Tracy Lee v WorleyParsons Services Pty Limited T/A WorleyParsons

[2014] FWC 3696

[2014] FWC 3696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracy Lee
v
WorleyParsons Services Pty Limited T/A WorleyParsons
(U2013/12649)

COMMISSIONER LEE MELBOURNE, 6 JUNE 2014

Application for relief from unfair dismissal - jurisdictional objection - person protected - whether applicant covered by a modern award.

[1] This matter involves an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms. Tracy Lee (the Applicant) claims that she was unfairly dismissed from her employment with WorleyParsons Services Pty Limited T/A WorleyParsons (the Respondent). The Applicant was employed by the Respondent from 4 August 2010 until her alleged dismissal on 15 August 2013.

[2] The matter was heard before me on 17 January and 7 February 2014. Extensive written submissions were filed prior to and subsequent to the hearing. Pursuant to section 596(2)(a) of the Act, Mr. G Dircks was granted permission to appear for the Applicant and Mr. R Levine granted permission to appear for the Respondent as I was satisfied the matter involved a level of complexity and representation would enable the matter to be dealt with more efficiently.

[3] The Applicant claims that she is a person protected from unfair dismissal within the meaning of the Act. The Respondent refutes that contention and claims that she is not a protected person. This decision is entirely directed at a determination as to whether or not the Applicant is a person protected from unfair dismissal and in particular whether the Applicant is covered by a modern award. The relevant provision is section 382 of the Act, which reads 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.

Note: High income threshold indexed to $129,300 from 1 July 2013”

[4] It has not been contested in this matter that the Applicant satisfies subsection 382(a) of the Act. That is, the Applicant is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. It is common ground between the parties that no enterprise agreement applies to the Applicant (subsection 382(b)(ii) of the Act) and it is also agreed between the parties that the Applicant’s annual rate of earnings was above the high income threshold (subsection 382(iii)). At the time of the alleged dismissal, the Applicant’s guaranteed base annual remuneration was $211,530.00 with a total package of $228,000.00. 1 It follows from the above that the Applicant can be a person protected from unfair dismissal only if a modern award covered her employment.

[5] The Applicant submitted that she was covered by a modern award, that being the Clerks - Private Sector Award 2010 (the Clerks award) or alternately the Miscellaneous Award 2010 (the Miscellaneous award). The Respondent submits that the Applicant is not covered by either modern award. There was no suggestion by either party during the proceedings before me on 17 January or 7 February 2014 that the Applicant was covered by any other modern award. However, in final written submissions, Mr Dircks for the Applicant introduced a further notion, not aired at all during the proceedings, that being that if the Applicant was not covered by the Clerks award or the Miscellaneous award, that she is covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing award).

The law to be applied

[6] The first consideration is the law that needs to be applied in reaching a determination in this particular matter. There was disagreement between the parties as to the approach to be applied in determining the matter, particularly as to whether or not the principal purpose test should be applied (or the extent to which it should be applied) and the correct approach to be adopted in dealing with a determination as to what clerical work is.

[7] The Respondent in their written submissions set out the approach they submitted should be adopted as follows;

“4.8 The central method for determining whether an employee is covered by a modern award is the ‘principal purpose’ test.

4.9 In 2012 in Hehir v Schweitzer Engineering Laboratories Pty Ltd, Commissioner Cloghan referred to previous Commission decisions and held:

“To determine whether an employee is employed in a classification in a modern award, it is necessary to apply ‘the principal purpose test’. The principal purpose test can be addressed by determining what was the most important intention of the employer in requiring the functions of the position to be carried out by the employee.”

4.10 The principle purpose test has been endorsed and applied by the Full Bench of the Fair Work Commission.

...

4.12 In Layton v North Goonyella Coal Mines, the majority of the Full Bench of the AIR Commission quoted with approval the Federal Court in Joyce v Chistoffersen and said:

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

[Emphasis added]

4.13 This approach was upheld in the first instance decision of Gray v Hamilton James and Bruce Pty Ltd and subsequently approved on appeal by the Full Bench of theFWC.

