Ricky Muchemwa Bwalya v Newcrest Mining Limited
[2022] FWCFB 41
•24 MARCH 2022
| [2022] FWCFB 41 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Ricky Muchemwa Bwalya
v
Newcrest Mining Limited
(C2021/8813)
| VICE PRESIDENT CATANZARITI | SYDNEY, 24 MARCH 2022 |
Appeal against decision [2021] FWC 6505 of Commissioner Williams at Perth on 7 December 2021 in matter number U2021/843 – permission to appeal refused.
Background
Ricky Muchemwa Bwalya (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Williams (Commissioner) issued on 7 December 2021. Permission to appeal is required. The Decision concerned an application, brought by the Appellant, for the Commission to deal with an application for an unfair dismissal remedy against Newcrest Mining Limited (the Respondent), pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Appellant’s employment with the Respondent commenced pursuant to a written offer dated 14 February 2019. The Respondent dismissed the Appellant from his employment on 15 January 2021.
Before the Commissioner, the Respondent took objection to the jurisdiction of the Appellant’s claim on the basis that the Appellant was not “protected from unfair dismissal” because his income exceeded the ‘high income threshold’ and he was not (relevantly) otherwise covered by a modern award: s.382(b) of the Act.
It was not in dispute that the Appellant’s income exceeded the high income threshold. At the time of his dismissal, the Appellant’s income, excluding superannuation, totalled $171,731, comprised of a base of $156,119 plus a site allowance of $15,612.
What was in dispute, and underlies the application to appeal, was whether the Appellant was covered by the Professional Employees Award 2020 (Award), being a modern award for the purposes of s.382(b). The Commissioner found that the Appellant was not covered by the Award and, accordingly, dismissed the application, as it followed that the Appellant was not protected from unfair dismissal. The Appellant seeks to appeal that decision.
The Notice of Appeal listed four items of appeal (many with subcategories), under three broad headings. While they will be set out more fully below, in summary they are:
·(Ground 1) the first ground under the heading ‘Prejudiced by Late Raising of Jurisdictional Objection’.
·(Grounds 2 and 3) the second and third grounds are grouped under the heading ‘Significant Errors of Fact’.
·(Ground 4) the fourth and final ground is under the heading ‘Erred in Law’. This ground states that the Commissioner erred in law when applying the ‘principal purpose test’ required in Zheng v Poten & Partners (Australia) Pty Ltd[2021] FWCFB 3478 (Zheng) by failing to examine:
a. the circumstances in which the Appellant was employed to do the work for the purpose of ascertaining the principal purpose for which he was employed; and
b. the nature of the Appellant’s work in question.
Directions were set for the filing of material by the Appellant as to whether permission should be granted and to the merits of the appeal. The parties filed comprehensive written submissions, which had been prepared with the assistance of the parties’ respective solicitors - Spyker Legal for the Appellant and Allens for the Respondent. As part of the Appellant’s written submissions, the Appellant also sought leave to file further evidence. That further evidence included some documentary material as well as a document titled ‘Timeline and Particulars of Engineering Duties’. Leave to adduce the further evidence was refused and brief reasons are set out for that decision below.
While the matter was listed for hearing on 8 February 2022, the parties consented to the matter being determined on the papers.
Principles of appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.
As an application for unfair dismissal is brought under Part 3-2 of the Act, this appeal is also one to which s.400 of the Act applies. Under s.400, the Commission “must not” grant permission to appeal from a decision in relation to unfair dismissal unless it considers it is in the public interest to do so. The test under s.400 is “a stringent one.”[3]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[7]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[8] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[9] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Ground 1 of the appeal relates to decisions regarding the late raising of the Respondent’s jurisdictional objection and prejudice said to flow to the Appellant as a result. The decision under appeal in Ground 1 is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.[10]
By s.589 of the Act, the Commission is empowered to make decisions as to how, when and where a matter is to be dealt with. That includes decisions regarding decisions of the kind complained about concerning the Respondent’s jurisdictional objection.
Section 589 (‘Procedural and interim decisions’) appears in Part 5-1 of the Act. Where the substantive matter concerns an unfair dismissal application under Part 3-2 of the Act, the Federal Court has held that decisions under s.587 (‘Dismissing applications’) in Part 5-1 attract, on an appeal, the higher threshold of s.400, as they were decisions “‘under this Part’ within subsection 400(1) and a decision ‘in relation to a matter arising under this Part’ within subsection 400(2) despite the fact that s.587 is in Part 5-1 of the Act.”[11] Subsequently, the Full Bench of the Commission in Ross Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 applied the test in s.400 to decisions under s.590 (‘Powers of the Commission to inform itself’) in relation to unfair dismissal matters. Recently, the Full Bench in Capital Maintenance Solutions v David Fraser[2022] FWCFB 8 applied the test in s.400 to appeals involving unfair dismissal applications for interlocutory decisions made under s.589.
