1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Don Peteranna v Adco Construction (Vic) Pty Ltd (U2024/7628) COMMISSIONER HARPER-GREENWELL MELBOURNE, 15 AUGUST 2025 Application for an unfair dismissal remedy – Jurisdictional objections – High income threshold – Award coverage – Professional Employees Award 2020 – Jurisdictional objection upheld – Application dismissed [1] Mr Don Peteranna (the Applicant) has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Peteranna alleges he was unfairly dismissed from his employment with ADCO Construction (Vic) Pty Ltd (ADCO) on 12 June 2024. Mr Peteranna contends that during his employment as a Senior Project Manager with ADCO, he was covered by the Professional Employees Award 2020 (PE Award). [2] In its response, ADCO raised a threshold jurisdictional objection, being that at the time of his dismissal Mr Peteranna’s total remuneration package was $305,000.00 which was significantly above the high income threshold prescribed by s.333 of the Act and Regulation 2.13 of the Fair Work Regulations (the Regulations). ADCO submits the PE Award did not cover Mr Peteranna during his employment. ADCO denies that Mr Peteranna was unfairly dismissed because he was dismissed for underperforming in his role as Senior Project Manager. [3] This decision deals with the jurisdiction objections, namely the ‘high income’ threshold question and the ‘Award coverage’ issue. Procedural background [4] Prior to the hearing ADCO filed a witness statement of Mr John Moran, Construction Manager ADCO Victoria. Mr Moran’s statement was directed at the high income threshold issue. In reply, Mr Peteranna filed a statement in which he agreed his remuneration was above the high income threshold and instead contends that he is a person protected from unfair dismissal because he was covered by the Professional Employees Award 2020. In particular, Mr Peteranna submits that on an occupational basis the PE Award covers him in respect of “professional scientific duties” and his position as Senior Project Manager falls within classification level 4 of Schedule A of the PE Award. Mr Peteranna submits the appropriate test to be applied in determining if he was covered by the PE Award at the time of his dismissal is set out in Zheng v Poten & Partners (Australia) Pty Ltd.1 [2025] FWC 2401 DECISION [2025] FWC 2401 2 [5] In reply, ADCO says that the PE Award does not cover Mr Peteranna and therefore he is not protected from unfair dismissal under s.382 of the Act. ADCO submit that it is an employer in the construction industry, and Mr Peteranna is a Senior Project Manager in the construction industry and is not required to perform scientific duties. [6] At 4:43pm on the day before the hearing, Mr Peteranna filed a statement in reply to Mr Moran’s earlier statement. At the commencement of the first hearing, Mr Hooper, Counsel for Mr Peteranna, argued that the Applicant would be prejudiced if his further evidence was not allowed. Mr Hooper submitted that if I was not to permit the admission of the further evidence, then he would seek leave to lead further evidence in chief. [7] ADCO’s representative objected to the admission of the further evidence, submitting that it was highly unreasonable for Mr Peteranna to file a supplementary witness statement at close of business on the day prior to the hearing listed for 10:00am the next day; Mr Peteranna had the benefit of legal representation including counsel; and the significant material filed by Mr Peteranna could not be properly described as a supplementary witness statement, but entirely fresh evidence that he sought to rely upon with the benefit of considering ADCO’s response. ADCO also submitted that if the material was to be admitted or if counsel was granted leave to lead new evidence in chief, then it would not be afforded procedural fairness. ADCO submitted that if I was minded out of fairness to allow Mr Peteranna to put in his further evidence, then ADCO should be afforded time to properly consider the new evidence. [8] I expressed a view that the matters in the additional witness statement could be dealt with in evidence in chief, and ADCO would have an opportunity to cross-examine Mr Peteranna on those matters. ADCO properly submitted that due to the late filing of the additional witness statement, it had not had time to properly consider the substantial amount of material filed and objected to consideration of any new evidence in chief being led without it having a proper opportunity to consider the materials filed. The hearing was adjourned to afford ADCO an opportunity to consider the materials before raising any further objections. [9] After considering the supplementary witness statement filed by Mr Peteranna, ADCO wrote to my chambers seeking to file an additional witness statement in reply from Mr Moran, noting that Mr Moran had