1
Fair Work Act 2009
s.604 - Appeal of decisions
Lingli Zheng
v
Poten & Partners (Australia) Pty Ltd
(C2021/1498)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE
SYDNEY, 22 JUNE 2021
Appeal against decision [2021] FWC 1023 of Deputy President Beaumont at Perth on 26
February 2021 in matter number U2020/13343.
[1] Ms Lingli Zheng has lodged an appeal, for which permission to appeal is required,
against a decision1 made by Deputy President Beaumont on 26 February 2021 (decision) in
which the Deputy President dismissed Ms Zheng’s application for an unfair dismissal remedy
against Poten & Partners (Australia) Pty Ltd (Poten) on the basis that she was not a person
protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Cth) (FW Act) and
therefore the Commission had no power to order an unfair dismissal remedy under s 390. A
separate order2 giving effect to the decision was issued at the same time as the decision.
[2] Section 382 of the FW Act relevantly provides:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
1 [2021] FWC 1023
2 PR726284
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DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 3478
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(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[3] The relevant effect of s 390(1)(a) is that it is a precondition for the exercise of the
power to order an unfair dismissal remedy that the Commission be satisfied that the applicant
is a person protected from unfair dismissal within the meaning of s 382.
[4] There was no dispute before the Deputy President, in respect of s 382(b), that (ii) and
(iii) were not applicable – that is, no enterprise agreement applied to her at the time of her
dismissal, and her earnings exceeded the high income threshold. The issue in contention was
whether Ms Zheng was covered by a modern award at the relevant time such as to make s
382(b)(i) applicable to her. Ms Zheng contended that she was covered by the Professional
Employees Award 2020 (PE Award). The Deputy President found that she was not covered by
the PE Award. In her appeal, Ms Zheng contends that this finding was in error. She also
contends that the Deputy President erred in making an interlocutory decision not to issue an
order for the production of documents sought by Ms Zheng (interlocutory decision).
[5] The factual background to the matter may briefly be stated. Ms Zheng was employed
by Poten from 6 August 2018 until her dismissal on 18 September 2020. Ms Zheng applied to
the Commission for an unfair dismissal remedy against Poten on 7 October 2020. In her Form
F2 application, Ms Zheng indicated that she was employed by Poten as a Natural Gas and
LNG Consultant, she primarily carried out professional engineering duties, she holds
qualifications at least equal to a graduate member of Engineers Australia and was categorised
as at least a Level 3 – Professional in the PE Award. In its Form F3 response to the
application, Poten denied that Ms Zheng was employed to carry out professional engineering
duties, and said that it did not provide engineering products or services to its clients and that
Ms Zheng’s duties did not require her to possess a graduate engineering qualification or
equivalent.
[6] Clause 4.1 of the PE Award defines the scope of its coverage as follows:
4. Coverage
4.1 This industry and occupational award covers employers throughout Australia as
follows:
(a) Employers throughout Australia with respect to their employees performing
professional engineering and professional scientific duties who are covered by
the classifications in Schedule A—Classification Structure and Definitions of
the award and those employees.
(b) 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 A—Classification Structure and Definitions.
(c) Employers throughout Australia principally engaged as medical research
institutes with respect to their employees performing professional medical
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research duties who are covered by the classifications in Schedule B—Medical
Research Employees and those employees.
[7] The expression “professional engineering … duties” used in clause 4.1 is defined in
clause 2.2, Engineering stream, 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.
[8] It is not controversial that Ms Zheng held the necessary academic qualifications to be a
graduate member of Engineers Australia.
[9] Clause 2.2 also defines the expression “professional engineer” as follows:
Professional engineer means a person qualified to carry out professional engineering
duties as defined. The term professional engineer includes graduate engineer and
experienced engineer as defined in clause 2.2.
[10] The expressions “experienced engineer” and “graduate engineer” used in the above
definition are also defined in clause 2.2 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 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.
Graduate engineer means a person who is the holder of a university degree (4 or 5
year course) recognised by Engineers Australia or is the holder of a degree, diploma or
other testamur which:
(a) 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
(b) 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 4 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 4
year full-time course after a similar standard of secondary education.
[11] As earlier stated, Ms Zheng contended that she was covered by the Level 3 –
Professional classification in the PE Award. Clause A.1.9 of Schedule A of the PE Award
defines the criteria for this classification as follows:
A.1.9 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.
[12] Certain documents relevant to the proper characterisation of the nature of Ms Zheng’s
employment were placed into evidence and referred to in the decision. Two documents were
of particular significance. First, there was the 2018 job advertisement for the position which
Ms Zheng subsequently filled. The advertisement described the position as follows:
“Job Description: LNG Consultant
Poten is seeking a technically-oriented LNG and natural gas consultant to join our
Perth office. The consultant will be part of a team that provides consulting services,
studies and reports to global oil & gas industry clients. The successful candidate will
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. The consultant may also be required to
research and write articles on technology and cost-related topics for Poten’s industry-
leading intelligence publications and to support preparation of conference papers.
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Required Qualifications
An 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. The candidate will need
to have a strong interest in the LNG and natural gas business and the role of project
planning and execution in shaping commercial decisions. The successful candidate
will also possess:
A sound understanding of the fundamentals of LNG and gas project
development, including:
o high level block flow diagram-material balances;
o cost and schedule estimates;
o design, execution and regulatory approval plans;
o corporate stage gate approval processes;
Familiarity with major equipment employed in gas liquefaction, LNG
transport and revaporisation;
Experience with project execution for oil and gas projects, shipping and
jetty/terminal design or LNG plant operations would be advantageous;
Excellent analytical skills, including the ability to research and
quantitatively analyse industry data and information and to apply existing
knowledge and principles to new applications;
Strong spreadsheet modelling skills, particularly in the areas of economic
evaluation;
Strong communication skills, both written and verbal, including the ability
to clearly and concisely prepare and present reports and presentations;
Some business development experience would be an asset, particularly if
this included analysing the client’s problem and developing a logical
solution;
High energy level, poise and professionalism when interacting with
internal and external contacts;
Clarity in self-assessment of their own knowledge and skills and
willingness to seek support when stepping outside their current
capabilities;
The ability to prioritise workload, work independently, and complete tasks
under time pressure when necessary;
Must be comfortable in a team role, be flexible and diligent;
Strong computer skills including advanced knowledge of Microsoft Excel,
Word and PowerPoint.”
