Ricky Muchemwa Bwalya v Newcrest Mining Limited
[2021] FWC 6505
•7 DECEMBER 2021
| [2021] FWC 6505 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ricky Muchemwa Bwalya
v
Newcrest Mining Limited
(U2021/843)
COMMISSIONER WILLIAMS | PERTH, 7 DECEMBER 2021 |
Application for an unfair dismissal remedy – jurisdiction – high income threshold.
[1] This decision concerns an application made by Mr Ricky Bwalya (Mr Bwalya or the Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. The Respondent is Newcrest Mining Limited (Newcrest or the Respondent).
[2] At the hearing of this matter, evidence was given by the Applicant on his own behalf. Evidence for the Respondent was given by Ms Tracey Beck (Ms Beck), Ore Treatment Manager, Mr Aidan Hollier (Mr Hollier), Superintendent – Operational Technology, Mr Mark Whiteaker (Mr Whiteaker), Electrical Technician - Utilities, Mr Peter Abraham (Mr Abraham), Senior Engineer - Underground Projects and Infrastructure, Mr Scott Tomlin (Mr Tomlin), Electrical Supervisor - Utilities, Mr Phillip Murrin (Mr Murrin), a Safety Advisor, and Mr Michael Cotterell (Mr Cotterell), Manager - Business Support, all of whom were employed in these roles by the Respondent at the time of the Applicant’s dismissal.
[3] The Respondent in its response to the evidence and submissions filed by the Applicant raised for the first time a jurisdictional objection that the Applicant earned above the high income threshold and was not covered by an enterprise agreement or an Award and so the Fair Work Commission (the Commission) does not have jurisdiction to deal with the application because the Applicant is not a person protected from unfair dismissal as provided for in section 382 of the Act.
[4] The Applicant’s representative objected to the late raising of this jurisdictional objection.
[5] I am satisfied however that no prejudice arose in this instance because the Applicant had the opportunity to, and did, file a further witness statement and further submissions in reply to the Respondent’s materials and in doing so addressed the Respondent’s jurisdictional objection.
Factual findings
[6] The Applicant holds a Bachelor’s of Engineering (Electrical Power Engineering) and a Master’s of Applied Project Management.
[7] From December 2011 he worked as a student engineer at the BHP Kwinana nickel refinery for three months.
[8] He then obtained a graduate role in 2012 employed as a graduate electrical engineer again with BHP in the nickel business at Leinster. He worked there until May 2014.
[9] After this he was employed by BHP in the iron ore business as a project manager for 3 to 4 years.
[10] After this he worked as an electrical engineer – standards for about nine months then returned to Port Hedland again with BHP in the role of project engineer.
[11] The Applicant’s evidence was that he was offered the position of Senior Engineer – Projects by the Respondent on 14 February 2019.
[12] As at the date the Applicant’s employment was terminated (15 January 2021), his annual remuneration (excluding superannuation) comprised the following amounts: base $156,119, plus the Telfer site allowance excluding superannuation of $15,612 being a total of $171,731.
[13] Short term incentives applied, of between $25,642.50 and $51,285 including super, which were dependent on performance targets being reached.
[14] The Respondent’s letter of offer, dated 14 February 2019, refers in the opening paragraph to the position being that of “Senior Engineer – Projects”.
[15] The Respondent’s role description document states that the role title is “Senior Project Engineer (Electrical/Instrumentation)”.
[16] The purpose of the role is identified as follows:
“The core purpose of the Sustaining Capital Senior Project Engineer is to:
• Ensure that projects under your control are delivered safe, on time, under budget and compliant with the end-user’s requirements and relevant Newcrest & Australian Standards;
• Ensure that project contracts and contractors are managed properly in line with Newcrest standards;
• Clarifies and refines project objectives with active engagement and involvement with stakeholders;
• Coordinates design and engineering along with development of key project delivery documents;
• Directs and supports the Project Coordinators, and
• Optimises cost through Project Edge and Diligent Project Management.”
[17] Relevantly the qualification, skills and competencies specified in the role description are:
“QUALIFICATIONS:
• Bachelor Degree in Electrical/instrumentation Engineering - Essential
• Qualification in Project Management - desirable
EXPERIENCE, SKILLS & KNOWLEDGE:
• 3 years’ experience in mining, Power or heavy industry as an Engineer - essential;
• 3 years’ experience of managing “Brown-field” site projects - desirable;
• Experience in managing design contracts and consultants - desirable;
• Experience in managing construction contracts and contractors - desirable;
• Experience in HV & LV Electrical design and construction projects including Switchgear, MCC’s, LV field distribution and isolation - desirable;
• Experience in Plant and equipment instrumentation and control design and construction projects - desirable;
• Good working knowledge of Australian Standards relevant to the design and installation of civil, structural, mechanical and electrical infrastructure……”
[18] The Applicant says he reported to the then Projects Superintendent, Mr Shaun Knowles (Mr Knowles). Upon Mr Knowles’s resignation, on or around the end of December 2019, he reported to Ms Beck.
[19] The Applicant says that Mr Knowles informed him that his job scope includes:
• Keeping control of the project.
• Spending the project budget to achieve objectives.
• Making decisions for the project.
• Responsible to fix problems and resolve issues as and when they arise.
• Follow up on the West Dome Dewatering Project.
• Installing dust suppression water systems.
• Installing wireless monitoring systems on dump trucks and other heavy mobile equipment in the open pit such as bull dozers, graders, excavators i.e., a collision avoidance system to alert operators for potential collision.
• Upgrading the village power and air conditioning which was later split into a power upgrade and air conditioning upgrade.
• Replacing the switchboard at 3.3kV Secondary Power Station (SPS).
[20] The Applicant’s evidence was he was to manage a team of electrical, civil, and mechanical contractors during the construction of the West Dome Dewatering Project.
[21] Before the West Dome Dewatering Project could be completed, the COVID-19 pandemic hit.
[22] All non-essential work had to stop and the non-essential employees then worked from home.
[23] He had a few remaining works to be done before the commissioning process could begin.
[24] He says Ms Beck considered those remaining works as non-essential and without any discussion with the Applicant, decided for the Utilities team to take over the remaining works in April/May 2020.
[25] As the Applicant was asked to work from home, he focused on two projects, the replacement of the switchboard at the SPS switch room and the fire-retardant cable coating for three substations.