previously provided a witness statement in reply in this matter. ADCO also filed a cost application. I considered ADCO’s request noting that it had decided there were matters of relevance that required a response and granted the filing of a further statement in reply from Mr Moran. [10] The matter proceeded to a second hearing and there were no further objections raised to the admission of Mr Peteranna’s supplementary witness statement. I accepted the additional evidence of Mr Moran without any further objections from the Mr Peteranna. Statutory context [11] Under the Act only certain employees are protected from unfair dismissal. Section 382 of the Act provides: When a person is protected from unfair dismissal [2025] FWC 2401 3 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; (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. [12] It is common ground that Mr Peteranna has completed the minimum employment period. He is not covered by an enterprise agreement and Mr Peteranna concedes his annual rate of earnings exceeded the high income threshold, being $167,500. at the time of his dismissal. However, Mr Peteranna now contends that he is protected from unfair dismissal because his employment was covered by the PE Award. [13] The PE Award has both industry and occupational coverage. Clause 4 of the Award is titled “Coverage”. Clause 4.1 provides: 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 research duties who are covered by the classifications in Schedule B-Medical Research Employees and those employees. (emphasis added). [14] Clause 4.1(a) is relevant to my consideration because Mr Peteranna submits he was performing professional scientific duties, specifically by way of project management, in his role. According to Mr Peteranna, the role of Senior Project Manager as he performed it fits within the classification of Level 4 of Schedule A in the PE Award. [15] In his initial submissions Mr Peteranna says that in order to decide whether a modern award covers his employment, the Commission must apply the principal purpose test. Mr Peteranna relied on the Full Bench decision of Zheng v Poten & Partners (Australia) Pty Ltd2 [2025] FWC 2401 4 which examined the principal purpose test. In its decision, the Full Bench in Zheng provided the following summary of the PP test: [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. Mc Farlane confirmed that, in determining coverage under the PE Award, this two-step process was necessary: …… [16] It is also helpful to note that the full bench made the following observations: [45] It is to be noted that the “principle 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 for 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. … [2025] FWC 2401 5 [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. [17] In summary, the Full Bench in Zheng3 observed that there had been “excessive litigation” as to whether unfair dismissal applicants are covered by the PE Award because the “principal purpose” test is ill-suited to determine whether a person falls within one of the classifications in the PE Award.4 A separate Full Bench (FB Award Variation) was constituted to deal with two concerns: hours of employment and overtime and the coverage of the PE Award as identified by the Full Bench in Zheng. The Award Variation Full Bench considered that some modification to Schedule A was required in order to more clearly explain the circumstances in which an employee would be covered by any of the classifications set out in Schedule A. Accordingly, the PE Award was subsequently varied to make it clear that the classifications set out in Schedule A do not apply to a person employed in a wholly or principally managerial position. The Award Variation Full Bench stated that the effect of the variation would remove the need to apply the “principle purpose” resolving the difficulty identified in Zheng. [18] Having had the benefit of considering the Full Bench decision in Zheng and the decision varying the PE Award, ADCO submits that Mr Peteranna must first demonstrate that he performed ‘professional scientific duties’ and he is covered by the classifications of Schedule A of the PE Award. However, in its reply submissions, ADCO submits that the Commission must first consider if Mr Peteranna’s qualifications fall within the coverage of the Award. If the Commission is satisfied that Mr Peteranna does hold a science degree, it is only then that the principle purpose test is applied to determine if Mr Peteranna’s position falls within classification level 4 of Schedule A of the PE Award. ADCO contends that Mr Peteranna does not hold a ‘Degree in Science’. [19] At the second hearing, Mr Hooper, Counsel for Mr Peteranna, submitted that having considered the Full Bench decision varying the PE Award, it was noted that with the clarification provided by the Full Bench in