Consistent with the above decisions, we consider that appeals of procedural decisions of the kind described in Ground 1 of the appeal attract s.400 of the Act.
Where an appeal asserts an error of fact, in the joint reasons in Fox v Percy,[12] in a passage which has been applied since,[13] Gleeson CJ, Gummow and Kirby JJ said:
‘[An appellate court] must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceedings wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court reading the transcript, cannot always fully share.’ (citations omitted.)
More recently, in Short v Ambulance Victoria,[14] the Full Court of the Federal Court summarised the principles to be applied by an appellate court or tribunal when considering challenges on appeal to findings of fact made at trial in circumstances where those findings rested on assessments of credibility:
It was central to Mr Short’s case that the real reasons for the refusal to appoint him to higher duties were not as Mr Standfield and Ms Ray testified, and he attacked the credibility of their account. The authorities set a high bar for an appellant seeking to overturn credit findings. In Devries v Australian National Railways Commission the majority per Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
In Fox v Percy at [26] - [31] Gleeson CJ, Gummow and Kirby JJ reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences.’ (citations omitted.)
These principles have been consistently applied by Full Benches of the Commission for many years.[15] By s.400(2), an appeal involving a question of fact can also only be made on the ground that the decision involved a “significant” error of fact.
The Award and Zheng
The relevant provisions of the Award were set out extensively in the Decision. The Decision records that Appellant contended he was a ‘Level 2 - Experienced Engineer’ at classification Level 2.[16] The Notice of Appeal does not contend differently. Extracts of the Award limited to that classification are below.
2.2 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 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
(c) not having so graduated, 5 years of such experience.
Graduate engineer …
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 clause 2.2.
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) of a graduate member of Engineers Australia.
4. Coverage
4.1 This industry and occupational award covers employers throughout Australia as follows:
(a) Employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule A—Classification Structure and Definitions of the award and those employees.
(b) …
Schedule A—Classification Structure and Definitions
For employment involving the performance of professional duties except professional medical research duties, the following classification definitions apply:
A.1 Professional responsibility levels
…
A.1.7 Level 2—Experienced engineer, Experienced information technology employee and Experienced scientist
Following development, the Experienced engineer, Experienced information technology employee and Experienced scientist plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.
Zheng was a decision of the Full Bench of the Commission that specifically considered an unfair dismissal claim where Award coverage was disputed.
Zheng confirmed that coverage by the Award requires a ‘two-step’[17] process:
(a) First, the employee must be within the ‘coverage clause’, being in this case clause 4.1(a) set out above; and
(b) Second, the employee must be covered by one of the classifications in Schedule A, being in this case the Level 2 classification at A.1.9 set out above.
The first step requires that an employee be performing ‘professional engineering duties’, as defined. The test for whether an employee was performing ‘professional engineering duties’ was set out in Halasagi v George Weston Foods Limited[18] (Halasagi) for the predecessor of the Award. Halasagi was confirmed by Zheng[19] in relation to the Award. That step is:
“[23] ….
·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.”
The second step involves the application of what is sometimes referred to as the “principal purpose” test. That step was summarised in Zheng as follows:
[47] It remains necessary to consider what the application of the “principal purpose” test requires. As was stated in Carpenter, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor. Thus, in Brand, the approach taken by the member at first instance and endorsed by the Full Bench on appeal was to identify the principal purpose of the relevant employee’s employment as being that of “the development of the business of the company including business planning marketing and sales planning manager”, and then to determine that this did not fit within the Level 4 classification descriptor.
It can be seen from the above that the principal purpose test itself involves two elements. The first – “a question of fact” – is an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the “principal purpose” for which the employee is employed.
Once that factual finding is made, the principal purpose for which the employee is employed is compared to the relevant classification descriptors to determine which (if any) classifications apply.
In Zheng, we note that there was a finding at first instance that the employee did perform “professional engineering duties”, which was not challenged on appeal.[20] That was not the position in the present case.
