(viii) states in paragraph 22 that he signed off on documents and designs, however Ms Beck's evidence was that he would only have carried out these tasks in his capacity as a Senior Project Engineer, not as an engineer[30];

(ix) refers in paragraph 23 to 'technical documents' but provides no evidence of what those documents were;

(x) states in paragraph 25 that the Applicant 'managed technical details to ensure they comply with the requirements, and [...] would need to understand the technical background' but the Applicant provides no detail of those 'technical details'; and

(xi) states in paragraph 26 that Mr Rogan 'sketched out' a mechanical component - however Ms Beck's evidence is that such 'sketches' performed by project engineers are not engineering drawings.

• [100] The Applicant's Further Submissions (Jurisdictional Objection) filed on 23 June 2021 does not specify in any detail the engineering duties the Applicant purported to carry out - the brief statements following the words 'reviewing', 'resolving', 'addressing' and 'identifying' provide no clarity about the tasks performed; and how any of these duties required engineering qualifications.

• [101] The Respondent submits that under cross-examination, the Applicant conceded[31] that he did not address 'all' electrical technical queries from AECOM - rather, he said that he addressed the 'majority' of them. This is evidence that the Applicant has overstated his duties and is a reason why his evidence should not be preferred.

• [102] Also, it is submitted, the Applicant's evidence regarding him addressing technical queries generally conflicted with the evidence of Mr Hollier, that someone in the Applicant's position would address low-level administrative technical queries, but would refer technical queries that required engineering skills to Telfer's engineering department; and conflicted with Ms Beck who was able to provide evidence regarding the Applicant forwarding technical queries on the Secondary Power Station to the engineering department and Mr Hollier.

• [103] Regarding his evidence of completing drawings, the only evidence in the proceedings was a drawing that Ms Beck described as 'not an engineering drawing'; which the Applicant conceded was not a 'final drawing' - and that he provided 'high level conception drawings' to the design contractor and he would 'review them, mark them up and change things and if they have made mistakes [the Applicant] would mark them in red and send them back'[32].

• [104] The Respondent submits the Applicant's oral testimony contained broad, non-specific statements about the duties he claimed he performed. At most the Applicant's duties involved superficial review of drawings and he was not involved in confirming engineering designs. The Applicant stated for example:

(i). the Applicant provided 'details to go into the design'[33];

(ii). the Applicant made sure that what was installed was 'according to what is specified'[34];

(iii). the Applicant's 'part is actually to check that design and also to confirm that what they're doing is the correct thing'[35];

(iv). when the Applicant received documentation, he 'look[ed] at it' and he 'mark[ed] it'[36];

(v). the Applicant 'would have engaged the designer. By the time it's getting to Matt Brazier, the majority of the work, the heavy lifting, I would have done it myself'[37];

(vi). 'the design would have first gone through myself' and 'I was doing a lot of engineering'[38];

(vii). the Applicant had to 'dig deep and do my engineering part as well'[39];

(viii). the Applicant had 'to find the formulas myself and verify that what they [i.e. the contractor] did was correct. If there is (sic) some discrepancies, I will check with other engineers on site and collaborate. That is perfectly acceptable in the industry'[40];

(ix). the Applicant 'provided details that go into the design'[41];

(x). the Applicant's job was to make sure the 'design was correct'[42];

(xi). the Applicant did 'preliminary designs' and 'initial calculations', which the Applicant supplied 'to the design engineer, who would have done the detailed design'[43]; and

(xii). the Applicant's job was to 'verify that what they've done is correct and also to check with our engineering department to make sure that they're happy with it'[44].

• [105] It is submitted, the Applicant accepted that he performed a range of project management duties - for example, he accepted that 'part' of his role was managing others[45]; 'part' of his role involved delivering on budget on time and safely[46]; his role involved meeting project milestones[47]; and engineering design was done by design contractors[48].

