Muhamed Dizdar v Western Australian Specialty Alloys T/A Western Australian Specialty Alloys

[2020] FWC 3268

[2020] FWC 3268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Muhamed Dizdar
v
Western Australian Specialty Alloys T/A Western Australian Specialty Alloys
(U2020/878)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 JULY 2020

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, and Manufacturing and Associated Industries and Occupations Award do not cover - Applicant not protected – Application dismissed.

[1] Mr Muhamed Dizdar applied for an unfair dismissal remedy, 1 to which his former employer, Western Australian Speciality Alloys Pty Ltd T/A Western Australian Speciality Alloys (WASA), objected.

[2] WASA submits that Mr Dizdar was not a person protected from unfair dismissal because he was not covered by an award, he earned more than the high income threshold, and an enterprise agreement did not apply to him in his employment. Regarding the latter points, it is uncontroversial that Mr Dizdar’s earnings exceeded the high income threshold and an enterprise agreement did not apply to him in his employment. The remaining factor is contentious. That is, whether Mr Dizdar was covered by a modern award. 2 If he was not, then he is unprotected from unfair dismissal and his application must be dismissed.

[3] Given the length of the decision it is convenient now to inform of the conclusion reached. Mr Dizdar was not covered by the Professional Employees Award 2010 (Award) 3 in respect of his employment as Operations Manager for WASA. Further, I am similarly unconvinced that the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award)4 covered Mr Dizdar. It therefore follows that Mr Dizdar’s application is dismissed. An order to this effect accompanies my decision.5

Background

[4] WASA operates specialist melting and forging facilities at sites in Perth, Western Australia and Albury, New South Wales. The Perth facility primarily produces superalloy ingots and bar stock (metal products). WASA’s products are used in commercial and military aircraft (around 50% of its market), land based power generation equipment (around 15% of its market), oil and gas production facilities (around 20% of its market), and for other general and chemical applications (remaining 15%). 6

[5] WASA’s parent company is the USA based Special Metals Corporation (SMC). SMC is owned by USA company Precision Castparts Corp (PCC), which is owned by USA company Berkshire Hathaway.

[6] WASA employed Mr Dizdar as the Operations Manager at its Perth facility from 12 October 2015 until his dismissal on 13 January 2020. However, Mr Dizdar had worked for WASA in various roles from 24 October 2001.

[7] It was uncontentious that the Operations Manager role was a senior executive role. The role reported to WASA’s most senior employee, the General Manager, Mr Clive Reader, and, in turn, 58 of WASA’s staff reported either directly or indirectly into the role. 7 Some of those staff, according to WASA, were either mechanical or electrical engineers who had managerial responsibilities.

[8] Three of Mr Dizdar’s direct reports were qualified as engineers in the field of mechanical engineering (and not metallurgy): the Cost-Saving Engineer (Mr Hans Boer), the Cost Reduction Engineer (Mr Wali Khan) and the Project Engineer (Mr Salman Ahmed). The majority of the employees within Mr Dizdar’s control were in operational trades, diploma and non-trade-qualified roles. 8

[9] Mr Reader gave evidence that WASA employed a team of specialist metallurgists, which included engineers, to provide technical advice to it. They sat within the Technical Department and reported to the Technical Manager, who sat at an equivalent level to the Operations Manager in WASA’s organisational structure. 9 The role of the engineers within the Technical Department was to devise changes to melt procedures and create technical specifications for production.10

[10] The role of the Operations Department, said Mr Reader, was to produce super alloys, against the technical specifications set by the Technical Department’s specialist metallurgists. 11

[11] Mr Dizdar’s employment contract, of 22 October 2015, confirmed his appointment to the position of Operations Manager on the twelfth of that same month and outlined that his salary was $160,000.00 per annum. 12 The contract further provided for his participation in an executive bonus scheme.13

Position Description

[12] In describing the duties of Mr Dizdar, WASA relied upon a position description for the Operations Manager role. Mr Dizdar submitted that the position description relied upon by WASA was a draft and one had to question why it was provided to him in 2019, in circumstances where he had held the position for some years prior to it being provided.

