[2010] FWA 6503 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sanjay Halasagi
v
George Weston Foods Limited
(U2010/7458)
VICE PRESIDENT LAWLER |
MELBOURNE, 24 AUGUST 2010 |
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
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.
[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
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.
[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:
(a) awards that cover an industry or industries;
(b) awards that cover an occupation or occupations; and
(c) hybrid awards that have both an industry coverage and also an occupational coverage.
[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:
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.
[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
No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it. "
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.
[12] In publishing the exposure draft of the Professional Employees Award 2010, the Full Bench of the AIRC noted: 5
[190] ...To the extent that professional engineers, scientists or information and telecommunication professionals are employed, the proposed Professional Employees Award 2010 will apply. Other technical employees will be covered by the Manufacturing Modern Award.”
...
[196] Finally, we have prepared a draft award for professional employees. This is an amalgamation of three proposed awards. In examining the proposed awards we saw a number of common conditions and similarity in the wage rates. We have sought to amalgamate these proposals. This has involved an exercise in judgment particularly in relation to the treatment of hours of work and overtime in professional employment. It may be that there are reasons not yet advanced why this amalgamation should not occur and we invite comment. Our objective is to simplify the regulation of these areas consistent with the provision of an appropriate safety net for professional employees.
[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
Scientific services (including Professional Engineers and Scientists)
Professional Employees Award 2010
[232] There have been a number of variations to the exposure draft. To begin, we have now included quality auditors in the scope and coverage of the modern award. At the exposure draft stage we were of the view that there was not sufficient coverage of these persons to warrant a separate award. APESMA agreed and submitted that they could be incorporated into the Professional Employees Award 2010.
[233] We have also decided to leave the name of the award as it was in the exposure draft. AiGroup expressed concern it could be misunderstood as applying to all professional employees. There is some force to this submission. But the alternative would be to adopt a title which would be too cumbersome and might require further alteration in the future.
[234] The Association of Consulting Engineers Australia (ACEA) suggested some changes to the definition of professional employees. APESMA was unable to assess the impact of those changes in the time available. We have not made the changes proposed as it would disturb longstanding definitions. However, this does not mean that the parties cannot examine these matters and make application to update the definitions in the future.
[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
The Association of Professional Engineers is an organisation registered under the Conciliation and Arbitration Act 1904-1956 whose members are employed, whether permanently, temporarily or usually with what is called the industry of engineering, provided they possess a qualification obtained from one or other of a list of universities and other bodies or a qualification answering to some other given description. The log begins with a claim for the members of the association and all other professional engineers eligible for membership of the association, and that is followed up by a reference to a schedule which contains the conditions of eligibility for membership of the association. It is a long catalogue but it shows that a person to be eligible must not only be employed on a full-time or part-time basis with the so-called industry of engineering but that he must have one or other of certain academical qualifications. It is enough to look down the list in the schedule to see that these qualifications are high and ought to ensure the possession of no inconsiderable professional knowledge. They end, as perhaps might be expected, in a clause of a rather general description enabling the committee to admit to membership the holders of fellowships, associateships, diplomas, certificates or other technical and academic or scientific qualifications in engineering deemed by the committee to be equivalent or superior to the qualifications set out in detail and to admit also persons who have passed the prescribed examinations for any of the foregoing. But the general result of a perusal of the schedule is to suggest that the log deals with a body of professional engineers who have obtained degrees or other adequate academical qualifications.
In beginning with a claim on behalf not only of the members of the association but of all other professional engineers eligible for membership of the association, the organisation is of course availing itself of the decision of this Court in the Metal Trades Employers Association v. Amalgamated Engineering Union [(1935) 54 CLR 387]. The log of claims is of a kind which does not resemble the claims with which we are familiar in the case of ordinary industrial employment whether the log be framed with respect to a craft or to an industry. The present log has evidently been drawn specially and one may suppose with a consciousness of the difficulties of bringing the very varied employments of professional engineers within the scope of an industrial dispute susceptible of submission to the Conciliation and Arbitration Commission. The first difficulty the draftsman appears to have encountered is to define the professional engineering duties which would come within the scope of his claims. The definition says that the expression 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 of the Institution of Engineers, Australia. The Institution of Engineers, Australia, is a body which was incorporated by Royal Charter in 1938. The bye-laws of that body give the grades of membership which go downwards from an honorary member. The grades are member, associate member, graduate, junior, student or associate. It is not necessary to discuss the classification in full. It is enough to say that the qualifications of members are high and include professional experience. To become an associate member a candidate for election or transfer into the grade must produce evidence that he has attained twenty-five years of age and has passed (or been exempted in whole or in part from passing) the Associate Membership Examination of the Institution, and that he has trained as an engineer and has been engaged for at least four years in the practice of the profession and gained thereby experience satisfactory to the Council of the Institution of Engineers, Australia. The period of four years may be reduced to three by the council in the case of persons holding degrees in engineering of universities. The qualifications of a "graduate" require that the candidate for election or transfer into that grade should produce evidence that he has passed, or has been exempted in whole or in part from passing the Associate Membership Examination of the Institute, and in the case of partial exemption has passed the subjects for which exemption has not been granted. References to exemption appear in effect to mean an exemption based on proof of the acquisition from bodies other than those primarily contemplated of equal qualifications.
