Lingli Zheng v Poten & Partners (Australia) Pty Ltd

[2021] FWC 1023

[2021] FWC 1023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lingli Zheng
v
Poten & Partners (Australia) Pty Ltd
(U2020/13343)

DEPUTY PRESIDENT BEAUMONT PERTH, 26 FEBRUARY 2021

Application for an unfair dismissal remedy– jurisdictional objection – s 382(b) – whether earnings less than high income threshold, award covered, or enterprise agreement applied – Professional Employees Award did not cover – applicant not protected – application dismissed.

1 Introduction

[1] Ms Lingli Zheng applied for an unfair dismissal remedy on 7 October 2020. 1 Poten & Partners (Australia) Pty Ltd (the Respondent), her former employer, objected to the application on the basis that Ms Zheng was not a person protected from unfair dismissal.

[2] At the heart of the Respondent’s argument was its contention that Ms Zheng was not covered by an award. It was uncontroversial that Ms Zheng’s annual rate of earnings were more than the high income threshold and an enterprise agreement did not apply to her in her employment. 2 Therefore, if not covered by an award, she would be unprotected from unfair dismissal and her application would have to be dismissed.

[3] For the reasons that follow, I have concluded that Ms Zheng was not covered by an award in respect of her employment as an LNG Technical Consultant or LNG Consultant. It follows that Ms Zheng’s application is dismissed. An order to this effect accompanies my decision. 3

2 Background

[4] The parties called one witness each to give evidence. Ms Zheng provided her account, while Mr Pulsford, the Manager Asia Pacific Consulting, provided evidence on behalf of the Respondent.

2.1 Ms Zheng’s account

[5] Ms Zheng commenced employment with the Respondent as a ‘LNG Technical Consultant’ on 6 August 2018. 4 In April or May 2018, she had applied for the position in response to a job advertised on SEEK. While Ms Zheng did not have an original copy of the advertisement, she purportedly requested the text of the advertisement from SEEK. The purported content of that advertisement is replicated below:

Job Description: LNG Consultant

Poten is seeking a technically-orientated LNG and natural gas consultant to join our Perth office. The consultant will be part of a team that provides consulting services, studies and reports to global oil & gas industry clients.

The successful candidate will be responsible for technical support of consulting studies in areas such as development of LNG export and import facilities, LNG project technical due diligence, LNG project economic analysis and project costs. The consultant may also be required to research and write articles on technology and cost-related topics for Poten’s industry-leading intelligence publications and to support preparation of conference papers.

Required Qualifications

An ideal candidate would have a graduate or post-graduate degree in chemical engineering with five or more years of experience in front-end LNG or gas processing project development, preferably with an oil and gas company. The candidate will need to have a strong interest in the LNG and natural gas business and the role of project planning and execution in shaping commercial decisions. 5

[6] The text of the aforementioned advertisement thereafter listed other qualifications, experience, or skills that the candidate was required to have. They included:

(a) [A] sound understanding of the fundamentals of LNG and gas project development, including:

i. high level block flow diagram-material balances;

ii. cost and schedule estimates;

iii. design, execution and regulatory approval plans;

iv. corporate stage gate approval processes;

(b) Familiarity with major equipment employed in gas liquefaction, LNG transport and revaporisation;

(c) Experience with project execution for oil and gas projects, shipping and jetty/terminal design or LNG plant operations would be advantageous;

(d) Excellent analytical skills, including the ability to research and quantitatively analyse industry data and information and to apply existing knowledge and principles to new applications’

(e) Strong spreadsheet modelling skills, particularly in the areas of economic evaluation;

(f) Strong communication skills, both written and verbal, including the ability to clearly and concisely prepare and present reports and presentations;

(g) Some business development experience would be an asset, particularly if this included analysing the client’s problem and developing a logical solution;

(h) High energy level, poise and professionalism when interacting with internal and external contacts;

(i) Clarity in self-assessment of their own knowledge and skills and willingness to seek support when stepping outside their current capabilities;

(j) The ability to prioritise workload, work independently, and complete tasks under time pressure when necessary;

(k) Must be comfortable in a team role, be flexible and diligent;

(l) Strong computer skills including advanced knowledge of Microsoft Excel, Word and PowerPoint. 6

[7] Ms Zheng explained that when interviewing for the advertised position, she was informed that the Respondent was mainly a commercial consulting company, but it lacked technical expertise in the Asia Pacific region. She stated that she was informed that she would be hired to perform technical work in order for the Respondent to provide more technical consulting services. 7 The job advertisement had set out a number of tasks which included: (a) project feasibility studies; (b) project due diligence; (c) capital cost estimating; (d) benchmarking; (e) owner’s engineering; and (f) technology assessments.8

[8] Ms Zheng said that at the various interviews she attended, she was informed she would need to work closely with Merlin Advisors. 9 She explained that Merlin Advisors was a company close to the Respondent, which was headed up by Mr Kerbers, a qualified Chemical Engineer.

[9] The job responsibilities for the position were set out in Schedule 1 of Ms Zheng’s contract of employment. The general responsibilities of the position included:

(a) Work as a team with other members of the Asia Pacific LNG consulting team, the Merlin technical team, and Poten LNG consulting worldwide to ensure that assignments are executed to the highest quality standards and in an efficient and profitable manner. Lead assignments at the direction of management.

i. Develop, maintain and apply data sets and quantitative tools to track, analyse and communicate industry terms and client problems.

ii. Prepare client studies and reports, leading assignments allocated. Participate creatively and analytically in framing and resolving client problems and the achievement of client objective.

iii. Develop and refine presentations, reports and conference papers, including producing graphics.

iv. Develop a detailed knowledge of the LNG industry, particularly in relation to the Asia Pacific LNG market.

(b) Communicate and network with existing and prospective clients and other Poten offices. Assist in developing new business opportunities for Poten LNG consulting and build a network to facilitate marketing Poten’s services. Lead the business development process with selected clients at the direction of management.

(c) Prepare technical and commercial analysis and consulting reports in areas such as development of LNG export and import facilities, LNG project due diligence, upstream and midstream.

i. Provide technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments.

ii. Research, analyse, and advise clients on technology and cost-related issues.