the schedule A classifications, there is no need to apply the principal purpose test anymore. Mr Hooper submits that the Full Bench had substituted the “principle purpose” test for another test, being “was the role principally managerial in nature?” Mr Hooper submits that the Commission must first determine if Mr Peteranna was performing professional scientific duties: whether he falls within the scientist stream as defined in clause 2 (the Definitions clause) and then determine if his role classification was level 4 as provided in the Schedule A Classifications Structure of the PE Award. [20] I note the Full Bench varying the PE Award recommended that Schedule A of the PE Award be amended to clarify that the classifications have the function of determining the level of an employee covered by the PE Award, rather than determining award coverage of the employee. The introductory sentence to Schedule A of the PE Award provides that the [2025] FWC 2401 6 classifications apply to an employee “performing professional scientific duties”. The definitions for the “Scientist stream” in clause 2.4 of the PE Award are relevant as to whether Mr Peteranna was covered by the PE Award and if his role as Senior Project Manager fits within the classification structure at level 4. [21] The definitions relevant to interpreting the coverage clause are set out in clause 2.4 of the PE Award. Clause 2.4 defines the term “Professional scientific duties” as follows: Professional scientific duties means duties carried out by a person in employment where the adequate discharge of any of the duties requires the employee to have the academic qualifications set out in the academic schedule as defined. (my emphasis added) [22] It is convenient for reasons that will become apparent to set out the “Academic schedule” in the Scientist stream at clause 2.4: Academic schedule means: (a) A degree in science from an Australian, New Zealand or United Kingdom university or from an Australian tertiary educational institution. (b) Academic qualifications acceptable to the Royal Australian Chemical Institute for admission to the grade of Graduate Chemist (MRACI, Early Career Chemist (MRACI)(C Chem) or Member (MRACI). (c) Academic qualifications acceptable to the Australian Institute of Physics for admission to the grade of Member (MAIP). (d) Academic qualifications in metallurgy, metallurgical engineering or technology acceptable to either the Australian Institute of Mining and Metallurgy for admission to the grade of Graduate Member, or the Institution of Materials, Minerals Mining (London) for admission to the grades of Professional Graduate Member or Associate Member. (e) Academic qualifications acceptable to the Australian Institute of Agricultural Science and Technology for admission to the category of 1st Year Graduate Member, 2nd Year Graduate Member of Full Member. (f) Academic qualifications acceptable to the Australian Institute of Food Science and Technology for admission to the grade of Graduate Member. (g) Academic qualifications acceptable to a pharmacy board or council within the Commonwealth of Australia provided that the award will not apply to pharmacists employed in a retail pharmacy shop. [23] It is not in contention that Mr Peteranna’s earnings were above the high income threshold. The key issue in dispute is whether the PE Award covered Mr Peteranna’s employment with ADCO, thereby resulting in him being a person protected from unfair [2025] FWC 2401 7 dismissal. ADCO submits Mr Peteranna is not covered by the PE Award because the role of Senior Project Manager in the construction industry is not the role of a scientist, he was not required to have a science degree in order to adequately perform his role, and the role held by Mr Peteranna was wholly or principally managerial in nature and therefore his role is not captured in the classifications in Schedule A. Factual findings [24] ADCO is a building and construction company, operating Australia wide. In Victoria, ADCO works on a range of private and government construction projects. ADCO works on both greenfields and brownfields projects in both the design and construction phases. [25] At the time of his dismissal, Mr Peteranna was a Senior Project Manager employed in the construction industry working on major projects for ADCO Construction. His salary package was in excess of $300,000 a year. Mr Peteranna holds a Bachelor of Science degree on Construction Project Management from the University of Central Lancashire (UK).5 In his role as Senior Project Manager, Mr Peteranna reported to Mr John Moran, Construction Manager for ADCO. [26] As part of his contract of employment Mr Peteranna was provided with a position description for the role of Senior Project Manager6. Mr Peteranna’s case rests on the proposition that he holds a science degree within the meaning of