DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Stephen Bury
v
Gilmour Space Technologies Pty Ltd T/A Gilmour Space
(U2019/9929)

Application for an unfair dismissal remedy – Jurisdictional Objection – Applicant’s annual earnings exceeded high income threshold – Whether Applicant covered by Professional Employees Award – Whether Applicant covered by Manufacturing and Associated Industries and Occupations Award – Applicant was employed as a manager – Applicant not covered by Professional Employees Award – Provisional view that Applicant is not covered by the Manufacturing Award – Opportunity to make further submission provided.

OVERVIEW

[1] Mr Stephen Bury applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Gilmour Space Technologies Pty Ltd T/A Gilmour Space (Gilmore Space). Mr Bury was employed from 13 October 2017 until his dismissal on 15 August 2019. Gilmour Space objects to Mr Bury’s application asserting that he is not a person protected from unfair dismissal as provided in s. 382 of the Act. This Decision concerns that jurisdictional objection.

[2] It is not in dispute that Gilmour Space had 43 employees at the time of Mr Bury’s dismissal. It is also not in dispute that Mr Bury has completed the relevant minimum employment period of six months as provided in s. 382(a) and s. 383 of the Act and that his annual earnings exceeded the high income threshold as provided in s. 382(b)(iii) of the Act and Regulation 3.05 of the Fair Work Regulations 2009. Further it is not in dispute that no enterprise agreement applied to Mr Bury in relation to his employment.

[3] Accordingly, to be a person protected from unfair dismissal and entitled to make an unfair dismissal application, it is necessary that Mr Bury is covered by an award. Gilmour Space contends that no award covers Mr Bury. In response, Mr Bury initially asserted that he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). Later Mr Bury asserted that he was covered by either the Manufacturing Award, the Professional Employees Award 2010 (the Professionals Award) or the Miscellaneous Award 2010.

[4] Directions were issued requiring the parties to file outlines of submissions and statements of evidence addressing the question of whether Mr Bury was covered by an award. A hearing was held on 6 December 2019. At the hearing, Mr Bury represented himself, and Ms Belinda Simpson, Administration Officer represented Gilmour Space. Mr Bury gave evidence on his own behalf and evidence for Gilmour Space was given by Mr Adam Gilmour, Chief Executive Officer.

[5] At the hearing Mr Bury asserted that he was covered by the Professional Award and that “there are aspects of the Manufacturing Award that are also covered”. In response to a question from me Mr Bury said that it is his primary submission that he was covered by the Professionals Award. Mr Bury did not press the submission that he was covered by the Miscellaneous Award.

[6] After the hearing concluded Mr Bury continued to forward material in support of his case relating to the status of his academic qualifications and his attempts to have those qualifications recognised in Australia. I indicated that I would consider some material filed after the Decision was reserved and if I determined that it was relevant to the matters in dispute, I would provide Gilmour Space with an opportunity to be heard further in relation to it. For reasons set out below that material was not relevant and I have not had regard to it on that basis. In short, Mr Bury’s endeavours to obtain recognition of his qualifications after his dismissal are not relevant to whether he was covered by an Award during his employment.

[7] I have concluded that Mr Bury was not covered by the Professional Award in respect of his employment as Head of Operations for Gilmour Space. However, I consider that because of the focus on the Professionals Award Mr Bury’s case in relation to the Manufacturing Award was not fully developed at the hearing. I have therefore considered the evidence and submissions in relation to whether the Manufacturing Award covered Mr Bury in relation to his employment as Head of Operations of Gilmour Space and have formed a provisional view that this Award did not cover Mr Bury.

[8] In the interests of affording fairness to Mr Bury I have set out the basis of my provisional view that the Manufacturing Award did not cover Mr Bury and determined to give him a further opportunity to make further submissions in relation to my provisional view. In doing so, Mr Bury should note that his further submissions are limited to expanding on matters outlined in his submissions as filed on 27 November 2019 and his witness statement and oral evidence that was before the Commission at the hearing. No further evidence will be received from Mr Bury. Gilmour Space is also afforded an opportunity to respond to any further submissions that Mr Bury may make.

[9] My reasons for concluding that Mr Bury was not covered by the Professionals Award and for my provisional view that he was not covered by the Manufacturing Award are set out below.

LEGISLATION

[10] Section 382 of the Act provides as follows:

“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.”

[11] The high income threshold currently (and at the time of Mr Bury’s dismissal) is $148,700 per annum. Mr Bury’s annual salary was $155,000 notwithstanding that he maintains that he is entitled to a higher amount under his contract and as previously noted it is not in dispute that Mr Bury’s annual earnings exceeded the high income threshold.

[12] In relation to when a modern award covers an employer, employee, organisation or outworker entity, s. 48 of the Act provides:

“48 When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

Effect of other provisions of this Act, FWC orders or court orders on coverage

(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:

(a) a provision of this Act or of the Registered Organisations Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

Modern awards that have ceased to operate

(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.

Modern awards cover employees in relation to particular employment

(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”

[13] Relevantly, s. 143 of the Act provides as follows:

“143 Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards

Coverage terms must be included

(1) A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

Employers and employees

(2) A modern award must be expressed to cover:

(a) specified employers; and

(b) specified employees of employers covered by the modern award.

Organisations

(3) A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.

Outworker entities

(4) A modern award may be expressed to cover, but only in relation to outworker terms included in the award, specified outworker entities.

How coverage is expressed

(5) For the purposes of subsections (2) to (4):

(a) employers may be specified by name or by inclusion in a specified class or specified classes; and

(b) employees must be specified by inclusion in a specified class or specified classes; and

(c) organisations must be specified by name; and

(d) outworker entities may be specified by name or by inclusion in a specified class or specified classes.

(6) Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

Employees not traditionally covered by awards etc.

(7) A modern award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards.

[14] In summary, pursuant to s. 48 of the Act, a modern award covers an employee or employer if it is expressed to do so. A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

EVIDENCE

[15] Gilmour Space is a venture funded Australian rocket company developing capabilities for launching small satellites into space. The Company was founded in 2013 and is run by Mr Gilmour alongside his brother and wife. Mr Bury was employed on 1 March 2018 under a s. 457 Visa. It appears that an employment contract and an employment agreement were entered into with Mr Bury in October 2017. Mr Bury’s evidence is that he was initially employed in a role entitled Head of Engineering. Mr Bury states that at his initial interview for this position Mr Gilmour stated that he wished Mr Bury to be in the “Operational” role long term to; plan and oversee/set up the entire Company manufacturing process; set procedures and have legal, engineering and corporate standards governance including quality, documentation and tooling in order for a built rocket to have commercial viability. According to Mr Bury, this went beyond the role of Head of Engineering.

