DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mun Kong Tang
v
Metro Trains Melbourne Pty Ltd
(U2019/14431)

Application for unfair dismissal remedy – jurisdictional objection – high income threshold –whether applicant covered by modern award.

[1] This decision is about whether Mun Kong Tang, formerly Head of Estimating and Project Controls for Metro Trains Melbourne Pty Ltd, is entitled to seek a remedy for unfair dismissal. The answer depends on whether he was covered by the Rail Industry Award 2010 at the time of his dismissal. Only if he was covered by the Award can he proceed with this application.

[2] Metro operates the Melbourne metropolitan rail network under contract to the Victorian Government. It is involved in projects to remove a significant number of level crossings across the State together with a number of different contractors. On 3 December 2018, it employed Mr Tang to enhance its estimating and cost control function in connection with these projects.

[3] Mr Tang was employed on an annual salary of $238,760.05 gross (inclusive of superannuation), above the high income threshold of $148,700. He also had the benefit of a company phone and unlimited free public transport in Victoria. No enterprise agreement applied in relation to his employment. He was employed for just over twelve months. His employment ceased on 10 December 2019. Mr Tang now says he was covered by the Award. There is no contention that he was covered by any other modern award.

[4] For the reasons that follow, I find that the Award did not cover Mr Tang because he was a member of Metro’s senior management and leadership team, with overall responsibility for Metro’s estimating and cost control function. He is not protected from unfair dismissal and he cannot bring an unfair dismissal claim.

What is the nature of work covered by the Award?

[5] Clause 4 of the Award deals with coverage. Metro is covered by the Award as a Rail Transport Operator. Mr Tang will also be covered if he is an employee “in the classifications listed in clause 14.1” of the Award.

[6] Clause 14.1 contains three classification streams – Clerical, Administrative and Professional; Operations; and Technical and Civil Infrastructure. Mr Tang says he falls under the Clerical, Administrative and Professional stream as a Level 9 employee.

[7] The Clerical etc. stream covers employees with a range of skill levels, qualifications and abilities, beginning from an “initial recruit” with limited relevant experience (Level 1) and ascending to highly skilled employees who “provide guidance and direction to staff supervising others” (Level 9). Employees at each level may be required to have the competencies for one or more levels below their level. In other words, if you can work at Level 9, you might also need the skill and ability to perform the work required of employees in the levels below.

[8] On my review of the classification structure, Levels 1 to 3 cover employees with either no or limited industry experience, performing mostly basic or routine clerical or other office-type work. Level 4 employees have greater qualifications and experience, enabling them to give general advice on their areas and supervise and train less experienced employees. The type of supervision required is limited to matters such as allocating work, coordinating workflow, checking work and work progress, and resolving problems. Level 5 employees have particular subject matter knowledge or experience and greater autonomy than Level 4 employees. They help the employer set goals relevant to their area of expertise. They may train and supervise other (mainly lower) level employees and have delegated responsibility for the performance of others through setting workloads, resolving operations problems, monitoring work quality and counselling where required.

[9] Level 6 employees have developed strong communication and analytical skills, enabling them to undertake detailed research and analysis, prepare complex documents and fix problems by applying relevant problem solving methodologies. They may be part of a team and can work independently without supervision. Level 7 employees have honed these skills to become subject matter experts and may also be responsible for a particular work area or team (managing workloads, operational problems, quality of work and performance). They can allocate resources efficiently and contribute to both developing and meeting budgets or other financial targets.

[10] Level 8 employees are also subject matter experts in a clerical, administrative or professional field. They are supervisors, managing rosters and relief, delivering training, and working independently but also closely with senior managers on complex matters, reporting on payroll or budgets. Level 9 employees have higher level specialist skills. They provide guidance and direction to staff supervising others.

[11] In a similar ‘ascending’ style, the Award contains classifications for employees in the Operations stream and the Technical and Civil Infrastructure stream.

[12] The highest classification in the Operations stream is Level 6. At this level, employees hold specialist skills and knowledge in business operations and have trade or post-trade qualifications. They can have substantial leadership, direction, management and support of staff, but not the overall leadership and management of major/complex locations/terminals. They include train drivers of heavy trains.

[13] The highest classification in the Technical and Civil Infrastructure stream is Level 7. A level 7 employee is a Work Group Leader (signals) or someone who provides system supervision and assists in on the job training together with supervisors and trainers.

[14] It is evident from a reading of the classification structure as a whole that there is a distinction drawn in the Award between the senior management or overall leadership team of an employer and the employees in each of the relevant streams. The classification structure applies to the latter category, but not the former.

What was the nature of Tang’s work, and the circumstances in which he was employed to do it?

[15] According to Mr Tang, Metro did not have adequate systems in place for people to do estimating or cost control work for the range of projects it was dealing with at the time he was employed. His job was to source the right cost controls and planning tools, to identify gaps in Metro’s current estimating function, and to develop systems, set them up and train others to use them during the life cycle of a particular project (moving projects from one stage to another). He chaired the Estimates Review Panel and reviewed all Estimates that needed to go to Board for signature before they were submitted.