• [106] The Applicant also accepted in his testimony that some other employees in his department may have had degrees in, for example, mechanical engineering, but worked on projects that were not in the same area as their degree.

• [107] It is submitted, this evidence supports the Respondent's position that an engineering degree was not required in the performance of professional engineering duties but enabled an employee in the position to understand the projects they were managing.

• [108] Although the Role Description (RD) for the Applicant's role states that a 'Degree in Electrical/instrumentation Engineering' was essential, the Respondent submits:

(i). the requirement that the Applicant have an engineering degree is only prima facie evidence that the position involved 'professional engineering duties'[49];

(ii). as set out in Ms Beck's Statement dated 12 May 2021 (at paragraph 14), the requirement that the Applicant hold a Bachelor of Engineering was so that he could understand the issues that arose in his work, not for the performance of actual professional engineering duties;

(iii). a number of cases have found that where a degree in engineering was 'desirable' the employee was nevertheless not covered by the Award[50];

(iv). even though the position may have required the Applicant to understand drawings, specifications, quality, and workplace health and safety requirements, such duties do not require membership of Engineers Australia or an engineering degree.

• [109] The Applicant alleges that the appropriate classification level for his role was 'Level 2 - Experienced Engineer'. This classification is defined in the Award as follows:

Following development, the Experienced engineer, Experienced information technology employee and Experienced scientist plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience." (Emphasis added)

• [110] Having regard to the provisions of the Award, for the Applicant to be an 'Experienced engineer' under Level 2 of the Award, it is submitted the Applicant must establish the following three elements:

• First element: He was a 'Professional engineer'. This required the Applicant to show he was qualified to carry out 'professional engineering.

• Second element: He either (relevantly) had membership of Engineers of Australia; or had graduated in a 4 or 5 year course at university recognised by Engineers Australia and had four years' experience on professional engineering duties since becoming a Qualified engineer.

• Third element: The principal purpose of his role fell within the descriptors of Level 2 of the Award - i.e. he planned and conducted professional work without detailed supervision but with guidance on unusual features and usually was engaged on more responsible assignments requiring substantial professional experience.

• [111] In relation to the the first element this is not disputed by the Respondent. The second element, it is submitted the Applicant has not provided evidence of any membership held by him of Engineers Australia and even if he had graduated from a university course recognised by Engineers Australia, he has not demonstrated that he has four years' experience on professional engineering duties since becoming a Qualified engineer. Lastly, the third element, it is submitted the principal purpose of the Applicant's role was as a Senior Project Engineer, responsible for project management, and not as an 'Experienced engineer'.

• [112] If the Commission finds that Mr Bwalya did fall within the coverage term of the Award, the Applicant was not covered by the Award because the principal purpose of his role did not fall within one of the classification levels in the Award.

• [113] The Respondent submits that the following evidence demonstrates that the principal purpose of the Applicant's role was as a project manager, not as an 'Experienced engineer'.

• [114] The advertisement for the Applicant's role supports a conclusion that the principal purpose of the role involved project management duties. There is no suggestion in the advertisement that the 'technical support' to be provided by the Applicant involved professional engineering duties.

• [115] The provisions extracted below from the Applicant's RD make it clear that the 'core purpose' and 'accountabilities' of the Applicant's role were as a project manager.

• [116] The RD for the Applicant's role listed the 'core purpose' of the role (which was previously known as 'Sustaining Capital Senior Project Engineer') as follows:

"Ensure that projects under your control are delivered safe, on time, under budget and compliant with the end-user's requirements and relevant Newcrest & Australian Standards;

Ensure that project contracts and contractors are managed prorly in line with Newcrest standards;

Clarifies and refines project objectives with active engagement and involvement with stakeholders;

Coordinates design and engineering along with development of key project delivery documents;

Optimises cost through Project Edge and Diligent Project Management."