[16] Mr Bury states that he has 25 years experience in space and aviation. Mr Bury also states that he is a recognised chartered engineer with the Royal Aeronautical Society in the United Kingdom and holds a diploma recognised by Engineers Australia. Annexed to Mr Bury’s witness statement is a document certifying that Mr Bury is a member of the Royal Aeronautical Society and has been so from 3 September 2013 and a document certifying that Mr Bury has been registered by the Engineering Council and is authorised to use the style Chartered Engineer issued on 3 December 2013. Mr Bury also tendered a number of commendations from various companies. Evidence that Mr Bury holds the following qualifications was also appended to his witness statement:

•  National Certificate in Engineering awarded by Fareham Technical College in July 1990 confirming that Mr Bury completed a Business and Technical Education Council approved course at that time;

•  Higher National Certificate in Engineering awarded by Fareham Tertiary College indicating that Mr Bury completed a Business and Technical Education Council approved program in July 1991;

•  Certificate evidencing Mr Bury’s completion of a course entitled Introduction to Visual Basic including a number of components; and

•  Certificate of Attendance for a Space Systems Engineering Course attended by Mr Bury from 28 November to 2 December 2011 issued by the University of Southampton;

[17] Mr Bury states that he listed these qualifications in his resume and was never asked about them in his interview with Mr Gilmour. Mr Bury also states that he was not requested to provide his “academics” for gaining a s. 457 Visa or requested to join Engineers Australia. Mr Bury tendered an employment contract bearing a range of dates. 1 The coversheet is dated 13 October 2017 and indicates that the position is entitled Engineering Manager with an annual base salary of $144,000 per annum. The duties set out in Annexure A of the Contract are as follows:

“Establishing procedures and practices for the proper and timely execution of the company strategy in relation to engineering. To design and execute test procedures for critical systems on our vehicles and technology the Company builds. To participate it he design of various subsystems of our launch vehicle.”

[18] Mr Bury also tendered a document dated 10 October 2018 confirming a salary increase in his position as Head of Engineering to $170,000 per annum. A revised employment contract dated 11 October 2018 was appended. Item 7 on the contents page of the contract states: “Award Professional Employees Award”. There is no reference to the Professional Employees Award in the contract. The provisions of item 7 deal with various forms of leave by setting out the substantive entitlements to such leave and without reference to the Award. 2

[19] In March 2019, Mr Bury’s contract was again revised and his position under the revised contract was entitled Head of Operations. The Position Description states that the Head of Operations reports to the Chief Executive Officer. The “Position Objective” for the position is:

“You will have overall responsibility of production, procurement, logistics, documentation management system, quality assurance and product assurance.

Ensure the smooth running of the department whilst effectively managing all team members to ensure duties are performed in an efficient and timely manner, whilst adhering to the Gilmour Space Technologies policies and procedures to ensure the highest possible standards.” 3

[20] The “Duties and Responsibilities” identified by the position description are:

•  Ensure that manufacturing processes comply with all regulatory bodies and standards at both national and international levels

•  Working with operating staff to establish procedures, standards, and systems

•  Interpret and implement quality assurance standards

•  Identify training needs and organize team training to meet quality standards

•  Responsible for documentation management systems.

•  Develop documentation for all test procedures, bill of material, Quality Assurance associated (inspection and test /build) red tag items etc,

•  Develop a quality management plan to define Quality Assurance and Product Assurance processes, chemicals etc

•  Evaluate regularly the efficiency of business procedures according to organizational objectives and apply improvements.

•  Manage procurement and logistics processes and coordinate material and resources allocation.

•  Develop and implement safe work practices and procedures for all tasks that pose risk, performed either at the factory or test sights.

•  Record, monitor and review hazard and safety risk control strategies to ensure continual improvement and safety.

•  Share collective responsibility for delivering organizational objectives, through active engagement and collaboration with employees at all levels in the organisation

[21] Relevantly the Position Description contains requirements for internal and external relationships. With respect to internal relationships the requirement is for communication with managers and team members to develop good working relationships and ensure daily operational requirements are met. With respect to external relationships the position description refers to requirements for liaison with external clients and employees and maintenance of good relationships with suppliers and sales contacts.

[22] The position description identifies “Know-How” required for the position as follows:

“The ability to provide and acquire a good working knowledge of the propulsion industry, help in the identification of Company facilities for assembly and production to enable manufacturing efficiency.

Minimum ten years’ experience is essential for this role and should include 10 (sic) experience within a similar working environment, ideally within a similar industry. The incumbent must have exceptional time and cost management, excellent communication and interpersonal skills. Tertiary qualifications of either a Degree/Masters or 10 years practical experience is essential.

It is essential to have the skills to work efficiently in a team environment, and should have a desire and willingness to assist other team members in the general day to day running of the department.”

[23] In relation to “Problem Solving” the position description states that:

“Due to the research and development aspect of Gilmour Space Technologies business the incumbent will be faced with the challenge of operating in a new and dynamic arena. The incumbent must be sensitive to cultural team diversities and Gilmour Space Technologies requirements when resolving situations that demand solutions.”

[24] In relation to “Performance Standards” the Position Description states:

“… Performance indicators will include both quantitative & qualitative measures. Indicators may be business based (e.g. Departmental profitability, budget control) or individual based (e.g. Performance as a leader as assessed by superiors, peers and subordinates’ changes in employee commitment, job satisfaction & motivation).”

[25] Under the heading “Professional Associations”, the following appears:

•  Engineers Australia

•  Association of Professional Engineers, Scientists and Managers Australia (or equivalent international association)

[26] Mr Bury said that his original role as Head of Engineering involved overseeing and providing design input, mediation, instructions and decisions on the first major rocket that Gilmour Space was attempting to produce. According to Mr Bury it was decided (with his input) that there was little commercial value to the Company in producing a sub-orbital class rocket as a business and the focus was to manufacture a larger rocket which is currently being undertaken. Mr Bury also said that as Head of Engineering he was involved in recruitment but this changed when he was in the Head of Operations Role. In the Head of Operations role, Mr Bury said that he also covered technical description/layout and planning improvements at the Company’s old and new test facilities and continued to plan the tasks that needed to be done for manufacture. Mr Bury contended that this role was consistent with the role of Production Planner under the Manufacturing Award.

[27] Further, Mr Bury said that the rocket and its ground control and launch trailer system were all manufactured and assembled in-house using plastic adaptive manufacturing, welding, mechanical construction and electrical wiring manufacturing and assembly, all of which are covered by the Manufacturing Award. Mr Bury said that he had a direct hands on input before and after March 2019, examples of which were building harnesses and inspection of quality and physical wiring of connectors, which were Supervisory roles as per the Manufacturing Award. Mr Bury said that he had already set up a basic quality inspection system prior to his operational role and a goods in system. Mr Bury also said that he mentored others in relation to these systems and fulfilled a role as a Supervisor/Co-ordinator covered by the Manufacturing Award. Further, Mr Bury said that he advised on which software and tools to use and established processes as covered by the Manufacturing Award.

