Anna Brink v BG&E Pty Limited [2026] FWC 1939

1 Fair Work Act 2009 s.394—Unfair dismissal Anna Brink v BG&E Pty Limited (U2025/18495) DEPUTY PRESIDENT O’KEEFFE PERTH, 27 MAY 2026 Application for an unfair dismissal remedy - jurisdictional objections: Applicant not protected from unfair dismissal and settlement agreement reached and executed – finding that Applicant was not protected from unfair dismissal – application dismissed. [1] On 19 November 2025 Anna Brink (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with BG&E Pty Ltd (the Respondent). The Respondent objects to the Fair Work Commission (FWC) dealing with the application on two bases. Firstly, that the Applicant’s salary at the time of dismissal was above the high-income threshold and she was not covered by an award and no enterprise agreement applied to her, meaning she was not protected from unfair dismissal. Secondly, at the time of termination the Respondent says the parties entered into and signed a binding agreement settling the circumstances of the termination and all other claims the Applicant may have had and the Respondent complied with the terms of that agreement. Background [2] The Applicant commenced employment with the Respondent on 8 January 2024 on a six-month contract. This contract was replaced later in 2024 with a full-time ongoing contract and at the time of termination the Applicant was engaged in the position of National Pavement Lead. This role had originally been titled “Pavement Lead” but the Respondent submits that the title was changed to be consistent with other equivalent positions in the organisation. [3] It appears that in 2025 the Respondent developed some concerns about the Applicant’s performance. As a result, it conducted some performance related discussions with her in September of that year. In October, the Respondent appears to have formed the view that the Applicant had not satisfactorily addressed those performance concerns and resolved to dismiss her. [4] In evidence before the FWC was a document dated at the time of dismissal and signed by the parties which contains details of an ex-gratia payment to be made in exchange for an undertaking that the Applicant would release the Respondent from all claims arising from her [2026] FWC 1939 DECISION -- 1 of 11 -- [2026] FWC 1939 2 employment. While the Respondent seeks to rely on this deed, the Applicant seeks to challenge its validity and legal effect. Permission to appear [5] The Applicant sought to be represented by a paid agent and provided submissions addressing s.596(2) of the Act. I was persuaded that s.596(2)(b) was relevant in this case and thus gave permission on the basis that the Applicant would have difficulty in representing herself effectively. [6] The Respondent sought leave to be represented by counsel and also provided submissions addressing s.596(2). I was persuaded that in the interests of fairness between the parties the Respondent should be allowed representation and thus granted permission pursuant to s.596(2)(c). Jurisdictional Objections [7] It was not contested between the parties that the Applicant had been dismissed and had made her application within the required 21-day period. Nor is there any objection based on either genuine redundancy or the Small Business Fair Dismissal Code. The objections were that the Applicant was not protected from unfair dismissal and had in any case entered into a binding settlement to resolve all issues arising from her employment. The first of these objections should be considered before examining the second. Was the Applicant protected from unfair dismissal? [8] Section 382 of the Act outlines when a person is protected from unfair dismissal, as follows: “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; (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.” [9] In this instance, it was not contested that the Applicant met the relevant minimum employment period of six months. Therefore, if she meets the condition(s) set out in s.382(b) then she would be protected from unfair dismissal. The provisions of s.382(b) -- 2 of 11 -- [2026] FWC 1939 3 [10] In assessing whether the Applicant meets the condition(s) set out in s.382(b) I will firstly examine the issue of the high-income threshold, which at the relevant time was $183,100. I note that in evidence before the FWC1 was a signed copy of the Applicant’s contract of employment signed in July 2024. At that time, the base salary for her position was $240,118 per annum. There is no suggestion that this amount had been reduced between the time of her engagement under that contract and the time of her dismissal. As such, I am satisfied that at the time of dismissal the Applicant’s annual rate of earnings was above the high-income threshold and note further that the Applicant does not dispute this. [11] Given that the Applicant’s annual rate of earnings is above the high-income threshold, to be protected from unfair dismissal she must be covered by a modern award or have an enterprise agreement that applies to her employment. The Applicant did not identify any enterprise agreement as applying to her employment and the Respondent submitted that no such agreement existed. Out of an abundance of caution, I conducted my own search of the FWC enterprise agreement database and could not identify any such agreement. On that basis I am satisfied that the Applicant does not have an enterprise agreement that applies to her employment. As a consequence, if there is no modern award covering her employment, she is not protected from unfair dismissal. Does a modern award cover the Applicant’s position? [12] The dispute between the parties regarding protection from unfair dismissal was centred on this matter and both provided relevant submissions and evidence. The Respondent submitted that there was no award coverage, rejecting the Applicant’s submission that she was covered by