• [117] The RD lists the 'Role Accountabilities' or 'Key Tasks' under the following headings:

• General Accountabilities (e.g. 'responsible for all contractors and sub-contractors associated with your projects');

• Safety (e.g. 'overall responsibility for the safe delivery of all projects under your control');

• Project Delivery Standards (e.g. 'ensure that projects under your control are delivered safe, on time, under budget and compliant with the end-user's requirements and relevant Newcrest, Telfer and Australian Standards');

• Cost (e.g. 'ensure all projects under your control have up to date monthly capital forecasting'); and

• [118] The Respondent submits, the above duties and responsibilities all support a conclusion that the principal purpose of the role was as a project manager. The RD does not state that role involved technical engineering duties.

• [119] Engineering Duties were performed by the Engineering Department, not the Sustaining Capital Projects Team and not the Applicant.

• [120] There was no requirement for the Applicant to do engineering work as there were others in the business who were responsible for engineering matters.

• [121] Ms Beck's evidence was that the Applicant performed the role of a project manager and that Telfer's engineering team, which sat within the Maintenance department (not the Sustaining Capital Projects team, which is the team the Applicant was employed in) was responsible for signing of on all technical engineering work.

• [122] This was supported by Mr Hollier's evidence, which was that the electrical engineering team comprised Mr Brazier, Mr Joseph and Mr Sukamar and that it was typical for project engineers to refer technical queries to the engineering department. Mr Hollier confirmed some specific technical queries that the Applicant referred to the engineering department.

• [123] The Applicant also accepted in his oral testimony that there were on-site engineers (but asserted that he was performing their role): 'we have our engineers. That role was actually being fulfilled by me'[51].

• [124] Notably the Applicant did not have engineers reporting to him and he did not report to any engineers. The Applicant reported to Ms Beck, who did not hold an engineering degree. There was no evidence that engineers reported to the Applicant.

• [125] The position of the employee in the organizational structure was considered relevant in Bury v Gilmour Space Technologies Pty Ltd[52] where the relevant employee in that matter did not have any engineers reporting to him, and he did not report to any engineers. In that decision, the Commission found that the employee was not covered by the Award.

• [126] Following the Respondent raising a jurisdictional objection, the Applicant has asserted that he was not a project manager.

• [127] However, before the Respondent had raised a jurisdictional objection, the Applicant had described himself as a 'project manager' in his letter to Ms Beck dated 21 October 2020 (responding to the allegations) ('as a project manager, I am required to adapt to change and to suit the current situation'). The Applicant appeared unable to explain this discrepancy in cross-examination, stating that 'role means that you have two hats. You are project managing but at the same time you are project engineering'[53]. The Applicant did not explain what he meant by 'project engineering'.

• [128] The Respondent submits that, in relation to the engineering duties test, there is insufficient evidence before the Commission to conclude that the Applicant's engineering qualification was necessary in the performance of at least some of his work.

• [129] In relation to the principal purpose test the Respondent submits that the weight of the evidence is that the principal purpose of the Applicant's role was that of a project manager. The principal purpose of the Applicant's role was not as an experienced engineer (Level 2 of the Award); nor as a graduate engineer (Level 1 of the Award) nor as a professional engineer (Level 3 of the Award), nor as any other classification in the Award.

• [130] The Applicant submits that it is not disputed that the Applicant is a graduate engineer and a member of Engineers Australia (Engineering Qualifications).

• [131] In the job advertisement it was stated as follows: 'Step into this exciting FIFO role based at Telfer, WA and utilise your Electrical or Instrumental Engineering expertise to manage a portfolio of capital projects as a Projects Engineer/Senior Projects Engineer depending on your experience'.

• [132] At page 3 of the RD, it was stated that, 'Bachelor Degree in Electrical/Instrumentation Engineering - Essential'.

• [133] The Respondent in their submissions alleged there was insufficient evidence to conclude the Applicant's engineering qualifications was necessary in the performance of at least some of the work.

• [134] The Applicant gave evidence linking his qualification to the work[54].

