| [2016] FWC 4002 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Glenn Whelan
v
BMD Constructions Pty Ltd
(U2016/4177)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 21 JUNE 2016 |
Application for unfair dismissal remedy – Jurisdictional objection – Whether employee is a person protected from unfair dismissal – Approach to deciding whether an employee is covered by a modern award – Whether employee covered by Professional Employees Award 2010 – Case law – Professional engineering services – Employee’s role was as a Project Manager – 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 – Employee not protected from unfair dismissal – application for an unfair dismissal remedy dismissed.
[1] Mr Glenn Whelan applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BMD Constructions Pty Ltd (BMD). Mr Whelan was employed by BMD in the position of Project Manager from January 2007 until his dismissal on 11 January 2016. BMD raises a jurisdictional objection to Mr Whelan’s unfair dismissal application on the ground that Mr Whelan is not a person protected from unfair dismissal.
[2] In relation to when a person is protected from unfair dismissal, s. 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 not in dispute that Mr Whelan has completed at least the minimum period of employment with BMD. It is also common ground that an enterprise agreement does not apply to Mr Whelan and that his annual rate of earnings exceeds the high income threshold. BMD asserts that Mr Whelan was not covered by a modern award. Mr Whelan maintains that a modern award – the Professional Employees Award 2010 (the Award) – covered him. This is the issue for determination and if the Award did not cover Mr Whelan, he is not a person protected from unfair dismissal and his application for an unfair dismissal remedy must be dismissed.
2. THE AWARD
[4] The coverage of the Award is expressed as follows in clause 4:
“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] Clause 3 – Definitions and interpretations deals with the engineering stream as follows:
“3.2 Engineering stream
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”
[6] Schedule B of the Award contains a classification structure and definitions. It is not necessary to set them out in full. Mr Whelan contends that the definition that describes the level at which he works is Level 4 – Professional, which provides as follows:
“Level 4—Professional
(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation's technical reference authority) in a particular field of professional engineering, professional scientific/information technology field or professional information technology field.
(b) An employee at this level:
(i) initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional scientific/information technology policies and procedures within an overall program;
(ii) gives technical advice to management and operating departments;
(iii) may take detailed technical responsibility for product development and provision of specialised professional engineering or professional scientific/information technology systems, facilities and functions;
(iv) coordinates work programs; and
(v) directs or advises on the use of equipment and materials.
(c) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives.
(d) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness.
(e) The employee supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff. In both instances, the employee is engaged in complex professional engineering or professional scientific/information technology applications.”
3. APPROACH TO DETERMINING AWARD COVERAGE
[7] By virtue of s. 48 of the Act, a modern award covers an employee or employer if it is expressed to do so and a reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment. The appropriate test for determining award coverage is the principal purpose test, which requires assessment of the principal purpose or primary function for which the employee was employed. 1
[8] In interpreting an award provision, the words of the clause are to be given their ordinary meaning. 2 Award history and subject matter may be considered to resolve any ambiguity.3 In considering whether a modern award covers a person the test has been stated as: to discern the objective meaning of the words bearing in mind the context in which they appear and the purpose they are intended to serve.4
[9] The Award was made as a result of the award modernisation process conducted by the then Australian Industrial Relations Commission (the AIRC). In Halasagi v George Weston Foods Limited 5 (Halasagi) Vice President Lawler considered whether an applicant for an unfair dismissal remedy was covered by the Professional Employees Award 2010 and said in in respect of that Award:
“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.
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.” 6
[10] His Honour, in considering the meaning of “professional engineering duties”, considered the history of that term and subsequently held:
“I proceed on the basis that:
[11] Those conclusions were endorsed and adopted by a Full Bench of the Commission in Bateman v Communications Design & Management Pty Ltd 8.
[12] In Halasagi Vice President Lawler went on to state that:
“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 that 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. The latter 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 the definition are the principal purpose for which the employee was employed.” 9
[13] That comment was not specifically endorsed by the Full Bench in Bateman however, in Baptista 10 a Full Bench of the Commission noted that the coverage clause of the 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.11 In the present case it is necessary to determine these matters in relation to Mr Whelan.