(d) Develop and implement systems for data organisation and management within the Perth office and for sharing data between Poten offices.

(e) Undertake administrative interaction with client and other Poten locations. 10

[10] As far as her work duties were concerned, Ms Zheng held the view that about 80% of her work related to technical tasks, as outlined in paragraph 6(c). This work, according to Ms Zheng, required qualifications in, and extensive knowledge of, chemical engineering. 11 The remaining 20% of her work related to other tasks such as LNG market research studies.12

[11] Elaborating on the technical components of her work that involved using her chemical engineering skills, Ms Zheng referred to consulting reports that she had contributed to and authored. Those consulting reports related to: (a) development of LNG import facilities (Development of Import Facilities); (b) project due diligence (Due Diligence); (c) operation of gas and LNG facilities (Operation of LNG Facilities); and (d) consulting study proposals (Study Proposals). 13 Details were provided about the work that went into each type of report:

Development of Import Facilities

A typical consulting report for development of an LNG import facility would involve:

i. Working out gas demand and required design capacity/throughput of the plant;

ii. Conducting assessments on technology options, such as water vs. air heating for LNG regasification, full-containment vs. membrane type for LNG containment (i.e. storage tanks) etc;

iii. Conceptual design of the process and facility;

iv. Selecting the type, number and size of each equipment required;

v. Identifying a suitable site for the facilities;

vi. Suggesting a preliminary plot plan for the plant;

vii. Providing capital and operational cost estimates for the equipment/facilities/site selected; and

viii. Conducting technical and economic analysis for project feasibility.

Due Diligence

A typical consulting report for project due diligence would involve assessing whether the project studies (conducted by other engineering professionals) have:

i. Followed the required standards to ensure compliance with safety and environmental regulations;

ii. Taken the right project premises (such as well fluids characterization, metrological conditions, facility design capacity etc.);

iii. Extensively and adequately conducted technology assessments;

iv. Conducted sufficient optimizations of the process and equipment design;

v. Made the right selections for the process, technology, equipment and line-ups;

vi. Taken into accounts of the operational requirements and factors such as human factors;

vii. Made adequate capital and operational cost estimates for the proposed project and, benchmarking those costs estimates against other similar projects to make sure that proposed costs are reasonable;

viii. Adequately planned for project execution (i.e. project delivery) taking into account all foreseen and unforeseen possible events/factors which might impact project execution schedule and costs;

ix. Selected good engineering contractors.

Operation of LNG Facilities

Typical advice to clients on the operation of existing gas & LNG facilities would involve:

i. Assessing the operational capacity/performance of installed equipment and plant facilities;

ii. Identifying potential risks with plant operation and provide mitigation measures;

iii. Assessing credibility of information provided by the facility operator (concerning operation of the facility) to ensure that it is complete, accurate and reliable;

iv. Interfacing between the clients and their engineering service providers and ensuring client’s requirements are well understood and fully met (i.e owner’s engineering).

Study Proposals

My typical involvements in preparing consulting study proposals included:

i. Discussing with clients to fully understand their technical needs;

ii. Writing adequate scope of work to address client’s needs with detailed tasks defined taking into account of availability of resources;

iii. Outlining methodologies that will be taken to conduct each task;

iv. Estimating the hours required to complete each task.

[12] Ms Zheng, thereafter, provided comprehensive examples of projects she had worked on to demonstrate the use of her chemical engineering skills, in addition to setting out her qualifications and memberships, which included:

(a) Bachelor of Engineering in Chemical Engineering;

(b) Masters’ Degree in Molecular Engineering of Biological and Chemical Systems; and

(c) recognised by Engineers Australia as a Professional Chemical Engineer.

2.2 Mr Pulsford’s account

[13] Mr Pulsford commenced work with the Respondent in October 2014. He explained that the Respondent’s business was to provide technical, market, commercial, shipping, and marine advice to the LNG and natural gas industries. According to Mr Pulsford, the Respondent did not perform any ground up engineering of infrastructure. Instead, its deliverables were reports to clients primarily using PowerPoint slide packs and occasionally spreadsheets.

[14] It was Mr Pulsford’s evidence that Ms Zheng was hired to provide industry analysis encompassing commercial, technical and market aspects of LNG supply chains. Her job involved leveraging her technical background in the assessment of asset development. 14 Included in Ms Zheng’s role was the responsibility of commenting on the development of assets and infrastructure by others in the industry and extrapolation from those developments to prepare forecasts and feasibility studies for a client’s particular situation.15

[15] Mr Pulsford stated that Ms Zheng had described her work with the Respondent as being at an engineering level of equipment and process design. However, Mr Pulsford said this was not the case, and Ms Zheng had misrepresented the activities undertaken by the Respondent. 16

[16] Examining the differences between the activities that defined a chemical engineering role and the activities undertaken by the Respondent, Mr Pulsford said that this was best demonstrated by the standard text the Respondent used in its commercial contracts with clients on more technically focused assignments, such as due diligence reports. 17 That text read:

…the Respondent will employ a “review and adjust” approach to due diligence, whereby operator documentation will be assessed for completeness and consistency. Comments and adjustments will be made on areas of concern, based on experience and analogue projects. The Respondent will not perform or verify engineering design and cost estimation calculations a [sic] of this due diligence exercise. 18

[17] As far as engineering design was concerned, Mr Pulsford gave evidence that the Respondent explicitly excluded it from the contractual scope of work and did not design processes and equipment. 19 Mr Pulsford said that the Respondent provided advice to clients by considering the solutions that had been engineered by others on similar completed projects and made an experience-based assessment of which solution would apply to the client’s project. The Respondent thereafter provided cost estimates by scaling the costs of similar facilities. When characterising the approach of the Respondent, he said it was best described as ‘top down’, whereas an engineering approach was a ‘bottom up’ design of equipment and processes.

[18] When breaking down Ms Zheng’s duties relative to time spent, Mr Pulsford stated that on reviewing Ms Zheng’s time records, he found the following:

a) 32% of Ms Zheng’s time was spent on primarily technical assignments;

b) 33% on assignments focused on markets, shipping organisational capability etc;

c) 5% on business development;

d) 22% on administration; and

e) 8% on leave.

