C2014/8065, Transcript of Proceedings [2015] FWCTrans 270 (12 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051796

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VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SMITH
COMMISSIONER BLAIR

C2014/8065

s.604 - Appeal of decisions

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services
(C2014/8065)

Melbourne

10.02 AM, MONDAY, 30 MARCH 2015

PN1

VICE PRESIDENT CATANZARITI: Thank you, I ll have the appearances, please.

PN2

MR WHITE: Yes, if the Commission please, I seek leave to appear for the appellant.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Mr White.

PN4

MR DOWD: If it please the Commission, my name is Stephen DOWD. I seek to leave with my friend, Ms HINTON, on instructions from Business SR.

PN5

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowd.

PN6

In this matter, permission to appear has been granted, both parties having representation. The Full Bench has had the opportunity of reading detailed submissions, so it invites brief oral submissions. Mr White?

PN7

MR WHITE: I certainly don t intend to impinge on the that. Can I start with this observation, if the Commission pleases, and that is the question of whether or not the employees who are to be covered by the proposed enterprise agreement are eligible for membership of the CEPU, we say is a jurisdictional fact and a number of propositions flow from that which we ll develop at a little later time.

PN8

In terms of the approach to the interpretation of the eligibility rules, the general proposition that we make is this, and that is that the courts have determined that what s been described as a generous approach should be adopted in relation to the interpretation of eligibility rules. For that proposition we refer to re Aird, ex parte Australian Workers Union [1973] HCA 53; (1973) 129 CLR 654 at 659. If the Commission would be assisted, I ve got I don t intend to take the Commission to that, but I can provide a copy if that would assist the Commission.

PN9

VICE PRESIDENT CATANZARITI: We re familiar with it.

PN10

MR WHITE: That part of the decision which we would refer the Commission, but I don t take the Commission to now appears at page 659 sorry, 159 per Barwick CJ. 659, I m sorry. That approach was adopted subsequently in a further High Court case of R v Cohen, ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 at 587. Similarly, I have copies of that case for the Commission. Once again, we refer the Commission to that extract without taking the Commission to it.

PN11

In relation to that approach and how it has been applied - - -

PN12

VICE PRESIDENT CATANZARITI: Is that the Senior Deputy President saying he has adopted a generous approach in this matter and notwithstanding that it was a generous approach, it still doesn't get you there?

PN13

MR WHITE: Yes.

PN14

VICE PRESIDENT CATANZARITI: Isn t that really what you re going to have to persuade us?

PN15

MR WHITE: Yes. He enunciated the correct approach but didn t, we say, apply it.

PN16

VICE PRESIDENT CATANZARITI: Well, that s what you should focus on, Mr White.

PN17

MR WHITE: Yes, I intend to do that. The eligibility rule is set out in the learned Senior Deputy President s position in paragraph 36, and in this case, particular emphasis will be placed on that part of the eligibility rule applying to employees whose callings are peculiar to the electrical industry which will require consideration of the meaning of the word peculiar and the meaning of the electrical industry as well as electrical labourers and linesmen.

PN18

Going first then to the meaning of peculiar as it appears in that rule. The Metal Trades Industry Association and the Electrical Trades Union has given some consideration to this. I ve got a copy of that decision if the Commission please. It s not confined first to either of the employers industry or the employees calling. This commences page 147 in that regard.

PN19

The callings in the electrical industry, to be peculiar to the electrical industry, the Full Bench at about point 5 on page 147 suggests that:

PN20

Peculiar appears to us to signify a calling just to be found only in the electrical industry and that is to be determined by an examination of the work performed by employees in that calling.

PN21

On page 148, the Full Bench gives some meat to that proposition in the paragraph commencing:

PN22

This conclusion requires us to consider whether the classification sought to be covered by the proposed 91 Award are peculiar to the electrical industry.

PN23

At the bottom of that paragraph, having looked at the employers industry, the Full Bench says:

PN24

A person involved in fabricating and/or installing ducting for air conditioning may be performing work that is performed in a range of industries, not the least being the metal industry. However, this does not exclude from the scope of the employees who perform work of this nature when being carried out incidentally to work which itself is peculiar to the electrical industry.

PN25

Thereafter it says:

PN26

To determine that it is necessary to consider the range of tasks performed by employees in that calling.

PN27

So it s not, we say, must tasks themselves which are immediately and obviously a part of the electrical industry, but it s broader, we say and encompasses work carried out incidentally to work which itself is peculiar to the electrical industry. We say that s significantly where the learned Senior Deputy President fell into error, despite enunciating the proper test and setting out, in fact, extracts from the case I ve just taken the Commission to.

