontrade-qualified roles.

[48] The second aspect of the classification definition describes the duties and activities undertaken by employees at Level 4 – Professional.

[49] The Respondent repeatedly submitted that Mr Skinner occupied a managerial role, and Mr Skinner similarly agreed.

[50] The position description did not demand a person with a membership of Engineer’s Australia, or an engineering degree, but sought a person with a tertiary qualification in project management (preferred not essential). It is open to conclude that this was because the role was not to produce technical advice, plans or programs for it. It was a managerial role as conceded by Mr Skinner.

[51] While Mr Skinner spoke of checking engineering documentation, as noted, there appeared to be two engineers (senior project engineer and project engineer) who reported into Mr Skinner in addition to multiple other tradespersons and personnel such as a scheduler, estimator and supervisors (two). Given Mr Skinner’ span of control (27.5 full-time equivalent positions), it is difficult to reconcile the position that Mr Skinner could have sensibly supervised the technical detail of the Engineers’ work whilst fulfilling both his primary and general responsibilities. Further, while Mr Skinner gave evidence that he checked engineering documentation, there was little in the way of other evidence that demonstrated such work.

[52] In light of the content of the position description and Mr Skinner’s evidence, I am satisfied that Mr Skinner ‘coordinated’ maintenance work programs on the tanks. He was charged with the ‘overall Tank responsibility of all Safe Work Execution coordinating and scheduling’. However, Mr Skinner had within his team a planner, scheduler and two supervisors. It is therefore open to find that while Mr Skinner assumed overall responsibility for the of all ‘Safe Work Execution’, his day to day role was broader and more strategic than that usually associated with ‘co-ordinating’ a program. Hence, the reference in the position description to Mr Skinner directing and overseeing the Operational Team.

[53] The position description speaks of responsibilities such as ensuring client relations are monitored and maintained, communication with Client Location Representatives daily, reporting to the Contract Manager any value-added performance, and ensuring contract key performance indicators are monitored and achieved. The responsibilities do not reflect the provision of technical advice, rather, they are better characterised as managerial, informed by Mr Skinner’s skills.

[54] Mr Skinner was responsible for ensuring that the schedule had all necessary resources to perform all work to meet expectations, that all schedule expectations were defined prior to the work scope commencement – and all resource requirements were allocation in accordance with the approved plan and schedule. Mr Skinner did not appear to be directing or advising on the use of equipment and materials. Akin to a manager, he was simply required to ensure the project(s) were adequately resourced.

[55] The next aspect of the classification is:

An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.

[56] This aspect of the classification is general as it refers broadly to making ‘reasonable decisions’ and ‘recommendations’ on ‘objectives’. It is very difficult to evaluate whether Mr Skinner’s duties and responsibilities, that is the work he performed, fell within the scope of this aspect of the classification, due to the paucity of probative evidence provided by both Mr Skinner and the Respondent.

[57] In my view, the preferred interpretation of this criteria is that it is focused on an employee principally engaged to make technical decisions, who has autonomy over those decisions and related recommendations. The criterion is to be read in context against item(a) of the classification. Based on Mr Skinner’s evidence that he checked all engineering documentation it might possibly have been said that Mr Skinner performed such work. However, apart from Mr Skinner aligning various aspects of his position description to the relevant provisions of the Award, the evidence adduced does not ground a conclusion that Mr Skinner performed such work.

[58] The next aspect of the classification is:

Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.

[59] Again, there is very little in the way of evidence before me to draw a conclusion with respect to the assignment of duties. Mr Skinner in his submissions simply directs this Commission to the position description. The position description lists an expansive list of responsibilities which do appear to be of broad import. However, it is not entirely clear whether those duties are reviewed from the perspective of policy, soundness of approach, accomplishment and general effectiveness.

[60] The final aspect of the classification definition is:

The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.

[61] Mr Skinner primarily supervised non-professional staff, and two project engineers. There is insufficient probative evidence before me to conclude that Mr Skinner exercised technical control over the two project engineers. Further, the evidence provided does not lead to a conclusion that Mr Skinner was engaged in complex professional engineering or professional scientific/information technology applications. His role appeared to be of broad import in the area of project management.

Conclusion

[62] A paucity of probative evidence has clearly plagued this matter. It is not the case that the Commission can speculate about what it is Mr Skinner did. While a position description may illuminate various parts of a person’s position, at times it may not provide a fulsome account. However, the position description of Tank Maintenance Lead was heavily relied upon in this case. That same position description included no requirement that Mr Skinner perform any engineering work. It described a broad supervisory role.

[63] For the reasons set out above, I am not satisfied that a modern award covered Mr Skinner, an enterprise agreement did not apply to him in relation to his employment, and his earnings exceeded the high income threshold. Mr Skinner was not a person protected from unfair dismissal and therefore the Commission has no jurisdiction to order an unfair dismissal remedy, under s 390. Mr Skinner’s application for an unfair dismissal remedy is dismissed. An order to that effect accompanies this decision. 25”

Skinner v Broadspectrum (Australia) Pty Ltd (2020) FWC 4948 delivered 25 September 2020 per Masson DP