[28] Mr Bury also contended that he fell into the category of “professional” under the Professionals Award as evidenced by the position description for his role as Head of Operations. In this regard, Mr Bury said that he was setting up an ISO accreditation scheme which is also covered under the Professionals Award and that he decided for the Company, with a single peer review, what standards to adhere to in Engineering. Mr Bury said that he had completed this role previously with the European Space Agency and this was a key skill that Gilmour Space required. Mr Bury also said that he got involved with health and safety aspects for State compliance and did not just manage this but rather decided and reviewed standards and wrote associated processes. Mr Bury pointed to his first task of an ISO9001 framework and document control mechanism and contended that this required engineering competencies which demonstrated he was covered by the Professional Employees Award.

[29] In relation to the assertions by Gilmour Space that he did not have RPEQ membership, Mr Bury said that such membership is aimed at professional engineering services provided to the general public and that may have a direct impact on their wellbeing and safety. Gilmour Space did not need to have RPEQ engineers as its systems are run with in-house expertise and did not involve exposure to the general public. Mr Bury also said that his duties included the tender of work and bid information for defence grants which was technical in nature and required identification of risk.

[30] Mr Bury tendered a document entitled System Engineering Management Plan (SEMP) for ERIS 100 which indicates that Mr Bury prepared the plan as “Head of Operations” and that it was checked by Mr Ronningen the Chief Engineer. The summary of the plan states that it is the controlling document for the execution of the ERIS 100 Assessment Phase and provides detailed instructions for technical task planning and control, the system engineering process, and engineering speciality integration requirements to be applied to the E100 program. The plan further states: “this is a living document that is maintained by the Chief Engineer. This document will be updated as necessary during the life of the program.”

[31] In the introduction to the SEMP the following statement appears:

“This document represents the manner in which E100 manages the technical engineering effort…The purpose of the SEMP is to create a set of integrated plans for the Assessment Phase (O-A) that ensures … program objectives.”

[32] The program objectives set out overall objectives for the Project. Under the heading “Scope” the SEMP provides that:

“This SEMP defines the technical program planning and control, systems engineering processes and engineering speciality integration requirements to be applied to the E100 Program for the X month Assessment Phase…The SEMP describes the processes and procedures used to define, analyse, document, manage and control the requirements (design and verification) for the ERIS program. The technical program is defined in the Project Management Plan (PMP).

Test and logistic engineering activities are identified and integrated into the engineering process to provide an integrated development effort consistent with concurrent engineering principles. The result is a system design with the best balance of cost and risk that meets all performance requirements. The SEMP does not supplant the plans for each of the specialty engineering groups and disciplines but addresses them in the context of total program integration.”

[33] Part 6.2 of the SEMP details the leads for the project. All lead positions report to the Head of Rocket and Systems Development except for the Head of Quality and Configuration which reports to the Head of Operations. The Head of Quality and Configuration inter alia ensures that engineering designs are monitored at suitable points; conformance with the quality and product assurance plan; and that engineering processes are adhered to. The evidence established that the role of Quality and Configuration Manager shown in the organisational chart as at 16 May 2019 is not held by an engineer.

[34] In support of his assertion that he was performing engineering duties Mr Bury also tendered an email from Mr Ronningen setting out an agenda for a meeting to discuss a proposal for the establishment of an inert solid fuel production line within the Gilmour Space factory. 4 The agenda proposed by Mr Ronningen involves him making a presentation in relation to need, implementation, logic, plan and human resources and the other participants discussing and agreed on the direction proposed.

[35] Under cross-examination it was put to Mr Bury that the reference to the Professional Employees Award in his contract of employment was for the purpose of bringing in the hours of work provisions of the Award only. Mr Bury said that this had not previously been brought to his attention. In response to the proposition that the Head of Operations role did not involve engineering, Mr Bury said that the requirement to ensure that the manufacturing processes comply with all regulatory supervisory bodies and standards at local and international level, requires engineering as it involves defining standards and setting out processes for engineering. Further, Mr Bury asserted that the requirement to interpret and implement quality assurance standards also required engineering and that quality is an engineering discipline. In this regard, Mr Bury said:

“Of engineering? --- Responsible for documentation, management systems - that's for the whole company's engineering documentation process as the company is making an engineering product. Develop documentation for all test procedures, further materials, quality assurance, inspection and test and build. Inspection and test of build of an engineering product being the rocket. Develop a quality management plan to define quality assurance and product assurance processes. Again, those processes are engineering processes. Evaluation the efficiency of the business procedures, which is all down to engineering. Management to procurement and logistic processes and coordinate the materials and resources allocated for the engineering product - that's engineering.” 5

[36] Mr Bury was shown a letter dated 23 October 2018 addressed to him which requested that he provide copies of any qualifications and certificates held by him. Mr Bury said he could not recall seeing the letter previously and noted that it had been sent to his personal email address. Mr Bury agreed with the proposition that he was a high ranking manager of the Company and that he answered only to the CEO and that he was involved in management decisions and meetings. Mr Bury also agreed that he wrote the position descriptions for a number of roles within the Company and was consulted in relation to the majority of job roles. Mr Bury maintained that this was an engineering task because the roles define what engineering tasks the individual is actually being employed to carry out.

[37] Mr Bury agreed that of the 43 employees of Gilmour Space some 30 – 35 are engineers. Mr Bury said that he was not supervising these employees and they reported to the leads in their areas. Mr Bury said that he was supervising the Head of Logistics and the Technical Services Engineer. Mr Bury said that the Technical Services Engineer was involved in IT for the Company, repairs broken items and gets involved in doing quality inspections for test and finished articles as well as defining the tools the Company uses and helping with 3D manufacturing for the Company. In response to a question about the Technical Service Engineer’s qualifications, Mr Bury first asserted that he is an experienced engineer as defined in the Professionals Award and then said that he had not seen the qualifications of that person. In response to a question about what engineering duties the Technical Services Engineer carried out, Mr Bury said:

“What engineering duties does he carry out?  IT.  You say he fixes all the IT? --- He's defined and set up the IT services with regards for security for the company.  He set up the back-up system for the system.  He's the administrator for the computer hardware.  If anything's broken he's the person that goes to the fixing.  He instructs the graduates on how to operate the machinery that's on the shop floor.  The lathes, the drill presses.  He writes - he's written procedures for people to follow for that.  He repairs and services and manages the 3D printers - the small and the large ones that we've got.  He's basically the technical go-to for any of the shop floor people.” 6

[38] Mr Bury later conceded that he is not aware of whether the Technical Services Engineer has an engineering degree recognised by Engineers Australia. In response to a question about what engineering duties he carried out Mr Bury said that he wrote procedures and plans for the Company in relation to how the Company will operate and how a problem of non-conformance of a product is to be solved. Mr Bury said that this is an engineering task because it required him to define the engineering process – for example the failure of a component which requires review and logging. Mr Bury also said that for a system you have to know the engineering lifecycle to be able to put the processes into place and for ISO9000 line people have to know the engineering processes to define the structure. In response to the proposition that there were engineers to provide this information, Mr Bury said that this is what he did and also referred to the Systems Engineering Management Plan for the Company which he wrote. Mr Bury said that this Plan set out the actual engineering processes for the Company’s rocket and how the product would be designed and defined.