[13] Second, Ms Zheng’s contract of employment dated 27 July 2018 set out (in Schedule
1) the “Job Responsibilities” of her position as follows:
“The LNG Consultant will take an active role in ensuring the success of client
engagements, building Poten’s reputation throughout the industry, and enhancing the
profitability of the consulting practice. The LNG Consultant will actively work toward
understanding the global Poten organisation and building relationships with
consultants and analysts in other Poten offices.
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The general responsibilities include:
Work as a team with other members of the Asia Pacific LNG consulting
team, the Merlin technical team, and Poten LNG consulting worldwide to
ensure that assignments are executed to the highest quality standards and in
an efficient and profitable manner. Lead assignments at the direction of
management.
o Develop, maintain and apply data sets and quantitative tools to
track, analyse and communicate industry trends and client
problems.
o Prepare client studies and reports, leading assignments allocated.
Participate creatively and analytically in framing and resolving
client problems and the achievement of client objective.
o Develop and refine presentations, reports and conference papers,
including producing graphics.
o Develop a detailed knowledge of the LNG industry, particularly in
relation to the Asia Pacific LNG market.
Communicate and network with existing and prospective clients and other
Poten offices. Assist in developing new business opportunities for Poten
LNG consulting and build a network to facilitate marketing Poten’s
services. Lead the business development process with selected clients at
the direction of management.
Prepare technical and commercial analysis and consulting reports in areas
such as development of LNG export and import facilities, LNG project due
diligence, upstream and midstream.
o Provide technical support along the LNG value chain to the Asia
Pacific team in LNG-related assignments.
o Research, analyse, and advise clients on technology and cost-
related issues.
Develop and implement systems for data organisation and management
within the Perth office and for sharing data between Poten offices.
Undertake administrative functions to ensure smooth functioning of the
Perth office and effective interaction with clients and other Poten
locations.”
[14] The interlocutory decision which Ms Zheng challenges came to be made in the
following way. On 1 November 2020, Ms Zheng filed an application for an order directed to
Poten for production of various documents which she submitted contained evidence of the
nature of her work, including documents relating to specific tasks and projects upon which
she had worked and the original job advertisement for her position. Poten objected to the
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order sought. On 5 November 2020, the Deputy President informed the parties via email that
she had decided not to issue the order sought by Ms Zheng on the following basis (emphasis
in original):
“… At this stage, based on the justification provided for the documents sought, such
documents have no apparent relevance to the matters requiring determination and the
factors the Commission is obliged to take into account in an unfair dismissal
application.
I am persuaded that there is no legitimate forensic purpose for an order to produce
these documents given the lack of apparent relevance.
Having regard to all that has been put before me, in the exercise of my discretion, and
in balancing the competing interests, I have decided not to issue the Order sought for
the abovementioned reasons.”
The decision
[15] The Deputy President characterised the task of determining whether Ms Zheng was
covered by the PE Award as involving two questions: first, a legal question concerning the
proper construction of the coverage clause and any other relevant provisions of the PE Award
and, second, a factual question as to whether the employer and employee fell within the scope
of the coverage clause, properly construed.3 The Deputy President then said that the relevant
award was the Professional Employees Award 2010 and set out the coverage clause of this
award. We interpolate at this point that the 2010 version of the PE Award had ceased
operation by the date of Ms Zheng’s dismissal, with the 2020 version having taken effect on
18 June 2020. However, there is no difference of substance between the relevant provisions of
the respective version of the awards, although there are some differences in the clause
numbering, and the structuring of the coverage clause in the 2010 version was slightly
different.
[16] The Deputy President identified the issue in case as being whether Ms Zheng was
covered by the PE Award “by virtue of its occupational coverage at clause 4.1”4 (clause 4.1(a)
in the current 2020 version). The Deputy President said that, to be covered by the PE Award,
it was necessary for Ms Zheng to show that “she was carrying out ‘professional engineering
duties’ and was employed in a classification in the [PE] Award (taking into account the
principal purpose for which she was employed).”5 The Deputy President made reference in
this respect to the decision in Halasagi v George Weston Foods Limited6 (Halasagi) and went
on to say: “The definition of ‘professional engineering duties’ could be satisfied by reference
to ‘any portion’ of the employee’s duties and did not require that the duties which fell under
the definition, were for the ‘principal purpose’ for which the employee was employed.”7
3 [2021] FWC 1023 at [38]
4 Ibid at [41]
5 Ibid at [45]
6 [2010] FWA 6503
7 [2021] FWC 1023 at [45]
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[17] The Deputy President then turned to consider whether Ms Zheng was performing
“professional engineering duties” as defined by the PE Award. The Deputy President referred
to the job advertisement and said that the reference in it to a chemical engineering
qualification being “ideal” made it “not unreasonable to infer that the qualification would
directly relate to the duties to be performed – hence making the candidate ‘ideal’.”8 As to the
job responsibilities, the Deputy President said that they were “framed in ‘corporate speak’ and
appeared rather generic, and did not speak of requiring a qualification or experience in
engineering.”9
[18] After referring in some detail to aspects of the evidence of Mr Will Pulsford, the Asia
Pacific Consulting Manager of Poten, and that of Ms Zheng, the Deputy President said:
“[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.”
[19] The Deputy President then turned to the question of whether Ms Zheng was employed
in a classification in the PE Award. She stated her answer to this question at the outset in the
following way:
“[69] Often it will be a narrow line that distinguishes whether an employee is, or is not,
covered by award. This is one such case. However, for the reasons that follow, I have
concluded that Ms Zheng was not employed in a classification in the Award (taking
into account of course the principal purpose for which she was employed).”
