C2014/1137, Transcript of Proceedings [2015] FWCTrans 91 (2 March 2015)

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

PN1000.

MR TAYLOR: Your Honour, I call our last witness, Mr Nathan Pollock; P‑o‑l‑l‑o-c-k.

<NATHAN JEFFREY POLLOCK, SWORN [10.06 AM]

<EXAMINATION-IN-CHIEF BY MR TAYLOR [10.06 AM]

PN1001.

Your name is Nathan Jeffrey Pollock; is that right?---It is.

PN1002.

Is your address 41 McCall, M-c-C-a-l-l, Avenue, Camden?---It is.

PN1003.

Are you employed as a protection and control technologist by Endeavour Energy?---I am.

PN1004.

For the purpose of these proceedings have you prepared and signed two statements?---Yes, I have.

PN1005.

Do you have those statements with you in the witness box?---I do.

PN1006.

Can I hand those statements to your Honour in the manner that we have been doing, signed versions of them?

PN1007.

THE SENIOR DEPUTY PRESIDENT: Thanks.

PN1008.

MR TAYLOR: Mr Pollock, your first statement is signed and dated 22 September 2014. Do you say the contents of that statement are true and correct to the best of your knowledge and belief?---Yes, I do. Yes, I do.

PN1009.

THE SENIOR DEPUTY PRESIDENT: CEPU20.

EXHIBIT #CEPU20 STATEMENT OF MR N POLLOCK DATED 22/09/2014

PN1010.

MR TAYLOR: In respect of the reply statement, that is a statement of four pages signed and hand-dated 25 November 2014, do you see that the contents of that statement are true and correct to the best of your knowledge and belief?---Yes, I do.

PN1011.

THE SENIOR DEPUTY PRESIDENT: So that is CEPU21.

**** NATHAN JEFFREY POLLOCK XN MR TAYLOR

EXHIBIT #CEPU21 STATEMENT OF MR N POLLOCK DATED 25/11/2014

PN1012.

MR TAYLOR: Mr Pollock, there is one matter that I want to ask you about in addition to the matters you have dealt with in your statements. One of the aspects of your duties you, I think, tell us that you are based Narellan Depot; is that right?---That’s correct.

PN1013.

And that is it the case that from time to time you need to go to a customer location?---That’s correct.

PN1014.

What are the circumstances where that would arise?---Okay. During heavy storm damage, particularly down in a location down in the Southern Highlands: Bowral way, Mittagong, Moss Vale. In cases where trees have fallen down and mains have fallen down, because I am a work party switcher I am authorised to isolate and make safe for tree-lopping crews to go through. As part of those duties, I am required to isolate all sources of supply including low voltage from time to time, which typically are customer’s meter boards and switchboards.

PN1015.

And what do you do on a customer meter board?---Okay. I would obviously have to test to make sure that the meter board is de-energised prior to making contact with it. And then remove service fuses proved dead at that meter board.

PN1016.

And is there any documentation that you must have regard to when you are doing that sort of work?---We fill in the list of isolation points to satisfy the requirement for a district operator to provide an access authority for the crews to perform the tree-lopping duties that they are required to do.

PN1017.

Are there any work statements with any sort of instructions that come with doing the working involving disconnecting meter boards?---Yes, there is a disconnection and reconnection instruction. I am unsure as to the number behind it. But we have the SafeWork method statements located in our vehicles at all times so we refer to them as required.

PN1018.

Thank you. They are the questions in-chief.

<CROSS-EXAMINATION BY MS NOMCHONG [10.10 AM]

PN1019.

Thank you, Mr Pollock. Just going to the first material that you gave the Commission, that is the occasions when you are required to disconnect customer meter boards, I think you said that happens during heavy storms or storm damage; is that right?---That’s correct.

**** NATHAN JEFFREY POLLOCK XXN MS NOMCHONG

PN1020.

So that would really be only in emergency situations?---Yes, during an emergency situation would be when I would do that, yes.

PN1021.

So that wouldn’t form part of your regular or primary duties, would it?---Switching and being a workplace switcher is a primary role for me, yes.

PN1022.

The question I am asking you is – well, first of all, let me ask you this. Do you understand what the term “electrical wiring work” means?---Yes, I do.

PN1023.

You understand that a customer installation is working on assets or property owned by the customer?---That’s correct.

PN1024.

In percentage terms, that is number of hours per day averaged over a year, the amount of time that you would spend doing electrical work on a customer installation would be minimal, wouldn’t it?---Well, that depends on – obviously I don’t have a crystal ball and I am unable to know when storms are coming so I couldn’t really answer that question without having that crystal ball.

PN1025.

You don’t need a crystal for the past. You know what you have done in the last 12 months?---M’mm.

PN1026.

So looking over the last 12 months, the amount of times when you have done electrical wiring work on a customer installation would really be about maybe 10 per cent; would that be right?---I think it would be fair to say that that would be a fairly reasonable percentage, yes.

PN1027.

Okay, thank you very much for that. Now, in your statement you tell the Commission that you have a contractor licence?---Contractor’s licence.