[19] Mr Pulsford clarified that the Respondent did not design LNG import facility equipment and processes. 20 It considered its clients’ needs and compared them with the outcomes of similar projects to make an early assessment of project feasibility and the solution that may eventually be engineered in later project phases.21 In this respect, what the Respondent was said to offer was the services of consultants with skills and experience in asset development, not chemical engineering.

[20] Mr Pulsford emphasised that Ms Zheng was not employed to make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products. He pointed out that the Respondent did not design or develop equipment or products, and as such, Ms Zheng was not employed to plan, direct, coordinate and supervise the work of other professional engineers or technical engineering staff.

[21] Any detailed technical advice was provided by Merlin Advisors, a wholly owned subsidiary of the Respondent which provided technical advice to the LNG and natural gas industries. Mr Pulsford said that this service complemented the Respondent’s commercial, market and shipping advisory services, by providing a fully rounded, all-inclusive approach to client needs.

[22] It was therefore the case, said Mr Pulsford, that Ms Zheng was not principally employed to use her chemical engineering skills, and she spent only 32% of her time on primarily technical assignments. While Ms Zheng was hired for her technical knowledge and experience in LNG and gas asset development because the Respondent advised clients investing or participating in these sectors, she was not hired to design and optimize processes and equipment, and while a chemical engineering degree was useful, it was not essential. 22

3 Ms Zheng’s submissions

[23] Ms Zheng submitted that she was covered by the Professional Employees Award 2010 (Award) 23 because she came within its coverage clause and was employed under an Award classification.

[24] Regarding the duties performed by Ms Zheng, she said that they were ‘professional engineering duties’ as defined in clause 2.2 of the Award. Ms Zheng listed the following reasons (abridged) for having drawn this conclusion:

a) she was a qualified chemical engineer holding relevant tertiary qualifications;

b) her qualifications were assessed by Engineers Australia as meeting the requirements for the occupational classification of ‘professional engineer’ and occupation of ‘chemical engineer’;

c) the job applied for was advertised with ‘required qualifications’ of an ideal candidate having a ‘graduate or post graduate degree in chemical engineering with five or more years’ experience in front end LNG or gas processing project development preferably with an oil and gas company’;

d) the job advertisement listed a number of tasks that required chemical engineering skills and were typically performed by chemical engineers such as project feasibility studies and so forth;

e) the stated reason for the hiring of Ms Zheng was to make up for the Respondent’s lack of technical expertise in the Asia Pacific region;

f) the contract of employment – general responsibilities included technical functions, and despite references to administrative and commercial functions in the job, most of the work carried out by Ms Zheng related to technical functions;

g) Ms Zheng’s primary day to day tasks required qualifications in chemical engineering;

h) around 80% of Ms Zheng’s time was spent carrying out day to day technical work while other time was spent performing market research studies;

i) Ms Zheng was held out as having chemical engineering skills necessary to complete day to day technical work; and

j) the adequate discharge of day to day technical work required qualifications in chemical engineering.

[25] When regard was had to whether the day to day technical work of Ms Zheng fell within the duties described as Professional – Level 3, Ms Zheng was of the view that it did. Referencing the principle purpose test, Ms Zheng stated:

a) the nature of the day to day technical work was that it was chemical engineering;

b) the circumstances in which she was employed to do the work was that she was a chemical engineer and was almost exclusively tasked with using her chemical engineering skills and qualifications to perform the day to day technical work;

c) her manager said to her that she was hired for her technical abilities; and

d) the job advertisement that she answered to made it clear that chemical engineering skills were mandatory.

4 The Respondent’s submissions

[26] The Respondent did not parry with Ms Zheng’s submissions that the determination of the matter required that the Commission must first satisfy itself that Ms Zheng was performing ‘professional engineering duties’ in the manner defined in the Award, and second, that she was covered by a classification in Schedule A Classification, Structure and Definitions.

[27] The Respondent submitted that there was no evidence before the Commission to show that Ms Zheng held a qualification that entitled her to be a graduate member of Engineers Australia or an equivalent certification. Further, there was no evidence that she ever applied for membership with Engineers Australia.

[28] The Respondent pressed that it was not enough that Ms Zheng had a qualification that entitled her to be a graduate member of Engineers Australia. The qualification, said the Respondent, must relate directly to the duties Ms Zheng was employed to carry out. The Respondent argued that the evidence of Mr Pulsford showed that Ms Zheng was hired as an LNG Consultant – a role that consisted of being an industry analyst encompassing commercial, technical and market aspects of supply chains. Ms Zheng leveraged her technical background to assess asset development.

[29] The Respondent clarified that it did not perform any ground up engineering of infrastructure and that such engineering inputs were the responsibility of engineers employed by the Respondent’s associated entity, ‘Merlin’, which employed a number of engineers for that purpose.

[30] When considering Ms Zheng’s role with the business, the Respondent provided the following information:

[T]he Applicant’s role was to comment on the development of assets and infrastructure by others in the industry and extrapolate from those developments to prepare forecasts and feasibility studies for a client’s particular situation. The work product comprised reports taking a broad asset owners perspective encompassing commercial structures, technical constraints and outcomes and market dynamics with the intent of helping clients make decisions and progress opportunities.

[31] The Respondent continued that the duties and responsibilities that Ms Zheng was employed to carry out did not involve:

[D]esigning and preparing specifications for chemical process systems or the construction and operation of commercial-scale chemical plants or the supervision of industrial processing and the fabrication of products undergoing physical and chemical changes; or Designing and developing chemical processes and equipment, optimisation and control of industrial operations, plant operation and management, applied research or environmental management, monitoring and pollution control.

[32] The Respondent acknowledged that while Ms Zheng’s prior work experience was of use to it because it enabled her to carry out a LNG Consultant's role more effectively, it did not mean that she was employed to carry out ‘professional engineering duties’.

[33] In respect of whether Ms Zheng was employed for the principal purpose of carrying out the duties of a Level 3 Professional Engineer, the Respondent submitted that there was no evidence that Ms Zheng was carrying out ‘professional engineering duties’ that required her to:

a) make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products; or

b) outline and assign work and plan, direct, coordinate and supervise work of other professional and technical engineering employees.