PN28

As to the electrical industry, in that same case the Full Bench considered the breadth of that - once again, page 147. I don t read that paragraph, I ve taken the Commission s attention to it. It was further considered by the Commission I ll just get all of these out, I think - in Newtronics. Can I just hand the Commission now a folder that has the Electricity Act South Australia 1996 and at the end of the folder it has two Newtronic decisions, both the first instance decision of Watson SDP and the decision on appeal, the Full Bench comprising Polites SDP, Duncan DP and Foggo C.

PN29

In the Full Bench decision, we say that s an illustration of where the Commission has adopted a broad approach to the concept of electrical industry. They were considering an appeal against the decision of Watson SDP who, at paragraph 99 of that decision, said:

PN30

Nor am I satisfied that the absence of the particular electrical skills of employees at Newtronics places them apart from the electrical industry insofar as it incorporates the electrical industry. The employees do require, over time, skills associated with the works in the electrical industry, production operators and testers are required to meet duties and responsibilities associated with their work in the electrical industry, surface mount technology and auto insertion personnel are required to have at least three months previous experience in the assembly and testing. In both cases, while some skills are general, some are particularly associated with the work undertaken at Newtronics within the electrical industry. I do not accept that skills within the electrical industries would require particular skills or training in electrical industry.

PN31

So what the learned Senior Deputy President there was saying was that while some skills exercised by workers might be described as generic skills if they are within or associated with the work in the electrical industry, in that case, the electrical industry, they fell within the eligibility role of the CEPU.

PN32

Now on the appeal, the employer sought to argue that the work done was properly characterised as process workers work, which required no electrical knowledge. The Full Bench rejected that proposition and on the last page of the Full Bench decision, said:

PN33

In the MTIA case, the Full Bench concluded a storeman working for an electrical contractor could be regarded as having a calling peculiar to the electrical industry, because although he was a storeman, the work involved handling electrical equipment, required some understanding of the substantial element of its work. Accordingly, the question of knowledge in that case was an essential characteristic in making the calling peculiar to the electrical industry.

PN34

As I say, to have knowledge should not be the only test. For example, as was pointed out in the MTIA case, to determine the question of whether or not a peculiar calling is comprehended in the eligibility rule is necessary to consider the range of tasks.

PN35

It continued at the bottom of that substantial paragraph on the last page and said:

PN36

Put another way, we do not think it matters that the work of an employee in assembling a printed circuit board can be characterised as process work in the sense that it is repetitive and done without knowledge where the task undertaking is the assembling of the component which is, of itself, peculiar to the electrical industry.

PN37

That is, learned Watson SDP in the Full Bench looked at the context in which the work performed was performed.

PN38

The work, in relation to linesmen, has been considered by this Commission in CEPU v NC Cable PR907643. In that case, the Commission found that work done by employees who were not particularly skilled in electrical work was associated with the rolling out of coaxial and fibre optic cables and as such were properly determined to be within the electrical industry. We raise that case because in the context of this case, the work the employees performed is directly related to the maintenance and integrity of the electricity distribution system.

PN39

As for electrical labourers, that matter has been considered by Hamilton DP in CEPU v Concorde (2002) AIRC 927. I ve got copies of that as well, if the Commission please. This case involved workers of whose tasks the respondent employer described as simple and could be undertaken by anyone with some modicum of training. At 30, Hamilton DP says:

PN40

However, in ordinary industrial usage, the term labourer used in the ETU eligibility rule includes persons without a high degree of technical knowledge and usually involves performing less skilled work or assisting more highly skilled employees as tradespeople. Classification structure is an example in the building industry. The alleged lack of technical knowledge does not therefore take these employees and this matter outside the ETU eligibility rule.

PN41

Those cases, we say, require a broad look, not only at the work to be performed by a relevant employee, but significant, the context in which that work is performed and underlines or underscores the proposition that electrical skills perse, are not necessary in order to be eligible under the eligibility rule.

PN42

Can I then, in that context, then come to the work performed. The employees in this case are employed by the respondent to fulfil a contract the respondent has with SA Power Networks. SA Power Networks contract distributes electricity throughout South Australia, or at least relevantly, within South Australia. In doing so, it must comply with the provisions of the Electricity Act SA 1996 and the regulations made thereunder. So the context of the work that the respondent does contracted to SA Power Networks, we say is governed by and provided by and legislated for by the Electricity Act 1996.

PN43

It provides, by section 55, that electricity entities, as is SA Power Networks, have particular duties in relation to vegetation clearance. It is obliged sorry, all electricity entities are obliged to keep vegetations of all kinds clear of public power lines under the entities control. They are obliged, we say, further in order to do that to comply with regulations which are made under that Act, the regulation making power in respect of vegetation clearance is contained in section 58 of the Act.

