1
Fair Work Act 2009
s.604 - Appeal of decisions
Paul Bateman
v
Communications Design & Management Pty Limited
(C2014/1307)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER RYAN SYDNEY, 18 DECEMBER 2014
Appeal against decision [[2014] FWC 4427] of Commissioner Lewin at Melbourne on 2 July
2014 in matter number U2013/16596.
Introduction
[1] This is an appeal, for which permission to appeal is required, against a decision of
Commissioner Lewin issued on 2 July 2014 (Decision)1. In the Decision the Commissioner
dismissed an application for an unfair dismissal remedy by the appellant, Mr Paul Bateman, in
respect of his former employment with Communications Design & Management Pty Limited
(CDM) as Senior Project Manager on the basis that he was not a person protected from unfair
dismissal under s.382 of the Fair Work Act 2009 (the Act). It was not in dispute in the hearing
before the Commissioner that, for the purposes of s.382(b), Mr Bateman was not covered by
an enterprise agreement in relation to his former employment and his annual earnings in that
employment exceeded the prescribed high income threshold. That meant that it was necessary
for Mr Bateman to satisfy the Commission that he was covered by a modern award. Mr
Bateman contended that he had been covered by the Professional Employees Award 2010
(Award)2. The Commissioner rejected this contention.
Relevant provisions of the Award
[2] The coverage clause of the Award relevantly provides as follows:
“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.
1 [2014] FWC 4427
2 MA000065
[2014] FWCFB 8768
DECISION
AUSTRALIA FairWork Commission
[2014] FWCFB 8768
2
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.
...”
[3] The expression “professional engineering duties” in clause 4.1 is defined in clause 3.2
of the 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) a graduate member of
Engineers Australia”
[4] Clause 3.2 defines the term “Professional engineer” as meaning “a person qualified to
carry out professional engineering duties as defined in this clause”, and goes on to provide
that the term includes “Graduate engineer and Experienced engineer as defined in this
clause”. “Graduate engineer” and “Experienced engineer” are defined in clause 3.2 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 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
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(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.”
[5] The expression “information technology industry” as used in clause 4.2 is defined in
clause 3.3 as follows:
“information technology industry means:
(a) the design and manufacture of computers and computer peripherals;
(b) the design and manufacture of telecommunications equipment;
(c) the design and manufacture of computer software;
(d) computer system installation, repair and maintenance;
(e) computer consultancy services;
(f) computer programming;
(g) system analysis services;
(h) the design, development and maintenance of online internet architecture and
the facilitation of online content management; or
(i) activities which are incidental, ancillary or complementary to the activities set
out in this definition.”
[6] Clause 3.3 also sets out the definition of “Professional information technology
employee”, “professional information technology duties”, “Experienced information
technology employee” and “Graduate information technology employee”. It is sufficient for
present purposes to say that a person who performs duties the adequate discharge of any
portion of which requires the person to hold a university degree accredited by the Australian
Computer Society at professional level or to have sufficient qualifications and experience to
be eligible for membership of the Australian Computer Society is a “Professional information
technology employee” under the Award.
[7] The classifications in the Award are set out in Schedule B. The classification of “Level
4 – Professional” in clause B.1.11 of Schedule B provides as follows:
“Level 4—Professional
(a) An employee at this level performs professional work involving considerable
independence in approach, demanding a considerable degree of originality,
ingenuity and judgement, and knowledge of more than one field of, or expertise
(for example, acts as their organisation's technical reference authority) in a
particular field of professional engineering, professional scientific/information
technology field or professional information technology field.
(b) An employee at this level:
(i) initiates or participates in short or long range planning and makes
independent decisions on professional engineering or professional
scientific/information technology policies and procedures within an
overall program;
(ii) gives technical advice to management and operating departments;
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(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.”