We also note in Zheng that the Full Bench ultimately went on to determine the “principal purpose” test in that matter. The applicant in that case contended she was covered by the Level 3 – Professional classification in the Award as a chemical engineer. The respondent in that case contended she fitted no classification. In a subsequent decision (Zheng No 2), it was held that the applicant was covered by the Award at the Level 2 classification descriptor.[21]
The decision on appeal
It is not practicable, nor necessary, to set out extensive extracts of the findings from the Decision. The following summary is far from complete but it provides a flavour of the breadth and nuance of some of the factual matters in dispute.
The Appellant held a Bachelor of Engineering (Electrical Power Engineering) and Masters of Applied Project Management.
From December 2011, he worked as a student engineer and then steadily progressed his career in engineering or project management jobs before accepting employment with the Respondent.
The letter of offer from the Respondent dated 14 February 2019 referred in the opening paragraph to the position being that of “Senior Engineer – Projects”. The role description included a role title of “Senior Project Engineer (Electrical/Instrumentation)”.
The role description also referred to a Bachelor Degree in Electrical/Instrumentation Engineering being “essential”.
In his emails, the Appellant signed off as “Senior Project Engineer”.
In addition, each of the parties led evidence broadly directed to the Appellant’s work and responsibilities as each party contended was undertaken by the Appellant. The Appellant gave evidence on his own behalf and was subject to cross-examination as were a number of witnesses called by the Respondent. An extensive summary of that evidence is set out by the Commissioner is at [17] – [81] of the Decision.
There are aspects of the above-referred evidence that was more significant to the Commissioner’s ultimate conclusions. In particular:
The Respondent led evidence from the Appellant’s supervisor (Ms Beck) to the effect that the Appellant’s job description required an engineering degree so the Appellant would have an understanding of concepts to carry out his duties as a project manager, not as an engineer. She also said the Appellant was not allowed to sign off technical engineering work and those tasks were contracted out. She said the Appellant’s role was to manage contractors.
Ms Beck did not hold an engineering degree. Ms Beck also gave evidence of another member of the Appellant’s team (Mr Rogan), who was also employed as a “Senior Project Engineer”. She said Mr Rogan did not have an engineering degree (not disputed) but performed “exactly the same” job as the Appellant (a matter disputed by the Appellant).
There was evidence, much disputed, about the Appellant’s role in projects (and whether any aspects of those projects involved the Appellant performing engineering work of a necessary kind). One project that featured prominently in the Appellant’s evidence was referred to as the “SPS” project, which related to replacing a switchboard and installing new cabling at the 3.3kV Secondary Power Station. While the design component of that project was awarded to a contractor – AECOM – the Appellant’s position was that he needed to be a professional electrical engineer in order to be assigned to the project. The Appellant contended he frequently wore ‘two hats’: one as a project manager and the other as an electrical engineer.
The Commissioner also set out in some detail the respective submissions of the parties, which included written submissions directed at the tests in Zheng.
The Commissioner then proceeded to state various findings he made on the evidence and how those findings applied to the tests in Zheng. Specifically:
[155] The Applicant’s evidence did not include clear examples of him undertaking professional engineering duties. The limited examples he gave in support of his generalised assertions to this effect were contested by the Respondent’s witnesses. Where the Applicant’s evidence about his duties conflicts with the evidence of Ms Beck and Mr Hollier I prefer the evidence of Ms Beck and Mr Hollier.
[156] The evidence as a whole confirms the Respondent’s position that for Capital Sustaining Projects engineering design was undertaken by the contractors and engineering queries of a technical kind were dealt with by the engineers within the Respondent’s engineering department but were sometimes referred through the Applicant or in some instances raised by the Applicant. The Applicant may have marked up engineering drawings that had been completed by others, for the information of other stakeholders.
[157] Considering all the evidence, I do not accept the Applicant was required to nor did he do engineering design, nor did he make engineering drawings, nor did he answer engineering technical queries. Consequently, I find that the Applicant’s engineering qualification was not necessary in the performance of any of his duties. The Applicant did not perform professional engineering duties.
[158] Consistent with this the evidence is that two other employees who do not have
engineering qualifications are employed in roles by the Respondent that also have the word “Engineer” in their titles.
[159] Specifically, the evidence is that there is another project manager at Telfer, Mr Rogan, who does the same job as the Applicant whose role is also titled “Senior Engineer - Projects” who does not have an engineering qualification.
[160] The evidence clearly demonstrates that the principal purpose for which the Applicant was employed was to manage projects.