[20] The Deputy President then gave her reasons for this conclusion. She stated that the
question of whether Ms Zheng was employed in a classification in the PE Award was to be
determined by reference to the “principal purpose” test.10 The Deputy President said that
because Ms Zheng contended that she was covered by the Level 3 classification, her analysis
would focus on that level, and expressed the view that “[t]he other classifications in the
8 Ibid at [55]
9 Ibid at [56]
10 Ibid at [70]
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Award are more junior, and are not, in my view, comparable to the position of LNG
Consultant”.11
[21] The Deputy President then assessed the extent to which each of the five criteria in the
Level 3 classification definition, which she referred to as “indicative duties”, applied to Ms
Zheng’s employment. In relation to the first criterion (clause A.1.9(a)), the Deputy President
said that she was satisfied that Ms Zheng drew upon her mature professional knowledge to
undertake the duties of her role or that at times she coordinated difficult assignments.12 The
Deputy President said that she was persuaded that some of Ms Zheng’s duties saw her draw
upon her qualifications, but she was “unpersuaded that the knowledge applied in the
performance of the majority of Ms Zheng’s duties was dependent on her holding the requisite
qualification under the Award.”13
[22] In relation to the second criterion (clause A.1.9(b)), the Deputy President found:
“[78] Ms Zheng’s role appeared to be predominately advisory in nature. It was difficult
to ascertain from the evidence the original contribution or application of new
professional approaches, as referred to in the indicative duties. However, it is apparent
that in her advisory capacity Ms Zheng informed clients of the conceptual design of an
LNG facility and the layout of equipment – for example, there was evidence to show
that Ms Zheng was involved in the high-level conceptual design of LNG import
facilities including the conceptual design of the process and the facility itself.
However, it is not apparent from Ms Zheng’s evidence that she designed or developed
‘equipment’ or ‘products’.
. . .
[81] Ms Zheng submitted that chemical engineering is in fact much broader than what
Mr Pulsford had said. At a high conceptual level it included feasibility studies for a
new LNG plant and included determining what equipment goes where along the
terminal, and so on and so forth. I have considered all of the examples of work
Ms Zheng has provided in addition to those of Mr Pulsford. In light of the ordinary
language used, I am unable to find that Ms Zheng had made some original
contribution or applied new professional approaches and techniques to the design or
development of equipment or products. It appears that in her work for the Respondent,
she considered the client’s needs and compared them with the outcomes of similar
projects to make an early assessment of project feasibility and the solution that may
eventually be engineered in later project phases.”
[23] As to the third criterion (clause A.1.9(c)), the Deputy President found that Ms Zheng’s
duties incorporated the work described, but was hesitant to conclude that the work in question
principally involved professional engineering duties.14 The Deputy President referred to the
competing estimates given by Ms Zheng and Mr Pulsford as to the percentage of Ms Zheng’s
work which related to technical tasks (80% and 32% respectively), and concluded that Ms
11 Ibid at [72]
12 Ibid at [74]
13 Ibid at [74]-[76]
14 Ibid at [83]
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Zheng’s estimate was speculative and Mr Pulsford’s evidence was uncorroborated and not
supported by direct evidence.15
[24] Finally, as to the fourth and fifth criteria (clause A.1.9(d) and (e)), the Deputy
President found that Ms Zheng carried out work within the former of these but that the
evidence fell short of establishing that Ms Zheng performed work in the latter.16 The Deputy
President concluded that she was not persuaded that professional engineering duties were the
principal purpose of Ms Zheng’s employment,17 and dismissed her application for an unfair
dismissal remedy on the basis that Ms Zheng was not a person protected from unfair
dismissal.18
Appeal grounds and submissions
[25] Ms Zheng’s notice of appeal contained the following five grounds of appeal:
“1. Deputy President Beaumont’s [sic] misapplied the law in this matter and
decided that I was not covered by the Professional Employees Award 2010. It
was the Professional Employees Award 2020 that I submitted for coverage by.
2. Deputy President Beaumont failed to consider and understand all the evidences
[sic] and made several significant errors of fact in her decision.
3. Deputy President Beaumont erred in balancing the evidences [sic] and failed to
take some material consideration [sic] into account.
4. Deputy President Beaumont’s decision of not ordering Poten & Partners
(Australia) Pty Ltd (the Respondent) to produce any document I sought in
Form 52 was unfair and a misapplication of the law, given that a copy of the
advertisement for my job was one of the documents on the list. Deputy
President Beaumont erred in judging the relevance of job advertisement to the
coverage of an employee by the Professional Employees Award with reference
to the case below.
5. 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:
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.”
[26] Ms Zheng made, in summary, the following submissions in support of her appeal
grounds:
15 Ibid at [83]-[86]
16 Ibid at [86]
17 Ibid
18 Ibid at [87]
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the Deputy President erred in selecting the relevant award for the assessment of
whether Ms Zheng was covered by an award, in that she decided that Ms Zheng was
not covered by the Professional Employees Award 2010 rather than the current PE
Award;
the Deputy President failed to consider and understand all of the evidence, in that she
did not take into account evidence given by Ms Zheng as to the nature of her role,
misunderstood terminology commonly used in the industry and did not ask Ms Zheng
to clarify the percentage of her time spent on various types of work in her role;
the Deputy President disregarded that her role was similar to the engineers who
provided engineering inputs and quite different from the roles of other employees of
Poten who performed commercial consulting work, and the job advertisement for her
role was very different from other job advertisements taken out by Poten in that it
clearly stated that a chemical engineering qualification was required;
the Deputy President failed to understand that, in the industry, the words “facility” and
“equipment” are interchangeable, and that the evidence showed (and the Deputy
President accepted) that she informed clients of the conceptual design of an LNG
facility;
the Deputy President also disregarded Ms Zheng’s evidence that she provided
preliminary design at the equipment level (that is, sizing the equipment);
as to the third category of indicative duties, Ms Zheng was not asked to clarify her
estimate of the percentage of duties that were technical in nature. While 80% might
sound high she had said that the other 20% was related to other tasks such as LNG
market research, and Mr Pulsford’s 32% was inherently unlikely because she had
approached Mr Pulsford to request to do more commercial work because she had been
focused on technical/asset development work. Mr Pulsford had told her on many
occasions that she was hired to perform technical tasks, and her job title in the
advertisement was “LNG Technical Consultant”;
as to the last two of the indicative duties criteria, the Deputy President failed to take
into account Ms Zheng’s evidence that she performed review and coordination work,
and Mr Pulsford’s evidence that she performed such work;
the Deputy President erred in balancing all the relevant evidence and failed to take
some material considerations into account, in giving too much weight to the evidence
of Mr Pulsford when it was not corroborated and failed to take into account that Mr
Pulsford is still employed by Poten and the relationship between Ms Zheng and Mr
Pulsford was “horribly bad”;
Mr Pulsford’s evidence that the review of engineering work done by others did not
require the reviewer to hold relevant engineering qualifications was wrong;
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the Deputy President did not explain whether Ms Zheng was required to perform all
the indicative duties as defined in the classification under the PE Award in order for
her to satisfy the principal purpose test;
in any case, if she did not perform all the indicative duties within the classification
under the PE Award and only some parts of them, it should not have been a basis upon
which to exclude her from coverage by the PE Award as the indicative duties cover a
very broad scope of tasks and the word “may” is frequently used, and it would be
unrealistic to expect any professional engineer to perform all the duties as defined in
the classification;
the Deputy President erred in not ordering Poten to produce any document sought by
Ms Zheng, which was unfair and a misapplication of the law, particularly in respect of
her assessment of the relevance of the advertisement for her job to the coverage of an
employee by the PE Award with reference to Halasagi;
for the principal purpose test, more weight should be given to its purpose (as indicated
by the job description) rather than its outcome; and
in respect of the meaning of “professional engineering duties” as it appears in the PE
Award, Halasagi states that if an 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.