[34] The Respondent disputed the evidence of Ms Zheng that she spent about 80% of her time carrying out day to day technical work. Mr Pulsford gave evidence that the time records showed that Ms Zheng spent only about a third of her time on primarily technical assignments, with another third of her time spent on assignments focused on markets, shipping, organizational capability etc., and the remainder of her time on business development and administration.

[35] Concerning the time spent by Ms Zheng on technical work, the Respondent submitted that such work did not mean that Ms Zheng was carrying out ‘professional engineering duties’ within the meaning of clause 2.2 of the Award. It was the Respondent’s position that Ms Zheng’s estimation of the amount of time that she spent on technical work, was in any event, not determinative of her classification under the Award.

[36] The Respondent advanced that the task of ascertaining the principal purpose of the Applicant’s employment was to determine the nature of the work the employee was employed to do. 24 Again the Respondent reiterated that there was simply no evidence that Ms Zheng was employed for the principal purpose of carrying out professional engineering duties.

[37] Turning to Ms Zheng’s salary, the Respondent considered that the salary provided to Ms Zheng was significantly more than the minimum annual salary prescribed for a Level 3 Professional under the Award. This was, said the Respondent, a compelling indication that Ms Zheng was employed in a quite different capacity to a professional engineer carrying out ‘professional engineering duties’ at the level of an employee classified as a Level 3 Professional.

5 Was Ms Zheng covered by the Professional Employees Award?

[38] 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. 25 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.

[39] The award that appears relevant, in this case, is the Professional Employees Award 2010 (as previously stated, the Award). 26 Its coverage clause provides:

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 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.

[40] The Awardis 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.

[41] The issue in this case, is whether Ms Zheng is covered by the Awardby virtue of its occupational coverage at clause 4.1.

[42] Clause 4.1 refers to the Award covering ‘employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties’. It is evident that either limb is capable of being satisfied. Ms Zheng is relying upon the coverage of ‘professional engineering duties’ as defined by the Award.

[43] Ms Zheng has expressed that the Respondent's main contention is that the tasks she performed were not chemical engineering tasks because chemical engineering is limited to the design of processes and equipment, and specifically to the engineering level of equipment, process and design. Ms Zheng added that the Respondent appeared to view chemical engineering as being only about design on a level concerning the size of nuts and bolts attached to pieces of equipment, and did not include high-level conceptual design, for example, the configuration of an LNG terminal.

[44] Counsel on behalf of Ms Zheng expressed that the Respondent’s definition of chemical engineering was too narrow. Progressing this point, he submitted that the definition advanced by the Respondent should not be accepted because ‘chemical engineering’ was broader than detailed design. It included high-level conceptual design, such as advising on the back of plant and equipment, cost estimates and a number of other tasks.

[45] However, to be covered by the Award, Ms Zheng must show she was carrying out ‘professional engineering duties’ and was employed in a classification in the Award (taking into account the principal purpose for which she was employed). 27 In Halasagi,28 the Vice President observed 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 which fell under the definition, were for the ‘principal purpose’ for which the employee was employed.29

Professional engineering duties

[46] The expression ‘professional engineering duties’ is defined in clause 2.2 of the Award to mean duties carried out by a person in any particular employment, the adequate discharge of any portion of which, requires qualifications of the employee as, or at least equal to those of, a graduate member of Engineers Australia.

[47] Clause 2.2 of the Award also provides a definition of 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.

[48] The evidence before me included Ms Zheng’s curriculum vitae. That document stated she had a Bachelor of Engineering (Hons) in Chemical Engineering from the National University of Singapore and a Master of Science in Molecular Engineering of Biological and Chemical Systems from Singapore-MIT Alliance (joint program between National University of Singapore and Massachusetts Institute of Technology) Singapore. 30 Further her curriculum vitae detailed at least five years' experience as a process and project engineer since obtaining the undergraduate degree. 

[49] At Attachment 1 of Ms Zheng’s witness statement was a letter from Engineers Australia dated 28 June 2016. The letter referred to Ms Zheng’s ‘Migration Skills Assessment Competency Demonstration Report’ noting that ‘Engineers Australia is pleased to advise that the competencies you have demonstrated, taken in conjunction with your qualification from the following institution….meets the current requirement for the following occupation: Professional Engineer Skill Level 1 Chemical Engineer’.

[50] It is clear from the skills assessment and Ms Zheng’s curriculum vitae that she held the required qualifications to perform work as an experienced engineer, and the qualifications to carry out ‘professional engineering duties’.

[51] While Ms Zheng held the requisite qualifications that in and of itself is insufficient. It must be shown that Ms Zheng was performing ‘professional engineering duties’.

[52] In Bateman v Communications Design & Management Pty Limited, 31 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. 32

[53] It follows that to demonstrate Award coverage, it is not enough that an employee holds a membership of Engineers Australia. 33 However, this is not to say that the Award requires membership of Engineers Australia before a person can carry out professional engineering duties.34 For the Award to apply, the employee must have qualifications as, or at least equal to those of, a graduate member of Engineers Australia and those qualifications are almost invariably needed to perform duties of the sort that are said to be ‘professional engineering duties’.35

[54] Ms Zheng had obtained from SEEK (a job advertisement platform) the purported content of the advertisement for the position of LNG Technical Consultant - the detail of which is provided at paragraphs [5] and [6] of this decision. The Respondent, whilst not disputing that the content of the advertisement was accurate, observed that a qualification was not required, the advertisement said it would be an ideal candidate who would have that qualification. The qualification in question was a graduate or post-graduate degree in chemical engineering. The Respondent pressed that this criterion did not preclude other applicants who did not have that qualification from applying. This was likely the case. However, when the word ‘ideal’ is utilised in such a context it is not unreasonable to infer that the qualification would directly relate to the duties to be performed – hence making the candidate ‘ideal’.

[55] The text of the advertisement thereafter listed skills that the candidate was required to have. Skills included possessing a sound understanding of the fundamentals of LNG and gas project development, including: (i) high level block flow diagram-material balances; (ii) cost and schedule estimates; (iii) design, execution and regulatory approval plans; and (iv) corporate stage gate approval processes.

