On 17 December 2018, the Applicant was terminated by the Respondent on account of his unsatisfactory performance.

The Applicant asserts that although he earned in excess of the high income threshold, his employment was covered by the Professional Employees Award 2010 [MA000065] (Professional Employees Award) therefore making him a person protected by unfair dismissal under section 382 of the FW Act.

The Respondent submits that the Applicant earned in excess of the high income threshold and the Applicant's employment was not covered by the Professional Employees Award (nor was it covered by an enterprise agreement).

2. Accordingly, the Commission is granted power to deal with an unfair dismissal application where an Applicant has completed the minimum employment period (section 382(a)) and is covered by a modern award or enterprise agreement and does not earn above the high income threshold (section 382(b)(a) - (c)).

3. The Respondent respectfully submits hat the Commission does not have jurisdiction to deal with the Applicant's Application because while he had completed the minimum engagement period; he earned in excess of the high income threshold and his employment was not covered by a modern award or enterprise agreement.

Applicant earned in excess of high income threshold

Pursuant to section 333 of the FW Act and as prescribed by Regulation 2.13 of the Fair Work Regulations 2009 (Cth), the high income threshold that applies to this Application is $145,000 (as indexed from 1 July 2018).

At the time that the dismissal took effect, the Applicant earned $201,107.07 per annum. The Applicant also received an annual site allowance of $40,211.41 and the provision of a tool of trade motor vehicle valued at $15,000 per annum, in accordance with the Applicant's employment contract dated 5 January 2015 (Employment Contract).

The Respondent submits that there is no dispute as to whether the Applicant earned in excess of the high income threshold. These facts are conceded to by the Applicant in his witness statement dated 28 February 2019 (Witness Statement) at paragraph 5.

The Applicant asserts that despite having earned in excess of the high income threshold, his employment was covered by the Professional Employees Award.

The Respondent submits that the Applicant's employment was not, at any time during his employment covered by the Professional Employees Award. The Respondent submits that in determining whether the Professional Employees Award covered the Applicant's employment, the Commission must have regard to the:

• (a) coverage of the Professional Employees Award;
  • (b) classifications contained within the Professional Employees Award; and

(c) duties that were being performed by the Applicant prior to the dismissal taking effect (ie the principal purpose test)[47].

Together, the question to be determined by the Commission is whether the Professional Employees Award covered the Applicant's employment.

Applicant not covered by the Professional Employees Award

17. In determining whether an employee is employed under a classification within a modern award the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed.[48] This must be applied to the work performed at the time of the dismissal.[49]

18. When interpreting the words of the award clauses, they should be given their ordinary general meaning. The award's history and subject matter should be considered to resolve any ambiguity in the words of the award clauses.[50] When interpreting awards, the meaning intended when drafting the document must be considered.[51]

1. The coverage clause of the Professional Employees Award is as follows:

4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B - Classification Structure and Definitions of the award and those employees.

4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.

1. The Professional Employees Award covers employers in the industries specified in clause 4.2 but also has occupational coverage under clause 4.1 for employees performing professional engineering and professional scientific duties who are covered by Schedule B - Classifications.

2. Clause 3.2 of the Professional Employees Award defines the Engineering Stream as follows:

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

(a) membership of Engineers Australia; or

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

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

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

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

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

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

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

Professional engineer means a person qualified to carry out professional engineering duties as defined. The term Professional engineer will embrace and include Graduate engineer and Experienced engineer as defined in this clause.

Professional engineering duties means duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia

1. Schedule B of the Professional Employees Award contains the classification structure and definitions in the award. For the purposes of this Application, the Applicant asserts that he was covered by the "Level 3 - Professional" classification which states:

(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.

The Respondent is a major construction, maintenance and mining services Company and is therefore not principally engaged in the industries specified in clause 4.2 of the Professional Employees Award.

The issue is whether the Applicant is covered by the Professional Employees Award by virtue of it occupational covered through clause 4.1 of the award.

In Halasagi v George Weston Foods Limited [2010] FWA 6503 (Halasagi decision), then Vice President Lawler considered the meaning of professional engineering duties under the Professional Employees Award as compared to an Applicant engaged as a Level 2 Solutions Analyst in the Business Intelligence Team in the Information Services Division of the respondent's business. The applicant in the Halasagi case had an Associate Diploma in Mechanical Engineering and a Bachelor of Technology in Manufacturing Engineering.

In the Halasagi decision, Vice President Lawler considered at length the meaning of the definition of "professional engineering duties" as it appears in the Professional Employees Award and determined that a two stage process must be utilised when determining coverage in the engineering stream. Firstly, to consider the qualifications of the employee and the qualifications required to perform the duties and secondly, to consider whether the employee fell within a classification in the award.