The Decision
[8] In the hearing before the Commissioner, Mr Bateman contended that the nature of his
duties as Senior Project Manager with CDM were such that he performed professional
engineering duties, in that he met the definition of an Experienced engineer and his role
required him to work as such. In the Decision, the Commissioner noted that there was no
dispute that Mr Bateman fell within the definition of Experienced engineer, possessing as he
did the qualifications of Bachelor of Engineering, Electrical and Electronic Engineering and
Master of Science in Safety Critical Systems Engineering.3 The issue in contest was therefore
whether his duties required the use of those qualifications.
[9] The Commissioner summarised the evidence in the following way:
“[12] Mr Bateman’s witness statement asserts that the duties he performed in the role of
Senior Project Manager for CDM required the qualifications of a graduate engineer.
[13] There was no dispute that Mr Bateman is and was at the material time a graduate
engineer as defined by Clause 3.2 of the Award. Mr Bateman’s qualifications are a
Bachelor of Engineering, Electrical and Electronic Engineering and a Master of
Science in Safety Critical Systems Engineering. There is no contest that Mr Bateman
can be described as a Professional engineer with four or five years experience and can
be described as an Experienced engineer as set out at Clause 3.2 of the Award.
[14] A number of assertions were made from the bar table on behalf of CDM. Some of
those assertions are consistent with Mr Bateman’s evidence, in particular the context
of the contract of employment and the job description which may be relevantly
3 Decision at [13]
[2014] FWCFB 8768
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considered as part of CDM’s assertions that the role of Mr Bateman was not that of a
Professional Engineer.
[15] Mr Bateman filed a copy of the offer of employment he accepted with CDM. That
document sets out the role and responsibilities of the Senior Project Manager position
as follows:
Project planning, financial management, project schedule management,
project resource management.
Project risk and issue management.
Management of internal and external clients and stakeholders.
Timely and accurate reporting.
Mentoring and development of Junior Project Managers.
Refinement and implementation of Project Management Processes and
Procedures.
Enhancement, implementation and management of the framework by which
we deliver project, i.e. the Victorian PMO.
[16] The CDM job description of the position of the Senior Project Manager is
attached to this Decision.”
[10] The job description referred to in paragraph [16] of the Decision (which was not in
fact attached to the Decision as published) relevantly stated as follows:
“JOB DESCRIPTION - SENIOR PROJECT MANAGER
POSITION DETAILS
Branch: Melbourne
Practice/Area: Senior Project Management
No. Of Supervised Staff: Project Dependent
Highest Position: Project Dependent
Immediate Supervisor’s Position Title: Project Delivery Manager
FUNCTION
To accept total responsibility for the effective co-ordination, management and
successful execution of all phases of a project from the initial establishment of
requirements to final handover to the client. The main objectives and functions of the
Senior Project Manager is to:
Develop and maintain client satisfaction;
Establish a full understanding and definition of the client’s requirements;
Deliver the project in accordance with the client’s expectations;
Lead and manage the project team and ensure that the team is working in a co-
operative and cohesive manner;
Deliver the project on time, within budget and to the agreed quality standards;
[2014] FWCFB 8768
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Manage the commercial conditions and contractual aspects of the project;
Manage all financial aspects and control the financial outcome of the project;
Maximise CDM’s budgeted margin for the project and identify additional profit
opportunities within the project; and
Identify future opportunities through variations and additional projects, both pre and
post the commencement of project implementation.
RESPONSIBILITIES
Under close/routine/general/limited/broad direction (please select one)
1. Deliver a budget through our Partners
2. Organise Partner activities and events
3. Promote CDM to the Partners
4. Jointly promote the Partner and CDM to the selected market
5. Provide accurate and regular forecasts and business updates to CDM Management
6. Maintain Account Plans
7. Document Partner communications and activities in the CDM/CRM System
8. Document Partner and Customer opportunities in accordance with the CDM Quality
Management System
Other related duties as directed.