clause 2.4 of the PE Award, and that as a Senior Project Manager he was performing professional scientific duties, specifically by way of project management in his role. Mr Peteranna’s role [27] Mr Peteranna’s background and experience is set out in his resume which was tendered as evidence during the hearing. Mr Peteranna’s resume records that he has a Bachelor of Science Project Management Upper Second (2.1) University of Central Lancashire; a Diploma in Construction Management; qualifications in Primavera, MS Project and Asta Vista; and various other qualifications in Health and Safety. As part of his evidence, Mr Peteranna provided a copy of his academic parchment from the University of Central Lancashire for the award of a Bachelor of Science with second class honours (1st division) having followed an approved sandwich honours programme in Construction Project Management. According to his resume, Mr Peteranna has held various positions as a Senior Project Manager, Project Manager, Construction Project Manager and Site Manager working on construction projects in rail, roads and redevelopments. According to his resume Mr Peteranna has at no time been engaged or worked as a scientist. This was subsequently confirmed in evidence by Mr Peteranna. [28] Mr Peteranna was engaged by a contract of employment to commence in the position of Senior Project Manager on 4 May 2020. Attached to the employment contract was a position description for a Senior Project Manager reporting to the Construction Manager with direct reports being project managers, contracts administrators, site managers, safety advisors. The position description amongst other things defines the purpose of Mr Peteranna’s position is as follows: [2025] FWC 2401 8 Responsible for the safe, coordinated and successful delivery of one or more projects to achieve financial targets. Responsible for the operations and personnel on the project, and ensuring all works are executed in accordance with the ADCO Way. [29] I return to the ADCO Way below. [30] The accountabilities for the Senior Project Manager Role are set out in the position description under 7 subheadings with the role accountabilities as follows: Plan & Resource: Responsible for producing the documents and plans that govern the project delivery, and ensuring these are in line with project, business and legislative requirements. Coordinate with the Construction Manager to ensure the project is adequately resourced with personnel of appropriate competency to deliver the project plans. Responsible for defining project-specific roles and responsibilities. Deliver: Responsible for coordinating with the Site Manager and Design Manager in ensuring all project undertakings are in line with the project plans. Own and communicate the mid-term lookahead programme. Manage & Approve: Ensure all processes are managed in compliance with the project plans, contractual and legal conditions, time bars, and administrative timeframes. Review and approve formal documents, in accordance with the limits of authority, to ensure alignment with overall project budget and programme requirements. Record Report & Review: Responsible for the accurate maintenance and management of site records and registers. Arrange and facilitate project auditing. Responsible for accurate and transparent reporting of the status of the project through the monthly project control report and any other required means. Timely identification of project risks, opportunities, and mitigations. Recognise, document, and review variances to the project plans with the Construction Manager. Implement actions as necessary. Complete: Responsible for the negotiation and resolution of the final account. Ensure release of project securities. Ensure all required client deliverables are complete prior to PC and/or ensure the management of the DLP period. Lead: Coordinate and communicate with the extended project team to achieve project goals. Allocate and clearly communicate roles and responsibilities between project team members. Foster positive relationships with client, subcontractors, consultants and other 3rd parties. Chair or attend meetings and forums necessary to lead all aspects of the project. Responsible for management of trade unions and IR concerns. Support the business: Contribute to tenders as required and support the state management team in the development of new business. Undertake allocated training and further own professional development. Facilitate development of junior staff. Foster team building within the project and state teams. Provide feedback on staff performance to Construction Managers for staff reviews. Identify trends, contribute to lessons learnt and continuous improvement of the business. [2025] FWC 2401 9 [31] The position description sets out the qualifications skills and experience required, being a tertiary