In considering the first step to determining coverage of the engineering stream of the Professional Employees Award, Vice President Lawler at [23] stated:

Particular duties will not be "professional engineering duties" as defined unless it is almost invariably the case that a qualification of the sort referred to in the definition is needed for the adequate discharge of some portion of those duties.

The qualification must relate directly to the duties in question. That is, it is not enough that an employee holds a qualification as (or at least equal to those of) a graduate member of Engineers Australia, the qualification must be a qualification of the sort that is almost invariably needed to perform duties of the sort that are said to be the "professional engineering duties" of the employee. In other words, an employee would generally not be able to rely upon, say, a degree in mechanical engineering to claim coverage by the Professional Employees Award 2010 in a position that involves duties in the field of chemical engineering.

If the advertisement for an employee's position identifies a relevant qualification as required this would be prima facie evidence that the position involved "professional engineering duties" for an employee who held that qualification.

The reference in the definition to "the adequate discharge of any portion of" the relevant duties is intended to ensure that engineers who advance in their career and assume an increasing load of administrative duties remain covered if they still perform some engineering duties, the adequate discharge of which requires the relevant qualification and the definition should be construed accordingly.

1. Vice President Lawler at [24] went on to state:

Of course, an applicant who seeks to establish that they are protected from unfair dismissal by virtue of being covered by a modern award needs to establish not only they are within the coverage clause of that modern award (the issue with which I am presently concerned), but also that they are employed in a classification in the award. That later question is determined by reference to the "principal purpose" test. I would note that, in relation to the Professional Employees Award 2010, care must be taken not to confuse these two questions because the definition of "professional engineering duties" can be satisfied by reference to "any portion" of the employee's duties and does not require that the duties falling within that definition are the "principal purpose" for which the employee is employed.

It was concluded in the Halasagi decision at [29] that the applicant's programming duties did not require his Bachelor of Manufacturing Engineering qualifications for the adequate discharge of the duties.

The Halsagi decision has been affirmed in numerous decisions of the Commission and the application of the coverage of the Professional Employees Award to Project Managers and Engineering Managers has become established and well-settled by the Commission.

In Bateman v Communications Design & Management Pty Limited [2014] FWCFB 8768 (Bateman decision), the Full Bench of the Commission endorsed and adopted the principles of the Halsagi decision. The Full Bench was required to consider the decision at first instance whereby the Applicant contended that the nature of his duties as Senior Project Manager were such that he performed professional engineering duties. That is, he met the definition of an Experienced engineer and his role required him to work as such. In the decision at first instance, the Commissioner noted that there was no dispute that the applicant fell within the definition of Experienced engineer, possessing as he did the qualifications of Bachelor of Engineering, Electrical and Electronic Engineering and Master of Science in Safety Critical Systems Engineering. The issue in contest was whether his duties required the use of those qualifications.

The duties of the applicant as Senior Project Manager in the Bateman decision included project planning, financial management, project schedule management, project resource management, project risk and issue management and management of internal and external clients and stakeholders, amongst others.

In the Bateman decision, the Full Bench, in dismissing the appeal application stated at [24]:

The Commissioner at paragraph [27] of the Decision concluded that Mr Bateman was not, from the details of CDM's letter of offer, engaged to perform professional duties of the kind which required the qualifications of a Professional engineer. We consider that this conclusion was clearly available having regard to the delineation of the role and responsibilities of the position as set out in the job offer, which focused upon project management and made no mention of any requirement to perform duties for which an engineering qualification was necessary.

1. In Whelan v BMD Constructions Pty Ltd [2016], Deputy President Asbury in dismissing the application, considered the coverage of the Professional Employees Award to the applicant's role as a Project Manager. The Deputy President found that the duties carried out or a portion of those duties were not such that adequate discharge required qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia.

35. In considering Baptisa[52], the Deputy President noted that the Full Bench in that case, stated that the coverage clause of the Professional Employees Award operates by reference to both the industry of the employer and the occupation of employees. What the clause requires is consideration of whether an employer has employees performing professional engineering duties as defined by the award and who are in classifications in Schedule B.

1. In considering the position description and key responsibilities of the duties the Applicant were required to perform in the position of Senior Project Manager and whether the Professional Employees Award covered the applicant, the Deputy President concluded at [52]:

In my view, the adequate discharge of duties by a person in the role of Project Manager, or any portion of the duties, as set out in the position description tendered by Mr Whelan, does not require qualifications as a graduate member of Engineer's Australia or equivalent. The basic objective of the position of Project Manager is to manage contracts so that they are completed in a manner that is safe, timely and cost effective. It is not necessary that a Project Manager undertaking the duties described in that position description, or any portion of them, has an engineering degree or holds the qualifications or equivalent of a graduate member of Engineers Australia.