[39] In relation to his qualifications Mr Bury agreed that he does not have membership of Engineers Australia but said that he is a member of the Royal Aeronautical Society in the United Kingdom that is recognised by Engineers Australia. Mr Bury said that he is currently undertaking a recognition process with Engineers Australia but had not commenced this when he was employed by Gilmour Space. Mr Bury maintained that this was not required of him by the Company. Mr Bury maintained that notwithstanding that he did not have the qualifications, the adequate discharge of his duties with Gilmour Space required him to have qualification equal to those in the Professionals Award. Mr Bury also said that when he started with the Company as Head of Engineering he had engineers reporting to him and oversaw their work. When Mr Bury became Head of Operations his former role was taken over by the Head of Propulsion who is an engineer.

[40] Mr Bury agreed that he attended a technical college and not a university but maintained that he had undertaken a five year course. Mr Bury maintained that there is a mutual recognition process whereby his qualifications would be recognised but accepted that this is not automatic and that the qualifications would be investigated. Mr Bury said that he is currently going through that process. Later Mr Bury conceded that he did not know whether his qualifications would be recognised by Engineers Australia and would only know whether this would occur after Engineers Australia had completed its review.

[41] Mr Bury was shown an organisational chart dated 16 May 2019. In relation to that chart, Mr Bury agreed that the Head of Engineering Mr Jan Erik Ronningen had engineers reporting to him while Mr Bury did not but maintained that “operationally-wise” he “looked over” the Head of Engineering and gave him advice with regards to engineering. When requested to provide examples of engineering work he undertook, Mr Bury said that he planned and laid out test facilities for rockets at various sites including the equipment required and when and in what order the elements of the facility would be built. In response to the proposition that Mr Ronningen and other heads of departments supplied him with the technical information and that he simply formulated a report, Mr Bury said that he worked with Mr Ronningen. Mr Bury agreed that he also negotiated with landowners in relation to the facility being built on their land.

[42] Mr Bury said that he put together the schedule in relation to how the rocket was to be built and what order and processes were to be followed and did the same for the test facility. In response to the proposition that he was simply involved with administrative tasks involving document policy and the Company’s document management system, Mr Bury maintained that defining the document standard for engineering drawings was an engineering task that he undertook. In response to the proposition that Ms Simpson was assigning document numbers Mr Bury said that he set up the numbering system for the Company and created a spreadsheet including information and defined terms that did it automatically. This system allowed document numbers to be assigned.

[43] Mr Bury also maintained that he had input into the decision of the Company not to pursue sub-orbital rockets and that this was an engineering and economical decision. According to Mr Bury, the engineering decision was that the Company did not have technology to get to sub-orbital within the required time scales. In response to the proposition that this was a business decision Mr Bury said that they are mutually inclusive because what was being built is an engineering product and that his input involved analysing the design of the product.

[44] In relation to his role, Mr Bury and I had the following exchange:

“THE DEPUTY PRESIDENT: All right. Well, Mr Gilmore's statement, Mr Bury, and you can agree or disagree with this is that from the 19 June your role became focused on new document management system engaging with the stakeholders, negotiating a new test site, gathering technical information, chairing meetings and not engineering and design of the rocket. Do you want to comment on that? Yes, so I was involved with and briefed on the upcoming design of the rocket and was asked for my opinion.

Mm? --- A documentation management system was just one of the elements that I was doing before I was dismissed.

So do you assert that you, notwithstanding what Mr Gilmore says you were involved in the engineering and design of the rocket? --- I was involved in listening to and giving feedback on the engineering design, yes.” 7

[45] Mr Gilmour’s evidence is that Mr Bury wrote his own position description in relation to the Head of Operations role using a Company template as a guide. The position description became effective from 20 March 2019. At that time, the Company employed a Mechanical Production/Assembly Integration and Testing Specialist who assumed responsibility for Manufacturing Quality Control and compliance. The Head of Human Resources assumed responsibility for Workplace Health and Safety upon commencing employment.

[46] Mr Gilmour states that while Mr Bury’s position description was still valid, from 19 June 2019 his role became more focused on the implementation and management of a new document management system and he was responsible for engaging with important stakeholders with regards to negotiating and securing a new test site. Further Mr Bury was responsible for gathering technical information from Department heads to assemble reports. His managerial responsibilities included chairing meetings of Department heads. Engineering and design of the rocket was not included in Mr Bury’s position description and he was not involved in this aspect of the business.

[47] Mr Gilmour also states that the role of Head of Operations was managerial in nature and Mr Bury reported directly to the CEO. Mr Bury was given a level of responsibility and trust that is only afforded to a high level manager. In this regard, Mr Gilmour said that Mr Bury was involved in making budgetary decisions for the Company and identifying and targeting areas for the business to improve operations. Mr Bury also had responsibility for recruitment, performance management and termination of employees. Further, Mr Gilmour states that Mr Bury did not provide Gilmour Space with an Engineering Degree or Diploma from a university or other institution and tendered Mr Bury’s curriculum vitae to establish this.

[48] In his oral evidence, Mr Gilmour said that at the time he was dismissed, Mr Bury’s duties involved the organisation of the Company’s use of a rocket test facility that was set up at Helidon, organising the layout of a factory at Helensvale and organising the documentation around all of the processes of managing the performance of different areas of the Company and involved a lot of procedural work. In relation to the test site Mr Gilmour said that Mr Bury’s involvement was engaging with stakeholders including landowners where tests would be carried out rather than technical specifications. Mr Gilmour also said that technical matters would have been dealt with by people in the engineering division such as the head of propulsion. Mr Gilmour and I had the following exchange during his evidence-in-chief:

“THE DEPUTY PRESIDENT: Okay. Mr Gilmour you can agree or disagree with this. As I understand it, Mr Bury's essential argument is that he had engineering qualifications which you knew about because they were in his CV when he applied for this position and without those qualifications he couldn't have undertaken the position. Do you want to comment on that? --- Yes. What I'd like to say he was initially hired as the Head of Operations in the company and then he was asked to become the Acting Chief Engineer and then he was later put back into the role of Head of Operations. So what was most important to me when I looked at his position as the Head of Operations was he had good experience in other companies in managing processes and documentation and that's what we were lacking in the company and that's what we really needed him for.