4. EVIDENCE
[14] Mr Whelan’s application was listed to deal with BMD’s jurisdictional objection only. The matter was heard by video link to Townsville. Evidence was given by BMD in support of its jurisdictional objection by:
• Mr Michael Peterson, North Queensland Construction Manager. 13
[15] Mr Whelan gave evidence on his own behalf. 14 The relevant evidence can be summarised as follows. It is not in dispute that BMD is a national civil construction contractor that constructs civil structures such as roads and bridges as well as undertaking urban development and subdivision work. Mr Whelan was engaged as a Project Manager in BMD’s “Urban Division” at the time of his dismissal. The Urban Division is principally responsible for housing and commercial subdivision work.
[16] Mr Whelan was engaged pursuant to the terms of a common law contract. The offer of employment by BMD to Mr Whelan was annexed to Mr Thomas’ statement and is dated 17 January 2007. The offer of employment is signed by Mr Whelan with a date of 29 January 2007 apparently accepting the terms and conditions set out in the letter. Relevantly, the offer of employment states:
“2. POSITION AND TITLE
2.1 You will be employed as a PROJECT MANAGER band level FIVE. A position description is provided with this letter.
2.2 You will report to GENERAL MANAGER.
2.3 You may be required to perform other tasks, which are not included in your position description.
...
3. PRINCIPAL DUTIES
3.1 You must faithfully and diligently perform the duties and exercise the powers consistent with your position and in doing so you must use your best endeavours to further our interests and comply with all lawful orders and instructions given to you.
...
5. HOURS OF WORK
You will be required to devote the whole of your time during working hours and at such other times as may be necessary to perform your duties. Your salary package includes an allowance for overtime, accordingly, no overtime will be payable to you. However, salary reviews will take into account your particular circumstances as a factor in assessing your overall performance.”
[17] The position description said to have been referred to in the offer of employment was also annexed to Mr Thomas’ statement. The position description relevantly provides that the “basic objective” of the position of Project Manager is:
“to have knowledge of the day to day issues that affect the progress of works and make experienced decisions that will maximise the project’s success in terms of profitability, efficiency, contract period and human relations.”
[18] The “key responsibilities” identified by the position description are:
[19] There are “additional requirements” identified by the position description as follows:
“The Project Manager should have the understanding to seek assistance from either the Construction Manager or General Manager where appropriate and enhance the success of the project by developing an informative team of support.
Delegation is a necessary ability to ensure involvement and training of the Construction Engineers. The Project Manager should be aware that leadership and direction are important skills in the development of this position...”
[20] The position description states that the position of Project Manager reports to the Construction Manager. In the field for location and date, the position description annexed to Mr Thomas’ statement is not signed and does not appear to have been endorsed by Mr Whelan in any way. In response to a question from the Commission, Mr Thomas was unable to confirm if or when the position description attached to his statement had been provided to Mr Whelan and said that it may have changed during the course of Mr Whelan’s employment.
[21] Mr Thomas’ evidence is that the “principal” duties of Mr Whelan’s position as Project Manager are those extracted at [18] above. Mr Thomas does not state on what basis these items are identified as “principal” duties. Mr Thomas states that the duties of a Project Manager are performed through experience and, usually, tertiary qualifications. The tertiary qualifications can be in Civil Engineering or Project Management. Mr Thomas states that BMD has Project Managers that do not have tertiary qualifications.
[22] In response to a question from the Commission, Mr Thomas confirmed that BMD has its own consulting engineering business – Empower Engineers – and employs engineers who are Registered Professional Engineer Queensland (RPEQ) qualified. Those engineers are qualified to sign off on engineering design and to provide professional engineering services. Sometimes Empower Engineers undertakes this sign off and on other occasions BMD engages external consulting engineers to do so. In relation to Mr Whelan’s evidence that he undertook design work on an explosive hazards area for a Department of Defence project, Mr Thomas said that engineers or other employees in the field may provide design input and suggestions but the design would be undertaken by a consulting engineer who would sign off on it.
[23] In relation to an advertisement for a BMD Project Manager tendered by Mr Whelan stating that the successful applicant will have a tertiary qualification in Civil Engineering, Mr Thomas said that it was a “wish list” of things the Company would like, but it did not tie BMD into recruiting a person with exactly those qualifications.