1. In turning then to whether the duties were covered by the classifications in the Professional Employees Award, the Deputy President stated:

The fact that Mr Whelan was required to collect and report technical information such as soil bearing capacity or distance of electrical cabling and provide a design brief to designers, does not involve making independent decisions on professional engineering policies and procedures or taking detailed technical responsibility for provision of specialised professional engineering systems, facilities and functions.

The planning and coordination undertaken by Mr Whelan was not in relation to professional engineering but rather related to project management.

1. In Sariman v BMD Constructions Pty Ltd [2016 (Sariman decision), Commissioner Hunt considered the coverage of the Professional Employees Award to a Senior Project Engineer. In dismissing the application for want of jurisdiction, the Commissioner stated at [102] and [105] respectively:

The duties require 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.

In my view, the adequate discharge of duties by a person in the role performed by Mr Sariman (by any title) or any portion of the duties as set out in the position description tendered by Mr Sariman does not require qualifications as a graduate member of Engineers Australia (or equivalent).

By analogy to the present case, the Applicant was engaged by the Respondent as a Project Manager / Senior Project Engineer on the major construction of the Keepit Dam Project in North West New South Wales. The project was undertaken by WaterNSW and sub-contracted to the Respondent.

As the Respondent was not an employer covered by the industry as contained in clause 4.2 of the Professional Employees Award, the question turns on whether clause 4.1 of the Professional Employees Award covered the Applicant by virtue of the occupation.

The Applicant states in his Witness Statement at paragraph 8 that he has a Bachelor of Engineering and is a member of the Institution of Engineers Australia and the Registered Professional Engineer Queensland.

The Applicant had the relevant qualifications, however while he was a member of a number of engineering institutes, he was not a member of Engineers Australia as required by the Engineering Stream in clause 3.2 of the Professional Employees Award.

In considering whether the Applicant was covered by a classification in the Professional Employees Award, the Respondent asserts that he was not. In applying the principal purpose test, the Respondent submits that the Applicant was not engaged to perform duties as defined in the Level 3 (or any other classification) of the Professional Employees Award.

On the Applicant's own admission at paragraph 13 of the Witness Statement, the Applicant states that his duties could be divided into 3 categories: "Engineering, Safety and Financial".

Under Engineering at paragraph 13.1 of the Witness Statement, the Applicant states that his duties included:

1. work with temporary works designers on design temporary works; 2. work with engineers on procurement and constructability of the temporary work;

1. work with the client and their designers on constructability issues with the permanent design;

1. work with client and their designers on constructability issues to do with remedial works;

1. work with engineers working on construction plans which lead into Safe Work Method Statement (SWMS) etc.

The Respondent submits that the "Engineering" duties referred to by the Applicant are management duties that required the Applicant to oversee the overall work completed by other engineers including those engaged by the client of the Respondent. The Applicant was not required nor did he have authority to determine the engineering and design of the construction. The adequate discharge of the Applicant's duties did not require qualifications as a graduate member of Engineers Australia.

Further, the Applicant asserts at paragraphs 13.2 and 13.3 of the Witness Statement that the other two thirds of his position related to implementing safety policies and procedures and controlling the project budget and assisting Engineers with their budgets and procurement processes.

The Respondent relies on the witness statement of Sean Kelly dated 5 April 2019. At paragraph 14 and annexure SK-2 of Mr Kelly's statement, he refers to the position description and duties of the Project Manager position. Mr Kelly states that the Project Manager position was engaged to perform duties which include the management of engineers, consultants, subcontractors, superintendents and supervisors. Mr Kelly's evidence confirms that the Applicant's position was responsible for the successful delivery of his assigned project on time, on budget and within the agreed scope. This involved planning and co-ordinating the construction process, managing financial performance and ensuring site safety whilst adhering to Company policies and procedures.

Further, the Respondent submits that it does not require qualified engineers to deliver the project. Individuals with a background in construction could perform the work of Project Manager. The Respondent submits that it is not uncommon for Project Managers to be trade qualified personnel who have advanced in their careers to Project Management positions. Project Managers, Senior Project Managers and Project Engineers can have no formal qualifications, or have diplomas or degrees which are not in the field of civil engineering ie geotechnical, agricultural, drilling, geological and mining. This is confirmed at paragraph 30 and annexure SK-3 of Mr Kelly's statement, which includes other Project Managers which had for example qualifications referred to as "international qualification not mapped to Australian Standards" and "at the time of employment advised that he was currently studying a Bachelor Degree of Construction".

As such, the Respondent submits that the Applicant was therefore not covered by any classification under the Professional Employees Award.