[27] In respect of permission to appeal, Ms Zheng submitted that permission should be
granted as the matter is in the public interest insofar as it relates to the appropriate
interpretation and application of an important industry and occupational award, because
“professionals” were reported as the most common occupation in Australia during 2016-17 by
the Australian Bureau of Statistics and because the decision constitutes a manifest injustice
due to the significant errors involved.
[28] Poten submitted that permission to appeal should be refused because Ms Zheng did
not contend that the Deputy President made any error of principle, the appeal is not one of
general importance because the decision applied the well-settled approach to interpreting
awards and determining award coverage, the case turned entirely on its own facts, and no
significant error of fact had been identified.
[29] In relation to the first appeal ground, Poten accepted that the Deputy President referred
to the 2010 version of the PE Award rather than the 2020 version, but submitted that there
was no material difference between them in relation to the coverage provisions.
[30] As to appeal grounds 2 and 3, Poten submitted that the Deputy President had regard to
all of the evidence, including Ms Zheng’s position description and the job advertisement. The
decision specifically referred to the role of Merlin (a subsidiary of Poten), and Ms Zheng had
given evidence that she never worked on any Merlin projects with Merlin’s engineers. Poten
submitted that Ms Zheng’s submission about the interchangeability of “facility” and
“equipment” was pedantic and failed to accept that the Deputy President preferred Poten’s
submission on the nature of the work. It further submitted that Ms Zheng’s evidence that she
provided preliminary design at the equipment level was taken into account when the Deputy
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13
President found that she advised clients as to the high-level conceptual design of LNG import
facilities, but that this evidence had to be assessed by the Deputy President against all of the
evidence, including as to the nature of the work Poten is engaged in and the projects worked
on and tasks performed by Ms Zheng.
[31] In relation to the third category of indicative tasks and the percentage of tasks which
were technical in nature, Poten submitted that the Deputy President had taken a critical and
balanced approach which was skeptical of the evidence of both witnesses, Ms Zheng had not
had regard to her time records and presented as vague, ill-informed and evasive when giving
evidence and, because she was not re-examined, cannot complain that she was not asked to
clarify her estimate. It was submitted that the Deputy President’s conclusion that the 80%
estimate was at best speculative was well-reasoned and available to her. In relation to the
fourth and fifth indicative duties, it was submitted that the Deputy President critically
evaluated the evidence and took into account the totality of Ms Zheng’s duties in the context
of Poten’s business.
[32] Poten submitted in relation to appeal grounds 4 and 5 that Ms Zheng’s submission
mistook the principle stated in Halasagi, in that a finding that an employee engaged in
professional engineering duties was not sufficient to attract award coverage absent a further
finding that the employee was covered by one of the award classifications. The Deputy
President accepted that Ms Zheng carried out tasks which were “professional engineering
duties” as defined, but this was not determinative of award coverage and it remained
necessary to determine employment in an award classification applying the principal purpose
test which, it was submitted, required a wider inquiry as to the nature of the role rather than
mere reference to a job advertisement. As to the suggestion that the Deputy President may
have denied Ms Zheng procedural fairness or misapplied principles because an order for
production of documents including the job advertisement was denied to her, Poten submitted
that the job advertisement was in evidence and was fully considered by the Deputy President
in the decision.
Consideration
[33] This appeal is one to which s 400(1) of the FW Act applies. Accordingly, we must be
satisfied that the grant of permission to appeal would be in the public interest, otherwise, we
are required to refuse permission. The s 400(1) test is a stringent one,19 and it would rarely be
satisfied unless an arguable case of appealable error is demonstrated,20 although this may not
by itself be a sufficient basis for the grant of permission to appeal.21 The public interest may
be attracted where the appeal raises issues of importance and general application, or where
there is a diversity of decisions at first instance so that appellate guidance is required, or the
decision under appeal manifests an injustice, provides for a counter-intuitive outcome, or
applies legal principles that appear disharmonious compared to other recent decisions dealing
19 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
20 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
21 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR
78, 207 IR 177; NSW Bar Association v McAuliffe [2014] FWCFB 1663, 241 IR 177 at [28]
[2021] FWCFB 3478
14
with similar matters.22 The public interest will rarely be attracted in respect of an interlocutory
procedural decision23 or in circumstances where the appeal lacks practical utility.24
[34] We are not satisfied that grant of permission in respect of ground 1 of Ms Zheng’s
appeal would be in the public interest because it is lacking in merit and utility. Although the
Deputy President applied the terms of the 2010 version of the PE Award in determining the
jurisdictional issue before her rather than the terms of the 2020 version of the PE Award
which was in effect at the time of Ms Zheng’s dismissal, there is no substantive difference in
the coverage provisions of the two versions of the PE Award which could have made any
difference to the outcome. In particular, the outcome of the matter turned upon the Deputy
President’s interpretation and application of the Level 3 classification descriptor, which is
expressed in precisely the same terms in both versions of the PE Award. We are also not
satisfied that ground 4 of the appeal, insofar as it challenges the Deputy President’s refusal to
issue an order for production sought by Ms Zheng, attracts the public interest such as to
permit the grant of permission to appeal. Ms Zheng challenges this interlocutory ruling only
to the extent that one of the documents which she sought to be produced was the job
advertisement for her position. However, the text of this job advertisement was independently
obtained and put into evidence by Ms Zheng and, as we have earlier set out, formed an
important part of the Deputy President’s consideration. For this reason, there is no utility in
revisiting this issue on appeal.
