DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Lingli Zheng
v
Poten & Partners (Australia) Pty Ltd
(C2021/1498)

Appeal against decision [2021] FWC 1023 of Deputy President Beaumont at Perth on 26 February 2021 in matter number U2020/13343.

Introduction

[1] On 22 June 2021, we issued a decision 1 (appeal decision) in which we granted permission to appeal and upheld an appeal against a decision of Deputy President Beaumont2 (initial decision) to dismiss an application made by Lingli Zheng for an unfair dismissal remedy against her former employer, Poten & Partners (Australia) Pty Ltd (Poten). The issue at first instance and on appeal was whether Ms Zheng was a “person protected from unfair dismissal” within the meaning of s 382 of the Fair Work Act 2009 (FW Act). Since there was no dispute that Ms Zheng’s income immediately before her dismissal was above the high income threshold and that no enterprise agreement applied to her, the critical question was whether she was covered by a modern award at the time of her dismissal. Ms Zheng contends that she was covered by the Professional Employees Award 2020 (PE Award). The Deputy President rejected this contention on the basis that, although she found Ms Zheng performed “professional engineering duties” (as defined in clause 2.2 of the PE Award) in her employment, she did not fall within any classification in the PE Award. In the appeal decision, we found that the Deputy President erred in her application of the “principal purpose” test in determining whether Ms Zheng was covered by an award classification (in particular, the Level 3 classification), and decided to re-determine ourselves the question of whether Ms Zheng was covered by a classification in the PE Award.

[2] We initially directed the parties to file written submissions in respect of this question, and the parties did so. We specifically invited the parties, in making such submissions, to address whether the Level 2 classification in the PE Award might apply to Ms Zheng’s employment if Level 3 did not. 3 Having received those submissions, we requested the parties to provide further written submissions as to whether Ms Zheng, during her employment with Poten, had the prescribed qualifications to fall within the definition of “Experienced engineer” in clause 2.2 of the PE Award. Both parties then filed further submissions in accordance with this request.

Submissions

Ms Zheng

[3] Ms Zheng submitted that the core component of her role with Poten was responsibility for technical support of consulting studies in areas such as development of LNG export and import facilities, LNG project due-diligence and LNG economic analysis, as confirmed by:

(a) the job advertisement for her role;

(b) a document prepared by Mr Will Pulsford, her line manager, which contains allegations of underperformance on her part;

(c) the letter which terminated her employment; and

(d) Mr Pulsford’s statement of evidence in the proceedings.

[4] Ms Zheng further pointed to her job title, being that of “Technical Consultant”, and said that the principal purpose of her employment was as a professional to provide technical advice involving professional engineering duties requiring substantial mature professional knowledge and experience. She asserted that her technical knowledge and previous experience in her prior employment with Shell was formally assessed by Engineering Australia as relevant for her to qualify as a Professional Engineer, and submitted that an inference could be drawn that she was hired by Poten for her relevant technical knowledge and experience as a professional engineer. On that basis, Ms Zheng submitted that she fell within both the Level 2 and Level 3 classifications in the PE Award.

[5] In her further submissions, Ms Zheng submitted that, during her employment with Poten, she had the prescribed qualifications to fall within the definition of “Experienced engineer” in clause 2.2 of the PE Award, in that she had graduated in a 4-year course at a university recognised by Engineers Australia (Chemical Engineering at the National University of Singapore), had obtained a Master’s degree in Molecular Engineering of Biological and Chemical Systems (also at the National University of Singapore), and had more than 10 years’ experience working as a professional engineer before she started working for Poten. Ms Zheng submitted that her qualifications and skills were both assessed by Engineers Australia as meeting the requirement for the occupation of Chemical Engineer under the Occupational Classification of Professional Engineer in accordance with ANZSCO in June 2016, and her 10 years’ prior employment was assessed as relevant to the occupation of Chemical Engineer. She also said that she obtained her Skilled Migration Visa as an experienced Chemical Engineer on the basis of an assessment by Engineers Australia, and that her qualifications entitled her to be a member of Engineers Australia. Ms Zheng annexed to her submissions documents attesting to these matters.