1. The Respondent submits that the Applicant earned above the high income threshold at the time of the dismissal and that he was not covered by a modern award (or enterprise agreement). The Applicant is therefore not protected from unfair dismissal in accordance with section 382 of the FW Act.

2. Accordingly, the Application should be dismissed..."

[17] The Applicant submitted that,

1. "The Applicant submits that he is covered by the Professional Employees Award 2010 [MA000065] (Award) and that the Commission has jurisdiction to deal with the Applicant's Application.

1. The Commission will have jurisdiction to deal with an unfair dismissal application where an Applicant has completed the minimum employment period (section 382(a) of the FW Act) and where the Applicant is covered by a modern award, an enterprise agreement or earns less than the high income threshold (sections 382(b)(i)-(iii) of the FW Act).

2. Both parties agree that the Applicant completed the minimum engagement period. Further the Applicant is not covered by an enterprise agreement and earned in excess of the high-income threshold.

3. Therefore, the point of contention is whether the Applicant is covered by a modern award (section 382(b)(i) of the FW Act), specifically the Professional Employees Award 2010 [MA000065] (Award).

4. The Applicant agrees with the Respondent ([24] of the Respondent's submission) that the determination to be made here is whether the Applicant is covered by the Award by virtue of occupational coverage through clause 4.1 of the Award:

4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B - Classification Structure and Definitions of the award and those employees.

1. In applying clause 4.1, the Applicant submits that he was:

• 9.1 An employee performing "professional engineering duties"; and
  • 9.2 Covered by a classification in Schedule B of the Award - specifically "Level 3 - Professional".

Applicant performed "professional engineering duties"

1. The expression "professional engineering duties" is defined in clause 3.2

"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) a graduate member of Engineers Australia."

1. Firstly, the "qualifications" here is defined at clause 3.2 as a person who holds a university degree (four- or five-year course) recognized by Engineers Australia. The Applicant submits that he holds the "qualifications" as defined by the Award by virtue of his Civil Engineering degree (attachment A of the Applicant's statement) and his membership to the Institution of Engineers Australia (also known as Engineers Australia) (attachment B).

2. Secondly, the Applicant submits that the duties listed in the position description submitted by the Respondent as "Annexure SK-2" of Mr Kelly's statement is inaccurate. As per the Applicant's supplementary statement at [6], the Applicant had not been provided the list of duties listed in "Annexure SK-2". Had the Applicant been privy to the list of duties, the Applicant submits that he would have sought to have amended the list to include the engineering duties he performed. These duties are listed in [13.1] of the Applicant's first statement and in the Applicant's supplementary statement from [12].

3. The Applicant submits that in considering the duties referred to in paragraph 12 of this submission and in applying the four principles established at [23] in the case of Halasagi v George Weston Foods Limited [2010] FWA 6503 ("Halasagi"), he was performing "professional engineering duties":

13.1 The Applicant's qualifications (as listed in paragraph 11 above) is needed for the adequate discharge of some portion of his duties[53]:

1. As per the Applicant's first statement and the Applicant's supplementary statement, the Applicant performed duties such as the signing off on Quality checks, working on anchor designs by performing technical calculations regarding load capacity and submitting design variations, and setting parameters for designs submitted by SMEC;

b. Given that the anchor design work was within the portfolio of SRG Civil, the Applicant did hold some authority with respect to design, calculations and technical advice[54]; and

1. For work such as signing off on Quality checks, it was a requirement that only an engineer could sign off on quality checks.

13.2 The Applicant's qualification, stated in paragraph 11 of this submission, relates directly[55] to the duties referred to in paragraph 13.1 of this submission;

13.3 The Applicant's job description containing the pre-requisite that the Applicant must have a degree in civil engineering and the requirement that the Applicant submit evidence of his engineering degree, and evidence of his membership to the Institution of Engineers Australia at the start of his role, is 'equivalent to an advertisement'[56] for the Applicant's position and is prima facie evidence[57] that the position involved "professional engineering duties".

1. Therefore, the Applicant submits that he had performed "professional engineering duties" in his role as Project Manager/Senior Project Engineer and as such the Applicant falls within the coverage set out in clause 4.1 of the Award.

Applicant carried out his required duties consistent with the classification of Level 3 Professional (Engineer) - Schedule B

1. The Applicant submits that he was employed in a classification set out in Schedule B of the Award (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."

16. In order to establish that the Applicant falls within the Level 3 classification, the principal purpose test must be applied. The Applicant agrees with the Respondent that the "principle purpose" test to be applied here was set out in Carpenter v Corona[58] (Carpenter), and later referred to in Halasagi[59] and then applied in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting[60]:

"[9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed."