PN1028.

And that it costs you $500 a year or something like that?---Five to $600 for a three-year period from memory.

PN1029.

Now, a contractor’s licence is one that allows you to operate as a sole trader. That is right, isn’t it?---That is correct.

PN1030.

There is no requirement imposed upon you at all by Endeavour to have a sole trader or contractor licence, is there?---That was a decision that I made above and beyond what Endeavour initially required me to obtain, that is correct.

**** NATHAN JEFFREY POLLOCK XXN MS NOMCHONG

PN1031.

You keep that up for your own personal reasons, do you?---Well, no, I don’t. I don’t keep that for my own personal reasons because if I was to keep it for – if I was to let that expire, I would then have to re-apply for a supervisor’s licence. So I take that in lieu of a supervisor’s licence.

PN1032.

That is the only reason that you keep it?---Correct.

PN1033.

You are familiar with the electrical safety rules?---I am.

PN1034.

You have to do training in those electrical safety rules every year?---Yes.

PN1035.

And you have to pass a test?---Correct.

PN1036.

And you know that if you get more than a couple of questions wrong that you have to re-sit the test?---That’s right.

PN1037.

And if you do more than four questions wrong you actually get suspended and you have to pass the test before you can go back to work. You understand that, don’t you?---Yes, I do.

PN1038.

Now, the last thing I want to ask you is that at paragraph 6D of your reply statement you say that in order to validly test and tag an appliance or electrical cord you need to have an electrician’s licence and that the tag requires a licence number. I am going to suggest to you that that is not correct. I am going to suggest to you that there is an Australian Standard, AS3760, which stipulates that you don’t require a licence. You simply have to have the relevant level of expertise. Would you agree that that is a possibility or - - -?---In my opinion, I believe that having a licence is a requirement to test and tag a lead. It may fall into this Australian Standard that you are describing. However, every tag that Endeavour Energy has supplied me to test and tag my leads has the requirement for a licence number on it. Now, obtaining a qualification outside which is just effectively a duty of care, to the best of my knowledge would not provide you with a licence number such as is required by Endeavour Energy’s tags.

PN1039.

So if we take out the part in your statement that says the tag requires a licence number, that is, is it fair to say, just putting that to one side, the material that you have got in paragraph 16 of your reply statement is, in fact, your opinion rather than any requirement?---No, no, I disagree with that. I would say through extension, through Endeavour Energy supplying us with testing and tagging the leads that indicate the requirement for a licence number, that it is a requirement for my position to hold that in order to test and tag that appliance or lead.

**** NATHAN JEFFREY POLLOCK XXN MS NOMCHONG

PN1040.

And in percentage terms in terms of the amount of time that you test and tag leads, how much time does that take up over the course of a year?---Well, we do it monthly and it could take, depending on how many leads that we have and whether or not we choose to do, the instruments located in our depot could take up to four hours a day.

PN1041.

So once a month?---Once a month four hours a day.

PN1042.

Thank you very much. No further questions.

<RE-EXAMINATION BY MR TAYLOR [10.16 AM]

PN1043.

Mr Pollock, you, in answer to the last set of questions, indicated that every tag that Endeavour provides you has a space to put a licence number on it. Do you recall that?---Yes, I do.

PN1044.

Can I just hand you this piece of plastic and ask whether you can identify it?---Yes, I can.

PN1045.

What is that that I have handed you?---These are one of the colours of tags that Endeavour Energy supply and purchase and require us to have fitted to our leads and appliances before they are allowed to be used.

PN1046.

I tender that.

PN1047.

MS NOMCHONG: I just don’t have any instructions whether this is the tag that we use or not. Mr Langdon is coming later. Perhaps if it could be put into that same category of – I just didn’t expect this, Commissioner, so if it could be given a marking.

PN1048.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1049.

MS NOMCHONG: And then as soon as Mr Langdon comes then I can get instructions about whether this is the tag then I can either agree or disagree to its tender.

PN1050.

THE SENIOR DEPUTY PRESIDENT: Well, I think we can accept it into evidence. I don’t see why I can’t accept it into evidence. I am not quite sure how we put this in an electronic system but I am sure we scan it.

PN1051.

MS NOMCHONG: Thank you.

PN1052.

THE SENIOR DEPUTY PRESIDENT: You can ask questions about it. But have you got copies or is this – are there copies of it?

**** NATHAN JEFFREY POLLOCK RXN MR TAYLOR

PN1053.

MR TAYLOR: Your Honour has the exact same tag that the witness has and my friend has.

PN1054.

THE SENIOR DEPUTY PRESIDENT: Yes, but you have got them. Sorry, that is what I wanted to – yes.

PN1055.

MR TAYLOR: If I could that the witness’ back then we won’t need any. But, I mean, we won’t need to have it copied but it might be convenient at some point that an A4 piece of paper with this image that is placed on it. That is easier, presumably, to file.

PN1056.

THE SENIOR DEPUTY PRESIDENT: But, I mean, so are these two – sorry, you have given me two. Are they - - -

PN1057.

MR TAYLOR: Have I? Sorry, they might have been stuck together.