4.14 In Gray, the Full Bench upheld the first instance decision of Kaufman SDP who held that the applicant was not covered by the Clerks Award. The applicant was employed in the position of General Manager of a recruitment firm but argued that her position was the equivalent of a Level 5 classification under the Clerks Award.

4.15 Kaufman SDP held:

“Whilst many of her duties were administrative in nature, of which some can be seen to correspond to those described in the Level 5 classification under the Award, I am satisfied that Ms Gray’s duties as the General Manager went significantly above and beyond the duties of an employee subject to a Level 5 classification “the primary purpose of Ms Gray’s job was that of a person employed in a managerial position with a great deal of authority as to how the company’s business is to operate”. 2 [footnotes omitted]

[8] Mr. Dircks for the Applicant conceded that that the ‘principal purpose’ test may be relevant but that it is not the only approach. His submissions on the point were as follows:

“39. We note the respondent’s submissions about the principal purpose test in determining these matters.

40. This is one test or formulation that may be relevant. In the Full Bench decision in Brand V APIR the Commission did not confine itself to the existence of one approach. In that case the Commission looked to whether the employee was covered by the incidence of the award and then whether there was a relevant classification.

41. It is relevant that the Full Bench did not place any particular emphasis on the fact that the Appellant’s title was a manager or that there was no classification for manager in the relevant award (the Information Technology Industry (Professional Employees) Award 2001).

42. The apparent relevant facts in that case were that the Appellant was working in the preparation of applications for funding and general corporate planning and business development and was not sufficiently “hands on”, and was one of a group of four managers who made up the executive committee for the company.

43. The Full Bench in Brand left open the point that there were a number of different formulations by which to determine whether the work of an employee or group of employees is within a particular occupation or classification.

44. While the principal purpose test may assist in assessing whether the Clerks Award applies, we submit that the principal purpose test is of limited assistance in an award that straddles numerous industries and does not name the occupations covered.” 3

[9] I do not accept the submissions of Mr. Dircks that the principal purpose test is of limited assistance in determining this matter. The Full Bench in Brand v APIR Systems Limited 4does not support that proposition. In Faulder v Lanteri Partners Financial Management Pty Ltd T/A Lanteri Partners Group5, I determined that the principal purpose test was the appropriate test to be applied and relied on and endorsed the approach of Commissioner Cloghan in Hehir v Schweitzer Engineering Laboratories Pty Ltd6. There is nothing in the submissions of Mr. Dircks on this point that compels me to alter the approach I adopted in Faulder v Lanteri Partners Financial Management Pty Ltd T/A Lanteri Partners Group.7

[10] The correct approach to be taken and the principals to be applied were well set out in the Respondents submissions. I will apply those principles as relevant to my consideration and determination in respect to this matter. I will now turn to the submissions and evidence that has been led in this particular case.

Is the Applicant covered by the Clerks award?

[11] The Respondent submits that the Applicant is not covered by the Clerks award having regard to the coverage clause of that award. The Respondents key submissions on the point were as follows:

“4.3 The Respondent submits that the Award does not apply to the Applicant’s employment by virtue of the coverage clause of the Award which states:

“This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees.”

4.4 The Clerks Award defines ‘clerical work’ as including:

“recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”.

4.5 The highest classification under the Clerks Award is Level 5. Indicative duties at this level include:

(a) Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

(b) Application of computer software packages within either a micro personal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

(c) Provide reports for management in any or all of the following areas:

(i) account/financial;

(ii) staffing;

(iii) legislative requirements; and

(iv) other company activities.

(d) Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

4.6 The Applicant’s work as Northern Operations Regional Project Controls Manager did not fall within the definition of ‘clerical work’. Her job, including her duties andresponsibilities, were not within the responsibilities and duties contemplated under aLevel 5 classification in the Clerks Award. That is she was managerial and/or professional or quasi professional.” 8

[12] The Applicants key submissions on whether the Applicant is covered by the Clerks award were as follows:

“3. We submit primarily that the jurisdictional objection fails in that the work the applicant did...is covered by the Clerks—Private Sector Award 2010 (“the Clerks Award”).