Okay. And so you say that that didn't require an engineering qualification? --- No.” 8

[49] Mr Gilmour also tendered a chart showing the organisational structure at 16 May 2019 and which set out the structure at the time Mr Bury was dismissed 9. The chart showing the organisational structure has a Head of Engineering (Jan-Erik Ronningen) with a number of engineers reporting to him including: Head of Propulsion; Head of Avionics, Guidance Manager and Head of Mechanical Fabrication. Mr Gilmour said that the reporting lines to the Head of Engineering represent the product verticals of the parts of the rocket. Mr Gilmour also said that almost all of the positions reporting to the Head of Engineering are filled by engineers who hold degrees in engineering.

[50] The chart also shows Mr Bury in the position of Head of Operations with the following positions reporting to him: Systems Analyst Planning Scheduler; Logistics and Site Manager and Quality and Configuration Manager. Reporting through those positions are a Technical Services/QA Inspector; Administration Officer and an IT Administrator. Mr Gilmour said that none of the persons reporting to Mr Bury were engineers or had an engineering qualification. Mr Gilmour also tendered a letter that was given to Mr Bury on 22 July 2019 showing the key areas that Mr Bury was required to focus on as part of a disciplinary process. That letter states that a meeting was held with Mr Bury on 19 March 2019 to discuss the realignment of his role to Head of Operations to more accurately represent the duties noted in his original employment contract of:

“Establishing procedures and practices for the proper and timely execution of the Company strategy in relation to engineering.”

[51] The letter goes on to state that Mr Bury is required to progress three key areas:

a. Test Site

i. Establishing access to site at Helidon

ii. Design for test site

iii. Obtaining approval for design by land owners

iv. Establish schedule/timeline for first test

b. Factory Clean up

i. Requested you to be very involved in ensuring the factory is “spick and span” to facilitate an open house for the Minister of Science – Karen Andrews

c. Documentation

i. Requested a simple and effective documentation management system be implemented

[52] Mr Bury agreed that he had received this letter. Under cross-examination Mr Gilmour agreed that the requirement that Mr Bury progress the design for test site meant the organisation of the facilities around it such as where the building was going to be, where materials would be stored and where a concrete pad would be placed and that Mr Bury was required to co-ordinate that activity with the rest of the engineering team. Mr Gilmour agreed that this also included the design of the actual facilities that were needed.

[53] Mr Gilmour also agreed that Mr Bury started with the Company in the role of Head of Engineering and undertook that role for a year and a-half. Mr Gilmour said that there were people on the team who has space engineering experience before Mr Bury joined the Company and who were working on rockets and engine testing development but agreed that those employees had not worked for a space company other than Gilmour Space. Mr Gilmour maintained that Mr Bury was employed for organisational ability in relation to processes and documentation which was severely lacking within Gilmour Space. In relation to Mr Bury’s CV Mr Gilmour agreed that it evidenced his experience working for the European Space Agency and responsibility for their engineering standards which Mr Gilmour maintained involved document standards. Mr Gilmour also agreed that Mr Bury had been the test manager for the Galileo Constellation involving physical testing of satellites. Mr Gilmour agreed that the testing role may have needed engineering and credibility but maintained that Mr Bury was employed by Gilmour Space for processes.

[54] Mr Gilmour was shown Annexure C to Mr Bury’s witness statement said to be a list of tasks prepared by Mr Bury that he had undertaken encompassing quality, logistics, safety and manufacturing. Mr Gilmour said that deciding what standards had to be adhered to in order to build a rocket did not require engineering experience and said that it required looking at engineering standards which Mr Gilmour could read as a non-engineer and use what the Company wanted. In response to the proposition that Mr Bury had been involved in tailoring those standards to meet the requirements of Gilmour Space Mr Gilmour said that he did not see any evidence of Mr Bury tailoring standards.

[55] Mr Gilmour maintained that tasks such as: processes for logistics and calibration of tools and maintenance planning; creating templates for engineering documentation; long term planning and work breakdown schedules; did not require engineering qualifications or experience. Mr Gilmour disagreed with the proposition that Mr Bury was initiating or participating in short or long range planning and making independent decisions on professional engineering and said that the role was planning rather than engineering. Mr Gilmour agreed that Annexure C to Mr Bury’s witness statement was a document that he provided to Mr Bury.

[56] In response to the proposition that he was saying that Mr Bury was not involved in any engineering, Mr Gilmour said that Mr Bury’s primary responsibility was non-engineering although he may have “dabbled” in one or two engineering matters. Mr Gilmour was also shown an email tendered by Mr Bury as Annexure F to his witness statement from Mr Ronningen addressed to Mr Adam Gilmour, Mr James Gilmour, Mr Myles Frost, Mr Nick Lindsay and Mr Bury in relation to a meeting about the establishment of an Inert Solid Fuel Production Line within the factory. The proposed agenda for the meeting is: “Presentation: Need, implementation logic and plan, human resources (Mr Ronningen) and Discussion and agreement on direction (all).” Mr Gilmour did not agree with the proposition that this was an engineering subject but maintained that regardless it was his practice to involve his whole management team in engineering discussions whether they are engineers or not. Mr Gilmour also maintained that the meeting was not an engineering discussion and that the attendees comprised engineers and non-engineers.

[57] In relation to information in Annexure E to Mr Bury’s witness statement, Mr Gilmour maintained that tasks such as the establishment of systems engineering management plan is a document that talks about the processes required to submit information to the Defence Force and is not engineering. Rather it is a document management plan not requiring engineering. Such plans had been implemented by space agencies including the European Space Agency which has documents that show how to lay out document plans and engineering plans and work breakdown structure. Gilmour Space wanted to use these plans. In response to the proposition that Mr Bury drafted an engineering management plan for the rocket being manufactured by Gilmour Space to define the product and stipulate the engineering processes to be used in the design, Mr Gilmour said that you could get those from the European Space Agency but agreed that the plan was specific to the rocket.

[58] In its submissions Gilmour Space contends that Mr Bury’s position description did not include professional engineering duties as described in the Professionals Award and that he did not perform those duties at the time he was dismissed. Gilmour Space further contends that Mr Bury did not provide the Company with evidence of completing a Diploma of Engineering nor a University degree in engineering. In this regard the Company points to the definition in the Professional Employees Award of professional engineering duties which requires the qualification of employee as (or at least equal to those of) a Graduate Member of Engineers Australia. The minimum qualification for such membership is a Diploma of Engineering as evidenced by the website of Engineers Australia.