[35] In respect of the remainder of the grounds of appeal, we consider that they raise issues
of significance and general application concerning the coverage of the PE Award and, for that
reason, we are satisfied that the grant of permission in respect of those grounds would be in
the public interest.
[36] As earlier set out, the Deputy President applied the principles stated by a single
member of Fair Work Australia in Halasagi in determining the issue of whether the PE
Award covered Ms Zheng at the time of her dismissal. Halasagi likewise concerned the
question of whether an applicant for an unfair dismissal remedy was covered by the PE
Award (2010 version). However, unlike this appeal, the focus in Halasagi was upon whether
the applicant performed “professional engineering duties”, it not being in dispute that the
applicant was covered by a classification in the PE Award.25 For that reason, there is an
extensive analysis in Halasagi as to the historical development and proper interpretation of
the definition of the expression “professional engineering duties” – in particular, that aspect
of the definition requiring an engineering qualification for the adequate discharge of any
portion of the relevant employee’s duties. In this respect, the following principles were stated
in Halasagi:
“[23] ….
22 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
23 You v CSIRO [2020] FWCFB 3804 at [23]; Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 6094 at [29];
Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]
24 See e.g. New South Wales Bar Association v McAuliffe [2014] FWCFB 1663, 241 IR 177 at [28]; Singh v Sydney Trains
[2020] FWCFB 884 at [29]; Clermont Coal Operations Pty Ltd v Brown and Others [2015] FWCFB 2460 at [18]
25 [2010] FWA 6503 at [9]
[2021] FWCFB 3478
15
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.”
[37] The above analysis was endorsed by a Full Bench of the Commission in Bateman v
Communications Design & Management Pty Limited.26 This analysis does not arise for any
reconsideration in this appeal because, as earlier stated, the Deputy President found in Ms
Zheng’s favour that she was performing “professional engineering duties” as defined, and
there was no cross-appeal or notice of contention in respect of this finding. However, the last
paragraph in the above analysis is noteworthy, since it confirms that it is only necessary for
the employee to perform “some engineering duties” requiring the requisite engineering
qualification while otherwise performing non-engineering duties in order to fall within the
definition.
[38] Halasagi went on to say:
“[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
(Brand v APIR Systems Ltd [2003] AIRC 1161 esp at [11]). That later question is
determined by reference to the “principal purpose” test (Ibid at [10]-[11]). 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.” (footnotes inserted in text, underlining added)
26 [2014] FWCFB 8768 at [22]-[23]
[2021] FWCFB 3478
16
[39] Because, as stated above, it was not in dispute in Halasagi that the relevant employee
was covered by a classification in the PE Award, and also because it was determined that the
employee did not perform “professional engineering duties” as defined, what might be
described as “the second step” in the analysis – determining whether a classification in the PE
Award applies – did not arise for further consideration. In particular, there was no discussion
in Halasagi as to how the “principal purpose” test would be applied to that second step in the
analysis. As the above passage discloses, the proposition that this is the applicable test was
derived from Brand v APIR Systems Ltd27 (Brand), a decision of a Full Bench of the
Australian Industrial Relations Commission (AIRC).
[40] Brand concerned an appeal from a decision of a single member of the AIRC in which
it was determined that an unfair dismissal application made by an employee under s 170CE of
the Workplace Relations Act 1996 was beyond jurisdiction because the employee’s rate of
remuneration exceeded the prescribed rate and he was not employed “under award
conditions”. This last expression was defined by s 170CD(3) to mean: “…an employee is
taken to be employed under award conditions if both wages and conditions of employment of
the employee are regulated by awards, certified agreements or AWAs, that bind the employer
of the employee.” In the latter respect, the employee had contended that his wages and
conditions were regulated by the Information Technology Industry (Professional Employees)
Award 2001 (IT Award). The nature of the relevant statutory requirement meant that he had to
demonstrate that he fell within the incidence of the IT Award and that a classification applied
to him (because if no classification applied to him, it could not be said that the IT Award
regulated his wages). In its decision, the Full Bench characterised the questions to be
determined in the following way:
“[8] There were two separate questions before the Commissioner. The first was
whether Mr Brand's employment was within the incidence of the award. The second
was whether he was engaged in one of the classifications set out in the award. In order
to be employed under award conditions it is necessary that both the employee's wages
and conditions be regulated by (relevantly) an award: s.170CD(3). Since the award
prescribes wages only for employees in one of the award classifications, in order for
Mr Brand to succeed it would be necessary to show that he was engaged in one of
those classifications. It was therefore not sufficient to demonstrate that his
employment was within the incidence of the award. For our purposes it is only
necessary to deal with the second of the two questions we have identified which were
before the Commissioner, that is, whether Mr Brand was engaged in one of the award
classifications.” (footnote omitted)
[41] Clause 6.1 of the IT Award provided that it applied to Professional Engineers (as
defined) and Professional Information Technology Employees (as defined) employed by
respondent employers performing professional engineering duties (as defined) or Professional
Information Technology duties (as defined) in the Information Technology Industry (as
defined). The Information Technology Industry was defined in clause 6.2 of the IT Award.
The expression “professional engineering duties” was defined in a way which, in substance
and for relevant purposes, was the same as in the PE Award. The expression “professional
information technology duties” was defined in an analogous way – that is, to mean duties
27 [2003] AIRC 1161
[2021] FWCFB 3478
17
carried out by a person in any particular employment the adequate discharge of any portion of
which duties required a person to have specified IT qualifications. The classification structure
in the IT Award was also highly similar to that now found in the PE Award. It contained
classifications for Level 1, 2, 3 and 4 Engineers and Information Technology Employees
which are essentially the same as those for Level 1, 2, 3 and 4 for Engineers, Information
Technology Employees and Scientists under the PE Award. The employee in Brand claimed
that Level 4 of the IT Award applied to him.