PN44

DEPUTY PRESIDENT SMITH: Can I ask you, do you say that employees of active tree services appears that the Senior Deputy President looked at the website? It appears in there that there are numerous sectors. Would it follow from that and from your analysis that employees of this company are eligible to be members of every union? Sorry, let s just pick the AWU.

PN45

MR WHITE: Let s just pick the AWU.

PN46

DEPUTY PRESIDENT SMITH: No, the ASU, CFMEU there s a few that I could name where this company operates.

PN47

MR WHITE: They may well be in any particular circumstance, I don't know. But the fact that an employee may be eligible to joint more than one union says nothing about whether or not they fall within the eligibility of a particular union.

PN48

DEPUTY PRESIDENT SMITH: Yes. It may have something to do with peculiarity.

PN49

MR WHITE: Yes, it may do, but the peculiarity is informed by the obligation of the work or underpinning the work. And the obligation underpinning the work stems from the Electricity Act imposed on electricity entities.

PN50

DEPUTY PRESIDENT SMITH: Yes. Yes.

PN51

MR WHITE: And I don t really need to get into the difference between occupational eligibility rules versus industry rules. The Act also provides by section 4 for electricity officers. They are persons appointed under part 4 of the Act and I ll cover those in a bit more detail. But we say, in terms of looking at the industry or the circumstances in which these persons work, the statutory obligation imposed on SA Power Network remains the same, regardless of whether it subcontracts some or all of the work. It s a non-delegable duty and it remains obliged to comply with the Electricity Act and the regulations made under that Act.

PN52

The relevant regulations, I think, can I hand those to the Commission - the Electricity Principles of Vegetation Clearance Regulations 2010. These regulations are designed to provide for the way in which electricity entities are to comply with the Act, in terms of vegetation clearance. It defines a range of material matters, including types of power line, low voltage conductors. It defines various types of areas through which power lines work, by regulation 4. It imposes an obligation on electricity entities in respect of power lines.

PN53

Those obligations include differential work to be done for low risk power lines, for high risk power lines. It provides sorry, the regulations provide for those differentials, and you will see that commencing in schedule 1 to the regulations, which are attached to the regulations. Differential clearance zones in non-bushfire risk areas, the differential clearance zones for different types of power line in non-bushfire risk areas. So differences between fully insulated or low voltage, insulated, unscreened or not insulated more than 480 volts but less than 33 kilovolts. Differential provision for public land in non-bushfire risk area, not insulated but more than 480 volts.

PN54

You will see I won t read all of them, but you will see, if the Commission please, as you go through in sub (c), sub (d) and (e), a range of technical requirements and considerations dependent upon the type of power line involved. The private land is dealt with in part 3 and once again, it provides for differentials between various different voltages and different locations. Once again, I don t go through each of those, but the point we wish to make is this, that not only are the electricity entities obliged to comply with the general obligation imposed by the Electricity Act, but in more detail to undertake vegetation clearance with specific consideration as to the type of power line, the whereabouts of the power line and the land on which the power line is on.

PN55

Now, to assist in the performance of the statutory powers, the electricity entities are able to appoint what are called electricity officers. They re defined, as I said before in part section 4 of the Act. The important thing is that it is the electricity entities which appoint the electricity officers. You ll see that by section 41. Once appointed, it is within the electricity entities power to remove persons appointed as electricity officers but the appointment of electricity officers is for the purpose of compliance with the obligations imposed on the electricity entities under the Act.

PN56

In respect of I interpolate here the employees of the respondent here have been appointed as electricity officers and they have, in respect of vegetation clearance, a range of obligations and powers. They must produce the card by section 44 of the Act when required. By section 48 of the Act, they re entitled to enter section 47, they re entitled to enter. There s a variety of powers in relation to the inspection of installations section 49. Section 57 gives a specific power for these officers to enter for vegetation clearance purposes. Section 89 creates an offence to obstruct an authorised officer or an electricity officer in the exercise of their powers under this Act.

PN57

So we say the statutory scheme governing the work which these employees do stems from non-delegable duties under the Electricity Act on the SA Power Network. They exercise powers as electricity officers and they have rights and powers given to them under the Electricity Act and the work they do must be conformable with the vegetation clearance principles which are provided by the regulations.

PN58

The training that is required by these employees, whether or not they do other training which might qualify them as arborists or some other related occupation, you will see from the appeal book AB53, sets out the qualification details. AB56 provides for Certificate II in ESI Power Line Vegetation Control. So in order to undertake their work, there are some core competencies, which include working safely near electrical apparatus as a non-electrical worker that s AB58.