Poten

[6] Poten submitted that the principal purpose of Ms Zheng’s employment was to fulfil the role of an industry analyst, not chemical engineering, that Ms Zheng’s qualification in Chemical Engineering did not directly relate to her duties and that, accordingly, the question of whether the principal purpose of Ms Zheng’s employment bore a meaningful relationship with the Level 3 classification in the PE Award, or any other classification, should not arise. Alternatively, it was submitted, Ms Zheng’s employment bore no meaningful relationship to any classification in the PE Award.

[7] Ms Zheng’s role, it was submitted, needed to be considered in the context of Poten’s business, which is to provide technical, market, commercial and shipping and marine advice to the LNG and natural gas industries, with its “deliverables” being in the form of reports to clients delivered primarily using PowerPoint slides and occasionally spreadsheets. The range of services provided included:

•  consulting services for natural gas & LNG, LPG, crude oil, petrochemicals, condensates, naphtha, light petroleum products, fuel oil and asphalt;

•  commodity brokerage for LNG, LPG, naphtha and condensates;

•  capital advisory services for energy, ocean transportation and infrastructure industries, including commercial advice;

•  maritime vessel brokerage for crude oil, petroleum products, LNG and LPG carriers, including sale and purchase services; and

•  business intelligence subscription publications and on-line services.

[8] Poten submitted that the purpose of Ms Zheng’s consulting work was principally to allow clients to further consider and make decisions about whether to progress potential opportunities, which typically involves considering what has been applied on similar completed projects and assessing which of these solutions may suit the client’s project. Poten explicitly excludes engineering design from the contractual scope of its work and does not design processes and equipment, and Poten’s associated entity Merlin (for which Ms Zheng had not performed work) was the technical and engineering branch of the corporate group. Whilst, it was submitted, Ms Zheng’s responsibilities set out in her contract of employment included some references to technical and commercial analysis, it contained no reference to chemical engineering, nor was there any contractual requirement for Ms Zheng to hold qualifications in engineering or to be a member of any professional organisation. In respect of the job advertisement, it was made clear in Mr Pulsford’s evidence that while chemical engineering may have been a useful qualification, it was not essential, and candidates with appropriate industry and project management experience would not have been excluded, and the work required of Ms Zheng could have been done by people without a chemical engineering qualification. It was submitted that Mr Pulsford’s evidence, which addressed in detail the actual work that had been performed by Ms Zheng, was consistent with the job responsibilities in Ms Zheng’s contract and did not involve chemical engineering, with her role being that of an industry analyst.

[9] In respect of the PE Award classifications, Poten submitted that, even if the principal purpose of Ms Zheng’s employment was chemical engineering, it bore no meaningful relationship to the Level 3 classification (or the Level 4 classification). It was submitted that the Level 3 classification requires an employee “to be something of a professional leader or innovator, possibly in a particular area of specialisation”, and the limited extent and nature of any technical work undertaken by Ms Zheng did not allow her to be so classified. Nor, it was submitted, did the principal purpose of Ms Zheng’s employment bear any meaningful relationship with any of the other PE Award classifications.

[10] In its further submissions, Poten submitted that Ms Zheng was not an “Experienced engineer” within the meaning of the definition in clause 2.2 of the PE Award because:

•  there is no evidence that Ms Zheng has ever been a member of Engineers Australia;

•  Ms Zheng’s Bachelor’s degree in Chemical Engineering, obtained in 2005, is not recognised by Engineers Australia as an equivalent qualification to that of a graduate member of Engineers Australia (such recognition only dating from the 2008/9 academic year), meaning that Ms Zheng needed a successful Migrant Skills Assessment from Engineers Australia to be recognised by Engineers Australia;

•  the Migration Skills Assessment Competency Demonstration Report (Skills Report) provided by Engineers Australia and dated 28 June 2016 concluded that her competencies together with her Bachelor’s degree demonstrated that she met the requirement for the occupational classification of Professional Engineer at ANZSCO Skill Level 1, meaning that she has a level of skill commensurate with a Bachelor’s degree;

•  it is therefore only as at 28 June 2016 that Ms Zheng was assessed at a level equivalent to a graduate engineer, and she did not acquire the additional 5 years’ experience she required under the clause 2.2 definition as a person who had not graduated at a recognised university prior to her dismissal; and

•  nor did the evidence demonstrate that Ms Zheng had the 4 years’ experience required even if her university was recognised by Engineers Australia.