[42] The Full Bench set out in its decision an extract from the decision under appeal in
which the member referred to the AIRC Full Bench decision in Carpenter v Corona
Manufacturing Pty Ltd28 (Carpenter) which applied the “principal purpose” test and then said:
“[47] Applying this approach to the work performed by the applicant it is clear, on the
evidence, that he was principally engaged, at the time he was given notice that his
employment would terminate, in the preparation of applications for funding relating to
concessional loans or grants. He may have utilised technical expertise in the
performance of this task but I accept the evidence of the witnesses for the respondent
that technical input to the task was provided by another staff member. I have no doubt
that the applicant possessed the necessary skills and experience to provide much of the
technical input required but I find that the duties of his principal task (that is,
preparation of applications for funding and general corporate planning and business
development) could have been adequately discharged without the possession of the
qualifications and experience referred to in the definition of ‘professional information
technology duties’ on examination of Clause 4.3.1(b) of the award.
[48] Having considered the definition of the classification of Professional Information
Technology Employee - Level 4 at clause 4.4.4 of the award I have reached the
conclusion that the position responsibilities of the role performed by the applicant
were of a less ‘hands-on’ technical nature than those of a Level 4 employee. I accept
the evidence of Mr Hutchings Brosco that the role taken on by the applicant from
August 2002 was ‘a corporate or business development role’ and not ‘a technical role’.
I also accept the evidence that the applicant was still performing this role at 20
December 2002.
[49] I accept the applicant's evidence that he performed a ‘technology transfer’
function post August 2002 passing on his technical knowledge of the system he had
been involved in developing to the staff who continued to work on it. I also accept that
this role intensified immediately prior to his leaving his employment, at the request of
his employer. I do not, however, find that this technology transfer function was
the principal purpose for which the applicant was employed at the time notice was
given of his termination. The applicant's principal purpose was the development of the
business of the company including business planning marketing and sales planning.
The applicant's role also was one that went far beyond the responsibilities of a
Professional Information Technology Employee Level 4. It was his evidence that from
August 2002 he was to be part of a four member executive committee for the company
- although that committee never met.
28 [2002] AIRC 1562
[2021] FWCFB 3478
18
[50] It was also his evidence that his duties included promotion of information
technology (already developed) to other markets and development of business plans.
The applicant's role, as described by all three witnesses, does not fall within the
classification definition of a Level 4 employee (or any other classification) in the
award, as claimed on the applicant's behalf.”29 (footnotes omitted)
[43] It is apparent that the member at first instance considered that the employee in
question neither performed “professional information technology duties” as defined such as to
fall within the incidence of the IT Award nor fell within the Level 4 classification, or any
classification, in that award. The Full Bench in Brand said this in respect of the disposition of
the appeal:
“[11] Having heard all of the submissions on the appeal and having considered the
evidence and material to which we have been referred we do not think this is a case in
which we should grant leave to appeal. The Commissioner's conclusion that Mr Brand
was not engaged in the classification of Professional Information Technology
Employee - Level 4 was correct for the reasons she gave. On the material and
evidence before her the Commissioner was right to conclude that Mr Brand was not
employed in that classification. It was not suggested that he was employed in any
other classification provided for in the award.
[12] Much of the argument advanced on Mr Brand's behalf in the appeal was directed
at whether his employment was within the incidence of the award. As we have
indicated above, even if his employment was within the incidence of the award, his
application was not within jurisdiction unless he was employed in one of the award
classifications.
[13] We note that the Commissioner adopted and applied a test based on the principal
purpose for which the applicant was employed. She relied upon the Full Bench
decision in Carpenter v Corona Manufacturing Pty Ltd in that respect. An analysis of
the authorities referred to in that case shows that industrial courts and tribunals have at
different times adopted different formulations of the test to be applied in determining
whether the work of an employee or group of employees is within a particular
occupation or classification. One formulation requires that the question should be
decided by reference to the major and substantial employment of the
employee. Another formulation requires that the principal purpose or purposes of the
employment be identified. In some cases the formulations have both been referred
to. In one case a Full Bench of the Commission held that the principal purpose
formulation was a refinement of the major and substantial employment formulation. A
Full Court of the Federal Court of Australia, without reference to other authorities,
adopted a test based on whether the employees were ‘engaged substantially’ in the
duties of the relevant occupation.
[14] In this appeal both parties accepted that the ‘principal purpose’ formulation as
stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are
content to decide this application on that basis. We should add, however, that we are
29 [2003] AIRC 1161 at [10]
[2021] FWCFB 3478
19
satisfied that whichever of the formulations referred to might be applied, in this case
the result would be the same.” (footnotes omitted)
[44] The “principal purpose” test as stated in Carpenter was as follows:
“[9] In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. 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. In this case,
such an examination demonstrates that the principal purpose for which the appellant
was employed was that of a manager. As such, he was not ‘employed in the process,
trade, business or occupation of ... soliciting orders, obtaining sales leads or
appointments or otherwise promoting sales for articles, wares, merchandise or
materials’ and was not, therefore, covered by the Award.” (footnote omitted)
[45] It is to be noted that the “principal purpose” test was utilised in Carpenter to
determine whether the employee in question fell within the incidence of the relevant award,
which was described in terms of the specific work function of the employee, and not to
determine whether the employee fell within a particular classification in the award. It appears
to us, however, that the “principal purpose” test is singularly ill-suited to determine whether a
person falls within one of the classifications in the PE Award (or indeed the IT Award). That
is because the classifications, including but not limited to the Level 3 classification considered
in Ms Zheng’s case, are expressed in highly generic terms and do not describe with any
specificity the job functions required to be performed at each level. It appears to us that the
classification descriptors have been drafted primarily in order to determine, by reference to
the degree of skill and responsibility being exercised, in which classification a person
otherwise covered by the award will fall, rather than to identify whether a person is covered
by the award at all. In respect of Level 3, for example, the classification descriptor begins by
referring to “An employee at this level…”, and the subsequent criteria do not describe any
function particular to the job of an engineer, IT specialist or scientist but merely uses broad
expressions such as “mature professional knowledge”, “scope for individual
accomplishment”, “coordination of more difficult assignments” and “modify established
guides and devise new approaches”. The only language which appears to attach to work
which might be performed by an engineer, IT specialist or scientist are the words
“professional” and “technical”, but these are used only in the most general way. We consider
that the main function of the Level 3 descriptor is to distinguish that classification from the
other classifications above and below it. Identifying the “principal purpose” of an employee’s
employment and then attempting to determine whether that purpose fits within such a
generically defined classification descriptor seems to us to be an inchoate task likely to
produce difficulty in rendering a clear answer.