[56] The Respondent submitted that the role of an LNG Consultant was one of an industry analyst, encompassing commercial, technical and marketing aspects of the LNG supply chains, and leveraging technical background for assessment of asset development. Ms Zheng’s job responsibilities reflected this in part. Those responsibilities included the development, maintenance and application of data sets and quantitative tools to track, analyse and communicate industry terms and client problems. Ms Zheng was to prepare client studies and reports, and lead assignments allocated. She would need to participate creatively and analytically in framing and resolving client problems and the achievement of client objective. Such duties would encompass the development and refinement of presentations, reports and conference papers – including the production of graphics. I will desist from going further. However, the gist of all of this is that the responsibilities of the position were framed in ‘corporate speak’ and appeared rather generic. They did not speak of requiring a qualification, or experience, in engineering.

[57] The Respondent submitted that Ms Zheng was not employed to carry out the duties and responsibilities of designing and preparing specifications for chemical process systems, the construction and operation of commercial scale chemical plants, or the supervision of industrial processing, or the fabrication of products undergoing physical and chemical changes.

[58] Similarly, said the Respondent, Ms Zheng’s duties did not involve designing and developing chemical processes and equipment, optimisation and control of industrial operations, plant operation and management, applied research or environmental management, and the monitoring and pollution control.

[59] However, included in Ms Zheng’s duties and or responsibilities was the requirement to prepare technical and commercial analysis and consulting reports in areas such as the development of LNG export and import facilities, and LNG project due diligence - upstream and midstream. This was in addition to providing technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments.

[60] Insofar as the development of LNG export and import facilities were concerned, this type of work involved the preparation of feasibility studies. Counsel for Ms Zheng asked Mr Pulsford several questions concerning the work undertaken in an attempt to obtain clarification, or at the least, a high level understanding of what it was Ms Zheng did when performing such work. Relevant passages are extracted below as an abridged version of the evidence would not, in my view, paint an adequate picture of the duties performed.

[61] Before Mr Pulsford’s evidence is reported, it must be said that at times it was nebulous. In making that remark, I am not suggesting that Mr Pulsford had adopted a deliberate tactic of obfuscation. However, it was difficult to ascertain whether his laboured recount was in part due to anxiousness arising from the hearing, a deliberate strategy so as to confuse the recipient of the information, or simply Mr Pulsford verbalising a stream of thought:

Okay.  So in the second bullet point you say that – you're talking about high level terminal concepts?---Yes.

For each site identifying the terminal storage concept and capacity.  Berth and jetty configurations, mooring concept, subsea pipeline route and size and the breakwater concept?---Mm.

So we're really talking about the high level design of the LNG import facility going on?---Well, what we're looking, as I said, is what have other projects done in a similar situation and therefore what might work in the client's situation.  So, in determining how much storage capacity do you need, that's why how big is the ship going to be, which is driven by the energy market and what sort of through-put.  So how much gas does the client need to import.  The berth and jetty configuration, what similar berth and jetty configurations and mooring concepts have been applied by other projects in similar circumstances?  Because if they've been applied by other projects it's likely that if this project went ahead and you then get into actually designing it you come up with a similar solution or at least that wouldn't be dramatically different in cost.  So you're comparing what other people have done on similar – to meet similar needs and similar situations and using that to then advise the client as to whether it's likely that if they go ahead they will – you know – what sort of overall concept and what sort of project would they end up with?

But at the end of the day you end up with a high level design of the LNG import facility, do you not?---Well, I guess design, I think, is probably pushing it a little bit.  You know, at what point does something become a – the sketch?  I mean, for instance, look at the terminal concept at this level.  It's four rectangles drawn on the map.  I'll have to say this is roughly how the terminal would be and that's driven by looking at another terminal.  Is that like – use another terminal and measuring out how the (indistinct).  So it's a – you know – to what extent is it linked to the specific characteristics of that site?  There's no geotechnical – the layout or the plot size is fixed.  It doesn't really vary with the throughput.  It's just here is typically have – you've got an LNG receiving terminal is.  The mooring – for these on-shore projects, particularly the (indistinct) has probably meant something that you start to look at is to how rough is the sea, how deep is the water?  Because you've got to get ships up alongside the jetty.  So that's something that you need to take into consideration.  So, until you get a description and a layout, design implies that you've started to really specify, on a firm basis what can and cannot be done at that location.  The feasibility study is more, saying, 'Well, other people may have to do this.'  You can postulate it should be possible.

Sorry, design implies that you say what can or can't be done at that location?---Design is more of a, I guess, calculating based on the specifics of that site exactly what can and cannot be done.  It's started on that process of the design definitions.  So that – which will eventually go on how it's built – but a feasibility study is more looking at what other people have done elsewhere and say, 'Well, if they've done it elsewhere then you should be able to do it here.'  But there's no, I guess, ground-up testing of – I guess – what's the seabed like?  Can you put a foundation on it?  Because not all that data is available at that point.  You can't really design anything until you have some of that data.

But aren't you just talking about the more specific engineering design that comes later in a project and the difference between that and the high level conceptual design in terms of what goes where, how long the jetty is, where the ship goes?  What actual equipment is used to take LNG off the ship?  And surely, those elements relate to high level conceptual design?---There's a – what we're doing is we're saying – look, we're coming up with a concept that can work.  We're trying to say, 'This is a concept that has worked elsewhere so we believe in this situation it can work.'  We're not actually selecting what is going to be built at this stage.  The feasibility stage is really saying, is it possible to build the terminal?  And you say, 'Well, other people have built a terminal and it looks like this.  You could build that – you should be able to.  You should be able to build the same terminal over here.'  But you're not actually going to want to be selecting which equipment you're going to – or exactly how the tank should be or what sort of loading arms you put on, or exactly how the jetty is.  The concept (indistinct) the selection phase of the project occurs later on.  So that's when you actually decide when you – what it is you want.  At the moment it's really saying it's probably going to look something like this.  A lot of people have done this so this should be feasible, and therefore it's – and if that works for the clients then it's worth going ahead and actually looking at the specifics of this location, this need and then selecting capacities, equipment et cetera, which occurs later on when you actually do the concept selection phase which comes later then comes after a feasibility (indistinct).

