Paul Bateman v Communications Design and Management Pty Limited

[2014] FWC 4427

[2014] FWC 4427[Note: An appeal pursuant to s.604 (C2014/1307) was lodged against this decision - refer to Full Bench decision dated 18 December 2014 [[2014] FWCFB 8768] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Bateman
v
Communications Design & Management Pty Limited
(U2013/16596)

COMMISSIONER LEWIN MELBOURNE, 2 JULY 2014

Jurisdiction - unfair dismissal - high income threashold - award coverage - Professional Employees Award 2010 - Senior Project Manager.

Introduction

[1] Mr Paul Bateman has made an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act). Mr Bateman was employed by Communications Design & Management Pty Ltd (CDM) between 31 August 2010 and 28 November 2013.

[2] CDM object to the Commission hearing the application on the ground that Mr Bateman’s remuneration was above the High Income Threshold prescribed by s. 333 of the Act and Regulation 2.13 of the Fair Work Regulations (the Regulations). Consequently, CDM submit that Mr Bateman is not a person protected from unfair dismissal by the Act.

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

382 When a person is protected from unfair dismissal

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

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

[4] Mr Bateman concedes that his annual rate of earnings exceeded the high income threshold at the time his employment was terminated by CDM. However, Mr Bateman submits that the employment was covered by the Professional Employees Award 2010 (the Award).

[5] CDM submits that Mr Bateman was not employed as a professional engineer or performed professional engineering duties in his employment. Rather, CDM submits that Mr Bateman was employed as a Senior Project Manager and performed duties of that kind and hence the Award did not cover Mr Bateman’s employment.

[6] If Mr Bateman’s employment with CDM was covered by the Award, Mr Bateman was a person protected from unfair dismissal, by operation of s.382 of the Act.

[7] A hearing of the jurisdictional objection was conducted on Monday, 7 April 2014. Mr Bateman tendered a witness statement (Exhibit B) and gave viva voce evidence in chief and was cross examined.

[8] In order to determine if Mr Bateman’s employment with CDM was covered by the Award it is necessary to give consideration to Clause 4: Coverage of the Award as set out below.

4. Coverage
[Varied by PR992791, PR994537]

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.

[4.3 varied by PR992791 from 22Jan10]

4.3 The award does not cover employees who are covered by the following awards:

Airport Employees Award 2010;

Black Coal Mining Industry Award 2010;

Electrical Power Industry Award 2010;

Port Authorities Award 2010;

Rail Industry Award 2010;

State Government Agencies Administration Award 2010; and

Water Industry Award 2010.

4.4 The award does not cover employees of a local government covered by another award.

4.5 The award does not cover an employee excluded from award coverage by the Act.

4.6 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[New 4.7, 4.8 and 4.9 inserted by PR994537 from 01Jan10]

4.7 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.8 This award covers any employer which supplies labour on an on-hire basis in the industries set out in clauses 0 and 0 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in those industries. This subclause operates subject to the exclusions from coverage in this award.

4.9 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.

[4.7 renumbered as 4.10 by PR994537 from 01Jan10]

4.10 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

Clause 3 of the Award is titled Definitions and interpretation

[9] It was submitted by Mr Bateman that he performed professional engineering duties as defined by Clause 3.2 of the Award as an Experienced Engineer and by extension a Professional Engineer. Clause 3.2 of the Award is set out below.

3.2 Engineering stream

Experienced engineer means a Professional engineer with the undermentioned qualifications engaged in any particular employment where the adequate discharge of any portion of the duties requires qualifications of the employee as (or at least equal to those of) a member of Engineers Australia. The qualifications are as follows:

(a) membership of Engineers Australia; or

(b) having graduated in a four or five year course at a university recognised by Engineers Australia, four years’ experience on professional engineering duties since becoming a Qualified engineer; or

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

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

(d) has been issued by a technical university, an institute of technology, a European technical high school (technische hochschule) or polytechnic or other similar educational establishment; and

(c) is recognised by Engineers Australia as attaining a standard similar to a university degree; and has been issued following:

(i) a course of not less than four years duration for a full-time course after a standard of secondary education not less than the standard of examination for matriculation to an Australian university; or

(ii) a part-time course of sufficient duration to obtain a similar standard as a four year full-time course after a similar standard of secondary education.