[46] However, Ms Zheng did not submit that Brand, as applied to the PE Award by
Halasagi, was wrongly decided and, in any event, we consider that the Brand/Halasagi
approach is now too well entrenched to alter. Numerous first instance decisions have applied
that approach,30 and it has been confirmed in Full Bench decisions31 including in the relatively
30 See e.g. David James Hehir v Schweitzer Engineering Laboratories Pty Ltd [2011] FWA 3763 at [35]; Tucker v Digital
Diagnostic Imaging Pty Ltd [2011] FWA 1767 at [19]-[22]; Richard Harland v Canon Information Systems Research
[2021] FWCFB 3478
20
recent Full Bench decision in McFarlane v SRG Civil Pty Ltd32 (McFarlane). It would
destabilise the operation of the PE Award if we enunciated a different approach now.
[47] It remains necessary to consider what the application of the “principal purpose” test
requires. As was stated in Carpenter, the test requires an examination of the nature of the
work of the employee in question and the circumstances in which the employee is employed
to do the work for the purpose of ascertaining the principal purpose for which the employee is
employed. This is a question of fact. Once that is done, the principal purpose as identified
must be compared to the classification descriptor in order to determine whether it falls within
the scope of that descriptor. Thus, in Brand, the approach taken by the member at first
instance and endorsed by the Full Bench on appeal was to identify the principal purpose of the
relevant employee’s employment as being that of “the development of the business of the
company including business planning marketing and sales planning manager”, and then to
determine that this did not fit within the Level 4 classification descriptor. MacFarlane
confirmed that, in determining coverage under the PE Award, this two-step process was
necessary:
“[21] It was necessary for the Commissioner to apply the principal purpose test in this
case to decide whether Mr McFarlane was covered by one of the classifications in
Schedule B to the Award.
[22] The Commissioner set out the relevant legal principles and proceeded to inquire
as to the nature of Mr McFarlane’s role. At paragraphs [32] and [33] he made findings
about what he considered to be the principal tasks of Mr McFarlane’s role, including
that the principal purpose of the role was not one of “engineer”. In doing so, the
Commissioner had regard to previous decisions of the Commission including those
dealing with whether particular project managers were covered by the Award. He
considered the extent to which actual engineering work was part of Mr McFarlane’s
role. He dealt, at paragraph [35], with the nature and extent of Mr McFarlane’s
responsibility for engineering design work including in relation to the anchor works
and his accountability for design and technical issues. We discern no arguable case of
appealable error in the Commissioner’s analysis of the nature of Mr McFarlane’s role
and circumstances.
[23] However, the principal purpose test also directs attention to the nature of work
Australia Pty Ltd t/a CiSRA [2011] FWA 1913 at [9]-[10]; Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd t/a
Thomas Duryea Consulting [2012] FWA 4955, 223 IR 117 at [7]; Robert De Jong v Ausenco Services Pty Ltd [2013] FWC
264 at [4]; Brian Hamond v Terra Firma Pty Ltd [2013] FWC 1229 at [56]; Glen Lewis v Nomad Digital [2013] FWC
6531 at [6]-[7]; Paul Bateman v Communication Design & Management Pty Limited [2014] FWC 4427 at [17]; Benjamin
Norman v Fyfe Pty Ltd t/a Fyfe Earth Partners [2014] FWC 7927 at [27]; Andrew Forkes v Amristar Solutions Pty Ltd
[2016] FWC 5913 at [21]-[22]; Christopher Sariman v BMD Constructions Pty Ltd [2016] FWC 5419 at [24]; Glenn
Whelan v BMD Constructions Pty Ltd [2016] FWC 4002 at [50]; Kevin Terrey-Ocock v Infosys Management Consulting
Pty Ltd t/a Infosys Consulting [2018] FWC 879 at [23]; Andrew McFarlane v SRG Civil Pty Ltd [2019] FWC 3384 at [23];
Brett Skinner v Broadspectrum (Australia) Pty Ltd [2020] FWC 4948 at [23]-[24]; Stephen Bury v Gilmour Space
Technologies Pty Ltd t/a Gilmour Space [2020] FWC 2015 at [65], [71]; Muhamed Dizdar v Western Australian Specialty
Alloys [2020] FWC 3268 at [33]-[34]
31 See e.g. Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd t/a Thomas Duryea Consulting [2012] FWAFB 7184,
223 IR 125 at [33]; Paul Bateman v Communications Design & Management Pty Limited [2014] FWCFB 8768 at [22]-
[23]
32 [2019] FWCFB 8682 at [19]-[21]
[2021] FWCFB 3478
21
covered by the Award. Only once that is understood can the purpose of an employee’s
role be properly assessed through the lens of whether it is of the same or a different
character or quality to the type of work covered by the Award.”
[48] We do not consider that the Deputy President applied the “principal purpose” test in
accordance with the correct approach described above. The Deputy President did not make a
finding concerning what she considered to be the principal purpose of Ms Zheng’s
employment and then seek to relate that to the Level 3 classification descriptor. Rather, a fair
reading of the decision (particularly paragraphs [76], [83] and [86]) discloses that she
approached the task on the basis of whether, by reference to each of the five paragraphs in the
Level 3 classification descriptor, professional engineering duties constituted the principal
purpose of Ms Zheng’s employment or a majority of her duties. However, neither Level 3 nor
any other classification contains any requirement that “professional engineering duties” as
defined must in some sense constitute the principal purpose of the relevant employee’s
employment or a majority of the duties. As we have adverted to earlier, Halasagi makes clear
that the definition of “professional engineering duties” (now contained in clause 2.2) does not
require that the performance of such duties constitute the principal purpose of the employee’s
employment, and the attachment of such a requirement to the Level 3 classification descriptor
is not only not supported by the text but would subvert and render otiose the definition in
clause 2.2. Further, a “majoritarian” approach is precisely what is deprecated in the
articulation of the “principal purpose” test in Carpenter.
[49] This point may be illustrated in two ways. First, in respect of the Level 3 criterion in
clause A.1.9(c) of Schedule A, the Deputy President found that Ms Zheng’s duties
incorporated the work described, but she did not accept Ms Zheng’s estimate that such duties
constituted 80% of her work and said that she was “hesitant to conclude that the work in
question principally involved professional engineering duties.”33 However, the criterion in
clause A.1.9(c) does not require any conclusion of this nature to be made. We have earlier set
out the provision; it contains three elements:
(1) Recommendations may be reviewed for soundness of judgment but are usually
regarded as technically accurate and feasible.