Okay.  So let me get this straight.  You're saying that people who aren't engineers come up with the concept.  And that the concept isn't a design but it is where everything goes and what equipment is going to be used.  And then you're saying the engineers come in later and do all the big detail of design, in terms of the nuts and bolts, and what goes where and so on and so forth.  Is that what you're suggesting?---No.  I'm not saying that somebody – either an engineer does that.  It could be an engineer but it's a question of saying what is – what could work at this level?  So looking at what other people have built.  What other concepts are being developed elsewhere?  And saying, 'Well, if that concept has been built elsewhere it could be built here so this a feasible concept and it provides enough information for the client to make an assessment of can they – and is it commercially viable and is it technically viable?'  The later phase that I was referring to is when you actually go and start what I would call the design process where you actually start to select, 'Okay, now which equipment am I actually going to use?'  There's various different choices you can make about jetty links, storage size, type of regas equipment et cetera.  We're not making those selections at a feasibility level.  We're saying you could use something like this.  This is one option open to you.  Let's see if that works.  Because if one option works then you – it's then – you've at least got a basis on which you can – you know – it's worth progressing and developing further.  But you're not actually making design decisions at that point.  We're simply saying it's feasible.  This concept has been used elsewhere.  It could work here.  The project is feasible.

But if you didn't have an engineering design background from the start and engineering skills from the start, how could you come up with those high level concepts in the first place?  How would you even know what to suggest to the client and what not to suggest?---And that's why we are looking for people with a background in project development because they do have that experience to be able to do those things.

Yes, but I just struggle with this idea that people who aren't engineers come up with the high level design.  They come up with the equipment that goes where.  They come up with things like recommendations for open rack vaporisers to be used and so on.  You're saying that isn't engineering work, but then you're saying that later on the people that come in and apply those designs and do all the calculations for those designs are, in fact, the engineers and that's the engineering work?---No.  But I'm not saying that it's people with no engineering knowledge do that and certainly they want to use all this background in the project development.  They may well have an engineering background but I guess it's this definition of what's engineering which I'm going, based on the definitions that you put in your studies.  So your further submission in clause 28 when you said it's design and development of process and equipment to produce raw gas from the field.  Design and develop process equipment to manage the (indistinct) and transferring LNG.  So it's not that there's not engineers involved.  It's the question – it becomes this point of definition on what is an engineering – is it an engineering duty, I'm not sure exactly what it is, but it's essentially are you calculating stuff or are you just using your experience to say, 'Yes.  We've seen this kind of thing before.  Is it going?'  I mean what you have done here is at the feasibility level and we're looking at what someone else has done and you've said, 'That should work here.  Yes.  You need to have – you know – some experience in project development and some engineering background.  It's very useful stuff.'  But ultimately are you engineering a design?  I don't think you're going into design and development of process and equipment at this stage.

Okay.  I do struggle with that.  I have to say I don't understand the difference between – I mean as far as UNSW is concerned and as far as what they say chemical engineering, it just says design and development of chemical processes and equipment.  It doesn't say it has to be done later on at a high level.  It doesn't say it can't be done at the conceptual level.  All right.  We might leave it there and move on to the next one. 36 

[62] Expanding upon the LNG project due diligence aspect of the work, Mr Pulsford gave evidence that a due diligence study was where the Respondent was asked by a client to provide an opinion on whether a proposal, for instance, by one of its business partners, is robust and sensible. 37 Mr Pulsford was asked questions about Ms Zheng’s work on a LNG backfill. Ms Zheng had detailed that the work consisted of advising on equipment and a vessel that was to be stationed above an LNG reservoir. Mr Pulsford confirmed that in his view it was basically advising a client on whether the proposed project is to put a ship above a gas field supplying the LNG project and to advise the client on that development proposal.38 Mr Pulsford acknowledged that the project involved three parts including topside processing facilities.39 In response to having been asked if Ms Zheng reviewed the process, equipment and design of such facilities, Mr Pulsford said:

…Again, we get into this position of design.  She looked at the process of the methodology that was applied to that – to that same vessel.  And certainly when I say 'vessel' I mean the ship and (indistinct) how they were designed, what methodology was used or appropriate reviews applied.  Did the reviewers find anything of concern?  How was the concept – how was the equipment selected?  And basically that methodology, yes. 40

All right.  So she looked at other people's designs and critically commented on them, did she?---She looked at those designs – well, she looked at the methodology used by the project to arrive at those – at that concept and to say, 'Has this been done in a responsible and effective manner.'  Yes. 41

[63] In giving his evidence regarding this particular project, Mr Pulsford spoke of having had the subsea pipeline and marine facilities components outsourced to engineers. 42 Regarding the topside processing facilities, Mr Pulsford stated that this was not outsourced as there was experience in-house in the development of that kind of project.43 He explained that because the Respondent had people with an engineering background and a project development background that could look through the documentation and understand what had been concluded, they could thereafter make a comment on whether the process, and the methodology applied in the development of that project, was robust and sound.44

[64] Expanding on this further, when it was proposed to Mr Pulsford that it was counterintuitive that the topside processing facilities work was purportedly not engineering work, Mr Pulsford stated:

Well, they both require the knowledge of project development and engineering, certainly.  They need a background in that and to have as well as an engineering degree and with engineering experience do they – it makes some sense the contractor we use for the subsea pipelines provides various services to clients including sort of that owner's advice as to is this being properly executed.  So they help the clients monitor the execution of subsea pipeline projects.  Now, they have also people in-house who design the pipelines but they do the risk review of projects and they advise the client on is this being done properly?  Have the proper risks been taken into consideration?  So it is a – so, yes, they provide that and we have staff in-house with an engineering background with a – who would be familiar with project development.  We can also look at that methodology taken, has this been approached properly?  And has this been done sensibly?  But we're not looking for clients – sorry, we're not looking for someone to actually make any design selections or to size equipment, select processes or if that's at discretion reviewing has somebody else done that sensibly?