...

5. The definition of “clerical work (at clause 3.1 of the Clerks Award) includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk.”

6. The coverage at clause 4.1 of the Clerks Award “. . . covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:

a. an employer bound by a modern award that contains clerical classifications; or

b. an employee excluded from award coverage by the Act.”

7. Our submission is that the functions and purpose of the work was non-professional work in the administration of financial resources and associated administration duties.

8. The applicant’s overview of the job was to manage the collection and expenditure of funds from clients. However the applicant is not an accountant.

9. The role clearly was in the nature of providing support of an administrative nature to allow the respondent’s objectives to be met.

10. The respondent’s business appears to be as provider of technical, project and operational support services, per the Worley Parsons website.

11. The sort of function that the applicant and others in her team and similar teams provided was the support at the financial level for the respondent’s technical, project and operational support services to be provided to its customers.

12. There is no reason to think that this is not administrative work to support the service provision to customers. If it is then the Clerks Award applies in a general sense to employees working in this part of the enterprise.” 9

[13] Mr. Dircks also drew my attention to the decision of Commissioner Bissett in Tauri v Flight Centre Limited. 10 In that case, Commissioner Bissett found that an employee whose remuneration was in excess of the high income threshold was nevertheless, on a consideration of the facts in that case, found to be covered by the Clerks award. My attention was also drawn to the decision of Commissioner Deegan in Cubillo v North Australian Aboriginal Family Violence Legal Service.11 I have considered both of these cases and note that neither case provides a basis to depart from the authorities set out above. Whether or not the modern award applies depends on the facts in each particular case.

[14] Mr. Dircks claimed that the work of the Applicant fell either within Level 4 or Level 5 of the Clerks award. 12 On that basis, the Applicant submits that the objection to the Commission’s jurisdiction ought to be dismissed.

The evidence

[15] There was a significant amount of evidence provided in this matter. Evidence in this matter was provided by the Applicant on her own behalf and Mr. Downing, Manager of Project Services - Australia North.

[16] A summary of the Applicants evidence relevant to the determination as to whether she was covered by the Clerks award and drawn from her witness statement (exhibit D1 in the proceedings) is as follows:

• The job title at the time of the dismissal was that of Northern Operations Regional Project Controls Manager.



• That she occupied a succession of relatively junior roles in the respondent’s business.



• She was originally employed in Darwin as full time Project Controls Manager for Northern Territory which was a new position. 13



• She was promoted to Regional Project Controls Manager and relocated to Townsville in Queensland on 14 July 2012. She retained Northern Territory and picked up regional Queensland. 14



• She still looked after the Darwin team members and the Darwin client list, but had an additional 8 to 12 team members reporting to her and several new clients and client sites to work with. The applicant had weekly contact with team members to discuss active projects and issues they were encountering



• There was no position description that applied to her role. The Applicant stated that she had not seen the attachment to Michael Downing’s statement of position description (attachment MB4 to the witness statement of Mr Downing) before receiving it in these proceedings. The Applicant claimed this document was a position description for a person based in Adelaide possibly in 2008 and that it did not relate to her.



• The performance indicators relevant to her role were set out in her performance review. 15



• Part of the role was direct hands on work; part of the job was achieved through staff who reported to her.



• That she had 10 staff reporting to her who were non-supervisory level employees who looked after particular projects as did she and that these staff were usually called cost controllers and planners.



• The applicant has a secondary level education and that she is not an accountant and possesses no professional or tertiary qualifications. She has completed other occupational type short courses such as in import/export.



• Her direct manager was Michael Downing, who was Manager of Project Services, Northern Operations AEP; Mr. Downing became her manager shortly before her move to Melbourne (attachment TL4).

[17] The Applicant’s description of the work she performed included:

• Personally running the rolling out of a restructure at a client location in Gove where she trained staff to take on additional duties (some of which duties the applicant was carrying out), allocated tasks and duties; conducted group conference calls to review client project schedules; costs reports and oversaw all the work of staff, whether on schedule, cost and reporting, and liaison between the clients, engineers and the project controllers.