qualification in a relevant discipline; demonstratable experience in delivering successful construction projects in a similar role; and competence as described. [32] There was no express requirement in either the employment contract or position description for Mr Peteranna to hold a science degree in order to adequately discharge his duties as a Senior Project Manager in the construction industry. [33] Under the heading of ‘Values and Behaviours’ the position description refers to, amongst other things, the ADCO Way in the following terms: “Our Vision, Values, and Strategy are inherent in the formal ADCO system and processes, which are described in The ADCO Way”. Mr Peteranna says his duties and responsibilities were directed and confined by the ADCO Way, and that he did not have an option to depart from the policies and procedures set out in the ADCO Way. [34] Mr Moran provided a copy of the ADCO Way in his evidence.7 I do not intend to set this document out in full and it is not necessary for me to address all of the details in that document, other than to say that the ADCO Way is a set of procedures that govern the way in which work must be complied with across the business. The ADCO Way provides governance and quality control procedures for activities associated with project delivery in construction from tendering through to delivery. All employees, including Mr Peteranna and Mr Moran, are required to comply with the policies, procedures and practices set out in ADCO Way as part of their employment to ensure proper governance of projects being performed by ADCO. [35] Mr Peteranna’s role included being responsible for safety, coordination and successful delivery of projects, achieving financial targets, ensuring compliance with contracts and the operation of projects. Mr Peteranna was responsible for fostering positive relationships with the project team and clients and he predominantly worked on site. Whilst he had minimal occasion to do so, he was responsible for managing union right of entry on site. Although Mr Peteranna claims his role was not wholly or principally managerial and a large proportion of his evidence seeks to diminish his role as a manager, suggesting that Mr Moran was responsible for the management of the project personnel, Mr Peteranna concedes that he did have direct reports that he was responsible for and he did lead a team. [36] In performing his duties as a Senior Project Manager, Mr Peteranna completed performance assessments for each of his direct reports. Regardless of Mr Peteranna’s claim that he didn’t know where the performance assessment ended up, he concedes he was responsible for and did complete the task because he was the manager responsible for his direct reports while he was a Senior Project Manager. [37] During the hearing, Mr Peteranna made the following concessions: 1. During his employment with ADCO he had never referred to himself as a professional scientist performing scientific duties; 2. The first time in his career he has referred to himself as a scientist in terms of his science degree was for the purpose of his unfair dismissal application; [2025] FWC 2401 10 3. During his employment with ADCO, he never refused to perform any of his Senior Project Manager duties and at no time did he claim that he couldn’t perform any of his project management duties set out in his position description or as directed by Mr Moran because he was a scientist and not a Senior Project Manager; and 4. His employment history has predominantly been construction project related, and he has never worked in a science lab in a scientific role and his present role does not require him to do so. [38] Mr Peteranna put on a large amount of evidence pertaining to whether his duties as a Senior Project manager were wholly or principally managerial. I do not intend on setting out all of that evidence in this decision for reasons that will become apparent; however, I briefly address one of Mr Peteranna’s contentions, being that he was not a Senior Project Manager in the true sense of the role and that it was Mr Moran that was the decision maker in the majority of circumstances and held most of the authority for the management of the project and the team. I first observe that the reason relied on by ADCO for Mr Peteranna’s dismissal was that he was not performing in his role as a Senior Project Manager. Specifically, there were concerns about his ability to effectively manage his team.8 [39] According to Mr Peteranna, he couldn’t “dictate anything, in terms of management of people”; he was limited as a Senior Manager because he couldn’t “dictate, make decisions and take risks…”. Mr Peteranna had some difficulty with Mr Moran’s leadership style and Mr Moran had sent several pieces of correspondence to Mr Peteranna raising concerns about his performance in his role, specifically with