Duties representing highest function: 1
Most time consuming duties: 2
Prescribed qualifications for position: Relevant industry experience and Tertiary
qualification in Project Management, ICT or related field. Membership of AIPM
preferred.
Special requirements for this position:
AUTHORITIES AND DELEGATIONS
POSITION DETAILS
1. Authorised to review, negotiate and sign Non Disclosure Agreements (NDAs).
NDAs can only be signed after review by an authorised signatory.
2. Authorised to review and negotiate a Memorandum of Understanding (MOU),
Teaming Agreement and Professional Services Agreement. These documents must be
reviewed and signed by the Southern Region Manager.
3. Authorised to produce Quotations for review and signature by the Southern Region
Manager.
EMPLOYEE’S CERTIFICATION
I have sighted this job description and understand the duties to be performed:”
[11] In his consideration of the matter, the Commissioner began by referring to two leading
cases concerning the interpretation and application of the coverage provision of awards in
relation to employees who performed a mixture of duties.4 He then went on to consider
whether CDM was an employer capable of being covered by the Award in respect of any of
4 Decision at [17]-[19]
[2014] FWCFB 8768
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its employees. The Commissioner noted that in the coverage provisions of the Award, clause
4.1 was expressed in terms of the occupations of an employer’s employees, whereas clause
4.2 was expressed in terms of the industry of the employer.5 The Commissioner then found,
on the evidence, that CDM was principally engaged in the provision of computer consulting
services and therefore fell within paragraph (e) of the definition of information technology
industry in clause 3.3 of the Award.6
[12] The Commissioner then referred to and applied an earlier decision of Fair Work
Australia (Vice President Lawler) in Halasagi v George Weston Foods Limited7 concerning
the way in which the coverage provisions of the Award should be interpreted and applied.
Turning to the specific questions of whether Mr Bateman performed professional engineering
duties in his employment with CDM and fell within any of the classifications in Schedule B
of the Award, the Commissioner said:
“[30] Clearly, Mr Bateman’s professional qualifications are not in the field of
information technology. Rather, as the evidence indicates those qualifications are more
appropriately described as within what the Award defines as the Engineering Stream
rather than the Information Technology stream.
[31] While Mr Bateman gave evidence that in performing his role as a Senior Project
Manager he drew upon his knowledge as an engineer, it does not follow that the
principal purpose of the role he performed was defined by his qualifications or his
knowledge of engineering duties.
[32] In my view, the primary purpose of an employee’s engagement and employment
will not always be defined by the qualifications and experience they possess. An
employee’s qualifications and experience in the field of professional expertise for
which such qualifications are required my prove useful in the performance of a
different role.
[33] It is a notorious fact that a number of Chief Executive Officers of major
Australian corporations are, or have been, professional engineers. No doubt in the
course of their tenure, depending on the nature of the corporation, engineering
qualifications and experience have been useful for the performance of the role of such
an executive. However, it is clear I think that the principal or primary purpose of the
role for which such persons have been engaged as a Chief Executive Officer is not that
of a Professional engineer, as prescribed by the Coverage provisions and Classification
descriptors of the Award.
[34] Mr Bateman no doubt used skills and expertise acquired through qualifications
and experience as a professional engineer in the course of his employment as a Senior
Project Manager for CDM. The fact that Mr Bateman held the qualifications of an
Experienced engineer, as defined for the purposes of the Award, does not necessarily
mean that the principal and primary purpose of Mr Bateman’s employment was that of
a Professional engineer.”
