Andrew McFarlane v SRG Civil Pty Ltd - [2019] FWCFB 8682

[2019] FWCFB 8682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Andrew McFarlane

SRG Civil Pty Ltd

(C2019/4813)

Deputy President Clancy
DEPUTY PRESIDENT MASSON
COMMISSIONER MCKINNON

MELBOURNE, 23 DECEMBER 2019

Permission to appeal and appeal sought in relation to decision [2019] FWC 3384 of Commissioner Johns at Sydney on 16 July 2019 in U2019/168 – whether covered by modern award – principal purpose test – permission to appeal not in public interest – permission refused.

Mr Andrew McFarlane was employed in the role of Project Manager / Senior Project Engineer by SRG Civil Pty Ltd from 19 January 2015 until 17 December 2018. After his employment was terminated, he applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) from the Fair Work Commission (the Commission). SRG Civil objects to the application on jurisdictional grounds. It submits that Mr McFarlane was not protected from unfair dismissal because his income was above the high income threshold and he was not covered by a modern award or enterprise agreement. Mr McFarlane agrees that his income was above the high income threshold but submits that he was covered by the Professional Employees Award 2010 (the Award) as a Level 3 Professional.

A modern award covers an employee if the award is expressed to cover the employee.[1] In this regard, it is common ground that to be covered by the Award, Mr McFarlane must have been “performing professional engineering duties” - defined in the Award as “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”. That is, did he require engineering qualifications to be able to satisfactorily do some or all of the things he was required to do, and did?

In addition, Mr McFarlane must have been covered by one of the classifications in Schedule B to the Award.[2]

On 16 July 2019, Commissioner Johns decided that Mr McFarlane was not covered by the Award and was not protected from unfair dismissal (the Decision).[3] He dismissed Mr McFarlane’s unfair dismissal application.

Mr McFarlane seeks permission to appeal and seeks to appeal the Decision on the grounds that the Commissioner:

1.Erred in concluding that no aspect of Mr McFarlane’s work required him to undertake engineering work or have a professional engineering qualification (at paragraphs [34] and [35] of the Decision) (Ground 1);

2.Wrongly applied the principal purpose test in determining whether the Award applied (Ground 2);

3.Erred in concluding that to the extent Mr McFarlane provided engineering work in an advisory capacity, it was not work he was required to do, not part of his duties and not relevant (Ground 3);

4.Asked the wrong question of whether or not Mr McFarlane had made unique engineering contributions to the business (Ground 4); and

5.Erred in only considering whether Mr McFarlane had authority to sign off…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCFB 8682
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

Andrew McFarlane sought leave to appeal a decision of Commissioner Johns of the Fair Work Commission, which had dismissed his unfair dismissal claim. McFarlane was employed by SRG Civil Pty Ltd, which brought the appeal in relation to the decision [2019] FWC 3384. The primary issue before the court was whether McFarlane was covered by the relevant modern award, and if so, whether the principal purpose test had been correctly applied. Additionally, the court had to determine whether granting leave to appeal was in the public interest.

The court found that the principal purpose test had been correctly applied and that McFarlane's employment did not fall within the coverage of the modern award. The court held that McFarlane's role involved providing expert advice and that his employment was not primarily focused on the activities covered by the award. Given the specific nature of the dispute and the outcome of the lower court decision, the court concluded that granting leave to appeal was not in the public interest. Therefore, McFarlane's application for leave to appeal was dismissed.

Orders