[26] In June/July 2020, the design stage for the switchboard was approved.
[27] The scope of work for design had already been sent out. While pending quotations, the design contractor had to come for a site visit.
[28] The Applicant planned for both the switchboard and cable coating contractors, if possible, to coincide and come to the site on the same day, 18 September 2020.
[29] He says he managed to secure one contractor to go to the site before the flight restrictions were imposed. He could not get the other contractors in due to the flight restrictions from Perth to Telfer.
[30] Although the other contractors had not gone to the site, a decision was made by the Respondent to award the design component of the 3.3kV switchboard to AECOM.
[31] The main reason for appointing AECOM was because they had previously done work for the Respondent and the quality of their design was good.
[32] When the flight restrictions eased, the Applicant went to the Telfer site with two other contractors for the installation of fire retardant coating on power cables to three substations.
[33] In or around mid-July 2020, he called for a kick-off design Skype meeting with Mr Matt Brazier (Mr Brazier), Mr Hollier, Mr Tony Joseph (Mr Joseph), Kim Gorham (AECOM), Iyya Krishnan (AECOM) including Mr Adam McClea (Mr McClea), Facility Manager for Ethos Energy Group, but Adam failed to attend.
[34] AECOM was informed of the presence of asbestos in the switch room.
[35] On 30 July 2020, he called Mr McClea concerning his intention to come to site in September 2020 for the design stage of the project. Mr McClea told him that he had prepared a report and gave it to Mr Hollier. Mr McClea was of the view that all the related projects at the substation should run as one instead of being segmented as it was. The Applicant says he told Mr McClea that he agreed with him.
[36] Mr McClea also aired his concerns on the state of the building and the presence of asbestos containing materials there. On 31 July 2020, the Applicant says he called Mr McClea again concerning the asbestos register. After that conversation, the Applicant followed up with an email enquiring if Mr McClea had the latest asbestos register. Mr McClea replied that he did not have the latest but knew about the one from 5 years ago.
[37] Mr McClea specified what was needed to be done when removing or working near asbestos containing material in the switch room. At the current design stage, the Applicant says he did not need to remove or work in asbestos containing material.
[38] The Applicant says he understood Mr McClea’s concerns and scheduled a meeting with Ms Beck, Mr Hollier and Mr Brazier to discuss the asbestos concerns and the way forward. On 1 September 2020, they talked about the presence of asbestos in the building. Mr Hollier confirmed that he had received the report from Mr McClea and asked the Applicant to contact the hygiene team. During the meeting, the Applicant understood that he could go to the SPS for the design stage to take photographs in the switch room (asbestos hazard area) and use hydro-potholing to determine the location of the cables in the compound of the SPS outside the switch room as long as these areas are not asbestos hazard areas.
[39] Everyone was aware that the Applicant had to arrange for AECOM, to inspect the SPS at some point during their four days on site.
[40] The Applicant says AECOM was aware of the asbestos hazard in SPS switch room.
[41] As they were not starting any works except taking pictures and inspecting assets of interest for the design stage, there was no request made for special personal protective equipment (PPE).
[42] He refers to Ms Beck’s conversation on 1 September 2020. The visit was for the purpose of obtaining design requirements and not construction works as understood and confirmed by Ms Beck was to occur.
[43] The Applicant did inform Ms Beck and the others to take a step back and re-examine the design if indeed the building was not usable. Ms Beck said to continue as it was an important MBIR project, and she needed to report on it. The importance of the project was emphasized by Ms Beck. However, as there was risk of asbestos in the building they should not proceed with any works.
[44] After the meeting on 1 September 2020, he sent an email to Ms Helen Anderson, the HSEC Manager and copied Mr Stephen Scott-Higgins requesting for the latest asbestos register and additional information regarding asbestos containing materials. This was for the purposes of factoring into the design the precautions to put in place should he come across any asbestos hazardous substances. He only received a response from Ms Anderson on 17 September 2020 which he forwarded to Mr Paul Mew. The Applicant received only the generic information on the subject.
[45] On 16 September 2020 the Applicant says he requested for Mr McClea to send him the induction for the power station and advised him the team would be on site on 18 September 2020 to survey the area and conduct potholing at the specified locations within the yard as per drawings.
[46] The proposed hydro-potholing was to be done at specific locations in the surrounding area outside the switch room to locate the underground cables which were away from asbestos material.
[47] The other component of this site visit was to conduct soil resistivity tests in the surrounding area near the SPS and general surveying of the SPS compound.
[48] The Applicant says he arrived at Telfer together with the design contractor from AECOM and their subcontractor Veris on the morning of 18 September 2020 at around 8:30am.
[49] The Applicant generally accepted in cross-examination that he was undertaking project management duties. He agreed part of his role was managing others, delivering on budget and timeliness, and managing safety. 1
[50] In his letter to Ms Beck dated 21 October 2020 he referred to himself as a project manager. 2
[51] He agreed that some of his colleagues who had mechanical degrees also worked on electrical engineering tasks or projects and vice versa. It was not the case that one had to have an electrical engineering degree and only worked on electrical projects The Applicant agreed that this was true but said that when it came to the technical aspects, those less educated in the area referred these to him. 3
[52] Under cross-examination the Applicant asserted that he was performing professional engineering duties and he was not limited to project management. 4 Other than these general assertions there is little evidence the Applicant was required in his position by the Respondent to perform professional engineering duties himself.
[53] Ms Beck gave evidence that she holds a Bachelor’s Degree with a double major in Mineral Science (Extractive Metallurgical) and Chemistry. She is currently obtaining a Master’s of Engineering (Civil).
[54] Ms Beck has worked in the mining industry for 25 years. She started her career from 1996 to 2004 as a Graduate Metallurgical then as a Team Leader, then an Operations Metallurgist for BHP Billiton Iron Ore. She worked from 2004 to 2008 as a Plant Metallurgist, Senior Plant Metallurgist, Acting Mill Manager, and Metallurgical Superintendent at the Peak Gold Mine in New South Wales. She then worked for eight years in various roles including Production Superintendent and Mineral Processing Manager for Kalgoorlie Consolidated Gold Mines. From 2017 to June 2019, she was the Metallurgical Superintendent for the Telfer operations. She is currently the Tailings Specialist at Newcrest mining and has been in this role since 1 March 2021.