[13] Mr Reader explained in cross examination that the Human Resources Department of WASA had conducted an audit in 2019 and identified that the role was missing a position description. Subsequently, a copy of the position description was forwarded to Mr Dizdar in September 2019, and when asked if the position description was a rough outline of his current role, Mr Dizdar responded ‘[F]ew small changes attached’. 14 Based on the evidence before me, I am satisfied that the position description accurately sets out the scope of Mr Dizdar’s role, the accountabilities of the position, and the qualifications and experience necessary.

[14] The position description provided that the Operations Manager was responsible for the management of staff in the production, maintenance and engineering areas, delivery of a quality product on time, meeting the facility’s business objectives and satisfying the customer’s
requirements for the product. 15 With regard to the role’s scope, the position description outlined:

This position requires experience in the operating management and the technical requirements for the manufacture of aerospace alloys. A comprehensive understanding of the raw material and technical property requirements, for producing a competitive product is necessary. Exposure to the marketing conditions affecting product pricing is essential. Time resource management and delegation is a key attribute to maintain efficiency of the operations. 16

Accountabilities

[15] In so far as accountabilities of the role were concerned, the position description set out the following:

1. Implement the facility Quality Policies and Procedures.

2. Ensure the operation maintains the capability to deliver a quality product on time.

3. Ensure orderly, effective and equitable labour relations are followed.

4. Prepare operating performance data annually and establish measures for achievement of plans established including corrective actions to ensure plans are achieved.

5. Develop and expand manufacturing capacities for each work centres.

6. Develop and coordinate Capital Plant expansion proposals.

7. Implement Capital projects. 17

[16] In respect of Mr Dizdar’s various accountabilities, WASA addressed each of them in detail. For ease of reading, those accountabilities are adopted as subheadings and the evidence of Mr Reader is outlined.

Quality Policies and Procedures

[17] The Quality Policies and Procedures are contained in a manual, which reflects customer requirements and fixed practices under WASA’s commercial contracts. WASA engages a Quality Manager who co-ordinates the detail of the manual with employees engaged in WASA’s production, maintenance, technical and laboratory functions.

[18] Part of Mr Dizdar’s role as Operations Manager was to ensure that all employees in WASA’s production and maintenance operations understood and followed procedures, and to escalate any serious issues with procedures to the General Manager or PCC, as appropriate. Mr Dizdar was required to sign off on certain business critical policies and procedures in his Operations Manager capacity.

Deliver a quality product on time

[19] This accountability required Mr Dizdar to:

a) oversee production to ensure that WASA fulfilled its customer contracts and minimised customer delinquencies. This involved convening daily production meetings (known as “line walks”) and weekly production meetings to review production levels against PCC’s targets; confirming compliance to set despatch targets; and monitoring key performance indicators (KPIs) such as “vacuum induction melting” melt times and “vacuum arc remelting” interval times; 18

b) manage other staff to ensure that operational equipment was properly maintained, to ensure product delivery. For example, WASA monitored plant uptime and utilisation at weekly production meetings by comparing OEE (Operations Equipment Effectiveness) against set KPIs. Mr Dizdar led these meetings; 19 and

c) ensure that those in his remit followed procedures, conducted inspections, and scheduled work correctly. For example, Mr Dizdar’s duties involved the review and approval of preventative maintenance schedules and calibration schedules, and he monitored performance to those schedules through oversight of the Maintenance Department, which was led by Mr Ahmed as the Project Engineer. 20

Effective and equitable labour relations

[20] Mr Reader gave evidence that Mr Dizar led negotiations when bargaining for the last enterprise agreement in the business. Once that agreement was approved, Mr Dizdar had oversight and was to ensure WASA’s operations were planned in a way that complied with the instrument. 21 Mr Dizdar’s duties extended to sourcing and approving new operational employees and new managerial employees, who would subsequently report to him, in addition to conducting performance appraisals and making disciplinary decisions, for those within his headcount.22

Operating performance data and establishments of plans

[21] Concerning WASA’s operating performance data and establishment of plans, Mr Reader stated that this part of Mr Dizdar’s role required him to assist, to set and to apply the budget for the Operations Team, and ensure the Operations Team met its budget. 23 Mr Dizdar’s inputs included the development of production plans, and recommendation of improvement measures and cost reduction measures, having received advice from three mechanical engineers that reported to him on such matters.24

