Employees cannot access the Fair Work Ciommision’s unfair dismissal jurisdiction if their income exceeds the high income threshold unless their employment is covered by a modern award or enterprise agreeent”. How is the issue resolved? Here is the explantion from a decison of the Commission.
Award coverage
[1] Turning to the Applicant’s contention that he was covered by the PE Award.
[2] Where there is an issue as to whether a person can make an application at all (e.g. person not protected from unfair dismissal, no dismissal, person not an employee), it is the applicant who bears the onus of proof – to the extent that there is an onus.40
[3] The approach to determining award coverage was described by a Full Bench of the Commission in Gourabi v Westgage Medical Centre in the following terms:
For relevant purposes, each modern award has a ‘coverage’ clause that determines ‘the employers, employees, organisations and outworker entities’ that are covered by it. The determination of whether a particular employment falls within the coverage clause of a modern award usually involves two considerations: 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.41
[4] The Applicant contends that he was covered by the PE Award on the basis that he fell within the engineering stream. In his written materials, the Applicant submitted that an analysis of his qualifications and experience establishes that he fulfilled the definition of an ‘Experienced Engineer’ under the PE Award.
[5] Clause 4.1 of the PE Award defines the scope of its coverage as follows:
4. 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) 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 A—Classification Structure and Definitions.
(c) Employers throughout Australia principally engaged as medical research institutes with respect to their employees performing professional medical research duties who are covered by the classifications in Schedule B—Medical Research Employees and those employees.
[6] Clause 4.1(a) of the PE Award includes two requirements that must be satisfied in order for the Applicant to be covered by the PE Award. First, the Applicant 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.
[7] As was observed by the Full Bench in Lingli Zheng v Poten & Partners (Australia) Pty Ltd,42 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.43 Clause 4.1(a) of the PE Award 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.
[8] The second requirement is that the Applicant must be covered by a classification in the PE Award. In respect of this requirement, the correct approach is to determine the principal purpose of the Applicant’s employment based on the nature and circumstances of his work, and then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in clauses A.1.7 and/or 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.44
[9] Clause 2.2 of the PE Award also defines the expression ‘professional engineer’ as follows:
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.
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 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
The issue whether a person’s employment is covered by a modern award or enterprise agreement is very important when an employee who is seeking to access the unfair dismissal jurisdiction of the Fair Work Commission earns for the the high income threshold. In that event the employee cannrt access that jurisdiction unless the employment is covered ny a bmosdern award or enterrise agreement.
Consideration
[10] It was uncontroversial that the Applicant did not hold at the relevant time, the necessary
academic qualifications to be a graduate member of Engineers Australia.
[11] Whilst it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties, on balance, I am unable to find on the evidence that the Applicant carried out duties, the adequate discharge of which required qualifications as (or at least equal to those of) a graduate member of Engineers Australia. I note that holding an engineering degree was not a pre- requisite of the role. The job advertisement provided that an Unrestricted Quarry Manager’s Certificate was mandatory and that that candidate should be obtaining a Schedule 26 Statutory Supervisor Certificate, and whilst reference was made in the position description at Annexure CB-03 that tertiary qualifications in mining engineering or a related discipline were desirable, again what was essential was a Quarry Manager’s Certificate of Competency, and, as noted previously, a Certificate IV in Frontline Leadership or equivalent.
[12] I have considered the duties carried out by the Applicant, as described by the Applicant and Mr Botha. Whilst appreciative that there was disagreement between the parties regarding whether the Applicant was required, and did in fact sign off on the two-weekly schedule, or was involved in its development, at its highest the Applicant’s evidence does not demonstrate that this aspect of his work involved the performance of engineering duties. It was apparent from the evidence, particularly that of Mr Botha, that the superintendent technical services and the mining engineers were those responsible for the design and development of the two-weekly schedule. Whilst the Applicant gave evidence of ensuring sign-off on the schedule and ensuring compliance with the same, his evidence did not suggest that this involved the performance of engineering duties.