[55] At the time of the Applicant’s dismissal Ms Beck was employed as the Ore Treatment Manager at the Telfer mine site. In this role she was responsible for, amongst other things, overseeing the operation of the processing plant, the dump leach operations, the tailing dam operations and construction, the operational technology team, the power station, the on-site laboratory, the metallurgical department, and finally the Sustaining Capital Projects team of which the Applicant was a part.
[56] The evidence of Ms Beck regarding the Applicant’s role was that although the job description of a Senior Projects Engineer requires the Applicant to hold an engineering degree, this is only necessary so that the Applicant would have an understanding of concepts to effectively carry out his duties as a project manager, not as an engineer.
[57] Ms Beck says the Senior Project Engineer’s role is that of a senior project manager. Even though the Applicant’s title had ‘engineer’ in it, his role was as a project manager. The role did not require the Applicant to perform any technical engineering work. 5
[58] In fact, she says, a Senior Project Engineer is not allowed to sign off on any technical engineering work because such an activity can only be performed by the site engineering team, consisting of experienced electrical engineers such as Mr Brazier, who is employed as a Specialist Engineer - Electrical.
[59] The technical engineering aspects of the Senior Project Engineer role are contracted out. For the job that the Applicant was working on at the SPS, the technical engineering aspects were performed by the contractor AECOM. The Applicant’s role was to manage the contractors.
[60] Another member of the Applicant’s team, Mr Brett Rogan, is also employed as a Senior Project Engineer. Ms Beck’s evidence was that he has been in that role for at least 12 years. He does not have an engineering degree.
[61] She says Mr Rogan performs exactly the same job as the Applicant. The Applicant confirmed this in cross-examination. 6 She rejected the proposition that Mr Rogan always worked with the graduate engineer who handled technical aspects and reports.7
[62] With respect to engineering drawings Ms Beck’s evidence was that she had seen these predominantly for the village power upgrade project. Those particular drawings were done by a subcontractor to the contractor the Applicant had engaged to complete the engineering works. These were not done by the Applicant.
[63] In regard to technical queries, the only one she was aware of was pertaining to the SPS Project. Her evidence was that the Applicant had raised a concern that Ethos a contractor, was taking too long to respond to the technical queries, and she had followed this up with Mr Hollier the Operations Superintendent for the power station. These particular technical queries were directed to the electrical engineers and Mr Hollier. She says the Senior Electrical Engineer, Mr Mr Sukamar, had actually replied and forward those on to Ethos for their reply and review. 8
[64] Her evidence was that there is an Engineering Department and both mechanical and electrical engineering falls under the responsibility of the Maintenance Manager. They have all the responsibilities for site engineering. They also have an Engineering Superintendent.
[65] Separately, the Sustaining Capital Projects area which included the Applicant’s role reports to Ore Treatment. 9 Ms Beck was the manager of Ore Treatment.
[66] Under cross-examination, Ms Beck’s evidence was that the Applicant’s duties were those of a senior project manager. 10 She rejects the proposition that a project manager needs to be an engineer with more than 10 years’ experience.11 She also rejects the proposition that the Applicant in his role needed to be able to do designs. The Applicant’s role description she says refers to experience in electrical design as being desirable which means it is not absolutely necessary.12
[67] Her evidence was that in his capacity as a project manager within the Capital Sustaining Projects group, he would have received engineering drawings and prior to giving approval these drawings will be reviewed by the Newcrest engineering department. For the SPS that would have been Mr Brazier or one of his delegates, Mr Sukamar or Mr Joseph. 13
[68] Ms Beck did not agree that particular drawings put to her were in fact engineering drawings which had been done by the Applicant. 14 Her evidence was that some of the existing engineering drawings may have been marked up by the Applicant and sent to other stakeholders. He was not supposed to do any drawing nor to review any drawing in his job.15
[69] Under cross-examination, her evidence was that whilst the Applicant’s title contained “Engineer” the duties listed within the position description aligned with the Respondent’s expectations for a project manager as per their mining capital process. 16
[70] Her evidence in cross-examination was that the Applicant was allowed to sign off in his capacity as the Senior Engineer – Projects effectively as the project manager but that he could not sign off on the engineering review because that is done by the Respondent’s engineering department. 17
[71] Ms Beck explained that the Applicant, as part of his project manager role, had gone to market and sought quotes from third party contractors to perform the SPS engineering duties. Through this process he had recommended the Respondent engage AECOM to do the design engineering. Ms Beck had approved his recommendation. 18
[72] She explained that all work undertaken by the Respondent’s Sustaining Capital Projects group were undertaken through contractor engagement. 19
[73] With respect to the SPS, she explained that once the contract that finalised the design the Applicant would have sent that and the scope of works to prospective contractors who would then be charged with the installation and commissioning. In this instance they were only in the design phase, however. 20
[74] Mr Hollier also gave evidence. He is employed by the Respondent as the Superintendent – Operational Technology.
[75] He has a Bachelor’s Degree in Engineering (Electrical and Electronic Engineering), a Bachelor’s Degree in Science (Computer Science), a Master’s Degree in Engineering Science (Electrical Utility Engineering) and an Advanced Diploma in Industrial Automation.
[76] From 2008 to 2009 he was employed by Newcrest as a Graduate Electrical Engineer. From 2009 to 2011 he was employed at Telfer as an Electrical Engineer. He then had a number of other roles with the Respondent including a role as the Senior Control System Engineer at Telfer until he was appointed to his current role in 2017.
[77] He confirmed he was familiar with the Applicant’s duties as a Senior Engineer – Projects. His evidence was the Applicant was not responsible for addressing electrical engineering queries from AECOM. He explained that many technical queries would come through the project manager and they would range from detailed engineering questions in a variety of disciplines through to quite small almost administrative queries. It was common practice for the Applicant to answer minor administrative queries as the project manager. Mr Hollier identified email chains where the Applicant had asked for a response to technical queries that he had raised with Newcrest’s engineering department on site. The Newcrest staff making up the team were Mr Brazier, Mr Joseph, and Mr Sukamar. 21
[78] His evidence was that it was typical for technical queries, rather than administrative queries, to go to the engineering department.