• Developing a process and system based on the client’s expectations and put in place systems to clear all old debts and ensure the company is paid within 45 days.



• Approving expenditure given by the client to spend on purchase orders for the respondent’s personnel time.



• Managing a number of projects by generating estimates, reviewing and approving weekly spend against the client-approved budget.



• Remotely accessing client systems to review project status and ensure alignment between the respondent’s and client records, and taking action to fix when required.



• Receiving regular calls from the respondent’s Project Leaders requesting advice on the best method to set up and manage complex projects.



• Negotiating with client representatives to restructure billing rate schedules (in particular, RioTinto Yarwun).



• Managing the invoicing process and liaised with clients to minimise aged debt and meet the respondent’s KPI requirements.



• Conducting a weekly review of location financial status and taking action to remedy as required.



• Liaiseing with the respondent’s Project Leaders and assisting in preparation of Write-Off paperwork to clear non-billable aged debt.



• Starting, but not complete, the introduction of Earned Value Management by restructuring; coding and alignment between estimates, project schedules and project spend.



• Monitoring spend against all proposals to minimise non-billable expenditure. The Applicant asserted her job overall was to manage collection and expenditure of funds from clients.

[18] During the hearing, the Applicant was subjected to extensive cross examination by counsel for the Respondent. The Respondent in their final written submissions made reference to the transcript evidence of the Applicant and submitted that evidence demonstrated a number of things including:

“1 Ms Lee made employment related decisions in respect of her team

1.1 Ms Lee recruited Tahir Nazim and was the sole signatory on the Requisition Form: PN560.

1.2 Ms Lee recruited employees for the Cannington and Gove projects and generally interviewed prospective employees: PN635- 636.

1.3 It was Ms Lee's job as a manager to initiate the process for recruiting people: PN627.

1.4 On a number of occasions in 2012 and 2013, Ms Lee was the sole signatory on recruitment requisition forms: PN 634.

1.5 Ms Lee determined that two of the employees in her team were not "fully competent in their jobs". Therefore, she retrenched one of the employees and took over the direct management of the other employee herself: PN651.

1.6 Ms Lee was involved in organisational planning in respect of her team: PN699.

2 Ms Lee performed senior level duties including making complex budgetary decisions and maintaining client relationships

2.1 Ms Lee was responsible for her team's productivity: PN 584.

2.2 Ms Lee had direct relationships with clients and maintained regular contact with them. Part of her role included client development and trying to win more project controls work: PN 585-587.

2.3 Part of Ms Lee's management role was to conduct a review of the project controls function: PN609. One of the objects of the review was to see whether the right people were in the right roles: PN 612.

2.4 Ms Lee's role involved reviewing things like project creation, project execution and project phase and close outs: PN624.

2.5 Ms Lee was often the person responsible for interviewing prospective employees: PN636.

2.6 As part of her role, Ms Lee reviewed the structure of her team and the project controls functions to analyse why Worley Parsons revenue had reduced when workload had not changed: PN646.

2. 7 Ms Lee was responsible for ensuring that her team was "as lean as it could possibly be, taking into account the team's workload": PN 647.

2.8 Ms Lee was involved in organisational planning in respect of her team: PN700.

2.9 Ms Lee participated in monthly or bi-monthly management meetings in which the following topics were discussed: business strategy, performance improvement issues and initiatives, employee engagement and action plans, team development, meeting budget targets and performance: PN701 - PN710.

3 A central part of Ms Lee's role was management of her team, including undertaking salary and performance reviews and ensuring her team remained productive

3.1 Ms Lee was responsible for reviewing the performance of all of her team members except those seconded to the client: PN598.

3.2 Part of Ms Lee's role was ensuring that each team member knew what duties they were meant to be performing and was in fact performing those duties to a high standard: PN601-603.

3.3 If Ms Lee formed the view that one of her team members was not meeting performance or conduct expectations, she would have been involved in helping address those issues: PN604.