Professional engineer means a person qualified to carry out professional engineering duties as defined. The term Professional engineer will embrace and include Graduate engineer and Experienced engineer as defined in this clause.
Professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia

[10] Clause 3.3 of the Award is as follows:

3.3 Information technology and telecommunications services stream

information technology industry means:

(a) the design and manufacture of computers and computer peripherals;

(b) the design and manufacture of telecommunications equipment;

(c) the design and manufacture of computer software;

(d) computer system installation, repair and maintenance;

(e) computer consultancy services;

(f) computer programming;

(g) system analysis services;

(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or

(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.

Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:

(a) that they have graduated with a university degree, with a science or information technology major (three, four or five year course) and had four years’ experience on professional information technology duties since graduating; or

(b) that they, not having so graduated, have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society plus a further four years’ experience on professional information technology duties.

Graduate information technology employee means a person who:

(a) holds a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

professional information technology duties means duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to:

(a) hold a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and Experienced information technology employee as defined.

telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both

telecommunications services industry means:

(a) the supply and/or installation and/or maintenance of telecommunications services; or

(b) the supply and/or installation and/or maintenance of value added telecommunications services; or

(c) incidental, ancillary or complementary to the supply and/or installation and/or maintenance of telecommunications services; or

(d) the installation and/or maintenance of telecommunications equipment and line.

[11] CDM submitted that Mr Bateman was not engaged to perform the duties covered by the Award and that Mr Bateman’s engineering qualifications and experience were irrelevant to the role he performed in his employment as a Senior Project Engineer.

Evidence

[12] Mr Bateman’s witness statement asserts that the duties he performed in the role of Senior Project Manager for CDM required the qualifications of a graduate engineer.

[13] There was no dispute that Mr Bateman is and was at the material time a graduate engineer as defined by Clause 3.2 of the Award. Mr Bateman’s qualifications are a Bachelor of Engineering, Electrical and Electronic Engineering and a Master of Science in Safety Critical Systems Engineering. There is no contest that Mr Bateman can be described as a Professional engineer with four or five years experience and can be described as an Experienced engineer as set out at Clause 3.2 of the Award.

[14] A number of assertions were made from the bar table on behalf of CDM. Some of those assertions are consistent with Mr Bateman’s evidence, in particular the context of the contract of employment and the job description which may be relevantly considered as part of CDM’s assertions that the role of Mr Bateman was not that of a Professional Engineer.

[15] Mr Bateman filed a copy of the offer of employment he accepted with CDM. That document sets out the role and responsibilities of the Senior Project Manager position as follows:

• Project planning, financial management, project schedule management, project resource management.



• Project risk and issue management.



• Management of internal and external clients and stakeholders.



• Timely and accurate reporting.



• Mentoring and development of Junior Project Managers.



• Refinement and implementation of Project Management Processes and Procedures.



• Enhancement, implementation and management of the framework by which we deliver project, i.e. the Victorian PMO.

[16] The CDM job description of the position of the Senior Project Manager is attached to this Decision.

Principles of Award Interpretation

[17] It is now well established that the approach to the interpretation of the coverage of an Award requires consideration of the principal or primary purpose of an employee’s employment and should not be dependent on a simple arithmetic calculation of the time spent by an employee discharging particular tasks or duties.

[18] In the case of Carpenter v Corona Manufacturing Pty Ltd 1, on Appeal,the Full Bench of the Australian Industrial Relations Commission was required to consider the approach to the characterisation of an employee’s employment to determine if that employment was covered by the Commercial Sales (Victoria) Award. The conclusions of the Full Bench are contained and explained between paragraphs [8] and [11] thereof:

“[8] At the time of the termination of his employment, the appellant was employed by the respondent as National Sales Manager. The agreement under which he was employed stated that the “function and responsibilities of the employee will involve sales and management duties throughout Australia”. The appellant’s job description identified his duties in a way that, in our view, can only be described as principally managerial in nature. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of “soliciting orders”, “obtaining sales leads” or “promoting sales”, such tasks formed a minor part of the work he was required to perform.