[24] Mr Peterson has held the position of North Queensland Construction Manager for BMD Urban since September 2013. Mr Whelan has reported directly to Mr Peterson since Mr Peterson’s employment with BMD commenced. According to Mr Peterson’s evidence, Mr Whelan’s projects have varied from bridge construction, pipelines for local authorities, private subdivisions and Defence Housing Australia subdivision works. For larger projects, like bridge construction, there may be site engineering staff who report directly to Mr Whelan as Project Manager. On small projects, such as private subdivisions, Mr Whelan would mostly have forepersons reporting to him.
[25] At the time of dismissal, Mr Whelan was engaged in a project involving a Defence Housing Australia Subdivision in Townsville. Mr Peterson categorises Mr Whelan’s duties as follows:
“Project start up
Contract administration
Financial
Reporting
Quality Assurance
Safety
Liaison
• Liaison with Client
[26] According to Mr Peterson, the projects managed by Mr Whelan were all “construct only contracts” and did not include a design element. On construct only projects, the role of the Project Manager is “predominately” to administer and manage the Contract. Foremen and subcontractors are responsible for constructing the project. There is no requirement to be an Engineer to perform any of the duties of Project Manager. Mr Peterson also annexed a copy of the position description said to have applied to Mr Whelan’s position to his statement. It is identical to that filed by Mr Thomas and as previously noted does not appear to have been endorsed by Mr Whelan.
[27] In oral evidence, Mr Peterson said that he has previously been a Project Manager and supervisor and does not hold an engineering qualification. In relation to Mr Whelan’s contention that he provided technical advice on projects, Mr Peterson said that this involved giving direction to employees on site and did not require an engineering degree. Mr Peterson’s understanding is that in Queensland, a registered practicing engineer signs off on the design of a project at commencement of construction and on completion. In relation to BMD projects, the sign off is undertaken by either an engineer employed by the client or a consultant engineer engaged by the client. BMD clients include Government Departments such as Defence, Housing or Main Roads, Councils or private developers. The person who replaced Mr Whelan following the termination of his employment does not have an engineering qualification but is qualified as a quantity surveyor. In response to questions from the Commission as to the requirement in relation to design management in the position description for a BMD Project Manager, Mr Peterson said:
“The very last dot point on the bottom says "design management as required". What do you understand that encompasses?---That's pretty much if you have an issue - design - come up out of the project that requires any clarifications, you would normally pass that on to the clients through an RFI process to answer any of those technical questions. So you basically just pass that information on and then the client's representative answers back and you provide the answer to your team.
Correct me if I am wrong, what you are doing is you are taking the client's design, or the client typically engages a consulting engineer; is that the case?---That's correct.
You are then constructing what the consulting engineer has designed?---That's correct.
And if there is a question about the design, that gets referred back to the client and the consulting engineer?---That's correct.
So design management does not include designing things, the Project Manager designing things on the project?---That is correct.” 16
[28] Under cross-examination Mr Peterson maintained that if BMD had a contract to design and construct a project, BMD would have engaged a consultant engineer to do the sign off or utilised its own consultant engineering department. Mr Whelan would not have undertaken project design as he was not qualified to do so. Mr Peterson also maintained that there are a number of pathways to becoming a Project Manager and that an engineering degree is not required to undertake this role. In relation to the advertisement for a BMD Project Manager posted in 2016 and tendered by Mr Whelan, Mr Peterson said that the successful applicant was not required to have an engineering degree and that the Company got just as many applications from persons without such a qualification as it got from persons with such a qualification.
[29] Mr Peterson said that BMD’s projects are predominantly “construct only” and that the Company did not design projects but just built what the client had designed. In some instances a client may seek that BMD design a section of a project. In such a case, BMD would contract out the design to another consultancy firm. The client would then approve the design and it would be constructed by BMD.