[79] With respect to a particular drawing that the Applicant had said he drew Mr Hollier identified it as being an extract of a single line electrical drawing which had a number of comments and mark ups put over the top of it. His evidence was that he could not comment on whether the Applicant had drawn it up or done the markups on the drawing itself. 22
[80] Mr Abraham gave evidence. He is employed at Telfer as the Senior Engineer Underground Projects and Infrastructure. He has worked for Newcrest mainly at the Telfer mine for 34 years.
[81] His evidence in chief was that although his title has the word “Engineer” in it he is not qualified as a professional engineer and does not have tertiary qualifications. Mr Abraham was not cross-examined on this point.
The Legislation
[82] Section 382 of the Act prescribes when a person is protected from unfair dismissal as follows.
“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.”
[83] The high income threshold applicable to this application is $153,600.
The Award
[84] The relevant clauses of the Professional Employees Award 2020 (the Award)are as follows. 23
“2. Definitions
…
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 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 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.
…
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.1.1 Level 1—Graduate professional includes: Graduate engineer, Graduate information technology employee and Qualified scientist
(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 Level 2 competence is achieved.
(g) The employee may assign and check work of technical staff assigned to work on a common project.
A.1.2 Graduate professional—appointment and progression
(a) Pay Point 1.1
Means the pay point to which a graduate will be appointed where they possess and may be required to utilise a level of professional skill and knowledge based on either the completion of an accredited 3, 4 or 5 year tertiary professional technology qualification in Australia or equivalent.
(b) Pay Point 1.2
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.1 having been assessed as being competent at Pay Point 1.1, where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience, skill and knowledge requirements for Pay Point 1.1 up to one additional year of practical professional experience, with supervision as appropriate, and the undertaking of in-service training, subject to its provision by the employer.
(ii) Core competency standards
The development of core competency standards in the practice setting/s undertaken since being assessed as competent at Pay Point 1.1 measured against the prescribed performance criteria.
(c) Pay Point 1.3
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.2 having been assessed as being competent at this Pay Point, where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience, skill and knowledge requirements for Pay Point 1.2, up to one additional year of practical professional experience, with supervision as appropriate, and the undertaking of in-service training, subject to its provision by the employer.
(ii) Core competency standards
In addition to the core competency standards developed at Pay Point 1.2, the further development of core competency standards in the practice settings undertaken since being assessed as competent at Pay Point 1.2 measured against the prescribed performance criteria.
(d) Pay Point 1.4
Means the pay point to which a graduate will be appointed or will progress from Pay Point 1.3 having been assessed as being competent at this Pay Point, where the graduate possesses and may be required to utilise a level of professional skill and knowledge based on:
(i) Training and experience
In addition to the experience, skill and knowledge requirements for Pay Point 1.3, up to one additional year of practical professional experience, with supervision as appropriate, and the undertaking of in-service training, subject to its provision by the employer.
(ii) Core competency standards
In addition to the core competency standards developed at Pay Point 1.3, the further development of core competency standards in the practice settings undertaken since being assessed as competent at Pay Point 1.3 measured against the prescribed performance criteria.
A.1.3 Annual review
Subject to the requirements of each Pay Point, each graduate will progress on their annual anniversary date from one Pay Point to the next, having regard to the acquisition and utilisation of core competencies through experience in their practice setting/s over such period. Confirmation of the employee’s progression to the next Pay Point will be provided by the employer in writing.
A.1.4 Deferral
Progression from one Pay Point to the next may be deferred or refused by the employer. Such deferral or refusal of progression will not be unreasonably or arbitrarily imposed by the employer. Any decision to defer or refuse progression to the next pay point will be confirmed in writing.
A.1.5 Appeal and review
An employee may appeal a deferral, provided that where any such appeal results in a revocation of the employer’s decision, Pay Point progression will be deemed to operate and be payable from the employee’s anniversary date for such progression. An appeal or review, for the purpose of clause A.1.5, will be undertaken and resolved in accordance with clause 26—Dispute resolution.
A.1.6 Accelerated advancement
Progression from one Pay Point to the next may be advanced by the employer to occur prior to the annual anniversary date provided that any such advancement is referable to the requirements for each Pay Point.
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.
A.1.8 Level 2—Quality auditor
A candidate has satisfied the criteria and has demonstrated the ability to perform all or any part of a quality management system audit, solo, or as a member of a team to ISO 10011 Part 2, AS 3911 Part 2, NZS 10011 Part 2.
A.1.9 Level 3—Professional
(a) An employee at this level performs duties requiring the application of mature professional knowledge. With scope for individual accomplishment and coordination of more difficult assignments, the employee deals with problems for which it is necessary to modify established guides and devise new approaches.
(b) The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.
(c) Recommendations may be reviewed for soundness of judgement but are usually regarded as technically accurate and feasible. The employee makes responsible decisions on matters assigned, including the establishment of professional standards and procedures. The employee consults, recommends and advises in specialty areas.
(d) Work is carried out within broad guidelines requiring conformity with overall objectives, relative priorities and necessary cooperation with other units. Informed professional guidance may be available.
(e) The employee outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.
A.1.10 Level 3—Senior (lead) auditor
A candidate has satisfied the criteria and has demonstrated the ability to manage an audit team and co-ordinate all aspects of a complete quality management system audit to ISO 10011 Part 2, AS 3911 Part 2, NZS 10011 Part 2.
A.1.11 Level 4—Professional
(a) An employee at this level performs professional work involving:
(i) considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgment; and
(ii) 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, professional scientific, or 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.”
The Respondent’s submissions
[85] The Respondent submits that the Applicant was not protected from unfair dismissal because the Applicant earned above the high income threshold: his base salary was $156,119 per annum and he received a site allowance of $15,612 per annum; and his role was not covered by an enterprise agreement; or the Award.
[86] The parties are in dispute as to whether the Applicant’s employment was covered by the Award.
[87] In Zheng v Poten & Partners (Australia) Pty Ltd (Zheng) 24, the Full Bench of the Commission expressed reservations about the approach that has been adopted by the Commission at first instance in determining whether an employee’s employment is covered by the Award. Despite these reservations, it accepted that the approach in Brand v APIR Systems Ltd25 and Halasagi v George Weston Foods Limited26 (collectively, the Brand/Halasagi approach) was ‘too well entrenched to alter’.