PN59

So the context, we say, in which these persons work is to fulfil or sorry, SA Power Network s used them, albeit through a subcontractor, to fulfil their statutory obligation imposed and in doing so, these persons are vested with particular powers and must perform work conformable with the regulations made under the Electricity Act.

PN60

Can I now turn to the decision, O Callaghan SDP? The first significant part of the decision of the learned Senior Deputy President, sets out some factual matters and then sets out the cases which provide for the test to be applied, in determining the jurisdictional question of whether or not these persons are eligible. He says at paragraph 41 that he has adopted the approach of the Full Bench, which he sets out at some length. That is, the Full Bench in the Newtronics case.

PN61

At paragraphs 42 to 47, purporting to apply the test, he looks at the industry of the employer. He correctly found, we say, at paragraph 45 that he considered ATS operations in South Australia as a discreet function. He referred in paragraph 44 to some aspects of the website on which ATS described the work it does. Whilst he set it out, he didn t thereafter go to consider it, but the relevant parts in paragraph 44 is to the work ATS performed is arboreal culture services for energy authorities. They note that vegetation growing near transmission and distribution lines must be managed to ensure vital infrastructure is not damaged and power supplies are not interrupted.

PN62

So the respondent, in this case, certainly understands its intimate connection with the electrical industry or electricity industry. Thereafter, in some sense just interpolate there, we say that the work directed to ensuring continuity of supply and the avoidance of personal injury and bushfires arising from the distribution of electricity, almost of itself makes the work peculiar to the electrical industry. And certainly, we say that at the least, in the words of the Full Bench in MTIA, it s certainly work being carried out incidental to work which, of itself, is peculiar to the electrical industry.

PN63

The learned Senior Deputy President s findings here in paragraph 46 of the decision, and really it s a conclusionary paragraph without analysis, he says:

PN64

On the information before me, I do not consider that ATS can be regarded as a business which is in any way peculiar to the electrical industry.

PN65

Just stopping there, certainly, in the absence of reasoning it s difficult to see the basis upon which he made that finding, but it s, we say, not to be doubted that he didn t take into account whether or not the work they performed was incidental to it. But he goes on:

PN66

The mere fact that it undertakes work in the vicinity of power lines cannot of itself establish it to be associated with the electrical industry.

PN67

We say that that part of his Honour s decision is really the only reasoning for the conclusion which he reached and expressed in the first sentence of paragraph 46.

PN68

We say that the test there expressed by him, that is, looking at whether or not the work was in the vicinity of power lines as being determinative, misapplied either misapplied the test which he had earlier set out or misstated the test, albeit having earlier set it out.

PN69

The other part of his Honour s reasons relating to the employer part of the test, that is, the employer s business, appears in paragraph 47 and in that paragraph he says:

PN70

In contrast with the position in Newtronics, ATS in South Australia is not a business which is in the electrical industry.

PN71

So he s taken a very limited view of the business in which they operate. The reasoning for that conclusion in the first instance appears in the second sentence.

PN72

The fact that it has contracts with the entity responsible for electrical power distribution cannot, of itself, establish that ATS is in that industry.

PN73

Now once again, we say that his Honour has either ignored or misapplied or misstated the test which should have been applied to the employer s business. True it is that a contractor to an electrical entity is not automatically an employer of persons eligible for membership of the CEPU. But it ignores, we say, the particular and dare I say, peculiar facts of this case in which the subcontractor, the contractor, the respondent is engaged for the specific purpose of fulfilment of the electricity entities statutory obligations.

PN74

Of the authorisations, and I ve taken the Full Bench to the authorisations which derive from the appointment as an electricity officer, his Honour, we say incorrectly and in a wrong limiting way describes the authorisations as really only enabling access to work areas. He does not consider, we say, the content of the powers which are given to electricity officers under the Act and I ve taken the Commission to those sections, not only the content of the power but the framework within which electricity officers exercise that power.

PN75

In terms of the employees, his Honour continues and in paragraph 48 looks at the work done by the employees. First, we say, he fell into error as a matter of fact when he concluded that they do not that is, the work or the occupations or the callings:

PN76

Do not involve the application of electrical knowledge or skill or the provision of support to other persons who have and apply that electrical knowledge or skill.

PN77

First of all, the concept of electrical knowledge or skill is not limited to formal qualifications in some sort of electrical trade but in the Newtronics case, where people were mass assembling circuit boards, there was some knowledge and skill. In the case where storemen were performing work handling electrical equipment but doing no electrical work, they were found to have had the appropriate level of electrical knowledge or skill. But certainly, it ignores the need, the statutory need and the obligation on persons performing work, to comply with the regulations which differentiate between the clearance required by reference to, at least in part, the voltage and the insulation of power lines.