• [135] The Applicant submits that the principal activity in his work requires such qualifications as those work involved electrical engineering.

• [136] The Applicant's role title as described in the RD was Senior Project Engineer and in the Payment Advice, his position was described as Senior Electrical Engineer - Projects. In his emails, he signs off as the Senior Project Engineer.

• [137] In the RD, under General Management bullet point 4, it was provided that the Applicant,

"Occasionally act as the Project Coordinator when required".

• [138] The Respondent knew that the Applicant was not employed as the Project Manager nor assigned the SPS Project as a Project Manager to oversee that entire project (handling budget and personals).

• [139] The Applicant's usage of the word 'project manager' in his letter dated 21 October 2020 does not negate his role as an engineer in the design and installation of the electrical infrastructure at the SPS.

• [140] The Applicant was wearing two hats as the Engineer and the Project Coordinator.

• [141] As the Engineer, the Applicant prepared the scope of work (SOW for SPS 3.3kV Switchboard Replacement Design) to be given to the designer (AECOM) showing the existing installation setup and detailing the proposed future design.

• [142] As the Project Coordinator, the Applicant arranged for the first site visit for AECOM's Construction Manager, Mr Kim Gorham, AECOM's Electrical Engineer, Mr Jong Kim, together with their contractor, Veris Australia (Veris), Veris' Senior Engineering Surveyor, Mr Jamie Davies and Project Manager Subsurface Locator, Mr Euan Gow, to gain a better understanding of the project and site before submitting the design of the new Switchboard. The Applicant reports to his Manager, Ms Beck, the progress of the project.

• [143] In the alternative, the Applicant submits that there exist 'Project Manager' and 'Senior Project Manager' positions in the Respondent's company with Level 3 or 4 classifications.

• [144] In applying the principles to the facts, the principal purpose of the Applicant's employment as an Engineer under Level 2 Experienced engineer can be determined by his prescribed qualifications and experience, and by him engaging in any portion of the duties.

• [145] The evidence given by the Applicant of some of his works was:

• • drawing (mark-up and revisions) the SUB 921SB332 Airport Terminal drawings and preparing a high-level conceptual drawing for the designer[55];

• • dealing with all the technical queries and providing the answers to the contractor[56];

• • checking the design, finding the formulas, verifying them and collaborating with other engineers[57];

• • implementing the Newcrest and Australian standards[58];

• • looking at the drawings and design overall[59];

• • looking at the specification of the equipment, power rating, fault rating, second-breaker orations times, remotely orated or isolation[60];

• • installing 2 RMUs, connecting to the transformers to the equipment, the location of the connected cables; and doing 'technical work'[61].

• [146] The Applicant had conducted the said works without detailed supervision but with guidance on unusual features and the usual engagement on more responsible assignments requiring substantial professional experience.

• [147] The Applicant submits, based on the evidence provided, the question of whether the Applicant is covered by the Award, should be answered in the affirmative.

• [148] It is clear on the evidence that the Applicant's annual rate of earnings is above the high income threshold. Consequently, for the Applicant to be protected from unfair dismissal, section 382 of the Act requires that he was either covered by a modern award or that an enterprise agreement applied to his employment.

• [149] There is no evidence that there is an applicable enterprise agreement.

• [150] The Applicant submits that he was covered by the Award.

• [151] There is a significant body of case law dealing with the application and coverage of the Award.

• [152] In Zheng,[62] a Full Bench of the Commission accepted that the approach in Brand v APIR Systems Ltd,[63] and Halasagi v George Weston Foods Limited was "too well entrenched to alter".[64]

• [153] Under the Brand/Halasagi approach, to be covered by the Award, the Applicant must show:

• he performed "professional engineering duties" as defined in the Award (the engineering duties test); and

• the principal purpose of his role fell within one of the classifications in the Award (the principal purpose test).

