[2010] FWA 6503

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Fair Work Act 2009
s.394—Unfair dismissal

Sanjay Halasagi
George Weston Foods Limited



Termination of employment - jurisdiction - award coverage - meaning of “professional engineering duties”.

[1] The applicant has filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The respondent has raised a jurisdictional objection on the basis that the applicant is not protected from unfair dismissal.

[2] Section 382 provides:

382 When a person is protected from unfair dismissal

[3] It is common ground that the applicant is not covered by an enterprise agreement and that his annual rate of earnings exceeded the high income threshold such that the fate of the respondent’s jurisdictional objection turns on whether the applicant is covered by the Professional Employees Award 2010 1 (Award).

[4] The coverage clause of the Professional Employees Award 2010 relevantly provides:

4. Coverage

[5] The modern awards made as a consequence of the award modernisation process under Part 10A of the Workplace Relations Act 1996 (WR Act) fall into three categories:

[6] The Professional Employees Award 2010 is in the third category: it covers employers in the industries specified in clause 4.2 but it also has an occupational coverage as specified in clause 4.1.

[7] The respondent is a large manufacturer of food, notably bread, and is not principally engaged in any of the industries specified in clause 4.2. The applicant is not within the coverage provided by clause 4.2. The issue is whether the applicant is covered by the Professional Employees Award 2010 by virtue of its occupational coverage through clause 4.1.

[8] Clause 4.1 refers to the Award covering “employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties”. However, the word “and” in this context does not have a conjunctive meaning but rather, having regards to the context, has a dispersive effect. 2 The Applicant will come within the coverage created by clause 4.1 if he is performing either “professional engineering duties” or “professional scientific duties”.

[9] There is no dispute that the Applicant was covered by a classification in Schedule B to the Award. The issue is whether the Applicant was an employee performing “professional engineering duties” within the meaning of the Professional Employees Award 2010.

[10] The expression “professional engineering duties” is defined in clause 3.2:

[11] In Short v FW Hercus Pty Ltd 3 Burchett J, with whom Drummond J agreed, made it clear that regard may be had to the history of an award when construing a provision of the award:4

[12] In publishing the exposure draft of the Professional Employees Award 2010, the Full Bench of the AIRC noted:  5

[13] In the ‘Stage 3’ decision in relation to the making of the Professional Employees Award 2010, the Full Bench of the AIRC noted: 6

[14] Each of the draft awards referred to by the Full Bench contained definition of “professional engineer” and “professional engineering duties” that are relevantly identical to the definitions that appear in the Professional Employees Award 2010 which, in turn, are relevantly identical to the definitions of those expressions as they appear in the Technical Services Professional Engineers (General Industries) Award 1998 7 and the Metal, Engineering and Associated Industries (Professional Engineers and Scientists) Award 19988.

[15] The definition of “professional engineering duties”, as it appears in the Professional Employees Award 2010, has its origins in an award made by the Commonwealth Conciliation and Arbitration Commission (CCAC) in 1961, namely The Professional Engineers Award 1961 9. That award was made in partial settlement of a dispute generated by a log of claims served on a number of State agencies by the Association of Professional Engineers, Australia, a predecessor organisation of APESMA. Those respondents challenged the jurisdiction of the CCAC to deal with the dispute. The matter eventually came before the High Court in R v Association of Professional Engineers of Australia; Ex parte Victoria10 where the definition of “professional engineering duties” was one of the issues addressed by the High Court in a unanimous judgment:11

[16] In the event, the High Court rejected arguments that the log was so vague and indefinite that the rejection of the claims could not give rise to a constitutional industrial dispute. The CCAC eventually found a dispute and made the 1961 award. However, this did not occur before there was a further High Court challenge to the jurisdiction of the Commission in Re Professional Engineers' Association 12. In that case Kitto J observed:

[17] The CCAC accepted the unchallenged evidence of the Secretary of the Institution of Engineers that: 13

[18] Under the hearing “Training and Qualifications” the CCAC opened with the following observation: 14

[19] The Full Bench then referred with apparent approval to an expert witness as having “described in detail normal professional duties in works programmes, and stated ‘that it would be impracticable to undertake these tasks with less than qualified staff.’ ” 15 One gets a sense from a reach of the Full Bench’s decision that a primary purpose of the definition was to distinguish professional engineers from persons with technical skills acquired from trade training or through what may be described as sub-professional courses.