[16] Colin Shaw, Senior Employment Relations Specialist, described Mr Tang’s role as primarily to develop a set of protocols for use in estimating and to provide high level oversight of estimating functions within the business. The intention was to avoid wide cost variations in Estimates across projects and bring greater uniformity in estimating within the business.

[17] Mr Tang explained that it was his role, together with the Lead Estimator, to monitor a project website he had established. Every time a project manager required estimating work to be done, they would log a request and populate the information they required. A request for information would then go to Mr Tang for review with the Lead Estimator. Together they decided who to give the job to. Once assigned, the nominated Estimator worked with the relevant Project Team to develop estimates. Mr Tang had two direct reports, the Lead Estimator and the Project Controls Lead). Neither of those roles had any direct supervisory responsibility. They allocated work to Estimators, Cost Controllers and Planners working in individual project teams, each of whom reported to the relevant Project Manager.

[18] In terms of seniority, Mr Tang reported to the General Manager, Project Services (Rob Green), who reported to the Executive Director, Project Division, who in turn reported to the Chief Executive Officer. That is, he was three steps removed from the CEO in a business that employs approximately 6000 employees.

[19] Mr Shaw gave evidence that Mr Tang’s role was a “fairly senior role... about third tier in the structure” and comparable to other Head of Department roles within the business, including the Head of Planning and Service Delivery, the Head of Employee Relations, the Head of Talent Acquisition and the Head of Timetabling. Mr Tang described the Project Division in which he worked as ‘unique”, with only four Heads of Department including himself (responsible for estimating, cost control and budgets), the Head of Governance (project governance as a whole from a project management perspective), the Head of Completion and Handover (making sure projects aligned to Metro standards) and the Head of Occupation and Disruption (managing replacement arrangements when trains are not running).

[20] Mr Tang’s contract of employment indicates that if he is covered by a modern award or enterprise agreement, the relevant instrument will be set out in the contract Schedule. There is no mention of the Award in the Schedule. All it says in this respect is that Mr Tang’s employment is not subject to any enterprise agreement.

[21] The ‘principal purpose test’ applies to the assessment of whether an employee is covered by a modern award. 1 The test was summarised in Carpenter v Corona Manufacturing2 as follows:

“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.”

[22] The Position Description for Mr Tang’s former role describes its purpose as being:

“To manage the development of a portfolio of procedures, templates and MTM Standards for the Pre-Contract and Project Control functions ensuring best practice, alignment and consistency across Projects and the Business. Implementation and administration of the necessary tools required to allow the functions to perform to their maximum potential. Governance of the project to ensure adherence to the protocols set.”

[23] It required Mr Tang to establish, govern and manage estimating and commercial risk standards, to possess a minimum of 10 years’ experience in estimating and cost control, to have at least 5 years’ experience in the rail industry as well as a range of complex specialist skills and highly developed organisational, analytical and decision making skills among other things.

[24] The evidence establishes that Mr Tang was a member of Metro’s senior management and leadership team. The purpose of his role was to first undertake a strategic analysis of Metro’s estimating and cost control capacity, and then to establish a more cohesive and effective system and drive its adoption across the business. It was not a clerical or administrative function. To the extent that it was administrative in nature, responsibility for administering particular tools was not the principal purpose of the role. While the nature of the work Mr Tang performed relied and drew upon his professional qualifications in quantity surveying, construction and project management as well as his industry-specific skills and experience, it was more than a professional estimating or cost controlling role. It required Mr Tang to do more than supervise other professionals, or to provide direction and guidance to those who did just that. It required him to take ownership of and responsibility for a discrete business function and all that entailed.

[25] There is another reason why Mr Tang cannot meet the description of Level 9 employee in the Clerical etc. stream of the Award. He did not provide direction and guidance to staff supervising others. While his two direct reports had responsibility for liaison and sharing lessons learned with others across the business, they had no supervisory role themselves.

[26] For completeness, I do not consider that Mr Tang fell within any of the lower level classifications in the Award, or in any of the classifications contemplated within Operations or Technical and Civil Infrastructure streams. He did more than assist in developing budgets or contribute to meeting financial targets. He established and oversaw whole of business systems so that others could assist or contribute to those targets. He had overall, rather than delegated responsibility, for work undertaken by other employees. Rather than liaise with senior managers, he was the senior manager that employees across the business were required to liaise with in connection with estimating or cost control functions, including through the website, and when proposing to put matters to the Board for approval.

[27] While his level of remuneration compared to that set out in the Award for a Level 9 employee may be indicative of a role that fell outside the scope of the Award, it is not determinative. At least in the private sector, market demand can influence the amount paid for particular skills at any given time, as can any number of variables in context. That is likely to be so whether or not the nature of work in question is also covered by a modern award or other industrial instrument.

Conclusion and Disposition

[28] Mr Tang was not covered by the Award in his role as Head of Estimating and Project Controls for Metro. He is not protected from unfair dismissal.

[29] The application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

M K Tang for the Applicant.
A Clendinen for the Respondent.

Hearing details:

2020.
Melbourne (by telephone):
April 21.

Printed by authority of the Commonwealth Government Printer

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 1   See, for example, Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495; McMenemy v Thomas Duryea Consulting Pty Ltd [2012] FWAFB 7184; Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713.

 2   122 IR 387 (AIRC, 17 December 2002) at [9].