[88] The Respondent submits under the Brand/Halasagi approach, to be covered by the Award, an applicant must show (in summary) that:
• the applicant performed ‘professional engineering duties’ as defined in the Award (the First Test); and
• the principal purpose of the applicant’s role fell within one of the classifications in the Award (the Second Test).
[89] In relation to the Second Test, the Full Bench stated at [47] in Zheng that the ‘principal purpose’ test is to be applied as follows:
“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.”
[90] The Respondent submits that in relation to the:
• First Test, there is insufficient evidence before the Commission to conclude that the Applicant’s engineering qualification was necessary in the performance of at least some of his work; and
• Second Test, the weight of the evidence is that the principal purpose of the Applicant’s role was that of a project manager. The principal purpose of the Applicant’s role was not as:
• an ‘Experienced engineer’ (Level 2 of the Award); or
• a ‘graduate engineer’ (Level 1 of the Award) or 'professional engineer' (Level 3 of the Award), or as any other classification in the Award.
[91] Clause 4.1 of the Award provides:
“This award covers employers throughout Australia with respect to their employees performing professional engineering […] duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.” (Emphasis added)
[92] ‘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) of a graduate member of Engineers Australia.”
[93] The Respondent submits the evidence does not demonstrate the Applicant was performing any duties that required qualifications as a graduate member of Engineers Australia (or equivalent) (e.g. an engineering degree).
[94] The Respondent bases this submission on lack of clarity in the Applicant’s evidence in relation to both the duties performed by the Applicant; and how any of those duties required qualifications as a graduate member of Engineers Australia (or equivalent).
[95] The Respondent submits that, similar to McFarlane v SRG Civil Pty Ltd 27, the Applicant’s evidence lacks the necessary degree of detail to conclude that the Applicant was performing any work where the adequate discharge of any proportion of it required engineering qualifications.
[96] The Applicant does not describe any professional engineering duties the Applicant was to perform. Rather the nature of the duties he says he did support a conclusion that the principal purpose of the role was that of project manager.
[97] The Applicant’s Statement of Evidence in Reply to Statement of Ms Beck includes:
“18. In reference to paragraph 14, Tracey is wrong to form such a view. My role requires me to hold an engineering degree so that I am qualified to evaluate technical designs and solve technical problems.
19. In reference to paragraph 15, Tracey is mistaken to think (sic) Senior Project Engineer is the same as Senior Project Manager.
20. Paragraphs 14 and 15 seem to be conflicting.
21. In reference to paragraph 16, I was never given reference document to say I cannot sign off.
22. On the contrarily (sic), the projects team is involved in reviewing and signing off on several documents including drawings and designs.
23. The projects team also create technical documents such as technical scope of works as part of our duties.
24. In reference to paragraph 17, my role, and the role of every other project engineer in the team is to manage projects from initiation to close-out and not just managing contractors.
25. As part of my role, I also managed technical details to ensure they comply with the requirements, and I would need to understand the technical background.
26. In reference to paragraph 18, I have worked and collaborated with Brett Rogan on mechanical aspects of one of the projects and have personally observed him specify a mechanical component, sketch it out and then send it to supplier to be manufactured and delivered to site.
27. His work was then validated by the mechanical engineer in the team.
…
29. Referring to paragraph 23, Brett is from a mechanical background and (sic) an experienced mechanical fitter.”
[98] The above extracts are the extent of the Applicant’s written evidence in response to the jurisdictional objection.
[99] For the reasons set out below, the Respondent submits the Applicant’s evidence/submissions do not:
(i) provide the sufficient level of clarity regarding what tasks were performed by the Applicant that constituted ‘professional engineering duties’; and
(ii) explain how the Applicant was required to hold the relevant qualifications under the Award to perform any of his duties.
The Applicant’s Outline of Submissions in Reply:
(iii) assert that the Applicant 'would need to be a professional electrical engineer to be assigned to this Project' – however the Applicant provides no basis for this assertion;
(iv) does not specify in paragraph 4 how ‘reviewing and supervising’ JSEAs, excavation permits, safety meetings and methods of potholing constitute professional engineering duties;
(v) concedes in paragraph 5 that the Applicant was not a ‘technical reference authority’ (being a ‘technical reference authority’ supports a conclusion that the Award applies – see for example Skinner v Broadspectrum (Australia) Pty Ltd) 28; and
(vi) focuses in paragraph 6 on the Applicant’s job title, which contained the word ‘engineer’, which the Applicant suggest must mean the role involved performing ‘professional engineering duties’ – however:
(a) determining award coverage is a more detailed task than considering an employee's job title – rather, the task involves a detailed analysis of the actual duties performed by the employee;
(b) there are numerous decisions where an employee who was employed in a role with ‘engineer’ in the title was found not to be covered by the Award – e.g. in Sariman v BMD Constructions Pty Ltd 29, Commissioner Hunt found the Award did not apply to the Project Engineer because the employee's duties required: ‘coordination, administration, collaboration with subcontractors to interpret designs, and recommendations of changes to design details. They do not require engineering duties of design, calculations or technical advice’; and
(c) the presence of the word 'engineer' in a job title does not mean the employee is able to perform professional engineering duties – for example, Mr Abraham gave evidence that his job title is ‘Senior Engineer Underground Projects and Infrastructure’ (emphasis added), but he does not hold tertiary qualifications and is not qualified as an engineer – therefore, despite having the word ‘engineer’ in his title, he could not perform 'professional engineering duties' as defined under the Award.
The Applicant’s Statement of Evidence in Reply to Statement of Ms Beck:
(vii) does not specify the duties he carried out and how those duties constituted professional engineering duties (i.e. how engineering qualifications were required to perform those duties); and
(viii) states in paragraph 22 that he signed off on documents and designs, however Ms Beck’s evidence was that he would only have carried out these tasks in his capacity as a Senior Project Engineer, not as an engineer 30;
(ix) refers in paragraph 23 to ‘technical documents’ but provides no evidence of what those documents were;
(x) states in paragraph 25 that the Applicant ‘managed technical details to ensure they comply with the requirements, and […] would need to understand the technical background’ but the Applicant provides no detail of those ‘technical details’; and
(xi) states in paragraph 26 that Mr Rogan ‘sketched out’ a mechanical component – however Ms Beck’s evidence is that such ‘sketches’ performed by project engineers are not engineering drawings.