the Professional Employees Award 2020 (the Award). The Respondent submitted that the Applicant had been engaged in a “principally managerial” role and relied on the witness evidence of Mr Rick Kreek to support this contention. [13] Mr Kreek is the Respondent’s Director of Specialist Disciplines and was the Applicant’s immediate superior. He gave evidence that the role of a National Lead was a managerial and leadership position and that such roles had responsibility for profit and loss in their area, are required to manage teams and their direct reports and play a significant role in business administration. Mr Kreek says that the National Leads participated in monthly meetings with him such as a finance meeting to discuss financial performance of each business unit and a Senior Leaders meeting to be advised on relevant business issues. [14] Mr Kreek also gives evidence that notwithstanding the duties listed above, the national Lead roles may also: “…from time to time also provide technical expertise to support clients (including expert witness services), project leadership, and participation in industry bodies, conferences, and seminars to promote our business.”2 [15] In distilling Mr Kreek’s evidence about the Pavement business in particular, I note that it was a new business unit for the Respondent and had been – to use Mr Kreek’s term – “incubated” within an existing business unit. Notwithstanding this, the intention had been for the Applicant to grow the Pavement business unit to allow it to become its own separate business unit within the Respondent’s organisation. -- 3 of 11 -- [2026] FWC 1939 4 [16] Mr Kreek also provided evidence – supported by the employment contract tendered into evidence – about the duties specifically attached to the National Pavement Lead role. In examining those duties, I note in particular the following: “…Be the champion for all pavement related matters and as the first point of contact working alongside BG&E colleagues of other relevant disciplines. Directly responsible for the management of resource planning, people performance, QA, project performance (financial, client, scope). Assist in finding and winning Transport Projects in Australia through value engineering and innovation of design. Leading the growth and development of the Pavement Emerging Discipline in Australia. Build a close working-relationships (sic) with adjacent disciplines such as geotechnical, drainage, hydraulics, materials and durability. Promote and market BG&E in pavement engineering at forums and conferences. Support and undertake independent verifications for our clients on other consultants’ work. Support the design teams in project delivery to meet requirements for quality, completeness, compliance to standards and process. Assist with professional development of juniors. Maintain a strong involvement in the technical delivery of projects. This will include, but not limited to the following: Preparation of concept and schematic pavement designs for a variety of Transport Projects. Overseeing and reviewing the pavement detailed analysis as required during project delivery. Liaison and co-ordination of pavement designs with Clients and other project team consultants. Leading and/ or overseeing internal pavement design team meetings and in external meetings with the broader project team including the Client and other design consultants."3 [17] Mr Kreek’s evidence is that while there are some technical elements, the majority of the duties outlined above are managerial in nature and the role was predominantly a leadership and management role. He gives further evidence that his expectation was that as the Pavement business expanded, the Applicant would spend more and more time on managerial responsibilities. [18] In his supplementary witness statement, Mr Kreek rejected the Applicant’s contention that she had been working in a Technical Director role, noting that she was at all times expected to perform the duties of National Lead and that her refusal to engage in her non-technical duties -- 4 of 11 -- [2026] FWC 1939 5 was the main issue with her performance. He also gives evidence that at a performance review meeting on 29 May 2025,4 he and the Applicant agreed that a key objective for the Applicant was to grow a pavement team across the business in the following twelve months. I note this evidence is supported by a copy of the performance review document.5 [19] Under cross examination, Mr Kreek confirmed that the Pavement team led by the Applicant did not, at the time of her dismissal, have any other members. He was questioned regarding the extent to which the Applicant provided her technical skills to the 106 individual projects she listed in her evidence.6 He did not concede that the Applicant had personally performed all of the technical work on each project albeit that he admitted that he could not be certain of the role she played in each case, suggesting it may have varied. [20] With respect to the issue of performance, Mr Kreek did not appear to have any issues with the Applicant’s technical skills. Rather, it emerged from his answers to questions from the Applicant and myself that it was the elements of the role that he regarded as managerial / leadership tasks where the Applicant had failed to perform. [21] Evidence for the Respondent was also given by Ms Emily Lowden, its Head of People and Culture. Ms Lowden’s evidence was primarily concerned with the process of dismissal of the Applicant. However, she gives some evidence regarding her involvement with dealing with Mr Kreek’s performance concerns regarding the Applicant. Relevantly, she notes that Mr Kreek approached her with concerns: “…particularly in relation to attracting new business and building a pavements capacity within the business.”7 [22] The Respondent’s submissions also examined the relevant provisions of the Award to address the Applicant’s