5 Decision at [23]
6 Decision at [22]
7 [2010] FWA 6503
[2014] FWCFB 8768
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[13] After identifying some textual difficulties in the way in which the definitions in clause
3.3 interacted (or failed to interact) with the classification definitions in Schedule B, the
Commissioner referred to the definition of a Level 4 Professional relied upon by Mr Bateman
in his submissions, and stated the following conclusions:
“[41] I have given consideration to the classification descriptors in B.1.7 to B.1.11
inclusive. I am unable to be satisfied that the classification descriptors match the job
descriptors or job responsibilities in the offer of employment tendered or that, on the
evidence, the principal or primary purpose of Mr Bateman’s employment fell within
those descriptors. In this respect it is to be noted that some of the descriptive language
used in these parts of Schedule B is very general in nature and could, read in isolation,
be applied in many, if not all, industries. Examples would be sub paragraphs (a) to (e)
of B.1.9 Level 3 Professional.
...
[43] There is no clear correlation between the responsibilities expressed in the job
offer to Mr Bateman or the CDM job description of the Senior Project Manager
position he occupied and these descriptions. Given that some of the text of B.1.11 is of
general expression, it might be considered that there is some possible discursive
affinity with some aspects of Mr Bateman’s role as a Senior Project Manager, I should
observe that essential characteristics of the Level 4 classification occur between
B.1.11(b)(i) - (v).
[44] On what is before me, I see no affinity between the role of the Senior Project
Manager and a Level 4 Professional as described in B.1.11. For example, I see no
evidence of the following as comprising a substantive component of the Senior Project
Manager role, “a considerable degree of originality in the field of information
technology”, “technical reference authority”, “long range planning”, “technical
advice”, “detailed technical responsibility for product development or information
technology systems”.”
[14] Finally the Commissioner stated his conclusion that, in his employment with CDM,
Mr Bateman was neither an information technology employee (paragraph 47) nor a
professional engineer (paragraph 48), and characterised his employment in the following way:
“[49] I conclude that the principal purpose of Mr Bateman’s employment was as a
Senior Manager in the information technology industry. Mr Bateman was engaged and
employed to manage information technology projects for CDM. The principal purpose
of the employment is captured by the offer of employment and job description. None
of the foundational elements or purpose of the role for which Mr Bateman was
employed and which be performed is defined by the Award in either Clause 3 or 4. Nor
did the role performed by Mr Bateman fall within the classification descriptions of
Schedule B of the Award. The Senior Manager role performed by Mr Bateman was
incidentally informed by his qualifications and experience as a Professional Engineer.
However, the principal purpose of the employment and the role performed by Mr
Bateman was not that of a Professional engineer or a Professional information
technology employee.”
[2014] FWCFB 8768
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[15] On that basis, the Commissioner concluded that Mr Bateman’s employment with
CDM was not covered by the Award, and he dismissed Mr Bateman’s unfair dismissal
remedy application.
Appeal grounds and submissions
[16] Mr Bateman’s notice of appeal contended that the Commissioner erred in finding that
Mr Bateman was not an employee who fell within the definition of an information technology
employee in clause 3.3 of the Award in that the Commissioner:
(a) failed to take into account Mr Bateman’s evidence that his duties fell within
the definition of a Level 4 Professional set out in clause B.1.11 of Schedule B
of the Award;
(b) failed to take into account the job descriptors for a Level 4 Professional
including “coordinates work programs” and “decides courses of action
necessary to expedite the successful accomplishment of assigned projects”,
which descriptors matched the actual work duties of Mr Bateman as disclosed
in the evidence; and
(c) failed to take into account that Mr Bateman’s evidence regarding his actual
work duties was not contested in that CDM did not lead any evidence of its
own.