Develop and expand manufacturing capacities for each work centre

[22] In respect of maintenance plans, Mr Dizdar oversaw their development in addition to considering equipment developments that might expand work centre capacities. 25 He attended Process Change Review Meetings, where managers would review improvement suggestions from various teams and determine their suitability for the operation in terms of cost improvement, quality and throughput impacts.26 Mr Reader stated that managers, including Mr Dizdar, would put forward their own improvement suggestions at the meetings, and Mr Dizdar would volunteer technical feedback or ideas for the engineers tasked with developing the maintenance plans.27

[23] Mr Dizdar was also said to have provided technical feedback and ideas to the Technical Department’s engineering group in meetings on proposed changes to the manufacturing process to expand facility capacity. 28

Develop and coordinate capital plant expansion proposals

[24] Mr Reader continued that Mr Dizdar’s contribution to capital plant expansion proposals was similar to that stated regarding manufacturing capacities. 29 Mr Reader provided an example where Mr Dizdar contributed ideas that informed WASA’s Mould Blasting CAPEX Project and its Automated CTW Saw project in 2019.30 Mr Reader noted that both projects had allocated project leads responsible for overseeing the work, and that the leads had engaged specialists to support the projects. Mr Reader stated that Mr Dizdar’s main role with these projects was to oversee budget delivery and to ensure his team provided the right outcome.31 However, he did volunteer some technical ideas to Mr Ahmed and Mr Khan (the project leads) to support their work.32

Implement capital projects

[25] It was Mr Reader’s evidence that Mr Dizdar oversaw the implementation of capital projects once approved by the Corporate Department. In short, his role required him to ensure that operational and engineering employees within his control followed technical plans and processes for the capital projects, delivering them on time and within budget. 33

[26] In summary, WASA submitted that Mr Dizdar held a senior role with significant managerial responsibility for 58 staff. His performance was measured against leadership metrics and he was the final escalation point for disputes under the enterprise agreement that applied to part of WASA’s workforce. WASA continued that Mr Dizdar met with other Department heads, was responsible for setting strategic direction, the budget, and the hiring and firing (or ‘dehiring’ as the case may be) of employees.

Was Mr Dizdar covered by the Professional Employees Award?

[27] 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. 34 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.

[28] The first award that appears relevant, in this case, is the Professional Employees Award 2010 (as previously stated, the Award). 35 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.

[29] 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.

[30] The issue in this case is whether Mr Dizdar is covered by the Awardby virtue of its occupational coverage at clause 4.1.

[31] Clause 4.1 refers to the Award covering ‘employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties’ and it is clear that either may be satisfied. Mr Dizdar appears to be relying upon the coverage of ‘professional engineering duties’ as defined by the Award.

[32] However, WASA submits that at the time of his dismissal Mr Dizdar was not covered by the Award, because he was not carrying out professional engineering duties, and was not employed in a classification in the Award (taking into account the principal purpose for which he was employed). 36

[33] In Halsagi, 37 the Vice President observed that 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.38 With respect to the latter issue, the Vice President expressed that this was a question determined by reference to the ‘principal purpose’ test.39 

[34] The Vice President was careful to note that in relation to the Award, 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 fall within that definition are the ‘principal purpose’ for which the employee is employed. 40

Professional engineer duties

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

[36] Clause 3.2 of the Award defines 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.

[37] It appeared uncontroversial that Mr Dizdar had been a member of the ‘Institution of Engineers’ since 28 May 1993.

[38] However, WASA submitted that engineering qualifications were not required for the Operations Manager role. 41 I observe that the position description for the Operations Manager role listed ‘A metallurgical degree with operation experience’ under ‘Qualifications and Experience’. It did not mention engineering qualifications or require a membership with Engineers Australia.