contention that she fell within the scope of Level 3 – Professional as set out in Schedule A of the Award at A.1.9. The Respondent relevantly identifies that Schedule A of the Award contains at its outset the following overarching description, with what the Respondent regards as the relevant caveat emphasized: “An employee performing professional engineering duties, professional scientific duties, professional information technology duties or quality auditing must be classified in one of the following classifications provided that the employee is not employed in a wholly or principally managerial position.” [23] The Respondent submits that the emphasized section above makes it clear that where an employee is performing only, or principally managerial duties, then they do not fall within the coverage of the Award. It further submits that while principally is not defined in the Award, should be given its ordinary meaning of mainly, largely, or more than anything else. [24] The Respondent submits – again drawing on the evidence of Mr Kreek – that the duties required of the National Pavement Lead are predominantly managerial in nature. While the Applicant was spending a portion – submitted as being less than half – of her time on technical tasks, the Respondent submits this was due to her failing to attend to the managerial / leadership roles, including recruiting a team, which would have grown the business unit and thus reduced the need for her to perform such technical tasks. As such, the Respondent says the role as -- 5 of 11 -- [2026] FWC 1939 6 required to be performed is principally managerial and thus does not fall within the scope of Schedule A of the Award. [25] In support of its position, the Respondent drew my attention to the decision of Commissioner Harper-Greenwell in Peteranna v Adco Construction (Vic) Pty Ltd (Peteranna)8. In that matter, the employee, who was remunerated at a level far beyond the Award and engaged as a Senior Project Manager, claimed to be covered by the Award. In her analysis, the Commissioner paid close attention to the actual duties the employer required the employee to perform in his role. Additionally, the Commissioner found that the role of Senior Project Manager was one that would not be covered by even the highest classification in the Award, being Level 4. [26] The Respondent also noted the findings of the Full Bench which examined the Award in Re Variation of Professional Employees Award 2020 on the Commission’s own motion.9 In that matter the Full Bench confirmed that positions which are principally managerial in nature do not fall within the scope of the Award. The Full Bench also stated, in commenting on the supervisory aspect of the Award’s Level 4 position, as follows: “This provision identifies that the Level 4 employee exercises only supervisory authority and control in respect of professional / technical matters. In short, a Level 4 employee is not a manager, even if the role of manager in some respects require engineering, or professional scientific / information technology applications.”10 [27] The Respondent further submitted that the Applicant was in error to suggest that the FWC should be applying a “principal purpose” test in these circumstances as the decision discussed above at [26] has made it clear that the test is one of whether the role is principally managerial. It further submits that the Applicant’s role met this test, notwithstanding that she had no direct reports or direct responsibility for profit and loss at the time of her dismissal. The Respondent says in essence that had the Applicant performed her role effectively and achieved what she was required to achieve, she would have had direct reports and been responsible for the profit and loss of the Pavement business unit. Finally, the Respondent submitted that the salary for the role was of such magnitude as to be reflective of the role being managerial in nature. [28] The Applicant submitted that her role was consistent with a Level 3 – Professional as contemplated by the Award. She relied on her evidence to claim that her role was not wholly or principally as a manager but rather was a “hands on” technical role. The Applicant submitted that she clearly met the definition of an Experienced Engineer as set out in cl.2.2 of the Award and that her work fell within the scope of Level 3 Professional in cl.A.1.9 of Schedule A of the Award. [29] The Applicant submits that the evidence of Mr Kreek shows that she only spent 25 percent of her time on management duties which does not meet the threshold of wholly or principally. 11 She further submits that her position description provides for duties that are not managerial, save for those at dot point four, and that in practice she had no team to manage .12 In summary, the Applicant says that while there may have been an intention that the role become managerial once the emerging business unit became established, in the interim the role was largely technical. -- 6 of 11 -- [2026] FWC 1939 7 [30] The evidence provided by the Applicant herself was that: “As…I did not have a Pavement team to support my role, I could not actively fulfil any management tasks. The respondent asserts erroneously that I was employed primarily as a manager, which is not true…the best that can be said is that I performed some administration tasks during a normal week, but certainly I was not a manager.”13 [31] She further states that she was involved on a first-hand basis in using her technical skills as a professional engineer in a total of 106 individual projects for the Respondent. Her evidence also states that she was unaware of the divisions of her time into various percentages as proposed in the evidence of Mr Kreek - mentioned at [29] above - and that had she been aware of these it may have caused her to allocate her working time in a different manner. Further, she says that had she