[100] The Applicant’s Further Submissions (Jurisdictional Objection) filed on 23 June 2021 does not specify in any detail the engineering duties the Applicant purported to carry out – the brief statements following the words ‘reviewing’, ‘resolving’, ‘addressing’ and ‘identifying’ provide no clarity about the tasks performed; and how any of these duties required engineering qualifications.
[101] The Respondent submits that under cross-examination, the Applicant conceded 31 that he did not address ‘all’ electrical technical queries from AECOM – rather, he said that he addressed the ‘majority’ of them. This is evidence that the Applicant has overstated his duties and is a reason why his evidence should not be preferred.
[102] Also, it is submitted, the Applicant’s evidence regarding him addressing technical queries generally conflicted with the evidence of Mr Hollier, that someone in the Applicant’s position would address low-level administrative technical queries, but would refer technical queries that required engineering skills to Telfer’s engineering department; and conflicted with Ms Beck who was able to provide evidence regarding the Applicant forwarding technical queries on the Secondary Power Station to the engineering department and Mr Hollier.
[103] Regarding his evidence of completing drawings, the only evidence in the proceedings was a drawing that Ms Beck described as ‘not an engineering drawing’; which the Applicant conceded was not a ‘final drawing’ – and that he provided ‘high level conception drawings’ to the design contractor and he would ‘review them, mark them up and change things and if they have made mistakes [the Applicant] would mark them in red and send them back’ 32.
[104] The Respondent submits the Applicant’s oral testimony contained broad, non-specific statements about the duties he claimed he performed. At most the Applicant’s duties involved superficial review of drawings and he was not involved in confirming engineering designs. The Applicant stated for example:
(i). the Applicant provided ‘details to go into the design’ 33;
(ii). the Applicant made sure that what was installed was ‘according to what is specified’ 34;
(iii). the Applicant’s ‘part is actually to check that design and also to confirm that what they’re doing is the correct thing’ 35;
(iv). when the Applicant received documentation, he ‘look[ed] at it’ and he ‘mark[ed] it’ 36;
(v). the Applicant ‘would have engaged the designer. By the time it’s getting to Matt Brazier, the majority of the work, the heavy lifting, I would have done it myself’ 37;
(vi). ‘the design would have first gone through myself’ and ‘I was doing a lot of engineering’ 38;
(vii). the Applicant had to ‘dig deep and do my engineering part as well’ 39;
(viii). the Applicant had ‘to find the formulas myself and verify that what they [i.e. the contractor] did was correct. If there is (sic) some discrepancies, I will check with other engineers on site and collaborate. That is perfectly acceptable in the industry’ 40;
(ix). the Applicant ‘provided details that go into the design’ 41;
(x). the Applicant’s job was to make sure the ‘design was correct’ 42;
(xi). the Applicant did ‘preliminary designs’ and ‘initial calculations’, which the Applicant supplied ‘to the design engineer, who would have done the detailed design’ 43; and
(xii). the Applicant’s job was to ‘verify that what they’ve done is correct and also to check with our engineering department to make sure that they’re happy with it’ 44.
[105] It is submitted, the Applicant accepted that he performed a range of project management duties – for example, he accepted that ‘part’ of his role was managing others 45; ‘part’ of his role involved delivering on budget on time and safely46; his role involved meeting project milestones47; and engineering design was done by design contractors48.
[106] The Applicant also accepted in his testimony that some other employees in his department may have had degrees in, for example, mechanical engineering, but worked on projects that were not in the same area as their degree.
[107] It is submitted, this evidence supports the Respondent’s position that an engineering degree was not required in the performance of professional engineering duties but enabled an employee in the position to understand the projects they were managing.
[108] Although the Role Description (RD) for the Applicant’s role states that a ‘Degree in Electrical/instrumentation Engineering’ was essential, the Respondent submits:
(i). the requirement that the Applicant have an engineering degree is only prima facie evidence that the position involved ‘professional engineering duties’ 49;
(ii). as set out in Ms Beck’s Statement dated 12 May 2021 (at paragraph 14), the requirement that the Applicant hold a Bachelor of Engineering was so that he could understand the issues that arose in his work, not for the performance of actual professional engineering duties;
(iii). a number of cases have found that where a degree in engineering was ‘desirable’ the employee was nevertheless not covered by the Award 50;
(iv). even though the position may have required the Applicant to understand drawings, specifications, quality, and workplace health and safety requirements, such duties do not require membership of Engineers Australia or an engineering degree.
The Principal Purpose Test
[109] The Applicant alleges that the appropriate classification level for his role was ‘Level 2 – Experienced Engineer’. This classification is defined in the Award as follows:
“Level 2 – Experienced engineer
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.” (Emphasis added)
[110] Having regard to the provisions of the Award, for the Applicant to be an ‘Experienced engineer’ under Level 2 of the Award, it is submitted the Applicant must establish the following three elements:
• First element: He was a ‘Professional engineer’. This required the Applicant to show he was qualified to carry out 'professional engineering.
• Second element: He either (relevantly) had membership of Engineers of Australia; or had graduated in a 4 or 5 year course at university recognised by Engineers Australia and had four years’ experience on professional engineering duties since becoming a Qualified engineer.
• Third element: The principal purpose of his role fell within the descriptors of Level 2 of the Award – i.e. he planned and conducted professional work without detailed supervision but with guidance on unusual features and usually was engaged on more responsible assignments requiring substantial professional experience.
[111] In relation to the the first element this is not disputed by the Respondent. The second element, it is submitted the Applicant has not provided evidence of any membership held by him of Engineers Australia and even if he had graduated from a university course recognised by Engineers Australia, he has not demonstrated that he has four years' experience on professional engineering duties since becoming a Qualified engineer. Lastly, the third element, it is submitted the principal purpose of the Applicant’s role was as a Senior Project Engineer, responsible for project management, and not as an ‘Experienced engineer’.
[112] If the Commission finds that Mr Bwalya did fall within the coverage term of the Award, the Applicant was not covered by the Award because the principal purpose of his role did not fall within one of the classification levels in the Award.