3.4 Worley Parsons provided Ms Lee training on how to performance manage and counsel employees: PN605.

3.5 Ms Lee would performance manage her team members when they had performance issues: PN606 and 608.

3.6 Ms Lee would issue written warnings from time to time when she needed to manage underperforming employees: PN614. For example, she was the sole signatory on a warning letter to [employee] on 11 July 2012: PN615.

3. 7 Part of Ms Lee's management role including focusing on the processes that were being used by project control personnel: PN622.

3.8 Ms Lee was responsible for aligning role and responsibilities in the project controls team: PN622.

3.9 Ms Lee provided training to project controls staff who reported to her: PN623.

3.10 In January 2013, Ms Lee reviewed personnel roles to get costs efficiencies for non-billable team members: PN637. This involved Ms Lee reviewing existing team members who were doing non-billable admin duties and developing a plan to manage the work internally to avoid recruitments replacements: PN638.

3.11 When it was necessary, Ms Lee would call a meeting of project managers at locations to present high level guidelines to the processes they should follow and implement PN 654.

3.12 Ms Lee issued directions to the people reporting to her as to what they needed to do in their jobs: PN655.

3.13 When there was someone on the Gove project who was not performing, Ms Lee counselled them and emailed them to let them know what the problems were and what they needed to do to fix them: PN656.

3.14 Ms Lee was responsible for the performance review process for the employees reporting to her: PN657.

3.15 Ms Lee assessed her team members against Worley Parsons KPis: PN658.

3.16 Ms Lee would make recommendations as to whether employees in her team should be given a salary increase: PN673.

3.17 Part of Ms Lee's job was to multi-skill her team: PN 696.

4 Ms Lee is a highly experienced professional

4.1 Ms Lee was on a remuneration package of $228,000 at the time her employment was terminated: PN588.

4.2 Ms Lee managed about nine or 10 employees across Queensland and the Northern Territory: PNPN590-591.

4.3 Ms Lee agreed that the role of Project Controls Manager is a professional or quasi professional role: PN626.

5 Ms Lee did not perform any clerical duties in the course of her position at WP [i.e. typing, invoicing, billing, cash handling, directing telephone calls etc]

5.1 Ms Lee admitted that she was involved in a lot more than just the invoicing process: PN696.

5.2 Ms Lee stated that when she was responsible for the Darwin territory, 80-90% of her time was hands-on projects doing cost engineering. When she took on Gladstone, she also took on more invoicing responsibility: PN712.

5.3 Ms Lee agreed that the primary purpose for which she was employed was not to operate a telephone, to do typing or to make or answer phone calls: PN713-715.

5.4 Ms Lee did not personally generate any invoices: PN721.

5.5 Ms Lee would request the invoicing clerk to generate a draft invoice report which she would then review: PN731.

6 Ms Lee does not have any experience or qualifications in any trade or as an engineer.

6.1 Ms Lee states that she does not have any engineering or trade qualifications: PN572 to PN580.” 16

[19] Mr. Downing, the Applicant’s manager (but not direct supervisor) provided evidence for the Respondent. The Respondent submitted that Mr Downing's evidence demonstrated the following:

“7 The primary purpose of Ms Lee's role

7.1 Ms Lee was the senior and responsible manager for the delivery of project control services to regional offices and client sites. She was managing teams of people that delivered planning and scheduling services and cost control planning and cost reporting services: PN51-52.

7.2 The primary purpose of Ms Lee's position was to manage various teams across different locations: PN53.

8 What Ms Lee actually did as a Project Controls Manager

8.1 The position description for Project Controls Manager, although it refers to an

Adelaide location, outlines the standard core responsibilities and accountabilities for Project Controls Managers for any region in Australia: PN95.

8.2 The types of positions that reported to Ms Lee included a planner/scheduler, a project controller and a project administrator: PN147-PN151. Of those positions, only the project administrator performs clerical type duties: PN155.