1. Firstly, in considering the nature of the work, the Applicant reiterates as per paragraph 12 above, that it never received a copy of the position description ( "Annexure SK-2" of Mr Kelly's statement) and that the list of duties and responsibilities failed to include the engineering duties the Applicant had been performing in his role on a daily basis. The Applicant disagrees with the Respondent's statement at [19] of the Respondent's submission that the Applicant had not been engaged by the Respondent to perform engineering duties on the project. In summary and in reference to the Applicant's statement and supplementary statement:

• 17.1 For the construction portion of the project, the Applicant would provide reviews of designs submitted and advise on the construability and even set parameters and provide feedback on the design to the design engineers;

• 17.2 Although there were two engineers directly employed under the Applicant to fulfil the permanent anchor design obligations and to assist with the development of temporary works design (paragraph [22] of Mr Kelly's statement), there was an unwritten expectation that the Applicant also perform those design duties for the Respondent:

1. Both the engineers referred to above, in paragraph [21.3] only had 4 years and 7 years' experience each. They heavily relied on the Applicant's more than 30 years of experience as an engineer for guidance;

2. On numerous occasions, there was an expectation that the Applicant would step in and perform the duties that the 2 engineers normally would.

1. The engineers would take on day or night shifts to perform their duties. The Applicant had also been included in the roster for those day and night shifts along with the two engineers; and

1. For a period of 6-7 months in 2018, the Applicant was designing the permanent anchors for the pier anchors and the Applicant performed this work in conjunction with Mark Sinclair (General Manager Engineering & Technical), and a specialist contractor.

18. Secondly, in considering the circumstances in which the applicant was employed to do the work[61], the Applicant submits that based on all the circumstances, the Applicant was employed for the principal purpose of performing "professional engineering duties" within the classification of Level 3. In supporting this claim, the Applicant submits the following:

• 18.1 In tendering for the WaterNSW Project, the Respondent had submitted the Applicant's SRG Resume ("Annexure SK-1" of Mr Kelly's statement). This resume clearly describes the Applicant as 'a committed professional engineer' with 'over 30 years of experience in the engineering/construction industry'. The Applicant's list of qualifications and memberships are also listed an includes his Bachelor of Engineering (Civil), his membership to the Institute of Engineers Australia CPEng and his qualification as a Registered Professional Engineer Queensland. All this was clearly stated for the Respondent to be able to demonstrate to WaterNSW the capability and specialist knowledge it had within the company.

• 18.2 The Applicant disagrees with the Respondent's contentions that there was no requirement for the Applicant in his role as Project Manager/Senior Project Engineer to have a membership with Engineers Australia ([33] of Mr Kelly's statement). The Applicant was required to submit evidence of his membership to the Institution of Engineers Australia at the start of his role.

• 18.3 The Applicant disagrees with Mr Kelly's statement at [29] that while it is beneficial for a Project Manager to have a Bachelor of Engineering, it was not a requirement of a Project Manager/Senior Project Engineer to have a tertiary qualification. The Applicant acknowledges that a requirement to have a (relevant) tertiary qualification may not be a requirement for all Project Manager/Senior Project Engineers. However, the Applicant submits that for his specific role as Project Manager/Senior Project Engineer, for the project he was working on, a relevant qualification was in fact a requirement. This is evidence by the work he performed and the fact that the position description, "Annexure SK-2", states that a 'degree in Civil Engineering or similar' is a pre-requisite in obtaining the role.

• 18.4 The Applicant disagrees with the Respondent's contention that it does not require qualified engineers to deliver the project ([48] of its submissions) and that 'Project Managers, Senior Project Managers and Project Engineers can have no formal qualifications...'. Further, Mr Kelly states, in his statement, at [30] that:

"While the majority of the Project Managers and Senior Project Engineers have degrees, some of them do not and some of them hold other tertiary qualifications or diplomas such as Bachelor of Science, Civil Engineering and Geodesy and Geological and Mining Engineering."

Mr Kelly relied on a copy of a spreadsheet report that contained the qualifications held by the other Project Managers within the East Coast civil projects ("Annexure SK-3" of Mr Kelly's statement):

1. The Respondent throughout its submission and Mr Kelly's statement used various different position titles - Project Manager, Senior Project Manager, Senior Project Engineer and Project Engineer. The Respondent and Mr Kelly have put forward that all these terms are interchangeable and are essentially the position of 'Project Manager'.

2. Out of the thirty-six on annexure SK-3, four worked on the Keepit Dam project and all of whom held the relevant degree.

1. The Applicant submits that for the Keepit Dam project, specifically, it would appear that a degree (and a relevant degree) was required in order to deliver the project.