[161] Turning then to the tests for the Award coverage.
[162] Regarding the engineering duties test the Applicant’s engineering qualification was not necessary in the performance of at least some of his work.
[163] Separately, regarding the principal purpose test, the evidence is that the principal
purpose for which the Applicant was employed was to manage projects. The principal purpose of his role was not as an experienced engineer, not as a graduate engineer, and not as a professional engineer, nor was the principal purpose that of any other classification in the Award.
[164] Consequently, the Applicant’s employment was not covered by the Award. Therefore, the Applicant was not by virtue of section 382 of the Act protected from unfair dismissal and so was not able to make this application.
Grounds of appeal - Ground 1
Ground 1 of the appeal raises different considerations and can be disposed of quickly. Ground 1 states:
Prejudiced by late raising of jurisdictional objection
1. The Commissioner has erred in his conclusion that no prejudice arose in the late raising of the jurisdictional objection by the Respondent:a. In compliance with the Directions dated 17 March 2021, I filed my written statement of evidence (116 paragraphs) together with 16 annexures (251 pages) and my outline of submissions (merits) on 14 April 2021.
b. On 12 May 2021, the Respondent filed the outline of submissions (jurisdictional objection) and 6 written statements of evidence together with 69 annexures:i. Statement of T Beck (110 paragraphs) with 34 annexures (377 pages);
ii. Statement of A Hollier (72 paragraphs) with 9 annexures (210 pages);
iii. Statement of S Tomlin (46 paragraphs) with 12 annexures (79 pages);
iv. Statement of P Murrin (60 paragraphs) with 14 annexures (39 pages);
v. Statement of M Whiteaker (19 paragraphs); and
vi. Statement of P Abraham (12 paragraphs).
c. The Respondent in its Form F3 dated 11 February 2021 had stated that I was covered by the Professional Employees Award 2020
d. Due to the voluminous documents which I had to read and reply, I was not able to adequately reply to each of the Respondent’s evidence by 2 June 2021.
e. The Respondent did not lodge a Form F4.
f. I was taken by surprise by the jurisdictional objection.
g. I was prejudiced by the late raising of jurisdictional objection.
While expressed imprecisely, we understand Ground 1 to be that the Commissioner erred by permitting the hearing of the jurisdictional objection to proceed in the timeframe stated above, as opposed to amending the directions and allowing the Appellant additional time to respond to the jurisdictional objection.. For error to arise, such procedural decisions need to satisfy the requirements of House v The King.[22]
While it is plainly preferrable for parties to raise jurisdictional objections at the earliest opportunity, this does not always occur. But having been raised, it was necessary for the Commissioner to determine it. There is no suggestion that the Respondent ‘sat on’ the objection and deployed it tactically. Once the jurisdictional issue was raised, the Appellant had approximately three weeks to prepare evidence in response and there was a further three weeks to the hearing itself. The Appellant was then also allowed over a month to prepare closing submissions. The Decision records at [5] – [6] that the Commissioner turned his mind to possible prejudice to the Appellant and he was satisfied no prejudice arose.
Ground 1 discloses no error.
Grounds of appeal – Grounds 2 - 4
Grounds 2 – 4 of the appeal in full are:
Significant Errors of Fact
2. The Commissioner has erred in his consideration that I was not covered by the Award, that:(i) my evidence did not include clear examples of my undertaking of professional engineering duties;
(ii) the evidence of Ms Beck and Mr Hollier is preferred over my evidence;
(iii) my evidence that I did engineering design, engineering drawings and answering technical queries are not accepted;
(iv) the evidence demonstrated that the principal purpose for which I was employed was to manage projects and not doing engineering duties; and
(v) my engineering qualification was not necessary in the performance of my work.
3. I have provided evidence of my engineering duties including answering technical queries in the work emails.
Erred in Law
4. The Commissioner has erred in law when applying the principal purpose test required in Zheng by failing to examine:a. the circumstances in which I was employed to do the work for the purpose of ascertaining the principal purpose for which I was employed; and
b. the nature of my work in question.
The Appellant’s written submissions for the appeal do not align directly with the grounds of appeal set out above. Nonetheless, the following written submissions of the Appellant that begin under the heading “Was the Appellant employed as Project Manager or Engineer?” make it sufficiently clear as to the Appellant’s position:
12. The Commissioner erred in his decision that the principal purpose of the Appellant’s role did not fall within one of the classification levels in the Award and that the evidence demonstrates that the principal purpose of the Appellant’s role was a project manager and not an “Experience engineer”.