The claims are made on behalf of a class called "Professional Engineers", whether or not members of the association. The term "Professional Engineer" is defined by reference to the definition already set out of "professional engineering duties" so that the minimum requirement for inclusion in the class is the possession of the qualifications demanded of a graduate of the Institution of Engineers, Australia. The term professional engineer is also expressed to include "Qualified Engineer" and "Chartered Engineer", and these terms are in fact used as descriptions of respectively the lower and higher grades of professional engineers for the purposes of the log. "Qualified Engineer" means a person who is, or is qualified to become, a graduate of the Institution of Engineers, Australia, or a member of the Association of Professional Engineers, Australia. As has been said the academical qualifications for membership of the association are considerable, not less, it seems, than those of a graduate of the Institution. "Chartered Engineer" is then defined for the purpose of the claim to mean a professional engineer in any particular employment the adequate discharge of any portion of the duties of which requires qualifications of the employee as (or at least equal to those of) an Associate Member of the Institution of Engineers; the qualifications required for associate membership have been set out already. It will be seen that these definitions may involve some practical difficulty, not in their application to particular persons but in their application to particular employments. That is, difficulty could rarely arise in determining whether a man possesses the qualifications of a professional engineer but 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. It was explained at the bar that this difficulty arose from the fact that engineers tend to drift into purely administrative positions as they get higher in their profession and that it was desired to cover persons who still need an engineering qualification in the course of or in spite of their ascent of the administrative ladder.”
(emphasis added)
[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:
[The Association] put forward claims in respect of salaries and conditions of employment "for its members and all other Professional Engineers eligible for membership" when in "an employment involving the performance of Professional Engineering Duties". The expression "Professional Engineering Duties" was defined to mean "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 of the Institution of Engineers, Australia". The definition seems to have been carefully framed to give effect to a view that on the question whether a dispute arising from the rejection of the log is industrial (in the constitutional and statutory senses) the nature of the duties involved need not be considered for any other purpose than to see whether the qualifications required for the performance of any part of them are of the order which is indicated. The contention thus intimated is logically pursued in the definition of "Professional Engineer" as meaning a person qualified to carry out Professional Engineering Duties as previously defined. It is not weakened by the fact that eligibility for membership of the Association, which needs to be considered because the claiming clause of the log refers not only to members but to Professional Engineers eligible for membership, is confined to persons temporarily, permanently or "usually" employed in or in connexion with "the industry of engineering" (whatever that may mean).
(emphasis added)
[17] The CCAC accepted the unchallenged evidence of the Secretary of the Institution of Engineers that: 13
...The Institution is an all Australian organization welding Professional Engineers throughout the Commonwealth into one body, having common ideals and interests. Employers throughout Australia accept the standards and qualifications laid down by the Institution and on advertising appointments, regularly refer to the Institution’s qualifications as requisites for the applicants for such appointments. At the same time, the various academic institutions are in constant touch with our Institution to ensure that their engineering training is up to the Institution’s standards, so that their graduates may obtain membership of this Institution.
[18] Under the hearing “Training and Qualifications” the CCAC opened with the following observation: 14
It was established in evidence that engineering work is sometimes performed by persons without academic qualifications, but the consensus of opinion is that the possession of a recognized degree or diploma is now essential. ... We accept the evidence that possession of a recognized degree or diploma is an essential qualification ...
(emphasis added)
[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”:
1. to have need of; need: he requires medical care.
2. to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent.
3. to ask for authoritatively or imperatively; demand.
4. to impose need or occasion for; make necessary or indispensable: the work required infinite patience.
5. to call for or exact as obligatory: the law requires annual income tax returns.
6. to place under an obligation or necessity.
7. to wish to have: to require room service.
–verb (i)
8. to make demand; impose obligation or need: to do as the law requires.
[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:
Software engineers design and modify complex software systems and computer hardware.
...
Computer Systems Engineering is based on electrical engineering and computer science. These days computers are used to operate many of the things we use in everyday life, for example our cars, telephone systems, trains, TV and radio stations. Computer engineers are involved in the analysis, design, development and operation of computer hardware and software. Most electronic design is based on the use of computer aided simulation.
Computer systems engineers may work in the private sector with computer manufacturing and service companies, business consulting firms, the information systems divisions of companies and a wide range of government activities.
[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.
VICE PRESIDENT
Appearances:
P. Doughman for S. Halasagi.
J. Wright for George Weston Foods Limited.
Hearing details:
2010.
Sydney:
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].
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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