Kevin Conway v Fircroft Australia Pty Ltd T/A Fircroft - [2014] FWC 1981

No judgment structure available for this case.

[2014] FWC 1981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Conway
v
Fircroft Australia Pty Ltd T/A Fircroft
(U2013/10956)

COMMISSIONER WILLIAMS

PERTH, 28 MARCH 2014

Termination of employment - jurisdiction.

[1] The respondent has raised two objections to this application. The first is that the applicant was not an employee and the second is that if he was an employee he was not a person protected from unfair dismissal under section 382 of the Fair Work Act 2009 (the Act).

[2] This decision deals with the second issue, whether the applicant was a person protected from unfair dismissal under section 382 of the Act because he was covered by an Award.

[3] For the purposes of this decision it will be assumed the applicant was an employee, although the respondent denies this to be the case and reserves it rights on that if this objection fails.

Background

The legislation

[4] Section 382 of the Act prescribes when a person is protected from unfair dismissal as below:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $129,300 from 1 July 2013”

Factual matters

[5] The respondent says the applicant earned $269 000 (gross) per annum, which is above the high income threshold. The applicant does not contest this and accepts he had annual earnings above the high income threshold.

[6] The parties agree that the applicant was not covered by an enterprise agreement in relation to his employment.

[7] As a consequence the applicant is not a person protected from unfair dismissal unless he is covered by an Award.

[8] The applicant relies upon section 382(b)(i) of the Act to bring him within the jurisdiction of the Act to apply for an unfair dismissal remedy asserting that he was covered by the Professional Employees Award 2010 [MA000065] (the Award).

[9] The respondent submits that the applicant was not covered by the Award and was therefore not a person protected from unfair dismissal.

[10] The applicant’s submissions confirm that the applicant is not a member of Engineers Australia nor is he a graduate.

[11] It is not contested the applicant has more than 5 years experience however the respondent does not accept this was on professional engineering duties as defined nor that he was engaged in employment where the adequate discharge of his duties required the qualifications set out in the definitions.

The Award

The relevant provisions of the Award are set out below:

“3. Definitions and interpretation

...

3.2 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 four or five year course at a university recognised by Engineers Australia, four years’ experience on professional engineering duties since becoming a Qualified engineer; or

(c) not having so graduated, five years of such experience.

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

(d) 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

(e) 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 four 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 four 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 will embrace and include Graduate engineer and Experienced engineer as defined in this clause.

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”

“4. 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 Error! Reference source not found.Error! Reference source not found. of the award and those employees.”

The applicant’s submissions

[12] The applicant must prove he is covered by an Award. His case is that he is covered by and performs engineering work as described in the Award. The applicant’s case is that he falls within the Engineering Stream.

[13] Essentially the challenge by the respondent in its submissions in support of its objection is that because the applicant does not have a university degree, he cannot be covered by the Award.

[14] Coverage of the Award is contained in Clause 4.1.

[15] Schedule B contains the Classification structure and definitions for employment involving the performance of professional duties.

[16] The relevant definition is that of Experienced Engineer below:

“3.2 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 four or five year course at a university recognised by Engineers Australia, four years’ experience on professional engineering duties since becoming a Qualified engineer; or

(c) not having so graduated, five years of such experience.”

[17] The applicant is not a member of Engineers Australia nor is he a graduate so he does not come within clause 3.2 (a) and (c) of the Award.

[18] The applicant’s case is that he falls within clause 3.2 (c) of the Award because firstly he has more than 5 years experience of professional engineering duties and secondly as he was engaged in employment where the adequate discharge of his duties required the qualifications set out in the definition.

[19] Given its natural meaning it is submitted the applicant falls within the definition contained within clause 3.2 (c) of the Experienced Engineer.

[20] The respondent however argues that (c) must be read to include much more than what is contained in the words in the definition and as a minimum would have to say that the definition requires the applicant to have graduated in a 4 or 5 year course but at a University which is not recognised by Engineers Australia.

[21] A careful reading of the authorities relied upon by the respondent does not support the re-writing of the definition in the way contended for.

[22] With respect to the historical cases that deal with the making of this Award’s predecessor Award there is obvious tension between the professional engineering body and the employment of those who have gained their qualifications in the field by years of hands on experience. Nevertheless the Commission is left with the current words of the definition.

The respondent’s submissions

[23] Given the admissions by the applicant in his submissions the issue to be determined by the Commission is whether part (c) of the definition of “Experienced Engineer” in the Awardprovides that persons without any formal qualifications in engineering are to be classified as experienced engineers if they have five years experience on professional engineering duties.

[24] The Applicant has made the following admissions in his submissions dated 18 February 2014:

a) he is relying on coverage under the Award in order for his application to proceed;

b) he considers that he falls within the definition of an Experienced Engineer under the Award;

c) he is not a member of Engineers Australia, nor does he have an engineering qualification, as required by clause 3.2 (a) and (b) of the definition of an Experienced Engineer in the Award; and

d) he, therefore, relies on clause 3.2 (c) of the definition of an Experienced engineer and contends that he falls within the coverage of the Award because he has more than 5 years experience of professional engineering duties.

Award history

[25] In 1961 when the original Award was drafted, the definition of an Experienced Engineer read as follows:

“...a professional engineer with the under-mentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires qualifications of the employee as (or at least equal to those of) an Associate member of The Institution of Engineers, Australia, The aforesaid qualifications are as follows: -

(a) that he has obtained the age of 25 years, and

(b)(i) that he is an Associate member of the said Institution, or

(ii) that he, having graduated in a four year or a five year course at a University recognised by the said Institution, has had four years experience on professional engineering duties since becoming qualified engineer, or

(iii) that he, not having so graduated, has had five years of such experience.”

[26] Clause (b) (ii) of that definition was couched in almost identical terms to the current definition of “Experienced Engineer”.

[27] In interpreting the meaning of the definition it is therefore crucial for the Commission to look to the context and industrial realities surrounding the drafting of the original Award.

[28] This history, which has been traced by Vice-President Lawler in Sanjay Halasagi v George Weston Foods Limited [[2010] FWA 6503], is evident from a number of cases that were instrumental to the formation of the original Award. 1

[29] In R v Association of Professional Engineers of Australia; Ex Parte Victoria [1957] 100 CLR 155, the High Court referred to the log of claims that the Association of Professional Engineers served on a number of the States, which ultimately led to the formation of the Award. The log of claims was accompanied by a schedule outlining those people eligible for membership of the Association of Professional Engineers. In discussing the schedule, the High Court noted at 157 - 160:

“it shows that a person to be eligible must not only be employed on a full-time or part-time basis with the so-called industry of engineering but that he must have one or other of certain academical [sic] qualifications. It is enough to look down the list in the schedule to see that these qualifications are high and ought to ensure the possession of no inconsiderable professional knowledge... the general result of a perusal of the schedule is to suggest that the log deals with a body of professional engineers who have obtained degrees or other adequate academical [sic] qualifications.”

[30] In Professional Engineers Case (1961) 97 CAR 233 the Commonwealth Conciliation and Arbitration Commission, under the heading “Training and Qualifications”, stated at 279 “the consensus of opinion is that the possession of a recognized degree or diploma is now essential.” .It is within this context and industrial reality that the Award and definition of an Experienced Engineer were drafted.

[31] In addition to considering the historical context of the definition, it is also necessary and illustrative to look to the words in the Award surrounding the definition.

[32] The relevant definitions in clause 3.2 of the Award read:

“3.2 Engineering stream