PN78

DEPUTY PRESIDENT SMITH: Mr White, would I be correct in assuming that if the Senior Deputy President is right, then that would also mean that agreements which your client has with the company in other States would be called into question?

PN79

MR WHITE: It would be called into question. It probably would be called into question. Those agreements, you will have seen - - -

PN80

DEPUTY PRESIDENT SMITH: You ve got them in all States and Territories, except South Australia?

PN81

MR WHITE: Yes, I believe so. Yes. And they provide not in WA, I m told.

PN82

DEPUTY PRESIDENT SMITH: Or the ACT.

PN83

MR WHITE: I m told that the New South Wales covers the Act.

PN84

DEPUTY PRESIDENT SMITH: I follow, yes.

PN85

MR WHITE: There s certainly material before his Honour, in terms of coverage and we say that illustrates an historical linkage between what used to be linesmen s work, albeit it now it s disaggregated into various different functions of which vegetation clearance, we say, is but one.

PN86

DEPUTY PRESIDENT SMITH: No, but I m just wondering why the Senior Deputy President sought to confine it to South Australia.

PN87

MR WHITE: Sorry, your Honour?

PN88

DEPUTY PRESIDENT SMITH: I m wondering why the Senior Deputy President sought to confine it to South Australia.

PN89

MR WHITE: Well, probably because of the way in which the case was put, that is, that it was only the employees of ATS in South Australia.

PN90

DEPUTY PRESIDENT SMITH: But the submission only applied for I m sorry, the submission of the respondent drew attention to the fact that there were agreements in other States.

PN91

MR WHITE: Yes. Well, I ve got on explanation as to why, in those circumstances, he confined it. Only to say that it was that particular group of employees that was the subject of the proceedings before him.

PN92

DEPUTY PRESIDENT SMITH: Yes.

PN93

MR WHITE: The question of work being performed in the vicinity of power lines seems to have also affected, we say, his Honour s decision in relation to the work of individual employees. And you will see that from the second part of paragraph 48 of the decision where he says:

PN94

Consequently, in stark contrast to the position in Newtronics, the only linkage between electrical work and the work which was undertaken by ATS employees in South Australia is that the ATS work is undertaken in the vicinity of power lines.

PN95

So his Honour proceeds from, we say, an incorrect factual basis and we say incorrect legal basis insofar as the words in the eligibility rule are questions of law but certainly, from an incorrect factual basis. That is, his Honour did not take into account, in determining that part of the questions before him, the work and the context of the work and the statutory context of the work which these people were doing.

PN96

I earlier referred the Commission to two cases in relation to linesmen, but also to electrical labourers. I don t repeat what the Commission has said earlier in those cases, but electrical labourers, we say, clearly directs attention to those persons, according to Hamilton DP, who don t have particular electrical trade skills but who nonetheless work in an environment supporting the electrical workers and in this case, supporting and ensuring the safety of the electricity distribution network operated by SA Power Network.

PN97

Your Honour asked earlier on whether or not his Honour had correctly stated the test. We say he did correctly state the test in that he set out the cases on which we rely. But we say he fell into error in the application of those tests, not only in the application of the test, but at the time of the application of the test, we say he unduly limited that which should have been applied. He unduly limited it to exclude the circumstances in which the work was performed. He unduly limited it to exclude the legislative circumstances in which the work s performed. He unduly limited, if only to, in effect we say, to consider as relevant whether or not the vicinity work in the vicinity of electrical wires was sufficient.

PN98

We say that s an incorrect statement of the test but in addition to that, we say, his honour fell into factual error. As a result of each of those propositions, that is the incorrect statement of the test and the incorrect application by reason of factual error, his Honour, we say, incorrectly decided the question of jurisdictional fact, the jurisdictional fact being the question of eligibility of these particular employees.

PN99

In circumstances where it might be contended that we have ourselves taken an unduly limited view of his Honour s reasons, the Full Bench will see from paragraph 53 of his decision, that the premise underpinning and summarised by his Honour, the conclusion that he reached was a characterisation only of persons undertaking work in the vicinity of power lines. And you will see, As a consequence, I do not consider , etc, that they d properly be covered .

PN100

We say that summarises and encapsulates the errors of which we complain, both factual and legal and illustrate why it is we say, in circumstances where jurisdictional error has been committed and in circumstances where we say his Honour has not applied the law properly or indeed stated the law properly, that public interest requires that, leave to appeal should be given and that the appeal should be upheld. Not least in terms of the public interest, not only the jurisdictional fact aspect of it, but also potentially the impact through a range of States of employees who perform this work.