1. The Applicant submits that in examining the nature of the work the Applicant performed and the circumstances in which the Applicant was employed to do the work, it can be ascertained that the Applicant was employed for the principal purpose of performing "professional engineer duties" within the classification of level 3- professional. Amongst other things the Applicant:

1. performed duties requiring the application of mature professional knowledge;

2. applied new professional approaches and techniques to the design and development of the projects;

1. made recommendations that were regarded as technically accurate and feasible; and

1. outlined and assigned work, reviewed it for technical adequacy and planned, directed, coordinated and supervised the work of other professional and technical staff.

1. The Applicant submits that the Applicant was covered by the Professional Employees Award 2010 and is therefore protected from unfair dismissal in accordance with section 382 of the FW Act.

2. Accordingly, the Respondent's jurisdictional objection should be dismissed."

[18] Having regard to the material filed by the parties the issue in dispute was finely balanced and both sides of the argument had a reasonable prospect of success.

[19] The Respondent's position was not assisted by the fact that the governing contract of employment referred to the Applicant as a "Senior Project Engineer".

[20] Nor was the Respondent assisted by the fact that:

1. the November 2016 Project Manager position description listed a "Degree in Civil Engineering or similar" as a prerequisite to appointment, and

2. in its marketing material the Respondent highlighted the fact that the Applicant was "a committed professional engineer [with] over 30 years of experience in the engineering/construction industry." The professional CV prepared by the Respondent highlighted the Applicant's Bachelor of Engineering and his membership of the Institute of Engineers Australia.

[21] In all of its documentation the Respondent made much of the Applicant's engineering skills and qualifications. However, in advancing its jurisdictional objection, it sought to minimise the importance of the same. Therefore, to potential job applicants and clients the Respondent said one thing about the significance of engineering qualifications, skills and experience and yet, to this Commission, it said something quite different. In his evidence before me Mr Kelly said that, in his capacity as the Civil Manager, when appointing personnel, he would not require them to have a Degree in Civil Engineering.[62] In jointly calling the position "Senior Project Engineer" and requiring a Degree in Civil Engineering, the Respondent made a rod for its own back.

[22] Notwithstanding what appears to be an inconsistency in the Respondent's position, having considered the evidence, written submissions and all that was put in the matter at the hearing, for the following reasons, I am not satisfied that the Applicant's employment was covered by the Award.

[23] It is common ground between the parties that, in order to establish that the Applicant is covered by the Award, it must be established that the Applicant was discharging engineering duties, and that he fell within an Award classification. The Applicant nominated the Level 3 classification. In relation to the classification issue the principal purpose test must be applied. The parties agree that the "principle purpose" test to be applied in the present matter is that established in in Carpenter v Corona,[63] and later referred to in Halasagi v George Weston Foods Limited [64] and then applied in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting at first instance[65] and then upheld on appeal.[66] In coming to this decision I have applied that the principal purpose test. That is to say, I have applied the principal that,

"... in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed."[67]

[24] The Applicant conceded that he performed most of the duties in the November 2016 Position Description.[68] I have had regard to what is required in the Position Description. It has a large number of "Specific Activities" which are largely managerial in nature, "Safety & Quality" duties and "Environment" duties. It is difficult to discern how any of the duties and responsibilities might be said to require an engineering qualification. Overall the position is described as follows,

"The purpose of the position is to take ownership, responsibility and accountability of the project. This includes planning, coordinating and managing safety, production and financial performance whilst adhering to SRG policies and procedures. This position involves regular liaison with client representatives, key personnel and senior management in SRG in Australia, key suppliers, the community and other key stakeholders. You will be required to provide men touring and leadership to site personnel to ensure the SRG safety culture and business ethics are adhered to."

[25] However, the Applicant said he performed some other duties, especially in relation to engineering.[69]

[26] The Applicant's evidence[70] about his duties and responsibilities was that,

"13. ... [they] can be divided into 3 categories; Engineering, Safety and Financial. I have listed out these duties below and they illustrate that my civil engineering degree was a requirement to my role as Project Manager/Senior Project Engineer:

8.1 Engineering

1. Work with temporary works designers on design of temporary works;

2. Work with Engineers on procurement and constructability of the temporary work;

3. Work with the client and their designers on constructability issues with the permanent design;

4. Work with client and their designers on constructability issues to do with remedial works;

5. Work with Engineers working on construction plans which lead onto Safe Work Method Statement (SWMS) etc.;

8.2 Safety

1. Implement the company's policies with regards to providing a safe working environment;

2. Carry out risk assessments on all activities on the project and incorporate into a risk matrix with the involvement of the Safety department staff and workers. In SRG, the Engineers carry out the assessments;

3. Work up/review SWMS, Standard Operating Procedures, etc. for all high-risk activities with everyone involved in these activities including but not limited by Engineers, Safety personnel, client and the workers who carry out the work.