[39] According to WASA, a science degree focussed on metallurgy met the position description’s qualification section. WASA submitted that the qualification requirement was desirable, not mandatory, and a degree in a related discipline would have been sufficient, if supplemented by suitable experience. 42

[40] In Bateman v Communications Design & Management Pty Limited, 43 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. 44

[41] It follows that to demonstrate Award coverage, it is not enough that an employee holds a membership of Engineers Australia. 45 However, this is not to say that the Award requires membership of Engineers Australia before a person can carry out professional engineering duties.46 For the Award to apply, qualifications as (or at least equal to those of) a graduate member of Engineers Australia are almost invariably needed to perform duties of the sort that are said to be ‘professional engineering duties’.47

[42] As noted, the position description for Operations Manager did not require the discharge of duties which required qualifications as (or at least equal to those of) a member of Engineers Australia. The position description provided that the Operations Manager was responsible for the management of staff in the production, maintenance and engineering areas, delivery of a quality product on time, meeting the facility’s business objectives and satisfying the customer’s requirements for the product. In my view, those are management duties, not technical engineering duties.

[43] The accountabilities of the Operations Manager position were outlined at paragraph 15 of this decision. While Mr Dizdar took issue with the position description and the timing of its review, based upon the evidence before me, I am content to find that Mr Dizdar agreed with these accountabilities when he had input into the drafting of the position description and then approved it in September 2019. 48

[44] Regarding the nature of his duties, Mr Dizdar submitted that as an Operations Manager he was required to perform professional engineering duties and therefore he fell within the definition of ‘Professional engineer’. By way of example, Mr Dizdar provided a list of projects he had worked on for the purpose, he said, of understanding and accepting ‘the fact that I was acting as Professional engineer in all my appointments at WASA during my 18.4 years of loyal service’. The list detailed 77 projects and was provided as part of Mr Dizdar’s reply submissions. Given Mr Dizdar was a self-represented litigant and I considered the list relevant to the issues to be determined, I permitted Mr Dizdar’s reference to, and reliance, upon the list.

[45] However, it became evident during the hearing that not all 77 projects on the list had been worked upon during Mr Dizdar’s time as an Operations Manager. Having heard from Mr Dizdar and Mr Reader regarding the list, it was difficult to ascertain with confidence what, if any, of the 77 projects fell within Mr Dizdar’s time as an Operational Manager, and the specific nature of the work Mr Dizdar undertook. However, I appreciate that Mr Reader was somewhat put on the spot when asked to identify which of the 77 projects fell within the period that Mr Dizdar was the Operations Manager. Notwithstanding, to the best of his recollection, he stepped the Commission through the ‘relevant’ projects.

[46] In his evidence, Mr Reader noted that the list represented the projects Mr Dizdar had been involved in over a 15 year period in his Operations Manger role and previous role. Mr Reader expressed the view that a minority would have occurred in the Operations Manager role. However, for those projects that fell within Mr Dizdar’s time as the Operations Manager (of which he identified a few), Mr Reader gave evidence that Mr Dizdar’s role was confined to overseeing the project and reporting on the same, rather than detailing specific design requirements, scoping the job and providing what otherwise would be considered engineer consultancy work.

[47] In short, Mr Reader gave evidence that:

a) while the Mr Dizdar oversaw technical engineering projects, and attended meetings with the Technical and Quality Managers of WASA, where he gave technical engineering input into decisions about maintenance and capital projects, Mr Dizdar’s input was as a manager, and not as a technical engineering specialist; 49

b) Mr Dizdar’s role was focussed on managing 58 employees, budgets, product delivery to customers, and interface with other divisions within WASA; 50 and

c) Mr Dizdar participated in an executive bonus scheme that was only available to the six most senior managers at WASA. The terms and quantum of the awards under this scheme demonstrate the nature of Mr Dizdar’s strategic leadership role. For example, it required Mr Dizdar to take accountability over succession planning, scholarship programs, delivering on budget, meeting customer delivery requirements and parent company metrics. 51

[48] Having considered the evidence of both gentlemen and noting that Mr Dizdar conflated historical projects with those relevant to the period in question, I am persuaded by Mr Reader’s cogent and detailed account provided about each project, and his evidence regarding Mr Dizdar’s accountabilities and nature of his duties.

[49] There is tension in this matter regarding the evidence adduced. Mr Dizdar asserted to the effect that he was a ‘Professional engineer’ and had cited his membership number of the ‘Institution of Engineers’ in an email that was accepted into evidence. Apart from that, he adduced no further evidence to support the assertion made. It is not apparent that WASA disputed Mr Dizdar’s qualifications in this respect.