[13] Turning to the Applicant’s evidence that he was responsible for signing off drill design approvals, blast design approvals, and blasting exclusion plans, Mr Botha gave evidence that drill and blast engineers set up various parameters on a blast exclusion map of the areas where people can or cannot access. The quarry manager then reviews the exclusion maps to ensure that workgroups are safe. This contrasts to the engineering work that is undertaken by drill and blast engineers who have access to the software to conduct the engineering work. The focus of the superintendent mining, acting in the capacity as the quarry manager, is to ensure the safety of workgroups from a management point of view. Mr Botha gave an example that, for example, the superintendent mining will check to seek if there are any additional access roads that might have been omitted from the map – effectively acting as a secondary backstop – forming part of risk management.
[14] Mr Botha acknowledged that the Applicant would have been responsible for signing off on the blasting exclusion plans, as detailed above, but was adamant that the Applicant did not sign off on the drill design approval.
[15] Having considered the totality of the evidence presented (and noting my reasons at paragraph [49] as to the weight to be afforded to the ‘Role Expectations letter’), I am unable to find that the Applicant performed some engineering duties.
[16] I have, for the sake of completeness, addressed the second requirement, that is the requirement that the Applicant must be covered by a classification in the PE Award. In respect of this requirement, the correct approach is to determine the principal purpose of the Applicant’s employment based on the nature and circumstances of his work. I must then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in Schedule A of the PE Award, 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.
[17] In this case, certain documents are relevant to the proper characterisation of the nature of the Applicant’s employment. The documents of particular significance were Annexure CH- 1, which the Applicant said detailed his duties and responsibilities as a superintendent mining, the Applicant’s curriculum vitae insofar as it described his duties as a mining superintendent, and Annexure CB-3 of Mr Botha’s witness statement, a document that was described as a position description for the superintendent mining at the Mount Marion site. In respect of Annexure CB-4 of Mr Botha’s witness statement, the ‘Role Expectations letter’, the evidence is highly suggestive that at some point of the Applicant’s employment, Mr Botha discussed role expectations with the Applicant, but such discussion did not occur at the time so described by Mr Botha. I am not persuaded that the ‘Role Expectations letter’, as adduced by the Respondent, was that which was provided to the Applicant – and have considered that in assessing the weight to be afforded to it, which is less than that of the other documents relied upon by the parties.
[18] Without repeating the text of the aforementioned documents, it is apparent that the Applicant’s role was predominantly supervisory and managerial with minimal original contribution to the design or development of the mine plan or in respect of establishing professional standards and procedures. The Applicant’s leadership responsibilities extended to directing mining supervisors to ensure the mine plan was adhered to and that an optimal mining performance was achieved – that is work was to be coordinated in a safe, efficient and productive manner. Whilst the Applicant supervised supervisors, I am not persuaded that such personnel constituted professional or technical staff for the purposes of the PE Award. However, I accept that the Applicant’s role incorporated leadership responsibility for ensuring a safe place of work and compliance with all statutory requirements and company policies and procedures. Amongst other duties, the Applicant had reporting responsibilities, the management of labour – including recruitment, supervision, mentoring, coaching, conducting inspections, assessment as to adherence to KPIs, and liaison with various internal and external stakeholders. The Applicant’s document Annexure CH-1, which the Applicant said detailed his duties and responsibilities as a superintendent mining, in addition to the other evidence given, demonstrated that the primary purpose of his role, did not bear a meaningful relationship with the classification criteria in clauses A.1.7 or A.1.9 of Schedule A (or, insofar as it is relevant A.1.11).
2 Conclusion
[19] The Applicant is only afforded protection from unfair dismissal in circumstances where he was covered by a modern award, an enterprise agreement applied in relation to his former employment, or he earned less than the high income threshold. Given my conclusion that there was no modern award that covered the Applicant in respect of his employment, the Applicant’s unfair dismissal application cannot proceed for want of jurisdiction.”
Hunt v Process Minerals International Pty Ltd- [2025] FWC 1276 delivered 7 May 2025 per Beaumont DP