Frederick Basson v Alltype Engineering Pty Ltd

[2015] FWC 2928

[2015] FWC 2928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frederick Basson
v
Alltype Engineering Pty Ltd
(U2015/3021)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Frederick Basson was employed by Alltype Engineering Pty Ltd until his employment was terminated on 28 January 2015. He lodged an unfair dismissal application and Alltype objected to the application because it said Mr Basson earned more than the high income threshold.

[2] It was not contested that Mr Basson earned more than the high income threshold. Mr Basson submitted that his employment was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award).

[3] Mr Basson was employed as a project manager. There is no dispute about the position description that covers Mr Basson’s employment.

[4] Alltype filed submissions in which it put that ‘given the applicant’s salary is above the statutory threshold limit, the position as a Project Manager and the job description describes job functions above the scope of the award, it would appear that the Award does not apply to the applicant’s employment’. They then referred to pages 10, 11 and 12 of the Award. Alltype made no submissions to support its contention that the job functions were above the scope of the Award.

[5] Mr Basson submitted that Alltype is a business within the meaning of clauses 4.9 and 4.10 of the Award.

[6] He submitted that his job description means that he should be classified as a Principal Technical Officer.

[7] Mr Basson submitted that he had 20 years of technical experience within the engineering field. He applied his skills from designing to technical work procedure planning. He was required to analyse detailed drawings to ensure they complied with fabrication drawings. He undertook intensive planning and scheduling. He was required to make technical decisions and work unsupervised.

The Award

[8] Coverage of the Award is provided at clause 4 as follows:

4.1 This award covers employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees.

[9] Manufacturing and Associated Industries and Occupations are defined at clause 4.9 and it is not disputed that Alltype manufactures and fabricates various steel components within the engineering field and as such, if Mr Basson’s position is covered by a classification in the Award, his employment is covered by the Award.

[10] The classification definitions provide that they should be read in conjunction with the streams and field definitions in the award and other definitions.

[11] The vocational fields are defined as follows:

vocational fields are the five vocational fields recognised within the classification structure of this award, namely, trade, technical, engineering/manufacturing, supervisor/trainer/coordinator, and professional. The fields are defined as the:

(a) trade field which includes employees who possess as a minimum qualification a trade certificate in any of the engineering streams or a Certificate IV in Engineering including Higher Engineering Trades or Special Class Trades.

(b) technical field which includes:

(i) production planning, including scheduling, work study, and estimating materials, handling systems and like work; or

(ii) technical work including inspection, quality control, supplier evaluation, laboratory, non-destructive testing, technical purchasing, and design and development work (prototypes, models, specifications) in both product and process areas and like work; or

(iii) design and draughting and like work.

(c) engineering/manufacturing field which includes employees primarily engaged in production work including production, distribution, stores and warehousing, which does not require a qualification in the trade, technical, professional or supervisory fields.

(d) supervisor/trainer/coordinator field which includes employees who are or who are mainly:

(i) responsible for the work of other employees and/or the provision of on-the-job training including coordination and/or technical guidance; or

(ii) responsible for the supervision and/or training of other supervisors or trainers; or

(iii) responsible primarily for the exercise of technical skills up to the level of their skill and competence and who are additionally involved in the supervision/training of other employees.

(e) professional field includes employees who possess an academic qualification which enables the employee to become a graduate member of the Institute of Engineers, Australia or an academic qualification in science set out in the Academic Schedule appearing in the Professional Employees Award 2010.

[12] A Principal Technical Officer is defined as follows:

Principal Technical Officer

(a) A Principal Technical Officer works above and beyond an employee at the C2(a) level and has successfully completed sufficient additional training to enable the employee to perform work within the scope of this level in addition to a national advanced diploma or equivalent. Within organisational policy guidelines and objectives a principal technical officer:

(i)

• performs work requiring mature technical knowledge involving a high degree of autonomy, originality and independent judgment;



• looks after and is responsible for projects and coordinating such projects with other areas of the organisation as required by the operation of the organisation;



• is responsible for the coordination of general and specialist employees engaged in projects requiring complex and specialised knowledge;



• plans and implements those programs necessary to achieve the objectives of a particular project;



• in the performance of the above functions, applies knowledge and/or guidance relevant in any or all of the fields of designing, planning and technical work as required by the operation;



• operates within broad statements of objectives without requiring detailed instructions; or

(ii)

• performs work at the above level of skill in a particular technical field;



• has as the overriding feature of their employment the ability to perform creative, original work of a highly complex and sophisticated nature;



• provides specialised technical guidance to other employees performing work within the same technical field.

[13] Relevant to my consideration is the expression “or equivalent”:

i) Or equivalent means:

• any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or



• where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.

Consideration

[14] It is necessary to examine the nature of the work performed by Mr Basson and the circumstances in which he is employed to do the work.

[15] Neither party made any submission about the field of work of Mr Basson. Given Mr Basson has submitted that he should be classified as a Principal Technical Officer I have assumed that the relevant field is the technical field.

[16] Mr Basson says his work falls within the classification of Principal Technical Officer.

[17] Mr Basson’s job description provided that he was a Project Manager.

[18] The starting point for this classification is that the person must have a national advanced diploma or equivalent. At the hearing, I put Mr Basson on notice that there was an issue in relation to his qualifications. Mr Basson advised that he had a diploma in project management. Mr Basson has not provided any evidence of his qualification and has not provided any evidence to support a finding that he has an equivalent qualification to that specified in the definition.

[19] It is also clear from the position description that Mr Basson’s principle responsibilities are managing the project. While Mr Basson’s work fits within the descriptors of the Principal Technical Officer, I am unable to conclude given the paucity of evidence of Mr Basson’s qualifications that he could have been classified as a Principal Technical Officer.

[20] His duties do however fit within the following description:

Planning of operations and/or processes including the estimation of requirements of staffing, material costs and quantities and machinery requirements, purchasing materials or components, scheduling, work study, industrial engineering and/or materials handling.

[21] These duties fit within the classification of Engineering Associate Level 1 and 2.

[22] On the basis of the evidence and submissions made in this matter, I find that Mr Basson’s employment was covered by the Manufacturing and Associated Industries and Occupations Award 2010 and as such he is not excluded from making an unfair dismissal application. The objection made by Alltype is therefore dismissed.

[23] This application will now be referred to conciliation and if it is not resolved, it will be referred for hearing before a member of the Commission.

DEPUTY PRESIDENT

Appearances:

F. Basson on his own behalf.

G. Smith for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

1 April.

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