[9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not “employed in the process, trade, business or occupation of … soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials” and was not, therefore, covered by the Award.

[10] For that reason, it is not necessary for us to consider whether, on the evidence before the Commissioner, the appellant was “employed away or substantially away from the employer’s place of business” or conducted “such duties via telephone or other electronic means or any combination thereof”.

[11] Whilst the Commissioner appears, in her decision, to have placed some emphasis on the requirement of Clause 6.1 that the employee be “employed away or substantially away from the employer’s place of business”, we consider that, on a proper reading of her decision, she had regard to the principal purpose for which the appellant was employed. At paragraph [110] of her decision, the Commissioner concluded -

I am satisfied that the purpose for which the applicant was engaged was to manage the employer’s sales functions at a national level. Those functions involved, in part, activities designed to promote the respondent’s products. The applicant was however not employed away or substantially away from the employer’s place of business.”

[19] The same or a substantially similar approach was followed by the Full Bench (majority) of that Commission in the case of Layton v North Goonyella Coal Mines Pty Ltd6. That case involved consideration of employment as a “Clerk” for the purposes of an industrial instrument. In the course of that decision the majority stated as follows:

“[25] Full Bench decisions have held that the proper approach to determining whether an employee is covered by an award requires an assessment of the principal purpose for which the employee was employed. This test has also been referred to as the primary function test. Indeed, Justice Gray of the Federal Court applied such a test in relation to the interpretation of the term “clerk” in Joyce v Christoffersen 26 FCR 261. In that case, His Honour said at [270-1]:

“The Oxford English Dictionary, 2nd ed, 1989, defines ‘clerical’ relevantly as ‘of or pertaining to a clerk or penman’. The appropriate definition of ‘clerk’ is ‘one employed in a public or private office, shop, warehouse, etc., to make written entries, keep accounts, make fair copies of documents, do the mechanical work of correspondence and similar ‘clerkly’ work. Among the definitions of ‘clerk’ is ‘of or belonging to an office clerk’.

There are many authorities dealing with rule 2 of the Union’s rules. In a now famous passage, in Re Federated Clerks’ Union of Australia, New South Wales Branch, and Australian Workers’ Union (1971) 71 AR (NSW) 419, at p 421, Sheldon J. said, in reference to the phrase ‘clerical capacity’:

‘This phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and the mind are now part of clerical stock- in-trade. So is the acceptance of responsibility and the exercise of discretion. The conception is fluid and progressive and recourse to a dictionary gives only partial help. It is impossible, and in any event it would be undesirable, to attempt to devise a code as to what in the setting of industry today can fairly be regarded as clerical work. But too fine a toothcomb should not be used in solving this question in particular cases. Obviously all employees in an office are not engaged in a clerical capacity. It is clear that professional employees are not nor are those who are truly and basically executive officers. But an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non-recording functions. No doubt there are cases near the border which would be difficult to determine but in general, and subject to some special categories, those who are in a subordinate position but are engaged in the ordinary work of office administration are, in my opinion, prima facie covered by this constitution rule.... But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system. That is why I deprecate dividing office functions too strictly by attempting to quantify the recording done by different members of the team and using this as the test’.

That passage has been quoted with approval in this Court in Voigtsberger v. Council of the Shire of Pine Rivers (1980) 49 FLR 391, at pp 398-399, Re Application by Prichard; Re Federated Clerks’ Union of Australia (S.A. Branch) (1985) 12 FCR 66, at pp 77-78 and Re Federated Clerks Union of Australia; Ex parte Tanner (1986) 70 ALR 79, at p 84. As Sheldon J. indicated, and was recognised in Prichard’s case, a person may be engaged in a clerical capacity or performing clerical work, whilst having other functions as well. In Prichard’s case, at p 78, the test applied was whether the primary functions of the person concerned were directed to the recording, processing and disseminating of information. In the case of a person exercising clerical and non-clerical functions, the question will always arise as to which of them are the primary functions.”