[113] The Respondent submits that the following evidence demonstrates that the principal purpose of the Applicant’s role was as a project manager, not as an ‘Experienced engineer’.
[114] The advertisement for the Applicant’s role supports a conclusion that the principal purpose of the role involved project management duties. There is no suggestion in the advertisement that the ‘technical support’ to be provided by the Applicant involved professional engineering duties.
[115] The provisions extracted below from the Applicant’s RD make it clear that the ‘core purpose’ and ‘accountabilities’ of the Applicant's role were as a project manager.
[116] The RD for the Applicant’s role listed the ‘core purpose’ of the role (which was previously known as ‘Sustaining Capital Senior Project Engineer’) as follows:
“Ensure that projects under your control are delivered safe, on time, under budget and compliant with the end-user’s requirements and relevant Newcrest & Australian Standards;
Ensure that project contracts and contractors are managed prorly in line with Newcrest standards;
Clarifies and refines project objectives with active engagement and involvement with stakeholders;
Coordinates design and engineering along with development of key project delivery documents;
Directs and supports the Project Coordinators, and
Optimises cost through Project Edge and Diligent Project Management.”
[117] The RD lists the ‘Role Accountabilities’ or ‘Key Tasks’ under the following headings:
• General Accountabilities (e.g. ‘responsible for all contractors and sub-contractors associated with your projects’);
• Safety (e.g. ‘overall responsibility for the safe delivery of all projects under your control’);
• Project Delivery Standards (e.g. ‘ensure that projects under your control are delivered safe, on time, under budget and compliant with the end-user’s requirements and relevant Newcrest, Telfer and Australian Standards’);
• Cost (e.g. ‘ensure all projects under your control have up to date monthly capital forecasting’); and
• General Management (e.g. ‘people Management’).
[118] The Respondent submits, the above duties and responsibilities all support a conclusion that the principal purpose of the role was as a project manager. The RD does not state that role involved technical engineering duties.
[119] Engineering Duties were performed by the Engineering Department, not the Sustaining Capital Projects Team and not the Applicant.
[120] There was no requirement for the Applicant to do engineering work as there were others in the business who were responsible for engineering matters.
[121] Ms Beck’s evidence was that the Applicant performed the role of a project manager and that Telfer’s engineering team, which sat within the Maintenance department (not the Sustaining Capital Projects team, which is the team the Applicant was employed in) was responsible for signing of on all technical engineering work.
[122] This was supported by Mr Hollier’s evidence, which was that the electrical engineering team comprised Mr Brazier, Mr Joseph and Mr Sukamar and that it was typical for project engineers to refer technical queries to the engineering department. Mr Hollier confirmed some specific technical queries that the Applicant referred to the engineering department.
[123] The Applicant also accepted in his oral testimony that there were on-site engineers (but asserted that he was performing their role): ‘we have our engineers. That role was actually being fulfilled by me’ 51.
[124] Notably the Applicant did not have engineers reporting to him and he did not report to any engineers. The Applicant reported to Ms Beck, who did not hold an engineering degree. There was no evidence that engineers reported to the Applicant.
[125] The position of the employee in the organizational structure was considered relevant in Bury v Gilmour Space Technologies Pty Ltd 52 where the relevant employee in that matter did not have any engineers reporting to him, and he did not report to any engineers. In that decision, the Commission found that the employee was not covered by the Award.
[126] Following the Respondent raising a jurisdictional objection, the Applicant has asserted that he was not a project manager.
[127] However, before the Respondent had raised a jurisdictional objection, the Applicant had described himself as a ‘project manager’ in his letter to Ms Beck dated 21 October 2020 (responding to the allegations) (‘as a project manager, I am required to adapt to change and to suit the current situation’). The Applicant appeared unable to explain this discrepancy in cross-examination, stating that ‘role means that you have two hats. You are project managing but at the same time you are project engineering’ 53. The Applicant did not explain what he meant by ‘project engineering’.
[128] The Respondent submits that, in relation to the engineering duties test, there is insufficient evidence before the Commission to conclude that the Applicant’s engineering qualification was necessary in the performance of at least some of his work.
[129] In relation to the principal purpose test the Respondent submits that the weight of the evidence is that the principal purpose of the Applicant’s role was that of a project manager. The principal purpose of the Applicant’s role was not as an experienced engineer (Level 2 of the Award); nor as a graduate engineer (Level 1 of the Award) nor as a professional engineer (Level 3 of the Award), nor as any other classification in the Award.
The Applicant’s submissions
[130] The Applicant submits that it is not disputed that the Applicant is a graduate engineer and a member of Engineers Australia (Engineering Qualifications).
[131] In the job advertisement it was stated as follows: ‘Step into this exciting FIFO role based at Telfer, WA and utilise your Electrical or Instrumental Engineering expertise to manage a portfolio of capital projects as a Projects Engineer/Senior Projects Engineer depending on your experience’.
[132] At page 3 of the RD, it was stated that, ‘Bachelor Degree in Electrical/Instrumentation Engineering – Essential’.
[133] The Respondent in their submissions alleged there was insufficient evidence to conclude the Applicant’s engineering qualifications was necessary in the performance of at least some of the work.
[134] The Applicant gave evidence linking his qualification to the work 54.
[135] The Applicant submits that the principal activity in his work requires such qualifications as those work involved electrical engineering.
[136] The Applicant’s role title as described in the RD was Senior Project Engineer and in the Payment Advice, his position was described as Senior Electrical Engineer - Projects. In his emails, he signs off as the Senior Project Engineer.
[137] In the RD, under General Management bullet point 4, it was provided that the Applicant,
“Occasionally act as the Project Coordinator when required”.
[138] The Respondent knew that the Applicant was not employed as the Project Manager nor assigned the SPS Project as a Project Manager to oversee that entire project (handling budget and personals).
[139] The Applicant’s usage of the word ‘project manager’ in his letter dated 21 October 2020 does not negate his role as an engineer in the design and installation of the electrical infrastructure at the SPS.
[140] The Applicant was wearing two hats as the Engineer and the Project Coordinator.
[141] As the Engineer, the Applicant prepared the scope of work (SOW for SPS 3.3kV Switchboard Replacement Design) to be given to the designer (AECOM) showing the existing installation setup and detailing the proposed future design.