[59] In relation to the definition of professional engineering duties in the Professional Employees Award, reference was also made to the Professional Engineers Act 2002 (Qld) which defines “professional engineering services” as involving the application of engineering principles and data. The Board of Professional Engineers Queensland has also published Practice Notes to give guidance on interpretation of the Act and these note that professional engineering involves “advanced scientifically based calculations”. It is submitted that Mr Bury was not performing engineering duties or scientifically based calculations as part of his duties and his role was managerial in nature.

[60] It is also submitted that Gilmour Space employs a number of engineers whose duties do involve the application of engineering principles and advanced scientifically based calculations. While those employees do fall within the coverage of the Professional Employees Award, Mr Bury does not. Further, Gilmour Space submits that the Decision of Senior Deputy President Richards in De Jong v Ausenco Services Pty Ltd 10 is supportive of its submissions that Mr Bury is not covered by the Professional Employees Award because of the managerial nature of his duties.

[61] In relation to the Manufacturing Award, Gilmour Space submits that while this Award applies to some employees assembling its rockets in the factory, Mr Bury was not so engaged. Mr Bury was responsible for document management systems and communicating with managers and team members to ensure daily operational requirements were met, evaluating efficiency of business procedures according to organisational objectives, ensuring smooth running of the department whilst effectively managing all team members to ensure that duties were performed in an effective and timely manner as set out in his Position Description.

[62] Gilmour Space also referred to the test as set out in a number of Decisions of the Australian Industrial Relations Commission where it was held that more is required than a quantitative assessment of time spent carrying out various duties and an examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.

[63] It was submitted that when this test is applied to Mr Bury it shows that he was principally employed as a manager who was head of a department and was responsible for tasks beyond the level of those for which a classification exists under the Manufacturing Award. Mr Bury’s role was managerial in nature and he was answerable only to the CEO and was more senior than other managers of the Company. For these reasons it was submitted that the Manufacturing Award did not cover Mr Bury. In relation to the Miscellaneous Award Gilmour Space points to clause 4.2 of that Award which makes clear that it does not cover employees, who because of the seniority of their role have not been traditionally covered by Awards. Gilmour Space also pointed to clause 4.3 of the Miscellaneous Award which provides that it does not apply to employees in an industry covered by a modern award who are not within the classifications in that award. Accordingly it is contended that the Miscellaneous Award does not apply to Mr Bury.

CONSIDERATION

The Approach to determining award coverage

[64] As a Full Bench of the Commission observed in Gourabi v Westgate Medical Centre 11 :

“For relevant purposes, each modern award has a ‘coverage’ clause that determines ‘the employers, employees, organisations and outworker entities’ that are covered by it. The determination of whether a particular employment falls within the coverage clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.” 12

[65] In interpreting an award provision, the words of the clause are to be given their ordinary meaning. 13 Award history and subject matter may be considered to resolve any ambiguity.14 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 content in which they appear and the purpose they are intended to serve”.15 The approach to determining whether an employee is covered by an award is to assess the principal purpose or primary function for which the employee was employed.16

[66] In the present case Mr Bury contends that while employed by Gilmour Space he was covered by either the Professional Employees Award or the Manufacturing Award. As previously noted, Mr Bury does not press the contention that he was covered by the Miscellaneous Award. I turn first to consider whether Mr Bury was covered by the Professional Employees Award.

Whether the Professional Employees Award covers Mr Bury

[67] The coverage of the Professionals 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.”

[68] Neither party contends that Gilmour Space is principally engaged in the information technology industry, the quality auditing industry or the telecommunications service industry so that clause 4.2 of the Professional Employees Award applies. Mr Bury does not claim that he was performing professional scientific duties and relies on the engineering stream definitions as the basis for his assertion that the Professional Employees Award covered him in his role as Operations Manager for Gilmour Space. Accordingly for the Professional Employees Award to cover Mr Bury the Commission must be satisfied that Mr Bury was performing professional engineering duties in the manner defined in the Professional Employees Award and that he is covered by a classification in Schedule B Classification Structure and Definitions.

[69] Clause 3 – Definitions and interpretation of the Professional Employees Award deals with the engineering steam 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”

[70] Schedule B of the Award contains a classification structure and definitions. Mr Bury contends that the definition that describes the level at which he works is either Level 3 – Professional and/or Level 4- Professional, 17 which provide as follows:

“Level 3—Professional

(a) An employee at this level performs duties requiring the application of mature professional knowledge. With scope for individual accomplishment and coordination of more difficult assignments, the employee deals with problems for which it is necessary to modify established guides and devise new approaches.

(b) The employee may make some original contribution or apply new professional approaches and techniques to the design or development of equipment or products.

(c) Recommendations may be reviewed for soundness of judgement but are usually regarded as technically accurate and feasible. The employee makes responsible decisions on matters assigned, including the establishment of professional standards and procedures. The employee consults, recommends and advises in specialty areas.

(d) Work is carried out within broad guidelines requiring conformity with overall objectives, relative priorities and necessary cooperation with other units. Informed professional guidance may be available.

(e) The employee outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.

…

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”

[71] In Halasagi v George Weston Food Limited (Halasagi), Vice President Lawler said in relation to the meaning of “professional engineering duties” as it appears in the Professional Employees Award:

“[23] I proceed on the basis that:

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

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

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

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

[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. That later question is determined by reference to the “principal purpose” test.  I would note that, in relation to the Professional Employees Award 2010, care must be taken not to confuse these two questions because the definition of “professional engineering duties” can be satisfied by reference to “any portion” of the employee’s duties and does not require that the duties falling within that definition are the “principal purpose” for which the employee is employed.” (citations omitted) 18

[72] The approach in [23] was endorsed and adopted by a Full Bench of the Commission in Bateman v Communications Design & Management Pty Ltd 8. It is first necessary to consider whether Mr Bury was performing professional engineering duties as defined in clause 3.2 of the Professionals Award. In my view the proper construction of that definition is that the employee must hold the relevant qualifications or their equivalent. My view in this regard is based on the text of the definition which provides that the term “requires” relates to the qualification rather than the duties performed. Further, the discharge of the relevant duties is qualified by the term “adequate”. These aspects of the definition reflect the specialised nature of engineering work, the professional obligations placed on engineers which are sometimes reflected in legislation and the fact these aspects of the role are recognised by formal tertiary level qualifications.

[73] This construction is also supported by the reference to Engineers Australia in the definition of professional engineering duties. Engineers Australia is a body which accredits programs of study so that persons who have undertaken such programs are considered to have qualifications such as a graduate engineer. Engineers Australia also assesses the competencies of persons who have undertaken a program of study that is not accredited to determine whether that program is equivalent to an accredited program. Therefore, to carry out professional engineering duties as defined in the Professional Employees Award a person must hold a qualification which would entitle that person to membership of Engineers Australia as a graduate member or equivalent qualifications.