Consideration

[11] For the reasons which follow, we find that Ms Zheng was covered by the PE Award at the time of her dismissal and was therefore a person protected from unfair dismissal within the meaning of s 382 of the FW Act.

[12] It is necessary to begin by reiterating some matters dealt with in the appeal decision. Clause 4.1(a) of the PE Award contains, relevant to Ms Zheng’s case, two requirements that must be satisfied in order for her to be covered by the award. First, Ms Zheng must be an employee “performing professional engineering…duties”. The expression “professional engineering…duties” is defined in clause 2.2 of the PE Award as follows:

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) of a graduate member of Engineers Australia.

[13] It is important to note, as we stated in the appeal decision by reference to previous authorities, that under the definition it is only necessary for the employee to perform some engineering duties requiring the requisite engineering qualification while otherwise performing non-engineering duties. 4 Clause 4.1(a) read with the above definition does not require the performance of engineering duties to constitute the majority of the employee’s duties or to constitute the primary purpose of the employee’s employment. In the initial decision, the Deputy President found that the first required element of coverage was satisfied in Ms Zheng’s case:

“[67] Having considered the evidence of both parties, and the submissions made by both, on balance, I have found that the evidence establishes that Ms Zheng’s engineering qualifications and experience were both necessary in the performance of at least some of her work and were relied upon by the Respondent. While it was the case that Mr Pulsford emphasised the project management aspects of Ms Zheng’s duties, at times his account traversed the relevance of engineering qualifications and experience, elevating them, in my view, to the requisite level of ‘professional engineering duties’. In this respect, I refer to paragraphs PN282 and PN284 of the transcript, in addition to PN264 to PN272.

[68] I am satisfied that in her role as a LNG Consultant, Ms Zheng carried out ‘professional engineer duties’ as defined in the Award. Her role as an industry analyst encompassed commercial, technical, and marketing aspects of the LNG supply chain, and she leveraged her technical background perform some of that work. I am therefore persuaded Ms Zheng performed some engineering duties, the adequate discharge of which required the relevant qualification.” (emphasis in original)

[14] As we pointed out in the appeal decision, there was no cross-appeal or notice of contention on the part of Poten in respect of this finding and accordingly, in upholding the appeal, it is not necessary for us to revisit this issue.

[15] The second requirement is that Ms Zheng must be covered by a classification in the PE Award. In respect of this requirement, we said in the appeal decision that the correct approach is to determine the principal purpose of Ms Zheng’s employment based on the nature and circumstances of her work, and then analyse whether the identified principal purpose bears a meaningful relationship with the classification criteria in clause A.1.9 of Schedule A, without that analysis being conducted through the lens of any requirement that “professional engineering duties” constitute the principal purpose of the employment or a majority of the duties being performed. 

[16] As stated earlier, Poten has now submitted that, unless the principal purpose of Ms Zheng’s employment is characterised as being that of chemical engineering, the question of whether the principal purpose of her employment bears a meaningful relationship with any classification in the PE Award should not arise. The basis of this submission was not clearly articulated by Poten. Reference was made in support of this proposition to the decision in Halasagi v George Weston Foods Limited 5 but, as was made clear in the appeal decision, Halasagi was concerned only with the first requirement for coverage under the PE Award we have earlier referred to, and was not concerned with the second requirement of determining coverage under a classification in the PE Award.6 The submission appears to be predicated on the proposition that it is necessary to find that engineering is the principal purpose of the employment, but neither in relation to the first requirement for coverage (having regard to the definition of “professional engineering duties” in clause 2.2) or the second requirement (having regard to the classification descriptors in Schedule A) is any such criterion to be found in the text of the PE Award.