[26] It is clear from both passages and the definition of “clerk” in the Queensland Clerical NAPSA, that the task of interpretation is not a quantitative one based upon time spent performing certain types of duties. Rather, the task involves a qualitative assessment of the primary purpose of the position. Professional and managerial employees are clearly not clerks. Where the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, the role will not be regarded as clerical - notwithstanding that the role involves various recording and ordinary administrative office functions.”

Consideration

[20] It is to be noted that the coverage of the Award and the Definitions and Interpretation provisions of the Award contemplate two distinctive streams of coverage of the Award and Clauses 3.2, 3.3, 4.1 and 4.2 establish different structures of Coverage and definitions of what Clause 3 definitively distinguishes as an “Engineering Stream” and an “Information Technology and Telecommunications services” stream.

[21] It is of some importance to this matter that Mr Bateman’s representative advised that Mr Bateman’s employment wholly related to information technology projects.

[22] This would seem to suggest that the Award provisions to be applied to Mr Bateman’s employment are those relevantly provided for by Clause 4.2 and Clause 3.3 of the Award. It is therefore necessary for the Commission to consider whether CDM is engaged in the information technology industry. CDM’s website and what is before me is sufficient to satisfy me that CDM is principally engaged in the provision of computer consulting services and therefore falls within the definition of the information technology industry in Clauses 3.3 sub paragraph (e). There is no dispute that Mr Bateman’s work was in what was described at the hearing as ‘IT’, which I find is an acronym for what the Award describes as the information technology industry.

[23] This brings into consideration a difficulty of interpretation. It will be observed that the nature of the Award’s coverage is expressed along general occupational lines in Clause 4.1 and along the axis of the industry of employers in the information technology industry, by Clause 4.2 of the Award.

[24] The reference to Schedule B in Clause 4.2 of the Award would seem therefore to define the Coverage of the award as applicable to Mr Bateman if the principal purpose of his employment by CDM involved the performance of professional duties. In my view, on the evidence before me, the relevant professional duties would be “professional information technology duties” as defined by Clause 3.3.

professional information technology duties means duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to:

(a) hold a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and Experienced information technology employee as defined.

[25] In the case of Sanjay Halasagi v George Weston Foods (Halasagi) 2 Vice President Lawler considered the Coverage provisions of the Award. The Vice President noted the difficulty of interpretation posed by the terms of Clause 4 of the Award and its interaction with associated provisions.

[26] In that case Mr Halasagi was qualified as a Professional Engineer in Manufacturing Engineering. However, Mr Halasagi was engaged to perform computer programming in ABAP programming language. Mr Halasagi had undertaken some study of computing.

[27] There is some similarity in this case. No doubt Mr Bateman has the qualifications of a Professional engineer for the purposes of the definitive terms of the Award. However, it would seem from the details of the job offer that Mr Bateman was not engaged to perform professional duties of the kind which required the qualifications of a Professional engineer.

[28] Rather, it would seem the principal purpose of Mr Bateman’s employment was to manage the delivery of information technology projects at a Senior Level in the information technology industry.

[29] In the case of Halasagi, the VP found as follows:

[29] I am not satisfied that the applicant’s programming duties were such that it is almost invariably the case that his qualification as a Bachelor of Manufacturing Engineering is needed for the adequate discharge of such duties. It is not to the point that several of the units in that course related to the use of computer systems. The applicant was not engaged in the field of manufacturing engineering but rather, in relation to the duties in question, in the field of computer programming and operating computerised business information systems. It seems clear that the relatively short courses in ABAP programming undertaken by the applicant would not be sufficient to qualify the applicant for graduate membership of Engineers Australia as what that organisation recognised as a software engineer.

[30] Clearly, Mr Bateman’s professional qualifications are not in the field of information technology. Rather, as the evidence indicates those qualifications are more appropriately described as within what the Award defines as the Engineering Stream rather than the Information Technology stream.

[31] While Mr Bateman gave evidence that in performing his role as a Senior Project Manager he drew upon his knowledge as an engineer, it does not follow that the principal purpose of the role he performed was defined by his qualifications or his knowledge of engineering duties.

[32] In my view, the primary purpose of an employee’s engagement and employment will not always be defined by the qualifications and experience they possess. An employee’s qualifications and experience in the field of professional expertise for which such qualifications are required my prove useful in the performance of a different role.