…

You are looking for somebody to comment on the design and comment on the concept.  That's what due diligence is from what I understand?---Yes.  We're looking for someone in this case because we're not performing any design calculations ourselves.  We're really looking for someone to make sure that they have followed sensible methodology.  So have they gone through – if they gather a sensible amount – a suitable amount of data?  Have they gone through a process to select equipment processes?  Have they gone through risk assessments?  Have they picked up the output of those risk assessments?  So it's basically it's that methodology approach but we're not checking that they sized equipment correctly.  We're not – so it's not really a design.  Yes, it depends.  Again, we're talking about how the (indistinct) and views but we're not actually performing any engineering calculation to verify that – you know – if the report says the vessel should be two metres diameter.  But in fact two metres is not correct – you know – that have level of (indistinct). 45

[65] Ms Zheng gave evidence in cross examination that the work of the Respondent included the provision of advice. 46 A synopsis of her detailed evidence is provided at paragraph [11] of this decision.

[66] The Respondent submitted that the first limb, being the coverage question of whether Ms Zheng was carrying out professional engineering duties, turned on whether the qualification was necessary. According to the Respondent, the term ‘necessary’, was used in the sense of the qualifications being essential for the adequate discharge of any of the duties.

[67] Having considered the evidence of both parties, and the submissions made by both, on balance, I have found that the evidence establishes that Ms Zheng’s engineering qualifications and experience were both necessary in the performance of at least some of her work and were relied upon by the Respondent. While it was the case that Mr Pulsford emphasised the project management aspects of Ms Zheng’s duties, at times his account traversed the relevance of engineering qualifications and experience, elevating them, in my view, to the requisite level of ‘professional engineering duties’. In this respect, I refer to paragraphs PN282 and PN284 of the transcript, in addition to PN264 to PN272.

[68] I am satisfied that in her role as a LNG Consultant, Ms Zheng carried out ‘professional engineer duties’ as defined in the Award. Her role as an industry analyst encompassed commercial, technical, and marketing aspects of the LNG supply chain, and she leveraged her technical background perform some of that work. I am therefore persuaded Ms Zheng performed some engineering duties, the adequate discharge of which required the relevant qualification.

Classification – Schedule A

[69] Often it will be a narrow line that distinguishes whether an employee is, or is not, covered by award. This is one such case. However, for the reasons that follow, I have concluded that Ms Zheng was not employed in a classification in the Award (taking into account of course the principal purpose for which she was employed).

[70] Turning to the test of principal purpose, 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 they are within the coverage clause of that modern award, but also that they are employed in a classification in the award. That latter issue is determined by reference to the ‘principal purpose’ test. 47

[71] The second limb of the coverage provision in clause 4.1 of the Award, requires consideration of whether Ms Zheng was covered by a classification in Schedule A and the definitions relating to that structure. Ms Zheng holds the view that the day to day technical work she carried out satisfied each of the criteria for a Level 3 Professional. That classification from the Award is set out below:

A.1.9 Level 3—Professional

(a) An employee at this level performs duties requiring the application of mature professional knowledge. With scope for individual accomplishment and coordination of more difficult assignments, the employee deals with problems for which it is necessary to modify established guides and devise new approaches.

(b) The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.

(c) Recommendations may be reviewed for soundness of judgement but are usually regarded as technically accurate and feasible. The employee makes responsible decisions on matters assigned, including the establishment of professional standards and procedures. The employee consults, recommends and advises in specialty areas.

(d) Work is carried out within broad guidelines requiring conformity with overall objectives, relative priorities and necessary cooperation with other units. Informed professional guidance may be available.

(e) The employee outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.

[72] In light of Ms Zheng’s submissions that the Level 3 classification is relevant to her circumstances, the analysis focuses on that level. The other classifications in the Award are more junior, and are not, in my view, comparable to the position of LNG Consultant.

[73] Determination of whether Ms Zheng’s role fell within the Level 3 classification requires an assessment of each of the indicative duties listed. In my view, the indicative duties in the classification level are to be read in light of the definition of ‘professional engineering duties’ in clause 3.2 of the Award. The first of these indicative duties is:

An employee at this level performs duties requiring the application of mature professional knowledge. With scope for individual accomplishment and coordination of more difficult assignments, the employee deals with problems for which it is necessary to modify established guides and devise new approaches.

[74] I am satisfied that Ms Zheng drew upon her mature professional knowledge to undertake the duties of her role or that at times she coordinated difficult assignments. When one considers the evidence given by the parties, including the day to day accounts of work performed, Ms Zheng’s position description, and the content of the advertisement, I am persuaded that the ‘professional knowledge’ she applied, derived in part, from her qualifications relevant to coverage under the Award.

[75] However, I have in addition, given due consideration to the projects worked on by Ms Zheng as set out in Attachment 7 to the Witness Statement of Mr Pulsford, in addition to Ms Zheng’s evidence at paragraphs [19]-[75], and the oral testimony of both witnesses. I am also mindful of the evidence, which was not contested, that the role occupied by Ms Zheng was not dissimilar to the role of ‘Natural Gas and LNG Consultant’, which was occupied by colleagues absent a qualification in chemical engineering.

[76] Having considered all the above mentioned evidence and the submissions of the parties, I am persuaded that some of Ms Zheng’s duties saw her draw upon her qualifications. However, I am unpersuaded that the knowledge applied in the performance of the majority of Ms Zheng’s duties was dependent on her holding the requisite qualification under the Award.

[77] The second set of indicative duties includes the following:

(b) The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.

[78] Ms Zheng’s role appeared to be predominately advisory in nature. It was difficult to ascertain from the evidence the original contribution or application of new professional approaches, as referred to in the indicative duties. However, it is apparent that in her advisory capacity Ms Zheng informed clients of the conceptual design of an LNG facility and the layout of equipment – for example, there was evidence to show that Ms Zheng was involved in the high-level conceptual design of LNG import facilities including the conceptual design of the process and the facility itself. However, it is not apparent from Ms Zheng’s evidence that she designed or developed ‘equipment’ or ‘products’.

[79] When interpreting an award provision, the words of the clause are to be given their ordinary meaning. 48 In considering whether a modern award covers a person, the test has been stated as: ‘to discern the objective meaning of the words bearing in mind the content in which they appear and the purpose they are intended to serve’.49

[80] Ms Zheng submitted that chemical engineering includes the design of processes and equipment, at a high conceptual level. Both parties directed me to documentation that traversed the activities of a chemical engineer – and I have taken into consideration the guidance provided by those documents.