[20] Where the High Court had adverted to the “practical difficulty” of applying the definition to “particular employments” because it “may more often be difficult to say whether in the case of a particular employment the adequate discharge of some portion of the duties involved does or does not require the qualifications stated”, the Full Bench proceeded on the basis that possession of a recognized degree or diploma would almost invariably be “essential” for an employee to be able to perform “engineering work” of the sort that would fall within the definition of “professional engineering duties”. In 1961 it was relatively easy to identify the work of an engineer and persons performing that work almost invariably required a recognized engineering qualification in order to obtain a job in which such work was performed. That situation has changed. The scope of activities that come within the rubric of “engineering” has expanded dramatically since the current definition of “professional engineering duties” was first adopted in 1961. It is evident from a comparison of the range of qualifications identified in Re The Association of Professional Engineers with those that render a person eligible for membership of Engineers Australia today that a much broader range of activities and academic qualifications can entitle a person to become a member of Engineers Australia when compared to the activities and qualifications that would have entitled a person to membership of the Institution of Engineers in 1961. The difficulties of determining whether the definition applies to a particular employment, referred to be the High Court, have become even more acute. This suggests that it may be desirable for a Full Bench of Fair Work Australia to revisit the definition of “professional engineering duties” in the 2012 review of modern awards with a view to formulating a revised definition that gives greater certainty as to whether a particular employment comes within the definition.

[21] The Macquarie Dictionary defines “require”:

[22] The passages I have set out above suggest that the word “requires” in the definition of “professional engineering duties” has the first meaning in this definition.

[23] I proceed on the basis that:

[24] 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.16 That later question is determined by reference to the “principal purpose” test. 17 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.

[25] The applicant was employed by the respondent as a Level 2 Solutions Analyst in the Business Intelligence Team in the Information Services Division of the respondent’s business. He has tertiary qualifications, namely a qualification from an Indian University that is the equivalent of an Associate Diploma in Mechanical Engineering and also a Bachelor of Technology in Manufacturing Engineering from the University of Technology Sydney. The Respondent contends that none of the duties of the Applicant were such that the adequate discharge of those duties required the qualifications of the Applicant at least equal to those of a graduate member of Engineers of Australia.

[26] Engineers Australia is a professional body that admits members in all recognised fields of engineering. Admission is on the basis of the holding of a qualification recognised by Engineers Australia for that purpose. Material from the website of Engineers Australia tendered in evidence demonstrates that it admits members in the fields of software engineering and computer systems engineering. It describes those fields as follows:

[27] The Bachelor of Technology in Manufacturing Engineering held by the Applicant is among the list of qualifications recognised by Engineers Australia as rendering the holder eligible for graduate membership and it is this qualification that the applicant relies upon in contending that he was performing “professional engineering duties” in his job with the respondent.

[28] The relevant duties relied upon by the applicant were programming duties and, in particular, programming in the ABAP language. The respondent utilises the SAP business solutions software. SAP is a sophisticated suite of business solutions applications and has a significant market share among large businesses worldwide. The ABAP programming language is a dedicated programming language that allows SAP applications to be customised to the needs of a particular business. The applicant has an ABAP developer’s licence which meant that he was able to perform more sophisticated programming than someone who did not hold such a licence.

[29] I am not satisfied that the applicant’s programming duties were such that it is almost invariably the case that his qualification as a Bachelor of Manufacturing Engineering is needed for the adequate discharge of such duties. It is not to the point that several of the units in that course related to the use of computer systems. The Applicant was not engaged in the field of manufacturing engineering but rather, in relation to the duties in question, in the field of computer programming and operating computerised business information systems. It seems clear that the relatively short courses in ABAP programming undertaken by the applicant would not be sufficient to qualify the applicant for graduate membership of Engineers Australia as what that organisation recognised as a software engineer.

[30] Accordingly, I find that the applicant was not performing “professional engineering duties” within the meaning of clause 3.2 of the Professional Employees Award 2010 and was therefore not covered by that award. There is no suggestion that he was covered by any other modern award. It follows that the applicant, because his salary was above the statutory cap, was not protected from unfair dismissal. The respondent’s jurisdictional objection must be upheld. The application for an unfair dismissal remedy is dismissed.



P. Doughman for S. Halasagi.

J. Wright for George Weston Foods Limited.

Hearing details:



June 4.

 1   MA000065.

 2   See the discussion in Pearce & Geddes Statutory Interpretation in Australia (6th edn) at paras [2.25-2.27].

 3   (1993) 40 FCR 511.

 4   Ibid at 517-519.

 5   [2009] AIRCFB 450 at para [190], [196].

 6   [2009] AIRCFB 826.

 7   AP800659.

 8   AP787948.

 9   (1961) 97 CAR 233 for the decision and (1961) 97 CAR 344 for the award.

 10   (1957) 100 CLR 155.

 11   Ibid at 157-160.

 12   (1959) 107 CLR 208.

 13   (1961) 97 CAR 233 at 264

 14   Ibid at 279.

 15   Ibid.

16 Brand v APIR Systems Ltd, [2003] AIRC 1161 esp at [11].

 17   Ibid at [10] - [11].

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