[142] As the Project Coordinator, the Applicant arranged for the first site visit for AECOM’s Construction Manager, Mr Kim Gorham, AECOM’s Electrical Engineer, Mr Jong Kim, together with their contractor, Veris Australia (Veris), Veris’ Senior Engineering Surveyor, Mr Jamie Davies and Project Manager Subsurface Locator, Mr Euan Gow, to gain a better understanding of the project and site before submitting the design of the new Switchboard. The Applicant reports to his Manager, Ms Beck, the progress of the project.
[143] In the alternative, the Applicant submits that there exist ‘Project Manager’ and ‘Senior Project Manager’ positions in the Respondent’s company with Level 3 or 4 classifications.
[144] In applying the principles to the facts, the principal purpose of the Applicant’s employment as an Engineer under Level 2 Experienced engineer can be determined by his prescribed qualifications and experience, and by him engaging in any portion of the duties.
[145] The evidence given by the Applicant of some of his works was:
• drawing (mark-up and revisions) the SUB 921SB332 Airport Terminal drawings and preparing a high-level conceptual drawing for the designer 55;
• dealing with all the technical queries and providing the answers to the contractor 56;
• checking the design, finding the formulas, verifying them and collaborating with other engineers 57;
• implementing the Newcrest and Australian standards 58;
• looking at the drawings and design overall 59;
• looking at the specification of the equipment, power rating, fault rating, second-breaker orations times, remotely orated or isolation 60;
• installing 2 RMUs, connecting to the transformers to the equipment, the location of the connected cables; and doing ‘technical work’ 61.
[146] The Applicant had conducted the said works without detailed supervision but with guidance on unusual features and the usual engagement on more responsible assignments requiring substantial professional experience.
[147] The Applicant submits, based on the evidence provided, the question of whether the Applicant is covered by the Award, should be answered in the affirmative.
Consideration
[148] It is clear on the evidence that the Applicant’s annual rate of earnings is above the high income threshold. Consequently, for the Applicant to be protected from unfair dismissal, section 382 of the Act requires that he was either covered by a modern award or that an enterprise agreement applied to his employment.
[149] There is no evidence that there is an applicable enterprise agreement.
[150] The Applicant submits that he was covered by the Award.
[151] There is a significant body of case law dealing with the application and coverage of the Award.
[152] In Zheng, 62 a Full Bench of the Commission accepted that the approach in Brand v APIR Systems Ltd,63 and Halasagi v George Weston Foods Limited was “too well entrenched to alter”.64
[153] Under the Brand/Halasagi approach, to be covered by the Award, the Applicant must show:
• he performed “professional engineering duties” as defined in the Award (the engineering duties test); and
• the principal purpose of his role fell within one of the classifications in the Award (the principal purpose test).
[154] In relation to the principal purpose test, the Full Bench in Zheng ruled that that the principal purpose test is to be applied as follows:
“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.” (References omitted).
[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.
[165] The Respondent’s objection is upheld. Consequently, there is no jurisdiction to consider the merit of the application and this application will now be dismissed.
[166] An Order [PR736404] to that effect will now be issued.
Appearances:
J Ling of Spyker Legal for the Applicant.
H Donovan of Allens for the Respondent.
Hearing details:
2021.
Perth:
June 24, 25
Final written submissions:
Applicant, 2 August 2021.
Respondent, 19 July 2021.
Printed by authority of the Commonwealth Government Printer
<PR736403>
1 Transcript at PN123 and PN251 to PN253.
2 Exhibit R1, Attachment TB-26 at page 4.
3 Transcript at PN245.
4 Ibid, at PN123 to PN223 and PN251 to PN261.
5 Ibid, at PN770.
6 Exhibit R1 at paragraph 18 and Transcript at PN235 to PN237 and PN919.
7 Transcript at PN920.
8 Ibid, at PN767.
9 Ibid, at PN768.
10 Ibid, at PN810, PN815 and PN824 to PN830.
11 Ibid, at PN817 to PN818.
12 Ibid, at PN831 and PN843.
13 Ibid, at PN850.
14 Ibid, at PN846 to PN850.
15 Ibid, at PN851 to PN855.
16 Ibid, at PN857.
17 Ibid, at PN869.
18 Ibid, at PN877 to PN898.
19 Ibid, at PN901 to PN902.
20 Ibid, at PN915.
21 Ibid, at PN1420 to PN1436.
22 Ibid, at PN1455 to PN1456.
23 Professional Employees Award 2020 [MA000065].
24 [2021] FWCFB 3478.
25 [2003] AIRC 1161.
26 [2010] FWA 6503.
27 [2019] FWC 3383 at [31].
28 [2020] FWC 4948.
29 [2016] FWC 5419.
30 Transcript at PN846 to PN851, PN870 and PN882
31 Ibid., at PN156.
32 Ibid., at PN585 to PN587.
33 Ibid., at PN234.
34 Ibid., at PN125.
35 Ibid., at PN203.
36 Ibid., at PN132.
37 Ibid.
38 Ibid., at PN179 and PN181.
39 Ibid., at PN203.
40 Ibid.
41 Ibid., at PN234.
42 Ibid., at PN261.
43 Ibid.
44 Ibid.
45 Ibid., at PN251.
46 Ibid., at PN123 and PN252.
47 Ibid., at PN253.
48 Ibid., at PN261.
49 See Brett Skinner v Broadsctrum (Australia) Pty Ltd[2020] FWC 4948 at [29].
50 See McFarlane v SRG Civil Pty Ltd[2019] FWC 3384, Norman v Fyfe Pty Ltd[2014] FWC 7927 and Hehir v Schweitzer Engineering Laboratories Pty Ltd[2011] FWA 3763.
51 Transcript at PN181.
52 [2020] FWC 2015 at [78].
53 Transcript at PN234.
54 Ibid., at PN185 to PN188, PN201, PN203, PN584 to PN587, PN592 and PN658 to PN661.
55 Ibid., at PN185 to PN188 and PN584 to PN587.
56 Ibid., at PN201 and PN658.
57 Ibid., at PN203.
58 Ibid., at PN205.
59 Ibid., at PN592.
60 Ibid., at PN659.
61 Ibid., at PN660 and PN661.
62 [2021] FWCFB 378, at [48].
63 [2003] AIRC 1161.
64 [2010] FWA 6503.
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