13. The question of whether the principal purpose of the Appellant’s role was a project manager or an “Experience engineer” can be answered by referring to the job advertisement, the evidence by Mr Cotterell (Manager – Business Support), the Role Description, the Appellant’s email and the Appellant’s responsibilities.
The Appellant’s written submissions provided various evidentiary references aimed at supporting the above matters. In the case of the Appellant’s responsibilities, for example, further detail was provided in relation to aspects of the “SPS” project referred to above, including a “potholing” part of that project and the Appellant’s role in answering “technical queries” from the design contractor AECOM. As to these latter matters, the submissions unfortunately were more directed at answering the Respondent’s contentions at first instance rather than the factual findings made by the Commissioner. By way of illustration, the Appellant states in his appeal submissions:
The Respondent in its submissions stated that the Appellant had overstated his duties when he conceded that he did not address “all” electrical technical queries from AECOM – rather he addressed the ‘majority’ of them.
The conclusion in the Appellant’s submissions states (footnotes omitted):
40. In conclusion, the Commissioner has erred in law when applying the principal purpose test required in Zheng. The correct approach is that the definition of “professional engineering duties” can be satisfied by reference to “any portion” of the Appellant’s duties and does not require that the duties falling within the “principal purpose” for which the Appellant was employed. The considerations to be taken into account are:
a. the employment agreement;
b. job description;
c. job advertisement;
d. and the Appellant’s actual duties performed.
Consideration - Grounds 2 - 4
Grounds 2 & 3
As the authorities make clear, for a dispute concerning coverage under the Award, a ‘two-step’ process is required. The first step requires an assessment of whether the employee was performing “professional engineering duties”. The second step is sometimes referred to as the “principal purpose” test. The latter in turn has two elements: the first, being a “question of fact” to ascertain the principal purpose for which the employee is employed having regard to the nature and circumstances of work performed; the second, a comparison of that principal purpose to any asserted classification in the Award to determine if it falls within it.
We recap this, because the Appellant’s submissions appear to refer to the “principal purpose” in two senses. First, in an essentially correct sense as just described, namely a as reference to ‘step 2’ described in Zheng. But, as the Appellant’s concluding paragraph (above) in his written submissions indicates, it also appears to have been used by way of an imprecise shorthand to encompass the entire two-step process.
So understood, we note that that Ground 4 is clearly directed at the “principal purpose” test in the (correct) sense described in Zheng. We have proceeded on the basis that Grounds 2 and 3 are also necessarily directed at, at least in part, the first step concerning whether the Appellant was performing “professional engineering duties” or not. We say ‘necessarily’, because if the Appellant’s appeal does not challenge the Commissioner’s finding on the first step, the appeal fails at that point. Given the Commissioner’s findings, the Appellant must demonstrate error in both steps.
Turning now to Ground 2, it asserts that the listed facts were “errors of fact” (as the heading indicates). The Appellant’s written submissions, and by implication Ground 3, appear to set out the correct facts that ought to have been found.
The Appellant is correct to identify the matters listed in Ground 2 as primarily matters of fact (although perhaps Ground 2(i) is more by nature of conclusion, albeit one underpinned by a factual rejection of the “clear examples” the Appellant contends exist).
We note that the factual matters listed in subparagraphs (i)–(v) of Ground 2 (as amplified by the Appellant’s written submissions) were facts considered by the Commissioner. The complaint in the appeal is that the Commissioner erred in his findings. We disagree.
Taking the alleged error in Ground 2(v), we have already set out above the Commissioner’s finding at [157] above, which is central to that ground. The Commissioner’s finding at [157] was that the Appellant’s engineering qualification was not necessary in the performance of any of his duties and that the Appellant did not perform professional engineering duties. This was a significant factual finding going to the heart of the dispute.
Far from those findings being “glaringly improbable” or contrary to compelling inferences (cf Fox v Percy), those findings were plainly open to the Commissioner. We observe that those findings, at least in part, rested upon the Commissioner’s assessment of competing witness evidence from the Appellant and Mr Hollier (among others). Again, the Commissioner was entitled to do so and no error is disclosed. In preferring the Respondent’s witnesses, there is no suggestion that the Commissioner “misused his advantage” as the primary finder of fact, let alone “palpably” did so.
In our view, Grounds 2 and 3 disclose no error no matter how described.