[74] This is not to say that the Professional Employees Award requires membership of Engineers Australia before a person can carry out professional engineering duties. Rather, what is required is that the person carrying out such duties is entitled to be a graduate member of Engineers Australia by virtue of holding a qualification or its equivalent. It is also necessary that adequate discharge of any portion of professional engineering duties requires the relevant qualification or its equivalent.

[75] In the present case, during his employment and that the point he was dismissed, Mr Bury did not hold a qualification which would entitle him to be a member of Engineers Australia or an equivalent qualification. When this matter was heard, Mr Bury was in the process of obtaining an assessment by Engineers Australia. The documentation tendered by Mr Bury after the hearing establishes no more than the ongoing endeavours being made by him to have his qualifications recognised.

[76] I am also of the view that the neither the work carried out by Mr Bury nor any portion of that work, required qualifications of a graduate member of Engineers Australia or equivalent, in order for the work to be adequately discharged. At the point he was dismissed, Mr Bury was employed in the role of Head of Operations. Mr Bury reported to the CEO. His position description makes clear that his role was establishing and managing systems to ensure objectives with respect to production, procurement, logistics, documentation management, quality and product assurance were met. Mr Bury was also charged with managing team members to ensure duties were performed in an efficient and timely manner consistent with the policies and procedures he was charged to establish and implement. The role did not require a degree, much less an engineering degree, and stated that ten years’ experience in a similar working environment or ideally within a similar industry would be accepted.

[77] The duties and responsibilities as set out in the position description for Operations Manager are managerial. The duties and responsibilities are focused on establishment and management of systems, processes, procedures, logistics and relationships both internal and external. I do not accept that the responsibility for development of a quality management or document control system requires an engineering degree or equivalent. Other examples of duties given by Mr Bury also do not require an engineering degree including the design of a launch facility or the layout of a factory or production processes to be carried out in the factory. It is also the case that the evidence established that the main role Mr Bury had in the establishment of the launch facility was to negotiate with the owners of the land on which it was to be situated and attend to the regulatory arrangements for the construction. Further, the technical inputs were the responsibility of the engineers responsible for the “product verticals” of the rocket. There were a significant number of such engineers responsible for these areas.

[78] I also do not accept that the SEMP developed by Mr Bury required an engineering degree or equivalent. It is clear that the SEMP is a framework document which establishes a repository for policies and procedures and a system for managing and integrating policies and procedures in a range of areas including engineering, into a comprehensive plan. The role of engineers in the Company is apparent from the organisational chart which makes clear that engineers reported to the Engineering Manager and not Mr Bury. In fact, Mr Bury had no engineers reporting to him further evidencing that he was not involved in carrying out professional engineering duties within the meaning in clause 3.2 of the Professional Employees Award.

[79] It is also the case that the duties in Mr Bury’s position description and as outlined in his evidence to the Commission are not duties that almost invariably need a qualification of the sort referred to in the definition of professional engineering duties. In any event, Mr Bury did not hold such a qualification during his employment or at the point this matter was before the Commission. I accept that Mr Bury’s experience in the Aeronautical and Space industry would have been essential to his ability to carry out the role of Operations Manager as described in the position description but this does not result in Mr Bury carrying out professional engineering duties as defined in clause 3.2 of the Professional Employees Award.

[80] Because Mr Bury was not carrying out professional engineering duties as defined in clause 3.2 of the Professionals Award, he also did not meet the definition in that clause of Professional Engineer. In addition to not meeting the requirements to be a person carrying out professional engineering duties, Mr Bury does not meet the definitions of either a Graduate engineer or an Experienced Engineer in clause 3.2 of the Award.

[81] For completeness and in the event that I am wrong in the construction of the definition of professional engineering duties I turn now to consider the second limb of the coverage provision in clause 4.1 of the Professional Employees Award – whether Mr Bury was covered by a classification in Schedule B and the definitions relating to that structure.

[82] Mr Bury asserts that he is covered by the Level 3 or Level 4 – Professional classifications in Schedule B of the Professional Employees Award. I am unable to accept that assertion. First, it is apparent that the classification definition in both of those Levels is linked to the definition of professional engineering duties in clause 3.2 of the Award. In short, the description of the duties is governed by that definition and the definitions of Graduate and Professional Engineer. The duties in Schedule B cannot be considered in isolation from those definitions.

[83] To illustrate the point, a person who is not covered by the Professional Employees Award because that person is not carrying out professional engineering duties as defined in clause 3.2, cannot assert coverage on the basis of having designed or developed equipment or products as specified in item B1.9(b) of Schedule B or undertaking the tasks in item B1.11 of that Schedule.

[84] If the principal purpose test is relevant to the Professional Employees Award, then it cannot be said that the principal purpose of Mr Bury’s employment was to carry out professional engineering duties as defined in clause 3.2 of the Award read in conjunction with Schedule B. In the context of the duties Mr Bury was employed to perform in the role of Operations Manager, the reference to the Professional Employees Award in his employment contract is not determinative of whether he was covered by that Award. I turn now to consider whether Mr Bury was covered by the Manufacturing Award. I do so on the basis that my conclusions in relation to this issue are provided on a provisional basis.

Whether the Manufacturing Award covered Mr Bury

[85] The Manufacturing Award is an industry award which by virtue of clause 4.1 covers employers throughout Australia of employees in the Manufacturing and Associated Industries or Occupations who are covered by the classification in the Award. The term Manufacturing and Associated Industries or Occupations is broadly defined in clause 4.9 and 4.10 and it is not in dispute that Gilmour Space is engaged in manufacture including of components for its rocket and that other elements of the definition such as mechanical and electrical engineering are engaged. It is therefore necessary to consider whether Mr Bury was covered by a classification in the Manufacturing Award.

[86] Mr Bury contends that “aspects” of the Manufacturing Award detailed the duties he performed. In this regard Mr Bury pointed to the definition of production planning in clause 3.1; allowances for employees applying technical computing equipment in clause 32.1(e); and allowances for employees undertaking trainer/supervisor/co-ordinator roles in clause 32(f). Before any of these provisions are relevant, it is necessary to consider whether Mr Bury was covered by a classification in Schedule B of the Manufacturing Award.

[87] In considering this question, the principal purpose test applies. That test requires assessment of the principal purpose or primary function for which the employee was employed. 19 I have disregarded the C1 classification on the basis that it encompasses Professional Engineers who are covered by the Professional Employees Award. For the reasons set out above, Mr Bury is not a Professional Engineer within the definition in the Professional Employees Award. The classification of employees under the Manufacturing Award is based on a minimum training requirement and a classification definition. The minimum training requirement for Level C2(b) Principal Technical Officer and Level C2(a) Leading Technical Officer is an Advanced Diploma with additional training to meet the requirements of the definitions for those classifications.

