C2001/3665, Transcript of Proceedings [2001] AIRCTrans 1729 (30 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 8369
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/3665

NC CABLE PTY LTD and OTHERS

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re alleged bans imposed by the
CEPU on make ready works to be performed by
employees of Powercor, for NC Cable Pty Ltd

MELBOURNE

3.32 PM, THURSDAY, 12 JULY 2001

PN1

MS G. BEECHER: I appear for NC Cable Pty Ltd.

PN2

MR G. ARNETT: I appear on behalf of the CEPU, with me organiser, MR T. GRAY.

PN3

THE SENIOR DEPUTY PRESIDENT: I had this matter listed for a couple of days ago for conference but it would appear that the CEPU had not received a notification in time and there was no appearance by the CEPU, so I re-listed it today for hearing. What I propose to do is just ascertain the position of the parties and then if it seems desirable, adjourn into conference again.

PN4

MR K. MINSTER: Your Honour, I am not quite sure of my position here, whether I should make an appearance for Powercor Australia or seek leave to intervene on behalf of Powercor Australia.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Beecher, who are you appearing for?

PN6

MS BEECHER: I am appearing for NC Cable, the notifier.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, NC Cable.

PN8

MS BEECHER: The reason we have notified Powercor as well is because its employees are the subject of the bans.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. But you do not appear for Powercor?

PN10

MS BEECHER: No, I certainly do not.

PN11

THE SENIOR DEPUTY PRESIDENT: Very well. What do you say about the appearance of Powercor?

PN12

MR ARNETT: Excuse me, I have no objections to the appearance of Powercor. Yes, it is Mr Minster, is it?

PN13

MR MINSTER: That is correct, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. Leave is granted to intervene, Mr Minster. Yes, Ms Beecher, it is your application.

PN15

MS BEECHER: I can clarify the current position following our hearing two days ago. I understand from my discussions with Powercor that yesterday they tested the bans by asking three employees who were asked to actually do the work, the make ready work for NC Cable, to do the work. The workers refused to do the work. They were asked, I understand it, why they were refusing to do the work, was it because these bans were in place, and responded yes. There was, I understand, a meeting called of all the employees at Powercor in the relevant area. They were asked whether anyone was prepared to do that work, the make ready work in order to get the poles ready for NC Cable to do their cable construction and all employees indicated that they would honour the ban, which was a ban on all of that work.

PN16

THE SENIOR DEPUTY PRESIDENT: It is all the make ready work?

PN17

MS BEECHER: All the make ready work for NC Cable. I understand that the ban is now not only affecting work at Bendigo but also at Ballarat. I understand it is a state wide ban so any work that NC Cable requires Powercor employees to undertake in order for them to do their cable network construction, it is subject of the bans, so no work is proceeding at the moment.

PN18

THE SENIOR DEPUTY PRESIDENT: And what is the effect of the bans, Ms Beecher?

PN19

MS BEECHER: The effect of the ban is that NC Cable, my client, is unable to commence work installing its cable network. The cable network in Ballarat has - a substantial part of it has actually been constructed, but they are still building part of it so there is still make ready to be done on some of the poles in Ballarat, but probably the greater focus at the moment is on Bendigo, in which no cabling work has been done to date. 27 employees were employed by NC Cable some time ago. They have not actually started work yet, but they were engaged to commence work next Monday and they were going to commence work on the building of the cable network which requires that Powercor have completed the installation - I am sorry, completed some of the make ready work in order for the cable network to be constructed.

PN20

The plan that NC Cable had for its construction of the network in Bendigo was that by January 2002 it was planning to pass 58,000 houses with its cable network. In order to achieve that plan, that plan for construction, it has to have Powercor do the make ready work on 51 nodes in order for it to construct the cable network. This is estimated to take 10 months. I am instructed about five nodes per month can be completed. The effect on my client of the bans is that it will not - if they remain in place, they will not be able to commence work next Monday. All of the 27 employees I spoke about have received power awareness training which concluded today. They are ready to start work on Monday. There had been an agreement with Powercor that the make ready work sufficient for these employees to start work next Monday will be concluded by Monday and so they would be able to start work and they would have sufficient power poles to start work on in installing the network. That will not be in place, it seems, by now. Even if they started work tomorrow there will already be a bit of a delay on the employees of NC Cable commencing work on the network.