[17] The starting point for the identification of the principal purpose of Ms Zheng’s employment is, we consider, the job advertisement for her position and her contract of employment. The text of the job advertisement and the part of the contract of employment which set out Ms Zheng’s job responsibilities were extracted in the appeal decision. 7 Without repeating the text of the job advertisement, two matters stand out. First, the job (with the title “LNG Consultant”, is described as that of a “technically-oriented LNG and natural gas consultant” in which the successful candidate would be “responsible for technical support of consulting studies in areas such as development of LNG export and import facilities, LNG project technical due diligence, LNG project economic analysis and project costs”. Second, under the heading “Required Qualifications”, the advertisement stated that the ideal candidate “would have a graduate or post-graduate degree in chemical engineering with five or more years of experience in front-end LNG or gas processing project development, preferably with an oil and gas company.”

[18] The job responsibilities identified in the contract of employment place less emphasis on the technical aspects of the position but nonetheless include working with the Merlin technical team, preparing technical analysis and consulting reports in the development of LNG export and import facilities, providing technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments, and researching, analysing and advising clients on technology.

[19] It may be accepted, as Poten submits, that the position must be understood in the context of Poten’s business. Mr Pulsford’s evidence was that Poten provides technical, market, commercial and shipping and marine advice to the LNG and natural gas industries, and does not engage in the engineering design of processes and equipment. He said that Ms Zheng was engaged “for her technical knowledge and experience in LNG and gas asset development”. It may readily be inferred that the technical knowledge for which Ms Zheng was engaged, and the technical requirements for the job, relate to the chemical engineering qualification which was said in the job advertisement to be required or at least ideal and which Ms Zheng held. As Mr Pulsford said in his evidence, Ms Zheng’s “knowledge and work experience was useful to contribute an understanding of the technical aspects of developing an asset in the LNG and natural gas supply chain”.

[20] On the basis of the evidence referred to, the principal purpose of Ms Zheng’s employment may reasonably be characterised as that of a LNG and natural gas industry consultant requiring technical knowledge, expertise and analysis derived from her chemical engineering qualifications and experience. The evidence given by Ms Zheng and Mr Pulsford about the details of the work performed by Ms Zheng affirmed this characterisation. Mr Pulsford sought in his evidence to downplay the technical engineering aspect of Ms Zheng’s role, but he was the subject of an adverse credit finding by the Deputy President. 8 In any event, the evident intent of his evidence was to deny that Ms Zheng was employed as an engineer or performed engineering design. As the Deputy President found, his evidence in fact supported the proposition that Ms Zheng’s chemical engineering qualifications and experience were required or “leveraged” to perform the technical aspect of her consulting role.9

[21] We turn now to the classification structure in Schedule A of the PE Award. As earlier discussed, the Deputy President’s analysis in the initial decision was primarily concerned with whether Ms Zheng was covered by the Level 3 classification. The submission made by Poten before us to the effect that a degree of professional leadership or innovation in a particular area of specialisation is required of a Level 3 employee has some force. However, it is ultimately not necessary for us to consider this further because we are comfortably satisfied that Ms Zheng’s role as a LNG and natural gas industry consultant required her to utilise the technical knowledge, expertise and analysis derived from her chemical engineering qualifications and experience would at least fall within Level 2 as an “Experienced engineer”. The classification descriptor for Level 2, contained in clause A.1.7 of Schedule A of the PE Award, is as follows:

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

[22] An analysis of the job advertisement and the employment contract amply demonstrates that Ms Zheng conducted professional work “without detailed supervision but with guidance on unusual features” and was “usually engaged on more responsible assignments requiring substantial professional experience”. We have already discussed the extent to which Ms Zheng was required to draw upon her professional qualifications and experience to perform the technical aspect of her role. The contract of employment required her to:

•  “take an active role” in ensuring the success of client engagements and building Poten’s reputation and profitability;

•  “Work as a team” with other employees of Poten and associated entities “to ensure that assignments are executed to the highest standards and in an efficient and profitable manner”;

•  “Lead assignments at the direction of management”;

•  prepare client studies and reports, including technical and commercial analysis and consulting reports, and “leading assignments allocated”;

•  “Lead” the business development process with selected clients at the direction of management, and

•  provide technical support along the LNG value chain to the Asia Pacific team in LNG-related assignments and research, analyse, and advise clients on technology and cost-related issues.

[23] All these matters bespeak of a role which included a requirement to perform technical work of a professional engineering nature as part of responsible assignments carried out on a largely autonomous basis. The evidence of Ms Zheng and Mr Pulsford about Ms Zheng’s actual work was, we consider, consistent with this. The principal purpose of Ms Zheng’s employment as we have identified it therefore meaningfully relates to the Level 2 classification descriptor.

[24] The Level 2 classification descriptor also requires the employee to be, relevantly, an “Experienced engineer” as defined in clause 2.2. That definition provides as follows:

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 4 or 5 year course at a university recognised by Engineers Australia, 4 years’ experience on professional engineering duties since becoming a Qualified engineer; or

(c) not having so graduated, 5 years of such experience.

[25] Poten’s contention that Ms Zheng did not meet the criteria in this definition was the only aspect of the Level 2 classification descriptor which it specifically addressed in its submissions. On one view, this issue ought not now be an issue in contention since the Deputy President made a finding, not the subject of any cross-appeal or notice of contention, that Ms Zheng held the “required qualifications to perform work as an experienced engineer”. 10 In any event, we consider it is clear that Ms Zheng satisfies the definition. We have earlier referred to the Deputy President’s finding, not the subject of challenge in the appeal, that the adequate discharge of part of Ms Zheng’s employment duties required her engineering qualifications. As to those qualifications, there is no dispute that Ms Zheng obtained a 4-year Bachelor’s degree in Chemical Engineering for the National University of Singapore, and also obtained a Masters degree in Molecular Engineering of Biological and Chemical Systems from the same institution. The Skills Report prepared by Engineers Australia in 2016 shows that Ms Zheng’s Masters degree was assessed as comparable to AQF Level 9-Masters Degree, and that her qualifications also met the ANZSCO requirement for the occupational definition of Chemical Engineer. This demonstrates, we consider, that Engineers Australia “recognised” her university course. In any event, Ms Zheng had the requisite professional experience to satisfy paragraph (c) (as well as (b)) of the definition, making the “recognition” of her university course inessential. The Skills Report found that she had completed overseas and Australian skilled employment relevant to her designation as a qualified Chemical Engineer for periods totalling well in excess of 9 years since Ms Zheng’s graduation as at the date of the report. Poten’s contention that the relevant professional experience must post-date the Engineers Australia assessment finds no support in the text of the definition and is rejected.

Conclusion

[26] We find that Ms Zheng was, at the time of her dismissal, covered by the PE Award and was therefore a person protected from unfair dismissal within the meaning of s 382 of the FW Act. Pursuant to s 607(3)(c) of the FW Act, we remit matter U2020/13343 to Deputy President Beaumont for hearing and determination on the basis of this finding.

VICE PRESIDENT

Final written submissions:

Ms Zheng – 5 July and 11 August 2021.

Poten & Partners (Australia) Pty Ltd – 6 July and 11 August 2021.

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWCFB 3478

 2   [2021] FWC 1023

 3   [2021] FWCFB 3478 at [57]

 4   Ibid at [36]-[37]

 5   [2010] FWA 6503

 6   [2021] FWCFB 3478 at [36]-[39]

 7   Ibid at [12] and [13] respectively

 8   [2021] FWC 1023 at [61]

 9   Ibid at [67]-[68]

 10   Ibid at [50]