8.3 Financial

1. Controlling project budget;

2. Assisting Engineers with procurement process for sub-contractors and suppliers;

3. Assisting Engineers with their budgets of the sections of work that they control;

4. Reporting to upper management on the progress of the project financially, on safety issues, and progress.

[27] However, in cross-examination the Applicant conceded that, in terms of the duties he included in his evidence, he had been "selective"[71]. He agreed that he had "missed some items."[72] Further, he agreed with the proposition that he was "giving a very narrow indication of what you thought you were performing."[73]

[28] The evidence of Mr Kelly was to the effect that the Applicant "was not engaged by SRG Civil to perform engineering duties on the Project."[74]

[29] The Applicant's evidence aimed at contradicting Mr Kelly was not persuasive as the following extract from the transcript demonstrates,

"Commissioner: [Mr Kelly] says that SRG Civil had no ability to determine how SMEC ought to design or engineer the project, is that right or not?

Commissioner: So tell me, what aspect of design or engineering, in respect of the project, was SRG Civil responsible for?

McFarlane: The design of the permanent rock anchors and the anchors in the piers.

Commissioner: No, no, no, no. I'm asking you, what role you had in that?

McFarlane: I initially had no role in that until we got to site and we found, in the anchor - the anchors for the piers, the design that had been drawn by the client, or designed by the client had issues with regards to the ability to transfer the loads that they required.

McFarlane: I then turned around and discussed, with Mr Sinclair, the ways around that we could turn around and get the anchors to work and give an idea of what loads we could part from those anchors into the structure, and then submitted those back to SMEC, to see whether they met their conditions that they required for those anchors in the piers.

Commissioner: Mr Sinclair is the person you reported to, is that right?

McFarlane: Well, Mr Sinclair was the overall technical engineer - engineering manager.

Commissioner: Right. So you are giving him advice about what SMEC should do, is that right?

McFarlane: I was giving him advice as to what we would forward to our clients that could be assistance to SMEC to facilitate the design and the loading - - -

Commissioner: So when you say your client, do you mean Water New South Wales?

McFarlane: Water New South Wales, who we were contracted to.

Commissioner: Right. So you're giving advice to Water New South Wales for them to discuss with SMEC about how they should do their job, is that right?

Commissioner: So you didn't make any decisions about that design or engineering?

McFarlane: I made decisions to tell them what they could put in, what the anchors

Commissioner: No, no, no. You know what exactly what I mean. You weren't the person who signed off, were you?

Commissioner: You weren't the person who verified the project design works, were you?

Commissioner: And those roles were performed by SMEC?

Commissioner: All you provided was advice to your client, Water New South Wales?

Commissioner: And they could have ignored that advice?

[30] To the extent that there was a divergence in opinion about what Mr McFarlane did or was employed to do I prefer the evidence of Mr Kelly. The Applicant was not a compelling witness. At times he was evasive in his answers. He sought to overplay the engineering aspects of his work and underplay other key duties. His witness statement evidence was manufactured to fit what was required to meet the relevant classification in the Award. The evidence was, in that sense, convenient rather than grounded in the reality of his work for the Respondent.

[31] I am not satisfied that the Applicant made unique engineering contributions such that it could be said that engineering qualifications were necessary to discharge his role. There was a lack of clarity around what he actually did from an engineering perspective. In his evidence before me I sought to clarify what the Applicant meant when, in relation to engineering work, he used the phrase "work with" e.g. temporary works designers.[76] His answers lacked the necessary degree of detail for me to conclude that "work with" meant that he was performing any work where the adequate discharge of any proportion of it required engineering qualifications, let alone at the Level 3 Professional classification in the Award.

[32] The Applicant was, first and foremost, a Project Manager and his principal tasks involved managing the client contract and other contracts to ensure that the Project was completed in manner that was safe, timely and cost effective.

[33] I have made a finding of fact about that "notwithstanding responsibility for technical matters being vested with Mr Sinclair the Applicant's regularly spoke with Mr Sinclair about technical matters and discussed how they should be submitted to the client, WaterNSW. The Applicant's ability to meaningfully discuss these matters necessitated him relying upon his engineering skills publications and experience." However, this finding of fact does not equate to a finding that the principal purpose of the Applicant's position was that of engineer. I also accept the evidence of the Applicant that he created some documents that gave his professional engineering advice[77] and that he gave information to Mr Hawkins about the loads needed for design purposes.[78] However, neither do these findings of fact give rise to a conclusion that this was the principal purpose of his role. The Applicant was required to liaise with engineers. Because of his qualifications skill and experience the Applicant involved himself in works and offered his opinion, however, he did not have the authority to get involved in the technical aspects of design work and at no stage did he have the authority to sign off on technical aspects of any engineering design as it related to the anchor works. The Applicant accepted this proposition in cross-examination.[79] There were times when the Applicant signed off on temporary works as an engineer when the responsible person was on annual leave.[80] But that was not the principal purpose of his role.