Ground 4
There being no error in Grounds 2 and 3, then at this point the Appellant’s appeal must necessarily fail on the coverage issue, because he is unable to show error that the Commissioner erred in ‘step 1’ of Zheng, which is that the Appellant satisfied the definition of performing “professional engineering duties”.
While it is therefore not strictly necessary to address Ground 4 (which is directed more squarely at the ‘step 2’ of Zheng), we do so briefly given the detailed submissions prepared by the parties.
The critical finding of the Commissioner is at [160], set out above, which is that the principal purpose for which the Appellant was employed was to “manage projects”. As Zheng makes clear, that finding was a “question of fact”.
The Respondent’s written submissions set out a number of factual matters that, taken together, are advanced to support the contention that the Appellant was an “Experience engineer” (sic) and not a “project manager”. Those underlying facts are said to include the Appellant’s job advertisement, the evidence of Mr Cotterell, the role description, the Appellant’s email and his responsibilities. As the Decision makes clear, the Commissioner had regard to these matters and, in assessing the totality of them, he made the factual finding that the primary purpose the Appellant’s role was that of “project management”.
In our view, such a finding was plainly open having regard to the Commissioner’s anterior finding that the Appellant’s engineering qualification was not necessary in the performance of “any” of his duties and that the Appellant did not perform professional engineering duties. Likewise, his factual finding that other persons performed the same work as the Appellant (we note the Appellant disputed this) but held no engineering qualifications provides further support. These are but two examples.
There is no error in the factual finding that the principal purpose of the Appellant’s employment was to “manage projects”.
Having determined that question of fact, the Commissioner continued to apply Zheng by comparing the actual purpose of the Appellant’s role with the relevant classifications in the Award. The Commissioner concluded no classification applied. We also note that Ground 4 does not in terms specifically allege error in this part of the Decision.
For completeness, the ‘error’ described in paragraph [40] of the Appellant’s written submissions involves a different formulation of alleged error. It imputes that the Commissioner determined ‘step 1’ of Zheng by reference to the “principal purpose” test. We disagree. The Commissioner was alert to apply Zheng at each step in order and, respectfully, he did so correctly.
Further Evidence
The Appellant sought to adduce a small number of further documents as part of his appeal, described in his submissions as Annexures A - F. Leave to adduce the evidence was refused. Save for Annexure E, all were capable of being adduced at first instance and, on brief inspection of them, they do not disclose any sufficient probative relevance. Annexure E is a 7-page document described in the Appellant’s submissions as a “Timeline and Particulars of Engineering Duties starting from 11 March 2019 up to 24 August 2020, including him answering 9 technical queries”. It appears to have been created for the appeal. So far as the information in the timeline purports to be evidence, it is not permissible to adduce it at this stage.
We do not consider it appropriate for any of the documents to be adduced on appeal.[23]
Public Interest
Having considered the Appellant’s written and oral submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. The basis on which the Commissioner reached his Decision was through application of an orthodox approach to the determination of the Appellant’s unfair dismissal application and by applying the correct legal principles. The Commissioner considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.400 that:
- There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind. We note in particular that both parties contended that Zheng, a recently decided Full Bench decision, was the applicable authority;
- The appeal raises issues of importance and/or general application;
- The Decision at first instance manifests an injustice, or the result is counter intuitive; or
- The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant’s written submissions 18 January 2022.
Respondent’s written submissions 2 February 2022.
[1] Ricky Muchemwa Bwalya v Newcrest Mining Limited [2021] FWC 6505.
[2] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177.
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[7] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[8] Wan v AIRC (2001) 116 FCR 481 at [30].
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[10] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[11] Australian Postal Corporation v Gorman (2011) 196 FCR 126, [2011] FCA 975 at [37]), per Besanko J.
[12] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].
[13] Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347; [2012] HCA 17 at [130]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [76].
[14] Short v Ambulance Victoria [2015] FCAFC 55 at [98]-[99].
[15] For illustration, see Mr Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears[2018] FWCFB 4174 at [48] and the authorities cited therein.
[16] At [109]
[17] Zheng, [47].
[18] [2010] FWA 6503.
[19] Zheng, [36] – [37].
[20] Zheng, [17 ] –[18].
[21] Lingli Zheng v Poten & Partners (Australia) Pty Ltd[2021] FWCFB 6041 at [23] – [25].
[22] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[23] Akins v National Australia Bank (1994) 34 NSWLR 155; Appeal by Mermaid Marine Vessel Operations Pty Ltd [2014] FWCFB 1317 at [17].
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