[88] The definitions for Level C2(b) and Level C2(a) are as follows:

“Principal Technical Officer

(a) A Principal Technical Officer works above and beyond an employee at the C2(a) level and has successfully completed sufficient additional training to enable the employee to perform work within the scope of this level in addition to a national advanced diploma or equivalent. Within organisational policy guidelines and objectives a principal technical officer:

(i)

•  performs work requiring mature technical knowledge involving a high degree of autonomy, originality and independent judgment;

•  looks after and is responsible for projects and coordinating such projects with other areas of the organisation as required by the operation of the organisation;

•  is responsible for the coordination of general and specialist employees engaged in projects requiring complex and specialised knowledge;

•  plans and implements those programs necessary to achieve the objectives of a particular project;

•  in the performance of the above functions, applies knowledge and/or guidance relevant in any or all of the fields of designing, planning and technical work as required by the operation;

•  operates within broad statements of objectives without requiring detailed instructions; or

(ii)

•  performs work at the above level of skill in a particular technical field;

•  has as the overriding feature of their employment the ability to perform creative, original work of a highly complex and sophisticated nature;

•  provides specialised technical guidance to other employees performing work within the same technical field.

(b) In a laboratory, a Principal Technical Officer will exhibit and use technical principles, research and development skills as well as interpersonal/supervisory skills in the co-ordination of a specialist laboratory team.”

…

(a) Leading Technical Officer

(i) A Leading Technical Officer means an employee who works above and beyond an Engineering Associate/Laboratory Technical Officer—Level II at the C3 level and has successfully completed a national advanced diploma or equivalent and sufficient additional training so as to enable the employee to perform work within the scope of this level. An employee at the C2(a) level is able to perform or coordinate work in more than one engineering, scientific or technical field, or performs duties in a technical, engineering or scientific field which requires the exercise of judgement and/or skill in excess of that required of an Engineering Associate/Laboratory Technical Officer—Level II.

(b) Principal Engineering Supervisor/Trainer/Coordinator

(i) A Principal Engineering Supervisor/Trainer/Coordinator means a Supervisor/Trainer/Coordinator who has completed a national advanced diploma or equivalent of which at least 50% of the competencies are in supervision/training and who when engaged at this level:

•  possesses a sound knowledge of occupational health and safety, industrial relations, and communications processes and is able to use this knowledge in training and leading the work of others;

•  possesses a general knowledge and awareness of the administrative, business, and marketing strategies of the enterprises.

(ii) Indicative of the tasks which an employee at this level may perform are as follows:

•  plans, writes and delivers training programs for all engineering/production employees, apprentices, trainees, trade and lower technical levels;

•  plans and directs the work of engineering/production employees especially in new work organisation environments (e.g. group work arrangements, CIM production techniques).”

[89] Assuming (without deciding) that Mr Bury’s qualification is equivalent to an Advanced Diploma, I do not accept that his duties as Operations Manager are of the kind described in the definitions for those Levels. Mr Bury was a senior manager reporting to the CEO of Gilmour Space. Mr Bury did not work within organisation policy guidelines and objectives. Rather, he was responsible for establishing such guidelines and objectives. In relation to the Supervisor/Trainer/Coordinator aspect of the C2(a) and C2(b) Levels, the definition of Supervisor/Trainer/Coordinator field in clause 3.1 of the Award indicates that such employees are responsible for the work of other employees and/or the provision of on-the-job training including coordination and/or technical guidance.

[90] According to the organisational chart at the point Mr Bury was dismissed, he had five employees and an external provided of IT services reporting to him. Two of those employees were managers and one was a system analyst/planning scheduler. There was also a QA inspector and an administration officer reporting to Mr Bury. Other than training the administration officer in relation to the management of documents in the system he was responsible for creating, there is no evidence that Mr Bury supervised, trained or coordinated any employees and if he did so this was an incidental part of his role as operations manager and not its principal purpose.

[91] The approach Mr Bury adopted to support his contention that the Manufacturing Award covered him was to select parts of the Award which appear to describe some of the tasks he was required to perform. The terms of the Manufacturing Award relating to allowances only apply to employees working in classifications defined in Schedule B. For the reasons set out above, my provisional conclusion is that the fact that some of the tasks undertaken by Mr Bury in his role as Head of Operations are similar to some of the tasks described in various provisions of the Manufacturing Award, is not sufficient to bring an employee in a management role such as that occupied by Mr Bury within the coverage of the Manufacturing Award.

CONCLUSION

[92] I accept that Mr Bury had significant and specialised experience that he brought to Gilmour Space. However, I am unable to accept that Mr Bury in the role of Operations Manager was covered by the Professional Employees Award. I have also reached a provisional conclusion that Mr Bury’s employment was not covered by the Manufacturing Award.

[93] Mr Bury is invited to provide any further submissions in relation to my provisional conclusion he may wish to make. In doing so, Mr Bury is required to limit his further submissions to expanding on or clarifying matters outlined in his submissions as filed on 27 November 2019 and his witness statement and oral evidence that was before the Commission at the hearing. No further evidence will be received from Mr Bury. Mr Bury’s submissions are required to be filed in the Commission and served on Gilmour Space by 12.00 midday on Friday 24 April 2020. Gilmour Space is also invited to make any further submissions it may wish to make in response to Mr Bury’s submissions. Those submissions should respond to any further submissions Mr Bury may make and no further evidence or submissions will be received from Gilmour Space.

[94] If either party seeks to be heard further in relation to their written submissions that party should advise of this at the time its written submissions are filed. If either party seeks to be heard further the matter will be relisted for hearing. In the absence of such advice the matter will be decided on the basis of the written submissions. If no further submissions are received from Mr Bury by 12.00 midday on Friday 24 April 2020, I will confirm my provisional conclusion and dismiss his application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

Mr S Bury on his own behalf.

Ms M Simpson on behalf of Gilmour Space.

Hearing details:

6 December.

2019.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR718355>

 1   Exhibit A2.

 2   Exhibit A3.

 3   Exhibit R1.

 4   Exhibit A1 Annexure F.

 5   Transcript 6 December 2019 at PN106.

 6   Transcript 6 December 2019 at PN222.

 7   Transcript 6 December 2019 at PN405 – 407.

 8   Transcript 6 December 2019 at PN432 – 433.

 9   Exhibit R2.

 10   [2013] FWC 264.

 11   [2019] FWCFB 3874.

 12   Ibid at [26].

 13   The Clothing Trades Award (1950) 68 CAR 597; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

 14   Pickard v John Heine & Son Ltd (1924) 35 CLR 1, 9; cited in City of Wanneroo v Holmes [1989] FCA 369 [43].

 15   Halasagi v George Weston Food Limited [2010] FWA 6503.

 16   Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].

 17   Applicant’s witness statement.

 18   Ibid at [23].

 19   Layton v North Goonyella Coal Mines Pty Ltd (2007) 166 IR 394; [2007] AIRCFB 713 at [25].