PN21

NC Cable says that this will cause it financial loss which is the cost of these employees' wages unless it is able to stand them down for a period while the bans are in place. There is also its equipment and other facilities that have been made available and are waiting by to actually do this work and probably the most concerning thing from my client's point of view, is that if it puts its timetable behind schedule, which timetable I am instructed is actually quite a tight timetable to achieve all of this, it is potentially going to put at risk some substantial funding that it has been able to secure in the company. The construction of the cable network is an extremely expensive job and requires substantial investment from various investors. My client is the wholly owned subsidiary of a listed company, Neighbourhood Cable Limited, which holds the telecommunications licence, and it has managed to secure a private fund-raising arrangement whereby if it does pass those 58,000 houses with the cable by January 2002, it will receive an injection of funds in order to enable it to continue to build cable networks in regional areas of Australia.

PN22

At the moment it is completed a build, I understand, in Mildura. It has partially completed such a build in Ballarat. It is about to commence such a build in Bendigo and in Geelong and has plans to also do build work in Albury/Wodonga. It has been approached by many local councils throughout Australia saying we would like you to come and build a cable network where we are; and it will require significant funds to do that, to continue its operation.

PN23

The amount of income generated of fully installed cable network, such as in Mildura, is only slowly coming through and is not sufficient to enable NC Cable to go through with all of this build work. It does require extra funding from private sources, so we say that the potential damage to NC Cable is enormous. I will go on and state the obvious, that the people in these regional communities will have delayed or be deprived of the benefit of PAY TV and Internet connections because Telstra and Optus, the other major builders of cable networks have not commenced any or suggest that they have any plans to commence construction of these networks in regional areas of Australia. My client, I understand, is the only company that are currently doing that.

PN24

So in my submission the bans are causing significant damage to my client. We have been unable to ascertain the reason why the bans have been imposed. My client has had contact with Powercor and with the CEPU representatives who have had dealings with them and has been unable to ascertain the basis of the bans. We did have read to us on an earlier occasion a letter and the contents of the letter which sets out a few grounds for the bans. I would be happy to respond to that. The matters raised there, perhaps we could move into conciliation.

PN25

THE SENIOR DEPUTY PRESIDENT: That is a letter to Rob Coulson and an unsigned letter was purportedly being sent by Greg Arnett, is it?

PN26

MS BEECHER: I have not seen the letter and my client does not have a copy of the letter. My client has not been able to contact the union or get any information from the union when it has asked as to why these bans have been imposed by the CEPU on work performed by Powercor employees.

PN27

THE SENIOR DEPUTY PRESIDENT: Well, maybe Mr Minster can enlighten us somewhat. Before I call on you, Mr Arnett, is there anything you want to say?

PN28

MR MINSTER: Yes, your Honour. I can only confirm that the bans are in place on our employees conducting the work, the make ready work for NC Cable. That notification that we had of the bans being in place was in a facsimile message sent to Bob Coulson who is manager of our group resources and the letter was that the union found it necessary to place a work ban on make ready work Powercor had to do and they put cable out in all areas. I will hand that up, your Honour, if I can.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. A facsimile message dated the 5th of the seventh of this year, facsimile cover sheet rather, to which is attached a letter unsigned addressed to Rob Coulson from Greg Arnett will be Exhibit Powercor1.

EXHIBIT #POWERCOR1 FACSIMILE COVER SHEET DATED 5/07/2001 INCLUDING UNSIGNED LETTER FROM GREG ARNETT TO ROB COULSON

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Minster.

PN31

MR MINSTER: Your Honour, this faxed message, although it is dated on the cover sheet, 5 July, the actual time that it was received by Powercor was 10.24 on 6 July, the date and time span on the fax as it's received. We were not aware of the bans before we received this. The nature of it is that the union has advised us that they have major concerns about the use of unskilled workers working on any network assets. The network assets referred to there are Powercor network assets, such as poles, etcetera. We also believe the placement of these cables makes it more difficult and may be dangerous for the line worker to perform maintenance work. Again, they are referring to our line workers, not NC Cable.