PN101

I always sometimes fear I ve been too brief, but I hope that I have been within your Honour s injunction to be as brief as I can. If your Honour pleases.

PN102

VICE PRESIDENT CATANZARITI: Thank you. Mr Dowd?

PN103

MR DOWD: If my learned friend has come within your Honour s injunction, I ll fall well within it.

PN104

Let me start by, if you like, picking up a comment made by your Honour, Smith DP, and it s that comment that goes to whether or not agreements in other States may be called in issue. It s also something that my friend hangs on in his last words as being a reason for leave. I d remind the Commission of two things; that the application, on its fact, purports to deal with employees of active trees in South Australia engaged in vegetation management. And the only evidence, in fact, before the Commission came from Houndslow. That was is statutory declaration and he says that although not in South Australia, in other parts of Australia and he doesn't say where, the business employers for live power lines people.

PN105

Now whether those people are where the other agreements are made or not, we don t know. In fact, what we don t know is, in one way legion, because we ve only got what Houndslow tells us but in another way, what we don t know is what these people do in the other States when they re working for power utilities. So I say that s air, trim reckonings. There s nothing in any point to suggest to this Commission that any other agreements are called into question.

PN106

DEPUTY PRESIDENT SMITH: Do you know what the Modern Award is that applies to these employees?

PN107

MR DOWD: I don t. Sorry, I don t.

PN108

DEPUTY PRESIDENT SMITH: Was that before the Senior Deputy President?

PN109

MR DOWD: I m sorry, your Honour?

PN110

DEPUTY PRESIDENT SMITH: Was that before the Senior Deputy President?

PN111

MR DOWD: I don't recall it being mentioned before the Senior Deputy President.

PN112

DEPUTY PRESIDENT SMITH: Yes. He says in his decision that he doesn't consider that historically founded award classifications can be used as a basis of extending, and I was just wondering though whether or not the Electrical, Electronic and Communications Award applied to the staff.

PN113

MR DOWD: Would your Honour excuse me for a moment?

PN114

DEPUTY PRESIDENT SMITH: Yes.

PN115

MR DOWD: Because Ms Hinton was involved in it. Apparently the matter was approached on the basis that this business was award free. Apparently there was well it s not apparent, have to change that word. I m told that there s some decision that decides some time ago that this is a business that s not in the electrical industry and so these awards don t apply to it. I really can t take it any further.

PN116

DEPUTY PRESIDENT SMITH: Perhaps, if you d be kind enough to send us a note.

PN117

MR DOWD: Perhaps I will we ll write to you about that.

PN118

DEPUTY PRESIDENT SMITH: Thank you.

PN119

MR DOWD: The other point also fell from you, Deputy President Smith, and it was a comment you made about the other work sorry, work done for other contractors. I ll remind you, you said:

PN120

If that s the case, is it something that we should assume that these people could be members of the ASU, the CMFEU and a variety of other unions.

PN121

Now, in the appeal book at page 63 I don t invite your Honours to go there at the moment you will see at paragraph 8 it s set out that and these are ATS submissions in reply that:

PN122

ATS at a National level provides vegetation management services to local councils, to water utilities, to road and rail authorities, emergency response services, schools, sporting clubs and civil contractors.

PN123

That s not an unimportant point that you raised because if one just takes the phrase, peculiar to an industry , then what does one say, that every time ATS is working doing work with a school or with a civil contractor, that its workers are working peculiar to those industries as well?

PN124

Now I understand, and I accept immediately that that would depend, of course, on what statement might be in a union s eligibility rules, but just to illustrate the nonsense of it, it simply doesn't work. And in fact, that is something that the learned Senior Deputy President was alive to. He said in his paragraph numbered 47:

PN125

The fact that ATS has contracts with the entity responsible for electrical power distribution cannot of itself establish that ATS is in that industry.

PN126

We say that that is plainly correct as a statement. Clearly, as a statement of logic it s plainly correct. Clearly it is the nature of the work which is undertaken by a contractor rather than the parties with whom it contracts which are relevant to a consideration of how the ATS business should be described. The sentence before what I ve just read out, the opening sentence in paragraph 47 says:

PN127

In contrast with the position in Newtronics, ATS in South Australia is not a business which is in the electrical industry.

PN128

Let me remind the Commission what Newtronics was about. When Newtronics came on to be argued at first instance, the debate was what industry the business was in as well as what tasks were performed. The choice of industries was electrical or electronic. There was considerable evidence called by both sides, there were inspections carried out.

PN129

DEPUTY PRESIDENT SMITH: Is the transcript of proceedings in here?