[50] While Mr Dizdar provided a list of projects that were said to demonstrate his ‘professional engineering duties’, as observed, there were difficulties with this evidence. However, Mr Reader gave evidence that Mr Dizdar:

a) would volunteer technical feedback or ideas for the engineers tasked with developing the maintenance plans; 52

b) provided technical feedback and ideas to the Technical Department’s engineering group in meetings on proposed changes to the manufacturing process to expand facility capacity; 53 and

c) volunteered some technical ideas to Mr Ahmed and Mr Khan (the project leads) to support their work. 54

[51] On balance, I have found that there was simply insufficient evidence before me to conclude that Mr Dizdar’s engineering qualifications and experience were both necessary in the performance of at least some of his work and relied upon by WASA.

[52] It is evident that Mr Dizdar did not carry out ‘professional engineer duties’ as defined in the Award in his role as Operations Manager. His role was that of an executive within the business. Mr Dizdar had most definitely advanced in his career and had assumed an increasing load of management duties. However, I am unpersuaded he performed some engineering duties, the adequate discharge of which required the relevant qualification.

Classification – Schedule B

[53] If my conclusion is wrong regarding Mr Dizdar’s performance (or lack thereof) of professional engineer duties, it is nevertheless the case that he has not demonstrated he was employed within a classification in the Award (taking into account of course the principal purpose for which he was employed).

[54] The second limb of the coverage provision in clause 4.1 of the Award, requires consideration of whether Mr Dizdar was covered by a classification in Schedule B and the definitions relating to that structure. It should be noted, Mr Dizdar provided limited, if not no, probative evidence or submissions regarding this issue. The evidence led by WASA, was for the most part accepted. I note again that Mr Dizdar raised issue with his position description, which I have dealt with earlier in this decision.

[55] ‘Level 4 – Professional’ is the highest engineer-related classification in clause B.1.11 of Schedule B of the Award. It is described in the following terms:

(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

(b) An employee at this level:

(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;

(ii) gives technical advice to management and operating departments;

(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;

(iv) coordinates work programs; and

(v) directs or advises on the use of equipment and materials.

(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.

(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.

(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.

[56] The other classifications in the Award are more junior, and are not, in my view, comparable to the position of Operations Manager.

[57] WASA submitted that case law, which considered the Level 4 classification in the Award, distinguished between:

a) management roles where a qualified engineer uses their knowledge, experience and skills to perform their role, but is not engaged to provide technical advice. These roles were not Award covered; and

b) roles where the principal purpose of the employee’s role was to work in the field of engineering, such as through the provision of technical advice. These roles were Award covered.

[58] Reliance in this respect was placed upon the decision of Bury v Gilmour Space Technologies Pty Ltd T/A Gilmour Space (Bury), 55 and the Full Bench decision of McFarlane v SRG Civil Pty Ltd (McFarlane).56 In both the decisions the applicants were found not to be covered by the Award after the principal purpose test was considered and applied.

[59] Determination of whether Mr Dizdar’s role fell within the Level 4 classification requires an assessment of each of the indicative duties listed in the Level 4 classification. The first of these indicative duties is:

An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.

[60] Based on the evidence before me, I am satisfied that Mr Dizdar was not engaged to perform ‘professional work’ and his work is not properly characterised as ‘involving’ expertise in a ‘particular’ field of engineering. It was apparent from both Mr Dizdar’s evidence, and that of Mr Reader, that Mr Dizdar was employed to lead a large section of WASA’s business that comprised some engineering roles, but on balance mostly operational roles including trades, diploma and nontrade-qualified roles. 57 WASA submitted that the Operations Manager position description ‘accountabilities and required qualifications’ did not demand a person with a membership of Engineer’s Australia, because this role was not to produce technical advice, plans or programs for it. It was a managerial role. The evidence supports this contention.58

[61] The second aspect of the classification definition (as set out at paragraph 56 of this decision) describes the duties and activities undertaken by employee at Level 4 – Professional.