PN32

At this point in time Neighbourhood Cables does not seem to have an agreement in place and we shall not support the undermining of wages and conditions in the power industry. We would have dispute with the CEPU over whether this is work in the power industry or not, and we are as yet to understand the OCI or WorkCover's position in relation to this matter. Following the conference two days ago, your Honour, we decided that we would test the bans on Wednesday morning and on Wednesday morning we did do that and I have an e-mail message from Shane Meade who is our resources manager in Bendigo that I would like to hand up.

PN33

THE SENIOR DEPUTY PRESIDENT: I will mark that as Exhibit Powercor2.

EXHIBIT #POWERCOR2 EMAIL MESSAGE

PN34

MR MINSTER: Your Honour, basically what this says and if we want to test the bans, I asked Mr Meade to ask the line workers who were going to do the make ready work if they would in fact do the work, and Mr Meade has advised me that he met with APC, and that is Australian Powerline Consultants who are our contractors, the three lineworkers were contracted to Powercor to do the work, on Wednesday morning at 7.30. I asked them if they would work on the make ready words for Powercor on that day and they replied that they needed to consult with Gary Madden, the local ETU rep.

PN35

After that discussion they said they would not be working on the make ready work and then again under construction, Mr Meade asked them, does that mean you will not be proceeding with the make ready works as planned due to EPU bans on that work, and they replied that that was right. Following that the whole team at Bendigo met and decided they would support the bans. Now, your Honour, we have not done anything further on the issue. We have not taken any action against the people in the area and we have not further tested the bans this morning. That is where it stands at the moment, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Do you do make ready work for anybody else other than NC Cable?

PN37

MR MINSTER: Yes, we have done make ready work for Telstra and Optus where they have done cable roll-outs under the same sorts of sets of conditions as apply for NC Cable.

PN38

THE SENIOR DEPUTY PRESIDENT: Are you currently doing any make ready work for anybody else?

PN39

MR MINSTER: Not to our knowledge.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, and apart from the facsimile communication from the ETU have you had any other communication from them or with them?

PN41

MR MINSTER: Yes, had a couple of telephone communications with Mr Arnett, but mainly along the lines of, you know, are the bans in place, what are they, what are the chances of getting them lifted. They are unpalatable bans as far as Powercor is concerned, but that is as far as it has gone.

PN42

THE SENIOR DEPUTY PRESIDENT: And has any further explanation been given to you as to why the bans are on?

PN43

MR MINSTER: Basically along the lines of the fax message that it is a health and safety issue and a training issue.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Arnett?

PN45

MR ARNETT: Thank you, your Honour. Indeed, your Honour, it is a safety issue involving both groups of people if you like. Our concerns really are around the on-going safety of our members performing construction and maintenance tasks employed by Powercor and I will go into that submission in a second. Secondly, our concerns are for the safety of NC Cable employees. The minimal amount of training they have and the way that they are employed and disemployed if you like. If I could just start by outlining the safety of our line workers and where this came from. We have had a number of representation for line workers at stewards' meetings, and this is causing the problem.

PN46

That has occurred since the installation of this cable in the Ballarat and Mildura area. We have had reports of difficulties experienced by line workers, to perform their construction and maintenance work safely, the positioning of the NC cables, and I might say that other cables around the state of Victoria as well, with a clearance of one metre for the LV lines makes it increasingly difficult to have access to the lines via a bucket which we use in EPV elevated platform. In some instances line works have had to remove from the pole the catenary in the cable has been installed to get access and we are not sure that this could be done legally. So this forms part of the investigation, if you like, that we are continuing with.

PN47

In some instances the cable restricts access from the footpath side of the poles and the lines and it forces our line workers to work from the roadside, and these issues have been canvassed with Powercor prior to the facsimile being sent through. The facsimile was sent through on request from Mr Rob Coulson. I spoke to Mr Coulson and Powercor's Occupational, Health and Safety Officer, a day or so prior to really the stoppage of this work taking place.

PN48

As far as NC Cable is concerned the union is very sceptical of the training NC Cable does for the employees. We understand anything between one and five days. We have some instances of some approaches from these employees, that they had very minimal training about the walk-out, a measurement system where they need to measure the height of the low voltage lines from the road. I believe that training took probably about a day, a bit of a walk around with some management people and left to do it, not made aware of the dangers of touching the LV with a wet stick, that they use the proper and appropriate way to look after that equipment that they needed to use.