PN130

MR DOWD: I m sorry?

PN131

DEPUTY PRESIDENT SMITH: Is the transcript I can t?

PN132

MR DOWD: There s a transcript of?

PN133

DEPUTY PRESIDENT SMITH: Of the proceedings.

PN134

MR DOWD: These proceedings, sir?

PN135

DEPUTY PRESIDENT SMITH: Yes.

PN136

MR DOWD: No. This is a most peculiar case.

PN137

DEPUTY PRESIDENT SMITH: This was done on the papers, was it?

PN138

MR DOWD: This was done on the papers.

PN139

DEPUTY PRESIDENT SMITH: And there s no cross-examination of evidence?

PN140

MR DOWD: The only piece of evidence is the statutory declaration of Houndslow, a point I make in my submissions.

PN141

DEPUTY PRESIDENT SMITH: Yes.

PN142

MR DOWD: And it s not unimportant to observe that this appellant, as applicant, was on two occasions invited to make submissions and chose not to do so. It was invited to call evidence and it s clearly chosen not to do so. So contrast the position of O Callaghan SDP, as the application is phrased before him, with that of Watson SDP, and the gulf is enormous. O Callaghan SDP had little, if anything in fact, he had nothing other than the written submissions of the union put before him. And it s on that that they sought to advance their case.

PN143

Anyway, I return to the initial decision in Newtronics, because the point I want to make is at paragraph numbered 45 of that decision. Can I just pause and ask one thing, as a matter of housekeeping? I m sorry, I should have done this in the first place. I hope that the Commission received, along with my submissions, the cases that we referred to electronically, is that's correct? I believe that it was sent electronically to the learned Vice President. I ve got one taker, Smith DP s nodding in the affirmative.

PN144

DEPUTY PRESIDENT SMITH: I ve got it

PN145

VICE PRESIDENT CATANZARITI: I think we ve got them, yes.

PN146

MR DOWD: You ve got it. Thank you, very good. All right. Look, I m not going to take you to cases because I ve already set them out in the submissions, but I just want to come back to this Newtronics case at first instance. Paragraph 45:

PN147

The approach in the ETU and the MTIA directs the reference to the industry to the employer s industry. If it is found that Newtronics is not in the electrical industry, the CEPU rules have no application to its employees.

PN148

It was found that it was in the electrical industry. But the point is this, that on appeal and in MTIA, it is clearly the case that if the employer is not in the electrical industry, that s the end of it. And that s a point that we made in our written submissions here. We say, in fact, that the learned Senior Deputy President didn t have to go any further. We say, in fact, having reached that conclusion, he could have down tools.

PN149

I say, with the greatest respect to the learned Senior Deputy President, that the reason he went further must be out of an abundance of caution. That is, having decided the business was not in the electrical industry, in any event, he considered the task performed by the workers in question. And in doing that, he s carefully measured the information he s been given by Houndslow. Now, no matter how broad one wants to consider the union s eligibility rules, there s a limit to elasticity.

PN150

This business is demonstrably a business concerned with managing vegetation. The training the employees receive is aimed at managing vegetation. The one thing they are trained about, it seems, insofar as the electrical industry is concerned is keep away from electricity. They re trained to avoid it. If they get into a situation where there s some hazard apparent, what does the evidence tell us they do? They down tools and get South Australian Power Networks in. Why? Because they re in the electrical industry and they ve got skilled electrical workers.

PN151

If you go back and look at the exhibits as they were annexed, as I understand it, to submissions by the union and you look through the gradings of power workers, GSW3s, what you find is that these people are assisting tradespeople. So if we go back historically, as my friend wants to do and as the appellant now wants to do, and we say well there s this link that s simply been disaggregated. That s not so because the GSW3s were assisting tradespeople and they were also being either directly or more generally supervised by them, if you read their job descriptions. None of that is apposite to these workers. They have nothing to do with electrical people. They re not supervised by them. They have essentially no contact with them, other than perhaps training for one day.

PN152

So this is our position, and it s a very simple position. This business is not in the electrical industry, QED, that s it. The appeal, if leave is given, ought to be dismissed.

PN153

Secondly, if there s any need to consider the work done by these employees, a cursory look at their tasks on the strength of Houndslow s affidavit, tell us that what they do is in no way peculiar to the electrical industry. Peculiar is not a complex word, it s not a sophisticated word and indeed, in indeed, MTIA the Bench said what it sounded of is only - peculiar to only applicable to the industry.