spent more time on administrative tasks it would have been frowned on as there was no budget for such tasks, and it would have impacted her utilisation rate. [32] The Applicant also gave evidence about the typical role performed by a Pavement Engineer, a role she described as an “expensive specialist resource”. As such they were not usually, in her experience, utilised as Project Managers as this was not a cost-effective use of their time. With respect to building her team, she provided evidence that there had been difficulty in recruiting Pavement Engineers given the scarcity of the required skillset. She also described some issues with recruitment that had arisen due – at least in part – to actions by Mr Kreek and some concerns she had about the way she had been managed by the Respondent .14 [33] With respect to the interpretation of the Award, the Applicant drew upon various cases to outline the task of the FWC when seeking to interpret the provisions of an Award.15 The Applicant noted the importance of considering the ordinary meaning of the words of the relevant provision, the context of the provision and its apparent purpose, the industrial setting and the need to avoid narrow or pedantic interpretations, and the need to ensure an interpretation is consistent with the intent of the drafters. [34] The Applicant also raises the FWC’s practice of applying a principal purpose test to determine if the purpose for which the employee was engaged falls within one of the award’s classifications – noting the need to look to the duties performed rather than merely the title of the job. [35] In its reply submissions, the Respondent rejects the Applicant’s claim that she was only required to spend 25 percent of her time on management tasks and clarified the division of tasks as presented in the witness statement of Mr Kreek. It also rejects any suggestion by the Applicant of her position and duties that is not consistent with that set out in her contract of employment and discussed at [16] above. The Respondent also rejected the suggestion that the Applicant had been in the role of Technical Director, noting that the Applicant had asked about such and role and was advised that she would not be moved into such a role until the Pavements business unit had grown into a viable and sustainable business in its own right. [36] The Respondent further submitted that the present case could be distinguished from the findings of Commissioner Crawford in Mark Evans v Total Essential Services Group Pty Ltd. In that matter, the Commissioner found as follows: -- 7 of 11 -- [2026] FWC 1939 8 “I have difficulty classifying Mr Evans’ role as wholly or principally managerial in circumstances whereby the evidence clearly establishes that no other TESG employee reported to him. I consider this evidence is more persuasive in terms of understanding Mr Evans’ role than the label appearing in his employment contract.”16 [37] The Respondent submits that while the Applicant did not have any direct reports, she would have had such reports if she had performed her role effectively and recruited a team for the Pavement business unit. Consideration [38] I would make two preliminary observations. Firstly, I accept the Respondent’s characterisation of its analysis of the percentages of time to be spent on various tasks by the Applicant. I think that the Applicant’s submissions are based on an unfair reading of the evidence provided by Mr Kreek. Secondly, I do not find that there is any evidence to suggest that the Applicant was either moved into a Technical Director role or required by the Respondent to fulfil only the duties of such a role. [39] In beginning my assessment, I am minded to consider the provisions of the Award. In my view, the wording of the Award makes it clear that its intention is that managerial employees are not covered. The language in Schedule A is as follows: “…provided that the employee is not employed in a wholly or principally managerial position.” [40] Clearly, where an employee is engaged wholly in a managerial position, the Award does not cover them. Nor does the Award cover someone who is employed “principally” in a management position. Principally is not defined in the Award, but I agree with the Respondent that it should be given its usual meaning of “mainly” or “largely.” I take this to mean that it is possible for managers to perform duties that fall within the scope of the classifications in the Award. [41] However, if their main function is to perform managerial tasks which are outside of the scope of those classifications, then they will not fall within the coverage of the Award. I note in connection with this the decision of the Full Bench – see [26] above – that the supervisory responsibilities of a Level 4 Award employee are restricted to technical and professional matters and do not encompass traditional managerial roles such as hiring and firing. Given this, I am satisfied that such responsibilities are outside the scope of the Award. [42] What then should be made of the role filled by the Applicant? I note the findings of Commissioner Harper-Greenwell in Peteranna discussed at [25] above and endorse her view that the task is to examine the duties required by the employer. As such I need to determine what the job – as envisaged by the Respondent – required the Applicant to do. [43] In my view, this case is one where there is a clear disconnect between the duties the Applicant has performed and the duties of the role as set out in the contract of employment. I should add that I do not accept the Applicant’s characterisation of those contractual duties as -- 8 of 11 -- [2026] FWC 1939 9 essentially technical in nature. I am satisfied that the job envisaged by the wording of that contract is a senior leadership / management position and not merely a technical role for an engineer. Thus, to the extent that the Applicant spent