[17] Mr Bateman’s submissions departed from these grounds of appeal to a considerable
degree and raised a number of different issues. It was submitted that:
the Commissioner significantly misinterpreted the provisions of the Award and
departed from the traditional approach used in establishing coverage under awards
covering professional employees, and this constituted a significant error of law;
the Commissioner’s primary reliance on Mr Bateman’s job description and letter of
offer, his ignoring of uncontested sworn evidence and issues of procedural fairness
resulted in a significant error of fact;
over-reliance on a job description or letter of offer could result in employers
deliberately misdescribing positions in order to avoid award coverage;
the coverage of the Award extended to the work of professional engineers in the
Information Technology (IT) industry;
the reliance by the Commissioner on untested assertions made from the bar table by
CDM, in circumstances where CDM had failed to file any evidence in accordance
with the Commission’s directions including in response to Mr Bateman’s evidence,
meant that Mr Bateman was denied procedural fairness;
Mr Bateman’s evidence that as part of his Bachelor’s degree he studied project
management on engineering projects, that he had previously held a number of project
management positions within an engineering and information communication
technology environment, and that the performance of his duties would have been
difficult without his engineering qualifications was not properly taken into account;
and
[2014] FWCFB 8768
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the Commissioner erred in not “looking behind” Mr Bateman’s job title to examine
the substance of his work.
[18] It was submitted by Mr Bateman that permission to appeal should be granted because
the Commissioner had made a significant error of law which if generally applied would
seriously affect award coverage of professional employees and their right to seek relief from
unfair dismissal, and that the significant error of fact identified resulted in a serious injustice
to Mr Bateman’s case.
Consideration
[19] The Decision was one made under Part 3-2 of the Act. Section 400(1) therefore
applies to this appeal. It forbids us from granting permission to appeal unless we consider that
it is in the public interest to do so.
[20] We are not satisfied that it is in the public interest to grant permission to appeal. We
do not accept that the Decision raises any broad or novel proposition about the interpretation
of the Award; rather, we consider that the Decision turned on its particular facts. Nor do we
consider that the Commissioner committed any error of such a nature as to result in a
significant injustice being visited upon Mr Bateman.
[21] The case run by Mr Bateman before the Commissioner was somewhat confusing in
that at various times it involved two different propositions being advanced. The first and
perhaps primary proposition was that clause 4.1 applied, in that Mr Bateman in his
employment with CDM performed professional engineering duties and was covered by the
Level 4 Professional classification in clause B.1.11 of Schedule B. The second proposition
was that clause 4.2 applied in that CDM was principally engaged in the information
technology industry, Mr Bateman was required to perform professional engineering duties,
and was covered by the Level 4 Professional classification. In relation to the second
proposition, it was not properly articulated by Mr Bateman what, if any, was the connection
between clause 4.2 and the “Engineering stream” definitions contained in clause 3.2 of the
Award. Nonetheless, it was clear that Mr Bateman ran his case on the basis that he stood or
fell on the question of whether he was required to perform professional engineering duties in
his role as Senior Project Manager.
[22] In dealing with these submissions, we do not consider that the Commissioner
interpreted the Award in a way which was novel or departed from previous authority. The
Commissioner expressly followed the approach taken in Halasagi v George Weston Foods
Limited8. In Halasagi the Commission after a lengthy analysis of the historical context of the
Award and its text stated the following propositions concerning the way in which the
definition of “professional engineering duties” should be interpreted and applied:
“[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.
8 [2010] FWA 6503
[2014] FWCFB 8768
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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.”
[23] Neither party submitted that Halasagi was wrongly decided, and we respectfully agree
with and adopt its reasoning. We cannot identify any departure by the Commissioner from the
above propositions in the Decision.
[24] The Commissioner at paragraph [27] of the Decision concluded that Mr Bateman was
not, from the details of CDM’s letter of offer, engaged to perform professional duties of the
kind which required the qualifications of a Professional engineer. We consider that this
conclusion was clearly available having regard to the delineation of the role and
responsibilities of the position as set out in the job offer, which focused upon project
management and made no mention of any requirement to perform duties for which an
engineering qualification was necessary.
[25] We reject the submission that in making this finding, the Commissioner placed undue
reliance upon the letter of offer and failed to take into account the other evidence concerning
the “substance” of Mr Bateman’s work. Mr Bateman’s job description was entirely consistent
with the letter of offer in that it was entirely concerned with project management functions,
contained no requirement for the performance of engineering functions, and in respect of
necessary qualifications only prescribed “Relevant industry experience and Tertiary
qualification in project management, ICT or related field ... Membership of AIPM [Australian
Institute of Project Management] preferred” and contained no requirement for an engineering
qualification or membership of Engineers Australia.