[33] It is a notorious fact that a number of Chief Executive Officers of major Australian corporations are, or have been, professional engineers. No doubt in the course of their tenure, depending on the nature of the corporation, engineering qualifications and experience have been useful for the performance of the role of such an executive. However, it is clear I think that the principal or primary purpose of the role for which such persons have been engaged as a Chief Executive Officer is not that of a Professional engineer, as prescribed by the Coverage provisions and Classification descriptors of the Award.

[34] Mr Bateman no doubt used skills and expertise acquired through qualifications and experience as a professional engineer in the course of his employment as a Senior Project Manager for CDM. The fact that Mr Bateman held the qualifications of an Experienced engineer, as defined for the purposes of the Award, does not necessarily mean that the principal and primary purpose of Mr Bateman’s employment was that of a Professional engineer.

[35] Some questions arise from these considerations. The first is: as CDM is principally engaged in the information technology industry, in what way does that affect the application or otherwise of the Award to the work performed by Mr Bateman?

[36] In this respect there is a puzzling aspect of the provisions of Clause 3 Definitions and Interpretation of the Award and its articulation with the Coverage provisions of Claus 4 and the Classification descriptors contained in Schedule B - Classification Structure and Definitions.

[37] Clause 3.2 is titled Engineering stream. Clause 3.3 is titled Information Technology and Telecommunications services stream. Clause 3.3 defines what information technology industry means for the purposes of the Award. In addition, Clause 3.3 defines four kinds of information technology employee. The defined terms describing such employees are in similar terms to what might usually be encountered in the classification descriptors of an Award. However, the definitional terms of Clause 3.3 do not appear in Schedule B. In fact a close reading of Schedule B, which is of critical importance to the proper construction of the scope of the Coverage term of the Award, reveals that the defined terms of both Clause 3.2 and 3.3 of the Award have been conflated, with some complexity.

[38] This observation can be illustrated by reference to various features of Schedule B - Classification Structure and Definitions of the Award. It should first be noted that Schedule B commences with the following “For employment involving the performance of professional duties, the following classification definitions apply”. The Schedule defines employment involving the performance of professional duties within a number of classification descriptors, which commence as follows:

B.1 Professional responsibility levels

[39] Thereafter appears B1.1.1 which contains subparagraphs (a) to (g). The following terms appear serially in subparagraph (b) (c) and (f) thereof: “Professional Engineers, Professional Scientists or Professional information technology employees.” It may be observed that this expression distinguishes three categories of employee. The relevant terms are set out below:

B.1.1 Level 1—Graduate professional engineer, Professional scientist and Information technology employee

(a) An employee at this level undertakes initial professional tasks of limited scope and complexity, such as minor phases of broader assignments, in office, plant, field or laboratory work.
(b) Under supervision from higher level Professional engineers, Professional scientists or Professional information technology employees as to method of approach and requirements, the employee performs normal professional work and exercises individual judgment and initiative in the application of principles, techniques and methods.
(c) In assisting more senior Professional engineers, Professional scientists or Professional information technology employees by carrying out tasks requiring accuracy and adherence to prescribed methods of professional engineering or professional scientific/information technology analysis, design or computation, the employee draws upon advanced techniques and methods learned during and after the undergraduate course.
(d) Training, development and experience using a variety of standard procedures, enable the employee to develop increasing professional judgment and apply it progressively to more difficult tasks at Level 2.
(e) Decisions are related to tasks performed, relying upon precedent or defined procedures for guidance. Recommendations are related to solution of problems in connection to the tasks performed.
(f) Work is reviewed by higher level Professional engineers, Professional scientists or Professional information technology employees for validity, adequacy, methods and procedures. With professional development and experience, work receives less review, and the employee progressively exercises more individual judgment until the level of competence at Level 2 is achieved.
(g) The employee may assign and check work of technical staff assigned to work on a common project.

[40] Following B.1.1 of Schedule B is a series of provisions governing the appointment and progression of employees, which continue to B.1.7 which defines an Experienced Professional, B.1.8 which refers to a Quality auditor and B.1.9 which defines a Level 3 Professional. Then follows a classification of Senior (lead) auditor and a Level 4 Professional at B.1.10 And B.1.11 respectively.