[81] Ms Zheng submitted that chemical engineering is in fact much broader than what Mr Pulsford had said.  At a high conceptual level it included feasibility studies for a new LNG plant and included determining what equipment goes where along the terminal, and so on and so forth.  I have considered all of the examples of work Ms Zheng has provided in addition to those of Mr Pulsford. In light of the ordinary language used, I am unable to find that Ms Zheng had made some original contribution or applied new professional approaches and techniques to the design or development of equipment or products. It appears that in her work for the Respondent, she considered the client’s needs and compared them with the outcomes of similar projects to make an early assessment of project feasibility and the solution that may eventually be engineered in later project phases.

[82] The third aspect of the classification definition captures the following indicative duties:

Recommendations may be reviewed for soundness of judgement but are usually regarded as technically accurate and feasible. The employee makes responsible decisions on matters assigned, including the establishment of professional standards and procedures. The employee consults, recommends and advises in specialty areas.

[83] From the evidence provided, I am satisfied that Ms Zheng’s duties incorporated such work, but I am hesitant to conclude that the work in question principally involved professional engineering duties. Ms Zheng gave evidence that around 80% of her work related to the technical tasks. 50 However, I am satisfied that the proportion provided by Ms Zheng was speculative.

[84] Mr Pulsford gave evidence that all consultants working for the Respondent completed time records for the jobs they had been working on. According to Mr Pulsford, this meant that the consultants logged how much time they spent on jobs, and how much time was spent on internal studies, business development, and annual leave. Mr Pulsford said that he requested the records for Ms Zheng in the periods of 2018, 2019 and 2020. This gave him a summary of how much time she spent on the various projects that she had worked on and on other activities. It was Mr Pulsford’s evidence that he basically summed worked of a technical nature, summed work of a market assessment nature, and then summed administration activities and leave. The percentages arrived at were detailed at paragraph 13(f) of his witness statement.

[85] The percentages referred to in Mr Pulsford’s evidence are set out at paragraph 18 of this decision.

[86] Clearly, Ms Zheng and the Respondent held divergent views concerning how much time she spent on ‘technical’ assignments. When referring to ‘technical’ assignments, I consider it safe to presume both were referring to work such as consulting reports for the development of an LNG import facility, Due Diligence, advice on the operation of existing gas & LNG facilities and Study Proposals. In my view, it is correct to hold a level of scepticism concerning this part of their evidence. Ms Zheng’s account was at best speculative, and Mr Pulsford’s evidence was uncorroborated in addition to lacking direct evidence of time records or calculations computed.

There are two final aspects of the classification to consider. The indicative work carried out underneath those two is set out at paragraph [71] of this decision. The evidence fell short of establishing that Ms Zheng performed work in the latter description. While I am persuaded that Ms Zheng’s work was carried out within broad guidelines as provided for in the former description, for the reasons already cited, I am not persuaded that professional engineering duties were the ‘principal purpose’ of Ms Zheng’s employment.

Conclusion

[87] I am satisfied that a modern award did not cover Ms Zheng, an enterprise agreement did not apply to her in relation to her employment, and her earnings exceeded the high income threshold. It follows that Ms Zheng was not a person protected from unfair dismissal and therefore the Commission has no jurisdiction to order an unfair dismissal remedy under s 390. Ms Zheng’s application for an unfair dismissal remedy is dismissed. An order to that effect accompanies this decision. 51

DEPUTY PRESIDENT

Appearances:

Mr Brandan Taylor for the Applicant;
Ms Lingly Zheng for the Applicant;
Mr Chris Barton for the Respondent.

Hearing details:

2020
Perth
December 22

Printed by authority of the Commonwealth Government Printer

<PR727279>

 1   Fair Work Act 2009 (Cth), s 394 (the Act).

 2   The Act, s 382.

 3   PR721329.

 4   Witness Statement of Lingli Zheng (Zheng Statement) [16].

 5   Ibid Attachment 4.

 6   Ibid.

 7 Ibid [13].

 8 Ibid [10].

 9 Ibid [12].

 10   Ibid Attachment 6.

 11 Ibid [16].

 12 Ibid [17].

 13 Ibid [19].

 14   Witness Statement Will Pulsford [4] (Pulsford Statement).

 15 Ibid [5].

 16 Ibid [9].

 17 Ibid [10].

 18   Ibid.

 19   Ibid.

 20 Ibid [13].

 21   Ibid.

 22 Ibid [14].

 23   MA000065.

 24   Mr Thomas McMenemy v Thomas Duryea Consulting Pty Limited[2012] FWAFB 7184 [36], [38].

 25   Gourabi v Westgate Medical Centre[2019] FWCFB 3874 [26].

 26   MA000065.

 27   Halasagi v George Weston Foods Limited[2010] FWA 6503 (Halasagi) [24].

 28   Ibid.

 29 Ibid [24].

 30   Zheng Statement Attachment 10.

 31   Bateman v Communications Design & Management Pty Limited[2014] FWCFB 8768 (‘Bateman’).

 32   [2014] FWCFB 8768 [22].

 33   Halasagi [23]; Bateman [22].

 34   Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space[2020] FWC 2015 [74].

 35   Halasagi [23]; Bateman [22].

 36   Transcript PN276-285.

 37   Transcript PN288.

 38   Transcript PN289.

 39   Transcript PN290.

 40   Transcript PN293.

 41   Transcript PN294.

 42   Transcript PN295.

 43   Transcript PN296.

 44   Transcript PN297.

 45   Transcript PN301 and 303.

 46   Transcript PN123, 125, 184

 47   Paul Bateman v Communications Design & Management Pty Limited[2014] FWCFB 8768; Sanjay Halasagi

v George Weston Foods Limited [2010] FWA 6503; Brand v APIR Systems Ltd [2003] AIRC 1161 [11].

 48   The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

 49   SanjayHalasagi v George Weston Food Limited[2010] FWA 6503.

 50 Zheng Statement [16].

 51   PR721329.