A Fair Work Commission (FWC) Full Bench today granted an LNG Consultant permission to appeal a single member finding that she was not protected from unfair dismissal under the Fair Work Act 2009 (FW Act).

Interestingly, in remitting the matter back to itself, the Full Bench called for interested parties to the Professional Employees Award 2020 (PE Award) to consider whether its coverage provisions should be reviewed to provide more certainty and consistency on scope and application.

The Full Bench noted there has been excessive litigation as to whether unfair dismissal applicants are covered by the PE Award due to difficulties in identifying the ‘principal purpose’ of an applicant’s employment.

Detailed case summary follows.

Original Decision: DP Beaumont considers ‘principal purpose’

In this matter, the applicant was employed as a Natural Gas and LNG Consultant with Poten & Partners (Poten) until her dismissal in September 2020.

In her unfair dismissal application, she submitted that she primarily carried out professional engineering duties, held relevant engineering qualifications and that the PE Award applied to her employment.

Poten denied she was employed to carry out engineering duties and that it did not require her to possess engineering qualifications for the role.

The issue for determination by Deputy President Beaumont was whether the applicant was covered by a modern award and therefore protected from unfair dismissal.

In determining whether the applicant was covered by the award, DP Beaumont considered whether the applicant was carrying out professional engineering duties and whether she was employed in a classification in the PE Award.

DP Beaumont’s assessment of these two criteria required her to consider the principal purpose for which the applicant was employed.

After considering evidence from both parties, DP Beaumont was satisfied that the applicant, in her role as LNG Consultant, carried out professional engineering duties requiring her to hold the relevant qualifications.

DP Beaumont then considered whether the applicant was employed in a classification in the PE Award, noting it is often a narrow line that distinguishes whether an employee is, or is not, covered by an Award.

In applying the ‘principal purpose’ test and assessing the indicative duties of relevant Award classification, DP Beaumont concluded that the applicant was not employed in a classification in the PE Award.  Instead, she found the applicant’s role appeared to be predominately advisory in nature.

“It appears that in her work for the Respondent, the applicant 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,” DP Beaumont concluded.

DP Beaumont dismissed the application for an unfair dismissal remedy on the basis that the applicant was not a person protected from unfair dismissal.

Full Bench considers appeal, grants permission

The applicant appealed on five grounds, submitting that the matter is in the public interest insofar as it relates to the appropriate interpretation and application of an important industry and occupational award.

A Full Bench comprising Vice President Hatcher, Deputy President Cross and Commissioner Lee, granted permission in respect of three of the grounds of appeal which it considered raises issues of significance and general application concerning the coverage of the PE Award.

The Full Bench found that DP Beaumont did not apply the ‘principal purpose’ test in accordance with the relevant legal principles.

“The correct approach which should have been taken was to determine the principal purpose of the applicant’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 the relevant clause of the Award, 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,” the Full Bench said.

“This did not occur.”

It upheld the appeal and decided to redetermine the question of whether applicant is covered by a classification in the PE Award to itself. The Full Bench ordered parties to file further submissions concerning the matter within 14 days.

In its final observation, the Full Bench noted that there has been excessive litigation about whether unfair dismissal applicants are covered by the PE Award. It considered the reasons being the difficulties associated with identifying the ‘principal purpose’ of an applicant’s employment.

The Full Bench went one step further to invite interested parties to the PE Award to consider whether the coverage provisions should be reviewed to provide certainty to the scope of its coverage and so questions about whether it covers particular employees can be determined more readily and with greater consistency.

Implications for employers

The Full Bench in this decision has acknowledged the difficulties in determining award coverage for professional industries and occupations.

With the rise of new technologies and non-traditional roles, it is essential that if the award system is to remain part of Australia’s industrial relations framework, that it is fit for purpose and applicable to contemporary modern workplaces.

Resources and energy employers would welcome the FWC consistently applying established precedent on modern award coverage, especially considering the new and emerging roles in the industry where indicative duties may be unconventional.

From a workplace policy perspective, the decision is also further evidence that despite attempts to modernise Australia’s industrial awards, the system remains complex and confusing for many employers and employees.

AMMA is the expert for resources and energy industry awards matters. For support or advice about modern awards and to ensure full compliance with your statutory obligations, contact AMMA’s specialist workplace consultants.