[62] WASA submitted that while Mr Dizdar participated in meetings involving planning on manufacturing capacity, maintenance plans and capital projections, he participated at an executive level - providing an interface with the Technical Department and Quality Department. It was stated that Mr Dizdar was not principally engaged to give ‘technical advice’ to WASA, rather his participation in the meetings was better characterised as managerial.

[63] Having listened to Mr Reader’s evidence concerning some of the projects on the project list, and having considered Annexures CR-5 and CR-6 of his witness statement, it was evident that WASA employed engineers in its Technical Department who were tasked with ‘detailed technical responsibility’, and providing ‘specialised professional engineering systems, facilities and functions’. WASA put forward that Mr Dizdar did not form part of, or manage, this section of its business; in this respect, he supervised a small number of employees who were engineers. Each of these engineers practised in the field of mechanical engineering, which was outside of Mr Dizdar’s field of expertise of metallurgy. WASA contended that Mr Dizdar could not have sensibly supervised the technical detail of their work.

[64] Mr Dizdar, at his level of the business, did not, according to WASA, directly ‘coordinate’ maintenance work programs, such as the Maintenance Planner and Project Engineer. Whilst WASA submitted that Mr Dizdar had the opportunity to give input into these programs, his day to day role was broader and more strategic than that usually associated with ‘coordinating’ a program.

[65] WASA submitted that Mr Dizdar broadly directed the use of equipment and materials within WASA’s operational area. However, this was undertaken in his capacity as a senior executive who had managers and subject matter experts reporting to him.

[66] The Level 4 classification refers to ‘responsible decisions’, ‘deciding courses of action to expedite the successful accomplishment of assigned projects’ and the making of ‘recommendations’ on ‘large sums or long range objectives’. However, I agree with the contention of WASA that the description is to be read in context against item (a) of the classification, which refers to employees working in a particular field of professional engineering, professional scientific/information technology field or professional information technology field, and against s 143(7) of the Act.

[67] It is a description that does not lend itself to an interpretation which includes executives that make ‘responsible decisions’ and ‘recommendations’ to their employer within the Award. The preferred interpretation, in my view, is that the description focusses on an employee principally engaged to make technical decisions, who has autonomy over those decisions and related recommendations. Therefore, while Mr Dizdar was said to have consulted on business critical technical programs and projects through cross-Department meetings and through the supervision of managers working as engineers, he was not a person principally engaged to perform or sign off on technical work.

[68] The next descriptor refers to duties having been ‘assigned’ on in terms of ‘broad objectives’. WASA submitted that the descriptor should also be read in context with item (a) of the classification, and s 143(7) of the Act. I agree with the contention and find nothing controversial with it. WASA observed that Mr Dizdar was the leader of a large section of the business that covered almost half of its Perth facility. The evidence supports such contention. Further, it is evident that Mr Dizdar’s performance was measured against financial, commercial, people, culture and operational metrics. WASA submitted that these were set by its parent company, PCC. Consequently, Mr Dizdar received an executive bonus when such metrics were effectively met. Viewed in this context, it can be concluded that Mr Dizdar was not a person who received ‘assignments’ of technical work, which were checked for effectiveness and soundness of approach. He was an executive manager tasked with developing assignments for others.

[69] According to WASA, Mr Dizdar primarily supervised non-professional staff, and a small number of engineers. He did not exercise technical control over the engineers, and he was not engaged in complex professional engineering or professional scientific/information technology applications. His role was a broad supervisory role at an executive managerial level.

[70] As was the case in Bury, Mr Dizdar’s duties and responsibilities were focused on the establishment and management of systems, processes, procedures, logistics and relationships, both internal and external. As in McFarlane, it is not evident that Mr Dizdar was engaged in engineering work. To the extent he was involved in engineering matters, the involvement can be seen to have been in an incidental, advisory capacity, through interactions with other Departments.

Was Mr Dizdar covered by the Manufacturing and Associated Industries and Occupations Award 2010?

[71] Mr Dizdar did not press an argument that he was covered by the Manufacturing Award. However, for the sake of completeness, I have considered coverage in this respect.