PN154

But these people, as we know, work in a variety of places. And one s imagination is easy enough to conjure up various pictures of these people working with vegetation and doing arboreal work that s got nothing to do with the electrical industry. My friend has tried to point, as he must, to some error made by the learned Senior Deputy President. On the evidence that was before the learned Senior Deputy President, we say he had no alternative but to reach the decision he did.

PN155

There s nothing further I want to put to this Commission.

PN156

VICE PRESIDENT CATANZARITI: Thank you, Mr Dowd. Mr White?

PN157

MR WHITE: Can I perhaps address Smith DP s question about which award which Modern Award is applicable? In AB21, 22, these were the latest submissions of the CEPU at first instance, it submitted that they that is these employees were covered by the Electrical, Electronic and Communications Contract Award 2010. They set out, in clause 4.1 and 4.6 of that award and in particular, clause 4.8 of the award which appears on AB22, which includes services:

PN158

Electrical services as including the maintenance of electrical power distribution lines and all associated work.

PN159

The classification definitions contained in schedule B to that award is set out in paragraph 28 of the submissions on AB22 and by subclause B.2.2(b), provision is made that:

PN160

Without limiting the scope of work, an employee may perform the following tasks to the level of the employees training.

PN161

One of which of those tasks is an employee who was engaged in the clearance of vegetation in the vicinity of overhead power distribution lines. So that was certainly the submission that was before his Honour.

PN162

In terms of the historical nexus and connection, by paragraph 30 of those submissions, the union submitted that prior to that Modern Award, the 1998 contracting award contained the same relevant definitions.

PN163

As to the respondent s position in respect of that, that commences on AB65 rather on AB66 and at AB66 they discuss the submission made about the application of the Modern Award. Helpfully, in paragraph 26 of their outline, they set out clause 3.1(e) of the Modern Award as:

PN164

Including all work normally associated with the work of lines tradespeople and/or cable joiners and work in or in connection with or incidental to the making, installation and maintenance of electrical and electronic distribution lines and systems.

PN165

By paragraph 27, the respondent accepts that the indicative tasks which were set out in the applicant s submissions or appellant s submissions in this case, were adequately outlined. The question well departure that the respondent from the applicant in this case was that the assertion was made that these persons did not assist electrical tradespeople, but we say he didn t come to grips with the breadth of the definitions, including the inclusion of vegetation clearance and were incidental to the maintenance of the electrical systems.

PN166

In relation to the proposition about the company employing people at schools, kindergartens and councils, the evidence was that in South Australia, these employees or its employees were only in what we call, the electrical industry and only employed to discharge the contract with SA Power Networks.

PN167

The question of the electrical industry, in some senses, obviously limits attention to the concept of the electrical industry but one shouldn t lose sight, we say, that there are particular occupations as well, which are provided for in these rules, and I ve addressed the Commission on that in relation to lines people and you ll see the historical connection through that and electrical labourers.

PN168

In terms of my learned friend s contention that the work is not peculiar to the electrical industry in that, in the words of the MTIA Full Bench, Found only in the electrical industry , I only repeat the outline in my submissions today, that they are performing work consequent upon legislative obligation and they must do so conformably with the obligations imposed by the regulations.

PN169

As to the training that these employees receive, we say it s not a bad thing to be trained in the dangers of electricity, particularly when one is working next to the distribution lines of the network. But sufficed to say, that there is a specific and core component, and I ve taken you to the appeal book reference of that, in relation to vegetation clearance under power lines.

PN170

I think that s all I wish to say. If my learned friend puts in a note about the application of the Modern Award, might we have an opportunity to respond?

PN171

VICE PRESIDENT CATANZARITI: Yes. Mr Dowd, could you put the note in within 7 days?

PN172

MR DOWD: Yes, sir.

PN173

VICE PRESIDENT CATANZARITI: Then we ll give you 7 days to respond.

PN174

MR DOWD: May it please the Commission, I m sorry, but I ve forgotten to hand a document to you. It s not contentious. What we ve done is prepare a summary of findings and the evidence that it s based on, by way of a matrix, which may assist the Commission in finding evidence that supports findings. So I d hand that to your Honour s associate. There are copies of it.

PN175

MR WHITE: I don't know if it s contentious or not I haven't seen it.

PN176

VICE PRESIDENT CATANZARITI: Mr White, what I think I ll do is allow you an opportunity to respond when you put in your response to the Modern Award on this document, if you wish to make some comment about it.

PN177

MR WHITE: Okay.

PN178

VICE PRESIDENT CATANZARITI: Is there anything further, Mr White?

PN179

MR WHITE: No, no, that s all.

PN180

VICE PRESIDENT CATANZARITI: The decision is reserved and the Commission is adjourned.

ADJOURNED INDEFINITELY [11.14 AM]