(2) The employee makes responsible decisions on matters assigned, including the
establishment of professional standards and procedures.
(3) The employee consults, recommends and advises in specialty areas.
[50] It may be accepted, as we have stated above, that the terms “technically” and
“professional” relate, in respect of an employee who performs “professional engineering
duties”, to those duties. However, those terms are far from definitive about the nature of the
work falling within clause A.1.9(c). The first element only conveys that any technical content
in the employee’s “recommendations” will generally not be the subject of any further review,
but it does not require that all or most of such recommendations be technical in nature. The
second element indicates that “responsible decisions” may include the establishment of
professional standards and procedures, but does not require that they must always or mostly
33 [2021] FWC 1023 at [84]
[2021] FWCFB 3478
22
do so. The third element makes no specific reference to the performance of professional duties
at all.
[51] Second, reference to the Level 2 classification descriptor in clause A.1.7 of Schedule
A is instructive. It provides:
A.1.7 Level 2—Experienced engineer, Experienced information technology
employee and Experienced scientist
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.
[52] For relevant purposes, a Level 2 employee must be an “Experienced engineer” as
defined. We have set out the definition of this expression in clause 2.2 of the PE Award
above. Similar to the definition of “professional engineering duties”, this definition provides
that an employee with the prescribed engineering qualifications and experience need only be
engaged in employment “where the adequate discharge of any portion of the duties” requires
those qualifications. The requirements of the descriptor must be construed in the context, so
that references to the conduct of “professional work without detailed supervision…” and
usual engagement on “more responsible assignments requiring substantial professional
experience” must be understood as relating to the “portion of the duties” for which the
prescribed qualifications and experience are required. Any different approach would render
irrelevant and inutile the carefully-formulated definition of “Experienced engineer”.
[53] The correct approach which should have been taken was 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 bore 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. This did not
occur. Although Ms Zheng, being self-represented, did not postulate appealable error in
precisely these terms, we consider that it is adequately encompassed by appeal ground 3.
[54] The question next requiring consideration is whether the error in approach taken by
the Deputy President may have made any difference to the outcome. We note that in the
McFarlane decision, the Full Bench ultimately refused permission to appeal despite the fact
that it accepted that there was an arguable case of appealable error on the following basis:
“[29] In each of the identified cases where the same question of whether a particular
Manager was covered by the Award has arisen, the outcome was as it is here.
Acknowledging of course that each case depends on its own facts, this circumstance
tends against there being utility in granting permission to appeal because even if the
arguable appealable errors are made out and corrected, it seems to us more likely than
not that the result will again be that Mr McFarlane is not covered by the Award. The
material and evidence that was before the Commissioner tends to support the
conclusion that the principal purpose for which Mr McFarlane was employed was as a
[2021] FWCFB 3478
23
Project Manager, rather than under the Award classification of a Level 3 –
Professional.”
[55] There are two matters which persuade us that, on an application of the correct
approach, a different result may have pertained here. The first is that the Deputy President
herself acknowledged that this was a case where there was a “narrow line” as to whether Ms
Zheng was, or was not, covered by the PE Award.34 The second is that the description in the
job advertisement of the role which Ms Zheng filled (set out in paragraph [12] above), which
seems to identify the core component of the role as being “responsible for technical support
of consulting studies in areas such as development of LNG export and import facilities, LNG
project technical due diligence, LNG economic analysis and project costs”, if it constitutes an
accurate description of Ms Zheng’s core work responsibilities, would almost certainly fall
within Level 3. However, we note that the job responsibilities set out in Ms Zheng’s contract
of employment (set out in paragraph [13] above) are arguably described in a substantially
different way.
[56] For the reasons stated above, we uphold ground 3 of the appeal. It is not necessary in
the circumstances to deal to finality with the other grounds of appeal in relation to which we
have granted permission to appeal. It is sufficient to say, in relation to ground 2, that we are
not satisfied that there is any significant error of fact in the decision and, in relation to ground
5, that the matter raised is relevant only to the question of whether Ms Zheng performed
“professional engineering duties” – a question which the Deputy President answered in Ms
Zheng’s favour.
[57] We have decided to re-determine ourselves the question of whether Ms Zheng is
covered by a classification in the PE Award having regard to the evidence that was adduced
before the Deputy President. Although, on one view, it would be open to for us to determine
that question as part of this decision, we consider that the better course is to provide the
parties with a further opportunity to make additional written submissions concerning this
question in light of our reasons for decision above. In such submissions, the parties may
address whether, on a proper application of the “principal purpose” test, Level 2 or any other
classification applies to Ms Zheng if Level 3 does not. The Deputy President’s conclusion that
Ms Zheng’s role is too senior for Level 2 or Level 1 if it is found she does not fall within
Level 3 seems to us to be, with respect, a non sequitur.35
[58] We make one final observation. There appears to have been excessive litigation as to
whether unfair dismissal applicants are covered by the PE Award. This arises, we consider,
largely as a result of the matters discussed in paragraph [45] above. Interested parties to the
PE Award may wish to consider whether the coverage provisions of the award should be
reviewed so that the scope of its coverage is expressed with greater certainty and so questions
about whether it covers particular employees can be determined more readily and with greater
consistency.
Orders
[59] We order as follows:
34 Ibid at [69]
35 Ibid at [72]
[2021] FWCFB 3478
24
(1) Permission to appeal is granted except with respect to appeal ground 1 and,
insofar as it relates to the refusal to issue orders for production of documents,
appeal ground 4.
(2) Appeal ground 3 is upheld and the decision ([2021] FWC 1023) and order
(PR726284) are quashed.
(3) The parties may file further written submissions concerning whether Ms Zheng
is covered by a classification in the Professional Employees Award 2020
within 14 days of the date of this decision.
VICE PRESIDENT
Appearances:
L Zheng on her own behalf.
K Brotherson of counsel for the Respondent.
Hearing details:
2021.
Sydney (via video-link):
6 May.
Printed by authority of the Commonwealth Government Printer
PR730787
OF THE FAIR WORK MISSION THE