• [154] In relation to the principal purpose test, the Full Bench in Zheng ruled that that the principal purpose test is to be applied as follows:

"It remains necessary to consider what the application of the 'principal purpose' test requires. As was stated in Carpenter, the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor." (References omitted).

• [155] The Applicant's evidence did not include clear examples of him undertaking professional engineering duties. The limited examples he gave in support of his generalised assertions to this effect were contested by the Respondent's witnesses. Where the Applicant's evidence about his duties conflicts with the evidence of Ms Beck and Mr Hollier I prefer the evidence of Ms Beck and Mr Hollier.

• [156] The evidence as a whole confirms the Respondent's position that for Capital Sustaining Projects engineering design was undertaken by the contractors and engineering queries of a technical kind were dealt with by the engineers within the Respondent's engineering department but were sometimes referred through the Applicant or in some instances raised by the Applicant. The Applicant may have marked up engineering drawings that had been completed by others, for the information of other stakeholders.

• [157] Considering all the evidence, I do not accept the Applicant was required to nor did he do engineering design, nor did he make engineering drawings, nor did he answer engineering technical queries. Consequently, I find that the Applicant's engineering qualification was not necessary in the performance of any of his duties. The Applicant did not perform professional engineering duties.

• [158] Consistent with this the evidence is that two other employees who do not have engineering qualifications are employed in roles by the Respondent that also have the word "Engineer" in their titles.

• [159] Specifically, the evidence is that there is another project manager at Telfer, Mr Rogan, who does the same job as the Applicant whose role is also titled "Senior Engineer - Projects" who does not have an engineering qualification.

• [160] The evidence clearly demonstrates that the principal purpose for which the Applicant was employed was to manage projects.

• [161] Turning then to the tests for the Award coverage.

• [162] Regarding the engineering duties test the Applicant's engineering qualification was not necessary in the performance of at least some of his work.

• [163] Separately, regarding the principal purpose test, the evidence is that the principal purpose for which the Applicant was employed was to manage projects. The principal purpose of his role was not as an experienced engineer, not as a graduate engineer, and not as a professional engineer, nor was the principal purpose that of any other classification in the Award.

• [164] Consequently, the Applicant's employment was not covered by the Award. Therefore, the Applicant was not by virtue of section 382 of the Act protected from unfair dismissal and so was not able to make this application.

• [165] The Respondent's objection is upheld. Consequently, there is no jurisdiction to consider the merit of the application and this application will now be dismissed.

• [166] An Order [PR736404] to that effect will now be issued.

[1] Transcript at PN123 and PN251 to PN253.

[2] Exhibit R1, Attachment TB-26 at page 4.

[4] Ibid, at PN123 to PN223 and PN251 to PN261.

[6] Exhibit R1 at paragraph 18 and Transcript at PN235 to PN237 and PN919.

[10] Ibid, at PN810, PN815 and PN824 to PN830.

[23] Professional Employees Award 2020 [MA000065].

[24] [2021] FWCFB 3478.

[25] [2003] AIRC 1161.

[26] [2010] FWA 6503.

[27] [2019] FWC 3383 at [31].

[28] [2020] FWC 4948.

[29] [2016] FWC 5419.

[30] Transcript at PN846 to PN851, PN870 and PN882

[49] See Brett Skinner v Broadsctrum (Australia) Pty Ltd [2020] FWC 4948 at [29].

[50] See McFarlane v SRG Civil Pty Ltd [2019] FWC 3384, Norman v Fyfe Pty Ltd [2014] FWC 7927 and Hehir v Schweitzer Engineering Laboratories Pty Ltd [2011] FWA 3763.

[52] [2020] FWC 2015 at [78].

[54] Ibid., at PN185 to PN188, PN201, PN203, PN584 to PN587, PN592 and PN658 to PN661.

[55] Ibid., at PN185 to PN188 and PN584 to PN587.

[62] [2021] FWCFB 378, at [48].

[63] [2003] AIRC 1161.

[64] [2010] FWA 6503.

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