most of her time on technical tasks this was not consistent with the Respondent’s intention for the role. [44] While some of the language used in the contractual duties – for example “champion” – appears to be emblematic of hyperbolic managerial language, it is clear to me that the expectations of this job go far beyond a technical role and take on managerial responsibilities. Indeed, I believe the role can be summarised as having the responsibility to build a business from the ground up – both in terms of staffing and customers – and then having to manage its ongoing performance. [45] In this sense the job may have been expected to have different phases, whereby the Applicant may have initially performed more “hands on” technical work. Nevertheless, I am satisfied that the clear intent from the Respondent was to employ someone to get the Pavement business up and established and thus the responsibility for that lay with the Applicant. This is the sort of responsibility that falls to a managerial, rather than technical, employee. [46] I also note that the evidence suggests that the Respondent had no concerns with the Applicant’s technical prowess. Presumably if it were just an issue of technical competence there would have been no problem. Instead, the issues that appear to me to have led to the dismissal are related to higher level duties that the Respondent decided had not been performed satisfactorily. At this point I should note that I am making no finding as to whether the Respondent was correct in its assessment that the Applicant had not performed those duties. [47] It may also be that the job of building the Pavement business up from scratch within the time frame contemplated by the Respondent was one that was very difficult – potentially even unachievable. I suspect that the Applicant was faced with a particularly complex set of decisions with respect to which matters she should prioritise in terms of recruitment, seeking out new business, establishing contacts and performing work that would bring in revenue. [48] However, having to make these sorts of decisions is not in my assessment consistent a technical role. Rather, they require a level of entrepreneurial and managerial acumen that suggest to me that the role was principally managerial rather than technical. I repeat at this point my earlier assessment that the contract of employment makes clear this essential nature. [49] I accept that the mix of duties may have been destined to change over time, but this was contingent on the Applicant successfully completing her duties to build up a team and build the business. In this vein I am also not persuaded towards a finding of Award coverage by the fact that the Applicant had no direct reports at the time of dismissal. This appears to have been one of the issues about which the Respondent had concerns. If the Applicant was performing the job as envisaged by the Respondent, then she would have had reports, albeit that they may not have been present at the very beginning of her tenure. [50] In summary, I think the job as described in the contract of employment is a managerial role, and the actions of the Respondent in dismissing the Applicant for not successfully completing some of the important managerial elements of the role is consistent with the Respondent’s expectations of the role. To reiterate, and again drawing upon Peteranna, the -- 9 of 11 -- [2026] FWC 1939 10 Respondent’s requirements were of a managerial role, and this is consistent with the duties as set out in the contract of employment. Whether the Applicant has performed these duties to an appropriate standard is not the question. [51] The question is whether the role that the Respondent required the Applicant to perform was principally managerial in nature. I am satisfied that it was. Given this, I would reject the proposition that the Applicant was for the most part a technical employee covered by the Award. As the Applicant was not covered by the Award, she is not a person protected from unfair dismissal. The deed of settlement [52] I have found that the Applicant is not a person protected from unfair dismissal. As such, her application must be dismissed on those grounds. On that basis, I do not need to address the issues of the standing of the deed of settlement, and I decline to do so. Conclusion [53] I am satisfied that the Applicant’s annual rate of earnings at the time of dismissal was above the high-income threshold and that there is no enterprise agreement that applies to her employment and she is not covered by a modern award. In such circumstances, she is not a person protected from unfair dismissal. Given this, her application must be dismissed and an order to that effect will issue. DEPUTY PRESIDENT Appearances: Mr P. Mullally as agent on behalf of the Applicant Ms N. Rose of DLA Piper for the Respondent Hearing details: Tuesday 24 March 2026 by Teams videoconference Printed by authority of the Commonwealth Government Printer <PR810436> -- 10 of 11 -- [2026] FWC 1939 11 1 See Court Book page 200. 2 See Witness Statement of Mr Rick Kreek page 3 at [15]. 3 See Court Book pages 200-201 at point 1. 4 See Supplementary Witness Statement of Rick Kreek page 3 at [6]. 5 See Court Book page 386 at point 3. 6 See Witness Statement of Anna brink page 3 at [13]. 7 See Witness Statement of Emily Lowden page 1 at [5]. 8 Peteranna v Adco Construction (Vic) Pty Ltd [2025] FWC 2401. 9 Re Variation of Professional Employees Award 2020 on the Commission’s own motion [2023] FWCFB 13. 10 Ibid at [81]. 11 See Witness Statement of Rick Kreek page 7 at [47]. 12 See Court Book page 200 at point 1. 13 See Witness Statement of Anna Brink page 3 at [12]. 14 See Witness Statement of Ann Brink page 8 at [68] and [70]. 15 See Applicant Submissions pages 5 to 7 at [21]-[23]. 16 Mark Evans v Total Essential Services Group Pty Ltd [2023] FWC 1822 at [42]. -- 11 of 11 --