8.3 Ms Lee was accountable for managing a group of 10 employees; Mr Downing did not have any involvement with their management: PN156-PN159.

8.4 Ms Lee undertook the performance review process with her staff and managed any performance issues: PN162 and PN168.

8.5 Ms Lee had the right to dismiss members of her team: PN169. She would work closely with the project manager on these types of issues: PN170.

8.6 Ms Lee ran the recruitment process for her team: PN171.

8.7 Ms Lee conducted salary reviews and was involved in deciding and recommending salary increases for her team: PN174.

8.8 Ms Lee's work diary demonstrates that she was performing quite complex decision making processes and managing her team: PN182.

8.9 Ms Lee was responsible for moving systems to a new planning environment system which required the establishment of scheduling templates and uploading of information: PN212.

8.10 Ms Lee was involved in the recruitment process for Tahir Nazim: PN372.

8.11 Worley Parsons employs accountants: PN410.

8.12 Worley Parsons employs a single finance manager for the Northern Group and Ms Lee did not work in his or her department: PN413-414.

8.13 Ms Lee did not carry out invoicing and collection of money as part of her role: PN421-PN423.

8.14 Mr Downing disagreed with the assertion that the KPI "Reduce PL manual reporting requirements by automating through project controls systems" was an administrative function. He considers it to be part of the cost-controlling role: PN453.

8.15 The invoice process is run by the finance management team and all projects need to comply with invoicing procedures. Ms Lee's role was to achieve certain financial targets not to develop an invoicing process: PN474.

8.16 Ms Lee did not have to gain approval from more senior management before she could dismiss or hire staff: PN477.

8.17 Location managers had the last say on any salary increases; Ms Lee would only make recommendations: PN478.

8.18 Ms Lee's functions included giving advice and information to the organisation and its clients, supervising employees, allocating duties and coordinating workflow, checking progress and quality of work and resolving problems: PN486-490.

8.19 Ms Lee's role was not involved in the 'money side of business', she monitored actual costs as the work was done. Her role centred on cost performance: PN492.

8.20 Ms Lee's role involves reporting on what is going on with the money: PN494.

8.21 Ms Lee's role involves monitoring hours expended, using the earned value management system was essentially the tool that would be developed to assess progress and thus costs incurred by the project: PN501.

8.22 Ms Lee's role was to alert a client or management to problems such as a project being overspent: PN502.

8.2 It was the finance team's responsibility to invoice for services provided by Worley Parsons employees: PN506.

8.24 Ms Lee's role was to plan on how to deliver the project and help the client in reporting progress against achieving performance objectives around delivering that project within budget and within schedule: PN506.” 17

[20] A significant amount of Mr. Downing’s witness statement in the proceedings was built around the duties of the Applicant set out in the position description of the Applicant (noting that paragraph 10 which set out the Applicant’s key duties from the perspective of Mr. Downing was withdrawn). Further, for reasons I will make clear later in this decision, I do not accept the position description in evidence (annexure MD4 of Mr Downing’s witness statement) applied to the Applicant. This renders the witness statement of Mr. Downing of little value in determining the matter. The oral evidence of Mr. Downing was of greater value in determining the matter.

[21] Mr. Dircks submitted that the evidence of Mr. Downing should be approached with some caution to the extent that it is at odds with the evidence of the Applicant.

[22] The basis for this submission of Mr. Dircks was:

“6. Mr. Downing was, to a large degree, treated as though he were an expert witness rather than a witness of fact. However he has no apparent expertise in employment matters such as what constitutes a professional person and what constitutes a manager.

7. That he clearly had little to do with the applicant and there were no documentary materials he was able to bring to bear that demonstrated that his opinions were correct.

8. Mr. Downing withdrew paragraph 10 of his original witness statement on the basis that his statement about the alleged key duties was not accurate ‘upon hindsight and not having her position description in front of me’.

9. Even that evidence was not reliable as it infers there was a position description when there was none. He later gave evidence that he had not seen a position description. There is no position description before the Commission.