his ability to manage and motivate his team. Mr Peteranna did however concede that he was a Senior Project Manager, and he says he was trying to manage both up and down. I took this to mean that by managing up, he meant his relationship with Mr Moran, and by trying to manage down, he meant his relationship with his direct reports. In trying to “manage up” after Mr Moran had raised some additional concerns about Mr Peteranna’s performance, Mr Peteranna wrote to Mr Moran stating that he was keen to sit down with Mr Moran in an attempt to align their expectations and management styles. Mr Peteranna gave evidence as to how his management style on the project was different to Mr Moran’s when it came to managing people and that this had caused some tension between them. [40] There is evidence that Mr Moran had provided feedback to Mr Peteranna as his direct report about his performance. That feedback included his suggestions on what Mr Peteranna might do to improve his management style as a Senior Project Manager. When Mr Peteranna did not agree with Mr Moran, he sought to challenge the directions because he didn’t agree that Mr Moran’s suggestions would work and he preferred to manage his team the way he thought was best because he felt he was more aware of their individual issues and challenges and he believed he was better placed to understand what would motivate his team because they reported directly to him. This became a point of contention between Mr Peteranna and Mr Moran in his role as a Senior Project Manager. According to Mr Peteranna, Mr Moran had some major issues with some of the team, and he wanted Mr Peteranna in his role as Senior Project Manager to address them. Mr Peteranna was performing managerial duties and was attempting to manage his team according to his style. Mr Peteranna at no time refused to perform his managerial duties; he simply challenged how they should be performed in his attempt to manage up. [2025] FWC 2401 11 [41] Mr Moran’s evidence is that Mr Peteranna continued to underperform in his role and was not adequately performing in his duties as a Senior Project Manager. Whilst I make no finding about whether or not Mr Peteranna’s alleged underperformance was a valid reason for his dismissal, the evidence before me is that Mr Peteranna had 6 direct reports, and was responsible for a team of 9 employees which included contracts administrators; site managers; a cadet, project engineer, design manager, health and safety adviser; and a services manager. Some of those direct reports had their own teams that they also managed. Some of the duties that Mr Peteranna was responsible for, regardless of whether he was performing or underperforming in his role, were clearly the allocation of work, scheduling of budgets, managing project completion within time, managing his project team in the discharge of their duties. These duties are principally managerial in nature and none of these duties are scientific in nature. Consideration [42] ADCO does not argue that at least some of its employees who are performing professional engineering duties may be covered by the PE Award. However, it contends that ADCO did not require Mr Peteranna to have a science degree to adequately discharge his duties as a Senior Project Manager and that he was not required to perform scientific duties to adequately discharge his duties set out in his position description, nor was he required to perform those duties on a construction project. The evidence presented supports ADCO’s contention. [43] For Mr Peteranna to be covered by clause 4.1 of the PE Award, he must be “covered by the classifications in Schedule A-Classification Structure and Definitions”. The relevant extracts for Schedule A have been set out above. Relevantly, to be covered, Mr Peteranna needed to be performing “professional scientific duties” where the adequate discharge of those duties required him to have academic qualifications that would put him in the scientist stream of the PE Award as described in the definitions at clause 2.4. [44] Mr Peteranna’s case was put on the basis that because he had a “degree in science”, he was a scientist performing scientific duties in his role as a Senior Project Engineer. The proposition put by Mr Peteranna would be analogous to saying if a lawyer had a degree in the science and law, then that lawyer in performing their legal duties should be considered a scientist. This would simply not be the case, and it was not the case in the circumstances of Mr Peteranna. [45] Whether or not Mr Peteranna had a “science degree” and whether or not that degree was a “degree in science” is irrelevant to my consideration, because given my factual findings above, Mr Peteranna was not required to have a science degree in the adequate discharge of his duties and he was not required in his role as a Senior Project Manager