PN49

We have found out since that some people have been put through what we call the Power Awareness Course, I believe that is a five day course. We have then discovered that people were going to be trained in pole top rescue and I would just say, your Honour, that these people are not electrical tradesmen of any sort. These people are just picked up straight off the unemployment list or whatever through advertisements in the paper in the various areas where this company goes. We have done some further investigation and we maintain that this is an electrical tradesperson's work, people who have knowledge of electricity and continue in training throughout their career.

PN50

As I said, NC Cable simply hires people off the street. The employees observed at Ballarat by Mr Gray on a visit to the depot were all juniors from what we could ascertain. It is our understanding that they are just picked up in the town where the company goes, complete installing the system and we assume that they then finish with the company at that point in time. On further investigation and in a transcript from a case before Commissioner Harrison, number C23097 of 2000, a Mr Garth John Freeman states, and I shall read from that transcript, your Honour. In part, out from the power supply, the electrician then connects a specialised cable into the power injection point on the node and that then sends 90 volts of what we call quasi-AC which is a square wave, a specially modified electrical current, down the wire to power some of the network amplifying devices. I did not make copies of that.

PN51

In essence this cable carries 90 volts AC. We maintain that under A&NZS, that is the Australia and New Zealand Standards, 3000, 2000, the wiring regulations, that this is a low voltage electrical installation. The Electrical Safety Act 1998, part 3 in the definitions. It describes an electrical installation, electrical equipment, down the bottom of page, down the bottom, it has been highlighted and photocopied, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR ARNETT:

PN54

Electrical equipment means any appliance, wire, fitting, cable, conduit or apparatus ...(reads)... to generate, use, convey or control electricity.

PN55

Further down the page, electrical installation means, "Electrical equipment that is fixed or to be fixed in, on, under or over any land." Electrical installation work means, "Installation, alteration, repair or maintenance of an electrical installation." We maintain that persons carrying out this work ought to be licensed under the Act and I shall hand up a definition out of the ANZ 3000. We see there under volts - - -

PN56

THE SENIOR DEPUTY PRESIDENT: You are talking about the NC people now, are you not?

PN57

MR ARNETT: Beg your pardon?

PN58

THE SENIOR DEPUTY PRESIDENT: You are now talking about the NC Cable people?

PN59

MR ARNETT: The NC Cable installers, yes. Yes, your Honour. That point (b) - or point (a), if you like, is extra low voltage, not exceeding 50 volts AC or 120 volts ripple free DC and part (b), low voltage, the definition of, "exceeding extra low voltage but not exceeding 1000 volts AC or 1500 volts DC." Clearly that definition in wiring regulations is it is low voltage work, a low voltage installation requiring a licensed electrician to perform that work. Training which would be undertaken would be approximately four years, 960 hours of school.

PN60

In our investigation, as we move on, we had a meeting with the Officer of Chief Electrical Inspector this morning. The Officer of the Chief Electrical Inspector agrees with our interpretation of the Acts that I have just mentioned and believes that it is electricians' licensed work that needs to be undertaken. There is 240 volts that comes down from the pole, connects through an amplifier, and as stated in the submission by Mr Freeman on transcript, there is 90 volts AC running through this cable.

PN61

These are certain concerns that we have of the lack of training that is afforded, the lack of knowledge of the electrical system by this company and its people. The union maintains its commitment to the safe, legal performance of work in the electrical and communications industry and we are not in a position at the moment to continue with the make ready process until further investigation has taken place and we will again confirm with the Officer of the Chief Electrical Inspector and they may follow on with some sort of prosecution as we understand. I would like to leave the submission there. Thank you, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. Okay, well, I think we might adjourn into conference at this stage, if that suits everybody.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #POWERCOR1 FACSIMILE COVER SHEET DATED 5/07/2001 INCLUDING UNSIGNED LETTER FROM GREG ARNETT TO ROB COULSON PN30
EXHIBIT #POWERCOR2 EMAIL MESSAGE PN34