[30] It is contended for BMD that as a Project Manager, Mr Whelan was in a senior management position and responsible for the management of a civil construction project. Mr Whelan did not provide professional engineering services, design or technical advice. Mr Whelan’s key duties were:
• Ensure HSEQ awareness is maintained at all times;
• Monitor construction programs;
• Identify and complete contract variations;
• Contract negotiations;
• Cost/tender analysis;
• Monthly reporting on claims, valuations and subcontractors;
• Identify critical supply items that require lead time;
• Delegate activities to be completed by the Construction Engineers; and
• Client/consultant liaison;
• Engagement and termination of labour.
[31] BMD also contents that Mr Whelan was not required to undertake professional engineering duties such as design, calculations or technical advice. The inclusion of managerial functions in Mr Whelan’s duties separates his employment from award-based employment. In this regard, BMD submits that modern awards were not intended to extend award coverage to classes of employees (such as managerial employees) who were traditionally award free because of the seniority of their positions.
[32] BMD also submits that the evidence establishes that Mr Whelan was not required to be an Engineer to carry out of any his duties as a Project Manager. The qualification of Engineer is simply one of the pathways to project management generally. BMD submits that the principal purpose of Mr Whelan’s position was project management and contract administration or managerial functions not covered by modern awards, not professional engineering services.
[33] Mr Whelan’s evidence is that he holds a Bachelor of Engineering from James Cook University. At the time of commencing employment with BMD, Mr Whelan was required to provide a copy of his Bachelor’s degree to the Company. Mr Whelan states that it is common for clients to request that key roles on the project team are fulfilled by persons holding a Bachelor of Engineering and a minimum number of years’ experience. During his employment with BMD Mr Whelan has worked for BMD Urban and BMD Construction. BMD Construction undertakes larger projects or those with strategic importance. While working for BMD Constructions Mr Whelan worked on the coal terminals at Abbot Point and Hay Point and states that he undertook an engineering role rather than that of a Project Manager. A number of projects Mr Whelan undertook for BMD Urban were undertaken in an organisational structure with project engineers, site engineers and graduate engineers. Mr Whelan also said that on a number of projects he had undertaken for the Department of Defence a graduate engineer with less than three years’ experience had reported to him and he had also worked with a project administrator with no engineering experience.
[34] Mr Whelan states that it was common for BMD to provide a copy of his resume in conjunction with a tender for a contract. That resume includes a statement that Mr Whelan holds a Bachelor of Engineering. Mr Whelan submitted the position description that he says was his position description. It is substantially different to that attached to Mr Thomas’ and Mr Peterson’s statements. Mr Whelan’s position description is also said to report to the General Manager but has its location as “NORTHERN AUSTRALIA” and date as “JANUARY 2007”.
[35] The basic objective of the position description tendered by Mr Whelan is:
“To manage contracts put under your control so that they are completed safely, timely i.e. on time or under contract time, and cost effectively.”
[36] The key responsibilities are stated as:
[37] Even if the list of key responsibilities that appear in BMD’s evidence are accepted as relevant to his position, Mr Whelan states that those duties require the provision of engineering services. Further, Mr Whelan disputes that he was responsible for engagement and termination of labour. Within the Townsville area, Mr Whelan states that the Area Manager is “traditionally” responsible for engaging and terminating labour.