[26] It may be accepted that in circumstances where an employer has misdescribed the
duties of a position in an employment offer, position description or other relevant document
in an attempt to avoid award coverage, little weight would be placed on any such document in
ascertaining the actual work performed by the employee. However, that was not the situation
here. It was not contended by Mr Bateman, either at the hearing before the Commissioner or
[2014] FWCFB 8768
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on appeal, that either the letter of offer or the job description did not accurately describe the
actual duties of his position as Senior Project Manager with CDM. That Mr Bateman was
employed on the basis that he was a project manager is confirmed by his own curriculum
vitae, which described him as an “outcome focused project manager”, referred to positions
held as a project manager since 2007, and identified that he was qualified as a Project
Management Professional by the Project Management Institute in 2007 and was a member of
the Australian Institute of Project Management. This was therefore not a case of an engineer’s
position being dressed up as something else; Mr Bateman held himself out to be a project
manager and was employed as such.
[27] Mr Bateman pointed to the evidence which he gave at the hearing in which he
described the way he used his professional knowledge as an engineer to aid him in the
performance of his role. It is not correct to say that the Commissioner did not take this
evidence into account; indeed he specifically took this evidence into account in paragraphs
[31] and [34] of the Decision. However, the Commissioner chose to give this evidence little
weight because, as he reasoned at paragraphs [31]-[34], such evidence did not demonstrate
that engineering qualifications were required for the discharge of Mr Bateman’s
responsibilities as a Senior Project Manager. That was a conclusion which we consider to
have been reasonably open on the evidence.
[28] The fact that the evidence demonstrated that in the course of undertaking his
Bachelor’s degree in engineering, Mr Bateman studied project management on engineering
projects did not require the conclusion that it was necessary for Mr Bateman to hold an
engineering degree in order to discharge all or any of the duties of Senior Project Manager
with CDM. There are a number of tertiary educational pathways to the occupation of project
management, and although undertaking an engineering degree is (arguably) one of those
pathways, it is not necessary to hold an engineering degree of the type that would make one
eligible for graduate membership of Engineers Australia.
[29] We do not accept that the Commissioner denied Mr Bateman procedural fairness. As
paragraph [14] of the Decision makes clear, the Commissioner only relied upon the assertions
made from the bar table by CDM to the extent that they were consistent with Mr Bateman’s
own evidence, the contract of employment and the job description.
[30] The Commissioner’s characterisation of CDM as an employer principally engaged in
the information technology industry did not lead him to exclude the possibility of Mr
Bateman being covered by the Award by virtue of him being employed as a professional
engineer by such an employer. The Commissioner specifically referred to that possible
circumstance in paragraph [48] of the Decision, and rejected it on the basis of his earlier
reasoning. The alternative possibility which he considered was that Mr Bateman was an
information technology employee, as defined in clause 3.3, of such an employer. He rejected
this possibility also.9 Although this conclusion was challenged in the grounds stated in the
notice of appeal, which we have earlier set out, Mr Bateman’s submissions simply did not
deal with this issue. Nor was it contended by Mr Bateman at first instance that he fell within
the definition of an information technology employee in clause 3.3. In those circumstances we
reject any contention of error in the Commissioner’s conclusion in this respect.
Conclusion
9 Decision at [47]
[2014] FWCFB 8768
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[31] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Butler with J. Tan solicitors for Paul Bateman
A. Gotting of counsel with J. Tyrell for Communication & Design Management Pty Limited
Hearing details:
2014.
Melbourne:
15 October
Printed by authority of the Commonwealth Government Printer
Price code C, PR558626
OF THE FAIR WORK MISSION THE