[72] The Manufacturing Award covers employers of employees in the ‘Manufacturing and Associated Industries and Occupations’ who are covered by the classifications in it, and those employees. 59 It can be seen that the definition of ‘Manufacturing and Associated Industries and Occupations’ includes, relevant to WASA, melting and smelting of metals.60

[73] WASA is an employer covered by the Manufacturing Award in respect of employees that fall within the Schedule B classifications, because it is engaged in melting metals. The highest relevant Schedule B employee classifications under the Manufacturing Award are:

a) Level C2(b) Principal Technical Officer;

b) Level C2(a) Leading Technical Officer; and

c) Level C2(a) Principal Supervisor/Trainer/Co-ordinator.

[74] The highest C1 classification of the Manufacturing Award cross-refers to Professional engineers who are covered by the Award. However, for the reasons set out in this decision, I have not concluded that Mr Dizdar is a ‘Professional engineer’ who is covered by the Award.

[75] Based on the totality of the evidence before me, and having considered the principle purpose test, I have concluded that Mr Dizdar was not a person covered by the Manufacturing Award because his role of Operations Manager did not fit within any classification in Schedule B of the Manufacturing Award. Like Bury, and in contrast to the decision in Thomas v Hanseatic Marine Engineering Pty Ltd T/A Silver Yachts, 61 it is clear in the present case that the principal purpose for which Mr Dizdar was employed was that of an executive managerial nature, rather than a technical services or training role.

Conclusion

[76] I am satisfied that a modern award did not cover Mr Dizdar, an enterprise agreement did not apply to him in relation to his employment, and his earnings exceeded the high income threshold. It follows that Mr Dizdar was not a person protected from unfair dismissal and therefore the Commission has no jurisdiction to order an unfair dismissal remedy, per s 390. Mr Dizdar’s application for an unfair dismissal remedy is dismissed. An order to that effect accompanies this decision. 62

DEPUTY PRESIDENT

Appearances:

Mr M Dizdar, Applicant; and
Ms R Lee of Herbert Smith Freehills for the Respondent.

Hearing details:

2020:
Perth (by telephone);
June 23.

Printed by authority of the Commonwealth Government Printer

<PR720399>

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

 2   The Act, s 382.

 3   MA000065.

 4   MA000010.

 5   PR721329.

 6 Witness Statement of Clive Reader [10].

 7 Ibid [23].

 8 Ibid [24].

 9 Ibid [25].

 10 Ibid [25].

 11 Ibid [26].

 12   Ibid, Attachment CR-4.

 13   Ibid, Attachment CR-4.

 14   Ibid, Attachment CR-7.

 15   Ibid, Attachment CR-7.

 16   Ibid, Attachment CR-7.

 17   Ibid, Attachment CR-7.

 18 Witness Statement of Clive Reader [32].

 19 Ibid [32].

 20 Ibid [32].

 21 Ibid [33].

 22 Ibid [34].

 23 Ibid [35].

 24 Ibid [35].

 25 Ibid [36].

 26 Ibid [37].

 27 Ibid [37].

 28 Ibid [38].

 29 Ibid [40].

 30 Ibid [40].

 31 Ibid [40].

 32 Ibid [40].

 33 Ibid [41].

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

 35   MA000065.

 36   Halasagi v George Weston Foods Limited[2010] FWA 6503 (‘Halasagi’), [24].

 37   Ibid.

 38 Ibid [24].

 39 Ibid [24].

 40 Ibid [24].

 41 Exhibit R1 [41].

 42 Ibid [41].

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

 44   [2014] FWCFB 8768 [22].

 45   Halsagi [23]; Bateman [22].

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

 47 Halsagi [23]; Bateman [22].

 48   Witness Statement of Clive Reader [28]; Annexure CR-7.

 49   Ibid [37] – [41].

 50   Ibid [27], [30] – [41].

 51   Ibid [17] – [19].

 52 Ibid [37].

 53 Ibid [38].

 54 Ibid [40].

 55   [2020] FWC 2015.

 56   [2019] FWCFB 8682.

 57 Witness Statement of Clive Reader [24].

 58   Ibid, Annexure CR-6.

 59   Manufacturing Award cl 4.1.

 60   Manufacturing Award cl 4.10(b) and 4.9(a)(i).

 61   [2019] FWC 1.

 62   PR721329.