10. Mr. Downing was not in a position to observe what the applicant actually did. He would ‘meet’ with the applicant weekly by phone, with maybe also weekly email communication. He had never met the applicant in person, had never spoken to her on a day-to-day basis on what she was doing at work, was not involved in her recruitment and acknowledged that the applicant was directly supervised by regional location managers (not him).

11. Mr. Downing had never done a performance review of the applicant.

12. Mr. Downing gave evidence that was clearly speculative and admitted to that fact.

13. Mr. Downing had to be asked by the respondent’s representative to not speculate in his evidence in chief concerning the contents of the workbook.

14. Mr. Downing gave evidence that the applicant headed up a department when there is no evidence that there was a department that she was in charge of. The evidence on actual departments was at pn339 - the departments that existed under Mr. Cocksedge (head of Operations for the region) were project services, engineering, procurement, construction and quality.

15. Therefore there is a clear basis for Mr. Downing’s evidence being seen as less reliable than the applicant’s evidence.” 18 [footnotes omitted]

Consideration:

[23] There is some force in the submission of Mr. Dircks for the Applicant that I should find the evidence of Mr. Downing to be less reliable than that of the Applicant. I agree that his withdrawal of paragraph 10 of his witness statement undermined to some extent the reliability of his evidence in chief. Mr. Downing made reference to a position description that was for a position in Adelaide. The position description mandated a tertiary qualification that the Applicant clearly did not have. The Applicant had never worked in Adelaide. The Applicant asserted that she had never seen the position description before it was tendered into evidence. The position description was clearly not that of the Applicant. I agree with Mr. Dircks that there was not a position description in evidence. I note that the Applicant herself was forthright and credible as a witness.

[24] However, I do not accept that Mr. Downing was treated more as an expert witness rather than a witness of fact. Nor do I accept that Mr. Downing had “little to do with the applicant”. While Mr. Downing had not met the Applicant, and was not her direct supervisor he did converse with her weekly on the phone and was ultimately her manager. He was in a position to give credible evidence about the work of the Applicant. With the exception of his evidence related to the position description, I have relied upon his evidence.

[25] However, it is clear that, even on the Applicant’s evidence, that she was a managerial employee, operating as a professional or quasi professional. She personally ran the rollout of a restructure at Gove and advised Project Leaders on the best method to set up and manage complex projects. She made decisions on recruitment and termination of employees; made complex budgetary decisions and directly maintained client relationships;she managed her team, undertaking salary and performance reviews and was responsible for the productivity of her team including through reviewing roles andreorganising within the team. The applicant did not personally perform clerical duties. She was a highly experienced professional on a substantial level of remuneration. Ultimately the Applicant agreed with counsel for the Respondent that she was a professional or quasi professional.

[26] It is clear the Applicant does not hold a professional qualification. However, despite that the evidence is that the considerable experience she has gained in employment has enabled her to operate at a quasi professional level within the organisation.

[27] I note that Mr. Dircks in his final written submissions takes issue with what the definition of, or the characteristics of, a manager or professional actually are. I believe this issue to be superfluous. The proper inquiry is, was the primary purpose of the role of the Applicant the exercising of skills of a professional or quasi professional nature, or not. 19 It is clear on the extensive evidence canvassed in this case that the primary purpose of the Applicants’ role was to exercise skills of a professional or quasi professional nature.

[28] It is clear that the Applicant is a highly skilled professional or quasi professional who held a senior, management level position with the Respondent at the time of her dismissal. Any administrative functions performed by the Applicant were ancillary or incidental to her core duties which went significantly above and beyond the duties of an employee that could be covered by the Clerical award, even at Level 5. As the primary purpose of the role is the exercise of skills of a professional or quasi professional nature, “the role will not be regarded as clerical notwithstanding that the role involves various recording and ordinary administrative office functions.” 20

[29] It is contrary to the scope of coverage of the Award and the evidence in this matter to describe the Applicant, in her position of Regional Project Controls Manager, as ‘wholly or principally’ engaged in clerical or administrative work and therefore her employment was not covered by the clerical award.

Was the Applicant covered by the Miscellaneous Award?