[34] Having considered all the evidence I am not satisfied that any aspect of the Applicant's work required him to undertake engineering work. His qualification was not needed to discharge his position as Project Manager.

[35] That is not to say the Applicant did not do any engineering like work. Clearly he did. Further, the Respondent received the benefit of that work. However, to the extent that the Applicant was performing engineering work he was doing it in an advisory capacity. There was no requirement that he do it. It was other personnel within the operations of the Respondent at the Project that had responsibility for engineering matters. Additionally it was SMEC who determined matters concerning design and engineering. Mr McFarlane did not sign off on or verify project design works. He was not exercising and was not required to exercise his qualifications as an engineer (except on rare occasions - e.g. when the responsible engineer was on annual leave). This was not the principal purpose of his role with SRG Civil.

[36] In the present case, an examination of the nature of the work and the circumstances in which the Applicant was employed to do the work by the Respondent demonstrates that the principal purpose for which the Applicant was employed was that of Project Manager. That is to say, he was not "performing professional engineering" as required by the coverage clause 4.1 of the Award and no portion of any of his duties required the adequate discharge of his qualifications. Consequently, the Applicant was not covered by the Award.

[37] For the reasons set out above, the Commission, as presently constituted, is not satisfied the Applicant was protected from unfair dismissal. Consequently, his application for an unfair dismissal remedy must be dismissed.

[38] An order [PN710375] to that effect will be issued with this decision.

Ms Saraswathy Varatharajullu, Lawyer and National Industrial Officer, Professionals Australia for the Applicant.

Ms Christa Lenard, Partner, K&L Gates for the Respondent.

[2] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 9.

[3] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 8.

[5] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 9.

[6] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 10.

[8] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 10.

[10] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 5.

[11] Clause 4.1, Attachment A to Exhibit 7.

[12] Exhibit 8, Witness Statement of Andrew McFarlane dated 19 April 2019, para 6. Not disputed by Mr Kelly see Transcript PN37-39.

[14] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 10.

[15] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 11.

[17] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 21.

[18] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 22.

[19] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 22 (agreed with by the Applicant, see Exhibit 8, Witness Statement of Andrew McFarlane dated 28 February 2019, para 10).

[24] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 17.

[25] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 18. Conceded by the Applicant at transcript PN269.

[31] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 8. Transcript PN31.

[41] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 4.

[42] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 10 and 11.

[47] Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387, McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting [2012] FWAFB 7184.

[48] Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387, [9].

[49] McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting [2012] FWAFB 7184, [37].

[50] Pickard v John Heine & Son Ltd [1924] HCA 38, [9]. [(1924) [1924] HCA 38; 35 CLR 1 at p. 9] and City of Wanneroo v Holmes [1989] FCA 369 (12 September 1989), [43], Short v FW Hercus Pty Ltd [1993] FCA 51.

[51] Kucks v CSR Ltd [1996] IRCA 166, [184].

[52] Baptisa v Bearing Point Pty Ltd [2013] FWCFB 10126.

[53] Halasagi v George Weston Foods Limited [2010] FWA 6503 at [23].

[54] Sariman v BMD Constructions Pty Ltd [2016] at [102]-[103].

[55] Halasagi v George Weston Foods Limited [2010] FWA 6503 at [23].

[56] Hehir v Schweitzer Engineering Laboratories Pty Ltd [2011] FWA 3763 at [39].

[57] Halasagi v George Weston Foods Limited [2010] FWA 6503 at [23].

[58] Carpenter v Corona Manufacturing Pty Ltd PR925731 at para [9]

[59] Halasagi v George Weston Foods Limited [2010] FWA 6503 at [24].

[60] [2012] FWAFB 7184

[61] Carpenter v Corona Manufacturing Pty Ltd [PR925731] at [9].

[64] [2010] FWA 6503 at [24].

[65] [2012] FWA 4955.

[66] [2012] FWAFB 7184.

[67] Carpenter v Corona PR925731 at para [9].

[70] Exhibit 7, Witness Statement of Andrew McFarlane dated 28 February 2019, para 13.

[74] Exhibit 5, Witness Statement of Sean Kelly dated 5 April 2019, para 20.

[77] Transcript PN360. However, no such documents were tendered into evidence nor the subject of a Notice to Produce.

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