[38] Mr Whelan states that BMD requires Project Managers to have a tertiary qualification in Civil Engineering. Attached to Mr Whelan’s statements was an advertisement for a Project Manager that Mr Whelan said was placed on-line by the BMD Group on 8 February 2016 stating that:
“The successful applicant will have a tertiary qualification in Civil Engineering and proven experience managing civil construction projects in the $1M - $20M space.” 17
[39] Mr Whelan compared his position to a Level 4 – Professional employee under the Award and provided evidence about his duties compared with the provisions of the definition for that level under the Award. Relevantly Mr Whelan asserted that he:
• worked on projects with values ranging from $2,000 to $200,000,000 and was required to make recommendations for variations to contracts that had multi-million dollar values;
• was responsible for erection of buildings including a design and construct contract for unique masonry block buildings incorporating fibreglass reinforcing for which there were no Australian Standards and which required referencing of Canadian standards in the design;
• worked with BMD’s accountants to compile submissions for research and development tax concessions evidencing completion of works requiring a considerable degree of originality within civil engineering construction practices;
• undertook planning using software programs including activities that were linked based on professional engineering logic;
• provided monthly reports including technical advice to indicate current and anticipated performance;
• submitted requests for information to designers with technical advice outlining design deficiencies which need to be modified;
• collected technical information for projects that included a design component such as existing soil bearing capacities or distances of electrical cable and provision of a design brief to a specialist designer;
• provided a signed undertaking that buildings were constructed under his supervision to meet the building legislation, standards, regulations and codes and other applicable standards/specifications;
• facilitated the compilation of quality compliance documentation;
• planned resources for projects including plant and labour;
• co-ordinated teams of employees working on projects;
• monitored plant and labour productivity and material wastage;
• dealt with unforeseen problems such as contaminated land and made decisions in relation to appointment of specialists to deal with such problems while minimising delay to the project. 18
[40] Mr Whelan also said that the duties associated with his role were dynamic and dependent on the size of the project. At times he was the only engineer on site performing all program preparation, preplanning, resource forecasting, procurement, contractual administration and quality assurance. For larger projects Mr Whelan had a team of professionals reporting to him. A specific example given by Whelan was in relation to the Blakeys Crossing Upgrade Project, as follows:
“On the Blakeys Crossing Upgrade project, which was the most recent large project (valued at ~$19M) that I managed for BMD, I was the leader of professionals including 2 Senior Project Engineers, 1 Project Engineer, 1 Site Engineer, 1 Environmental Engineer, 1 Surveyor, and other staff including 1 Superintendent, 1 Safety Representative, 2 Foreman (sic) and a number of Leading hands, workers and subcontractors. The project involved the construction of a 1km stretch of 2.5m high embankment on top of an existing swampy area, construction of a 7 span 140m bridge over Louisa Creek and construction of a 3 span 60m bridge over Pee Wee Creek. The project included complex Professional Engineering issues, with the founding of bridge foundation piles in soft strata as well as the construction of embankments over swampy areas with expectation for heavy consolidation of underlying soils.” 19
[41] Mr Whelan does not agree with Mr Thomas that the role of Project Manager is a senior management position. Mr Whelan submits that in BMD, positions that are within the senior management group are office based and include Construction Managers and General Managers. The role of Project Manager is site based with responsibility for delivering civil engineering construction projects. The nature of these contracts necessitated the provision of professional engineering services and technical advice.
[42] Mr Whelan accepts that since the appointment of BMD’s current Construction Manager in September 2013, he has been engaged in construct only contracts, but contends that that before this time he was also involved in construct and design contracts. Mr Whelan is not aware that it is possible for a person to become a Project Manager other than through engineering qualifications.
[43] In his oral evidence Mr Whelan referred to the definition of “professional engineering service” in the Professional Engineers Act 2002 as follows:
“professional engineering service means an engineering service that requires, or is based on, the application of engineering principals and data to a design, or to a construction, production, operation or maintenance activity, relating to engineering, and does not include an engineering service that is provided only in accordance with a prescriptive standard.” 20
[44] In relation to that definition Mr Whelan said:
“On that basis, what I am saying is that despite that an engineer on a construction site doesn't do a design, they are providing a professional engineering service based on the application of the engineering principals and data to the construction that they are delivering.” 21
[45] In relation to the function of registered practicing engineers, Mr Whelan said:
“A registered practising engineer in Queensland is appointed to the Board of Professional Engineers Queensland. They are required for structural design sign-off and civil design as well, so they are primarily a design engineer, they don't get involved in the construction, they don't do the quality assurance that the construction engineers will deliver, their role is just to do the design and then answer any follow-up queries that the construction engineers put to them.” 22
[46] In response to a question from the Commission about how engineering services are provided in the context of a role which includes administering contracts, compiling claims, variations, valuations and cost reviews, pursuing outstanding payments, following up on certification and other project management tasks, Mr Whelan said that those tasks involved application of engineering principals such as undertaking quantity take offs, inspection tests and production programming. Mr Whelan also referred to Australian Standards and codes of practice that can be relevant to the construction of projects. Mr Whelan agreed that these were specified by designers rather than the Project Manager and that the role of a Project Manager is to construct a design that has been provided and signed off by a professional engineer. However, Mr Whelan maintained that professional engineering service involved providing the engineering principals and data to a design or to the construction of the design and he was providing those services in the construction of the design.