[41] I have given consideration to the classification descriptors in B.1.7 to B.1.11 inclusive. I am unable to be satisfied that the classification descriptors match the job descriptors or job responsibilities in the offer of employment tendered or that, on the evidence, the principal or primary purpose of Mr Bateman’s employment fell within those descriptors. In this respect it is to be noted that some of the descriptive language used in these parts of Schedule B is very general in nature and could, read in isolation, be applied in many, if not all, industries. Examples would be sub paragraphs (a) to (e) of B.1.9 Level 3 Professional.

[42] It was submitted that Mr Bateman’s role was within the definition of a Level B.1.11, Level 4 Professional of Schedule B. The provisions thereof are set out below:

Level 4—Professional
(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.

[43] There is no clear correlation between the responsibilities expressed in the job offer to Mr Bateman or the CDM job description of the Senior Project Manager position he occupied and these descriptions. Given that some of the text of B.1.11 is of general expression, it might be considered that there is some possible discursive affinity with some aspects of Mr Bateman’s role as a Senior Project Manager, I should observe that essential characteristics of the Level 4 classification occur between B.1.11(b)(i) - (v).

[44] On what is before me, I see no affinity between the role of the Senior Project Manager and a Level 4 Professional as described in B.1.11. For example, I see no evidence of the following as comprising a substantive component of the Senior Project Manager role, “a considerable degree of originality in the field of information technology”, “technical reference authority”, “long range planning”, “technical advice”, “detailed technical responsibility for product development or information technology systems”.

Conclusion

[45] On what is before me, I have determined that while Mr Bateman is a person who could be described as potentially within the Engineering stream of the Award’s Coverage provisions his employment with CDM would have had to fall within one or other of two kinds in order for the Award to apply to the employment.

[46] The first would be as an information technology employee who performed a role the principal purpose of which fell within the relevant classification descriptors of Schedule B of the Award.

[47] On my consideration of the evidence, Mr Bateman was not an employee who fell within the definition of an information technology employee in Clause 3.3 of the Award. This is because it was not submitted that Mr Bateman’s qualifications are of the kind contemplated within the information technology stream of the Award definitions and because, even if Mr Bateman’s qualifications were of this kind, the job description, job offer and principal purpose of his employment was not for professional employment as an information technology employee, as classified by Schedule B of the Award.

[48] The second circumstance would be if Mr Bateman was employed as a Professional Engineer by an employer principally engaged in the information technology industry. On my consideration of the material before me, the principal purpose of Mr Bateman’s engagement and employment by CDM was not as a Professional Engineer, as defined within the Engineering stream prescribed by Clause 3.2 of the Award and as classified by Schedule B of the Award.

[49] I conclude that the principal purpose of Mr Bateman’s employment was as a Senior Manager in the information technology industry. Mr Bateman was engaged and employed to manage information technology projects for CDM. The principal purpose of the employment is captured by the offer of employment and job description. None of the foundational elements or purpose of the role for which Mr Bateman was employed and which be performed is defined by the Award in either Clause 3 or 4. Nor did the role performed by Mr Bateman fall within the classification descriptions of Schedule B of the Award. The Senior Manager role performed by Mr Bateman was incidentally informed by his qualifications and experience as a Professional Engineer. However, the principal purpose of the employment and the role performed by Mr Bateman was not that of a Professional engineer or a Professional information technology employee.

[50] Thus, the employment of Mr Bateman by CDM as a Senior Project Manager in the information technology industry was not covered by the Professional Employees Award 2010.

[51] For all those reasons, the application in this matter must be dismissed. An Order will issue accordingly.

COMMISSIONER

 1 (2002) 122 IR 387

 2   [2010] FWA 6503. As a matter of interest, in course of that decision the Vice President recommended a review of the definitive provisions of the Award as part of the Commission’s 2012 review of Modern Awards’ in light of the complexity (and arguably opacity) of those provisions when applied in certain circumstances beyond straight forward professional employment. [para 20].

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