[30] Mr. Dircks submitted that if the Commission were to find that the Clerks Award did not apply, then the alternative submission was put that the Miscellaneous award covers the work. Mr Dircks submitted thatthis award appears to have a general application that ought to, as default, cover employees working in financial admin roles in large Australian businesses if the Clerks award were not to apply.

[31] The relevant part of the Miscellaneous award coverage clause 4 is;

“4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14- Minimum wages who are not covered by any other modern award.

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.”

[32] The Respondent submits that the Miscellaneous awardcannotapply to the Applicant because she is in the class of employees excluded pursuant to clause 4.2 of the award. I agree with the submissions of the Respondent on this point. The Applicant’s role was managerial and professional and therefore excluded from coverage of the Miscellaneous award.

Was the Applicant covered by the Manufacturing award?

[33] I note this submission was not put by the Applicant’s representative until final submissions were filed. Therefore, the Respondent has not had an opportunity to make submissions on the point.

[34] The submission of Mr. Dircks is as follows, that on the basis of considerations that the Applicant’s representative was not aware of at earlier times, it is submitted that it appears the third serious possibility of award coverage is under the Manufacturing award.

[35] The Applicant submits that the evidence of Mr. Downing was that the Respondent is an engineering organisation; that the Applicant describes herself as a costs engineer; and that there appears to be no impediment to the Applicant being regarded as an Engineering Associate/Technician as being part of the ‘wide range’ of disciplines.

[36] I can deal with this rather last minute submission of Mr. Dircks simply. I have considered the classification structure and definitions in the Manufacturing award. There is nothing in the evidence to suggest that the Applicant could be covered by such a classification or any other classification in that award. In light of my earlier findings that the Applicant is operating at a managerial or professional quasi professional level of the organisation, it is clear she does not fall within the scope of the Manufacturing award.

Conclusion

[37] In conclusion, I find that the Respondent has discharged the onus of establishing that the Applicant is not covered by a modern award. It follows that the Applicant is therefore not a protected person for the purposes of section 394 of the Act and there is no jurisdiction to progress the matter.

[38] For these reasons I dismiss the application. An order [PR551561] dismissing the application will issue with this decision.

COMMISSIONER

Appearances:

G Dircks for the Applicant

R Levin for the Applicant

Hearing details:

2014.

Melbourne:

January 17 and February 7.

Final written submissions:

Applicant, 3 March 2014

Respondent, 24 February 2014

 1 See witness statement of Tracy Lee, filed 20 December 2013, [32] and annexure MB2 to witness statement of Michael Downing, filed 10 December 2013.

 2   Respondent’s outline of submissions, filed 10 December 2013, [4.08-.4.10], [4.12-4.15]

 3   Applicant’s outline of submissions, filed 20 December 2013, [39] - [44]

 4   PR938031 Giudice P, Marsh SDP, Thatcher C, 16 September 2003

 5   [2012] FWA 4801

 6   [2011] FWA 3763

 7   [2012] FWA 4801

 8   Respondent’s outline of submissions, filed 10 December 2013, [4.3-4.6]

 9   Applicant’s outline of submissions, filed 20 December 2013, [3] - [12]

 10   [2010] FWA 7718

 11   [2011] FWA 6818

 12   Applicant’s outline of submissions, filed 20 December 2013, [23-27] and [32 - 34]

 13   See annexure TL1 to witness statement of Tracy Lee, filed 20 December 2013

 14   See annexure TL2 to witness statement of Tracy Lee, filed 20 December 2013

 15   See annexure TL3 to witness statement of Tracy Lee, filed 20 December 2013 and attachment MB6 to witness statement of Michael Downing, filed 10 December 2013.

 16   Respondent’s review of evidence, filed 24 February 2014

 17   Respondent’s review of evidence, filed 24 February 2014

 18   Applicant’s final submissions, filed 3 March 2014

 19   Joyce v Christoffersen, 26 FCR 261

 20   Joyce v Christoffersen, 26 FCR 261, at [271]-[273].

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