[47] Mr Whelan agreed under cross-examination that the functional areas referred to in Mr Peterson’s statement (see paragraph 25 above) were the areas he was responsible for and described the vast majority of his duties as Project Manager. In relation to safety, Mr Whelan agreed that there was an environmental officer who also performed the role of safety officer and who is not an engineer. In response to the proposition that an engineering degree was not required to perform this role, Mr Whelan said that it comes with experience in a civil engineering background. Mr Whelan agreed that there are a number of Project Managers employed by BMD who are not engineers but said that he did not know whether they delivered projects without engineering support or whether they had engineers working for them to provide such support.
[48] Mr Whelan also agreed that as a Project Manager he would be involved in the allocation of labour and plant to the project and would discuss requirements in this regard with the area manager. In relation to disciplining employees, Mr Whelan said that where the area manager or foreman did not provide discipline to employees, Mr Whelan would do so. While a foreman would report directly to Mr Whelan, the area manager would generally be responsible for disciplining the foreman in the event that this was required, but Mr Whelan would have input through the area manager.
[49] It is not submitted, and there is no evidence before me, to establish that, BMD falls within clause 4.2 of the Award. BMD is a civil construction contractor. BMD is not principally engaged, or engaged at all, in any of the industries in clause 4.2 of the Award. There is evidence that BMD undertakes some design work involving employees who perform professional engineering duties. With respect to clause 4.1 of the Award BMD has an operation that is a consulting engineering business in which it employs engineers who undertake engineering design work. Such work is undoubtedly within the term “professional engineering duties” and employees who perform it would be covered by the classification definitions in Schedule B of the Award. Accordingly, BMD is covered by the Award with respect to those employees. It does not follow that Mr Whelan was covered by the Award.
[50] It necessary to consider whether Mr Whelan was an employee “performing professional engineering...duties” and whether Mr Whelan was covered by the classification structure in Schedule B of the Award. It is not sufficient that Mr Whelan was within the coverage set out in clause 4.1 of the Award. It is also necessary to establish that Mr Whelan was employed in a classification set out in Schedule B in the Award, by applying the principal purpose test. 23 In applying the principal purpose test, the Commission must assess the nature of the work and ascertain the principal purpose for which the employee was employed. This is more than a mere quantitative assessment of the time spent performing certain duties. 24
[51] To fall within the definition of “professional engineering duties” as defined in clause 3.2 of the Award and for the purposes of clause 4.1 of the Award, the duties must be “duties..., the adequate discharge of any portion of which...requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia”. BMD did not tender a position description that had been signed by Mr Whelan or that he had otherwise indicated agreement with. If I accept that the position description tendered by Mr Whelan describes the duties he undertook in his role as Project Manager with BMD, then I am not satisfied that he was performing professional engineering duties as defined in clause 3.2 of the Award.
[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.
[53] That the position description requires a thorough knowledge of drawings, specifications, quality, workplace health and safety and environmental requirements for all sites, does not constitute a portion of the duties for the position which require an engineering degree or qualifications for equivalent of a graduate member of Engineers Australia. Understanding plans or technical drawings is not the exclusive province of engineers. Similarly, knowledge of quality, workplace health and safety and environmental issues does not require an engineering qualification.
[54] The other duties in the position description tendered by Mr Whelan are not professional engineering duties and can be undertaken by persons who hold a range of qualifications and experience including engineers. I do not accept, in terms of the test posited by Vice President Lawler in Halasagi, that the adequate discharge of any of the duties in the position description requires qualifications as (or equal to those of) a graduate member of Engineers Australia. The duties described in that position description, or a portion of the duties described, are not duties that invariably require an engineering degree for adequate discharge. Such duties are also able to be performed by persons who have other qualifications such as project management, workplace health and safety, environmental management or general management experience, or who have obtained relevant skills by practical experience in the civil construction industry.