to perform scientific duties. [46] There is no persuasive evidence before me that Mr Peteranna was performing scientific duties in his role as a Senior Project Manager. Further, the evidence does not support a factual finding that he was required to have a “degree in science” to adequately perform his role as Senior Project Manager in the construction projects he worked on in the construction industry. [2025] FWC 2401 12 [47] There is nothing in Mr Peteranna’s evidence that would persuade me that the ADCO Way which applies to all employees at ADCO including Mr Moran would change the managerial status of Mr Peteranna’s position. The ADCO Way does not refer to any requirements for Mr Peteranna to perform scientific duties in order to adequately discharge any of his duties. There is nothing remarkable about the ADCO Way and it is uncontroversial that it is a procedural document which one would expect to find in most construction companies working on major projects. [48] It is uncontroversial that Mr Peteranna is not a member of any of the institutions set out in clause 2.4 of the Scientist stream, and there is no evidence before me that he holds an academic qualification acceptable to for admission to any of the Institutes set out in Schedule 2.4. [49] It therefore follows that Mr Peteranna cannot be covered by the PE Award on the basis of the case advanced. It is therefore not necessary for me to consider if Mr Peteranna role falls within the classification level 4 at Schedule A of the PE Award. [50] However, for completeness, I make the following observations about ADCO’s submission in terms of the questions to be determined before considering if Mr Peteranna was wholly or principally employed in a managerial position. ADCO submitted that the Commission must first make a determination about whether or not Mr Peteranna held the relevant qualification being a degree in science within the meaning PE Award. ADCO submits that the degree held by Mr Peteranna is not a degree in science as contemplated by the PE Award. [51] As stated earlier, given my factual findings it is not necessary to determine whether or not Mr Peteranna’s degree was a “degree in science”. Even if I was to accept that Mr Peteranna’s Bachelor of Science in Construction Project Management was a degree in science, it does not change the outcome. In order to adequately discharge his duties as a Senior Project Manager, Mr Peteranna was not required to perform scientific duties or hold a degree qualification as contemplated in clause 2.4. Further, even if it is correct that Mr Peteranna, due to his qualifications in performing his duties in construction project management, was applying what he considered to be a scientific approach to his role, it does not effect my findings that ADCO did not require him to apply a scientific approach or perform scientific duties. This was evidenced in the evidence and materials before me set out above in my factual findings. For the avoidance of doubt, Mr Peteranna’s position description, his employment contract, the ADCO Way, and his direct manager Mr Moran did not require Mr Peteranna, in the adequate discharge of his duties to perform professional scientific duties or have an academic qualification that is contemplated in clause 2.4 of the PE Award. To put it more plainly, Mr Peteranna’s role did not require him to perform scientific duties that would require him to have a degree in science. In the event that I am wrong, and Mr Peteranna is covered by the PE Award, any event noting my factual findings classification level 4 set out in schedule A does not travel as high as to cover a Senior Project Manager. Conclusion [52] In conclusion, taking into consideration my factual findings, Mr Peteranna in his role as a “Senior Project Manager” in the construction industry was not a person “protected by unfair [2025] FWC 2401 13 dismissal” because his annual rate of earnings of $305,000 was significantly above the high income threshold at the time of his dismissal and there was no modern award that applied to his employment. [53] As Mr Peteranna did not meet the requirements in s. 382(b)(i)-(iii) of the Act, he was not a person protected from unfair dismissal, and it follows that his application must be dismissed. [54] An order9 dismissing Mr Peteranna’s application will be issued concurrently with this decision. COMMISSIONER Appearances: J. Hooper Counsel for the Applicant T.A Spence Counsel for the Respondent Hearing details: 2024 September 20 and October 24 Melbourne <PR790754> 1 Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 2 Zheng v Poten & Partners (Australia) Pty Ltd [2021] FWCFB 3478 at [47] 3 Ibid [58] 4 Ibid [45] 5 Applicant’s Witness Statement, at DHB p. 17 6 Applicant’s Witness Statement, at DHB p.27-29 7 Witness Statement John Moran, at DHB p. 231-264 8 Ibid, at DHB p. 121 9 PR790755