[55] I am also of the view that the degree in engineering held by Mr Whelan does not relate directly to the duties. While I do not doubt that Mr Whelan’s qualification as an engineer would have equipped him to carry out some of the duties of Project Manager, I am unable to accept that it is almost invariably the case that a person holding such a qualification would require it to carry out all or a portion of the duties. Mr Whelan has advanced in his career and assumed an increasing load of project management duties but he is not covered by the Award on the basis that he performs some engineering duties, the adequate discharge of which requires him to hold an engineering degree or qualification equal to a graduate member of Engineers Australia.
[56] I turn now to Mr Whelan’s evidence about his duties and whether those duties were covered by the classification structure in Appendix B of the Award. Mr Whelan asserts that the duties he performed were covered by the definition for Level 4 Professional in Schedule B. I do not accept this submission. On the basis of the evidence, I am not satisfied that the principal purpose for which Mr Whelan was employed was to perform the duties in Schedule B for a Level 4 Professional. While Mr Whelan may have performed some of those duties, the performance of those duties was not the principal purpose for which he was engaged. Further, those duties were performed as a Project Manager and not as a Level 4 Professional as defined in Schedule B of the Award.
[57] The evidence establishes that Mr Whelan did not undertake engineering design work. Mr Whelan was required to manage the construction of projects designed by engineers – either employed by BMD or by consulting engineering firms contracted to BMD – who undertook necessary professional engineering work. Any design work undertaken by Mr Whelan was within the parameters of a design undertaken by a consulting engineer and did not require originality, ingenuity or judgement as outlined in the definition for a Level 4 Professional. The planning undertaken by Mr Whelan related to the construction of a project and not to professional engineering policies and procedures within an overall program. 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.
[58] The planning and coordination undertaken by Mr Whelan was not in relation to professional engineering but rather related to project management. While Mr Whelan’s engineering qualifications undoubtedly equipped him to undertake such work, he did not require such qualifications to undertake the work. I do not accept that signing an undertaking that a building has been constructed in accordance with its design and relevant Australian Standards requires an engineering qualification.
[59] I accept that Mr Whelan was involved in some complex projects with challenging engineering design requirements. However, I do not accept that in managing the construction of such projects Mr Whelan was undertaking professional engineering duties as defined in the Award or that he was employed to perform work within the classification definitions of the Award in Schedule B.
[60] While not accepting that the position description attached to Mr Peterson’s statement was an accurate reflection of the duties he performed as a Project manager with BMD, Mr Whelan did accept that the functions and duties set out in Mr Peterson’s statement were accurate. The advertisement tendered by Mr Whelan for a BMD Project Manager does not establish that in his role with BMD he carried out duties, the adequate discharge of any portion of which required him to have qualifications of a graduate member of Engineers Australia or equivalent. The advertisement was placed after Mr Whelan ceased employment. While it states that the successful candidate will have a tertiary qualification in civil engineering, it does not follow that this was required for Mr Whelan to perform his duties or a portion of them.
[61] For these reasons I do not accept that a modern award covered Mr Whelan at the time of his dismissal. Mr Whelan is not a person protected from unfair dismissal and his application for an unfair dismissal remedy must be dismissed. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
1 Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].
2 The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].
3 Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].
4 Transport Workers’ Union of Australia v Coles Supermarkets Pty Ltd [2014] FCAFC 148 at [22].
6 Ibid at [5] to [6].
7 Ibid at [23].
11 Ibid at [41].
12 Exhibit 2.
13 Exhibit 1.
14 Exhibit 3 and Exhibit 4.
15 Exhibit 1 Statement of Michael Peterson paragraph 8.
16 PN60 to PN64.
17 Exhibit 3 Statement of Glenn Whelan paragraph 5 and Annexure “B”.
18 Exhibit 3 Statement of Glen Whelan paragraph 10.
19 Exhibit 3 Statement of Glen Whelan paragraph 10.
20 Professional Engineers Act 2002, Schedule 2.
21 PN187.
22 PN213.
23 Halasagi v George Weston Food Limited [2010] FWA 6503 at [24]; Brand v APIR Systems Ltd [2003] AIRC 1161 at [10] to [11].
24 Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 [9]; cited in McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting (2012) 223 IR 125 [11].
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