PN1058.

THE SENIOR DEPUTY PRESIDENT: They are identical, aren’t they? That is what it is.

PN1059.

MR TAYLOR: Yes.

PN1060.

THE SENIOR DEPUTY PRESIDENT: Yes. So we will call the tag CEPU22.

EXHIBIT CEPU22 TAG

PN1061.

MR TAYLOR: No further questions.

PN1062.

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks very much?---Thank you, your Honour.

<THE WITNESS WITHDREW [10.19 AM]

PN1063.

MR TAYLOR: Your Honour, yesterday there was a document marked as an MFI, a job ad for district operators in multiple roles that I indicated on my instructions was an ad that was on the intranet in January of this year. I understand my friend has got some instructions on that and we would seek to tender now that document.

PN1064.

THE SENIOR DEPUTY PRESIDENT: Which number was it? Sorry, I am just trying to find it again.

**** NATHAN JEFFREY POLLOCK RXN MR TAYLOR

PN1065.

MR TAYLOR: That is right. Your Honour marked it as a number, CEPU17, but at that stage indicated that it was not formally in evidence.

PN1066.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1067.

MS NOMCHONG: For your information, Senior Deputy President, my instructions are that this ad was on the Endeavour Energy intranet between 15 and 23 January 2015.

PN1068.

THE SENIOR DEPUTY PRESIDENT: So on that basis you don’t object to it.

PN1069.

MS NOMCHONG: No.

PN1070.

THE SENIOR DEPUTY PRESIDENT: Okay. So that is now accepted in evidence.

PN1071.

MR TAYLOR: Your Honour, the other thing that has been – the other exercise that has been completed – sorry, almost completed – is a folder of material which are relevant documents that are either from attachments to the witness statements or documents produced by Endeavour in response to the notice to produce. I will hand you the folder. I will hand you the folder so I can just identify the nature of it.

PN1072.

THE SENIOR DEPUTY PRESIDENT: So some of this is already in evidence.

PN1073.

MR TAYLOR: Yes, it is.

PN1074.

THE SENIOR DEPUTY PRESIDENT: But not all of it.

PN1075.

MR TAYLOR: So some of these were attached to witness statements of our witnesses and indeed some of them are exhibits in the proceedings and are so marked. And others come from the documents produced by Endeavour. They are divided, as you can see, by name of position and what we will endeavour to do is provide an aide-mémoire document which summarises what each document is. For example, the date, whether it is a position description or a job ad, whether it requires or considers desirable or otherwise the holding of a licence. And that exercise hasn’t yet been complete. This is a folder that my friend has only just received and, of course, we understand that they might want to review it and determine whether there is any issues with it. But the source of the material is that which I have described.

PN1076.

MS NOMCHONG: If we could have over the morning break just to ascertain that the documents are what Mr Taylor said they are, which I am sure they are, and then we can deal with it then.

PN1077.

THE SENIOR DEPUTY PRESIDENT: But assuming there aren’t any objections, you want to tender this as an exhibit?

PN1078.

MR TAYLOR: That is our request. I am happy to hold the tender over until my friend has had that opportunity.

PN1079.

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Well, we will have a break then and we will give you the chance to have a look. Not now but - - -

PN1080.

MR TAYLOR: Yes, at an appropriate time.

PN1081.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1082.

MR TAYLOR: That concludes our evidence-in-chief.

PN1083.

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

PN1084.

MS NOMCHONG: Your Honour, rather than do an opening now given that we will be moving to closing submissions hopefully first thing tomorrow morning and that you have had the opportunity of reading our written submissions, the only thing that I would like to bring to Your Honour’s attention is the amended answer to the questions which was filed and served on 9 February. Hopefully your Honour has those. They are to replace. If you could simply go to the respondent’s outline of submissions.

PN1085.

THE SENIOR DEPUTY PRESIDENT: Hang on. I have got them here somewhere. Hang on a sec. I am just trying to find where they are. Are they in your tender bundle?

PN1086.

MS NOMCHONG: Are they in the tender bundle? No, they won’t be in the tender bundle.

PN1087.

THE SENIOR DEPUTY PRESIDENT: No, they are not, are they?

PN1088.

MS NOMCHONG: They would have been filed separately but I do have a new copy.

PN1089.

THE SENIOR DEPUTY PRESIDENT: They were in the applicant’s tender bundle.

PN1090.

MS NOMCHONG: No, the answers to the questions.

PN1091.

THE SENIOR DEPUTY PRESIDENT: The answers.

PN1092.

MS NOMCHONG: It is a three-page document and it was filed and served on 9 February.

PN1093.

THE SENIOR DEPUTY PRESIDENT: Okay.

PN1094.

MS NOMCHONG: Anyway, perhaps it might be quicker if I simply hand up a fresh copy.

PN1095.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1096.

MS NOMCHONG: If your Honour goes to the respondent’s outline of written submissions at section (I), which is on page 20, this document is meant to replace paragraph 90.

PN1097.

THE SENIOR DEPUTY PRESIDENT: I see, okay, thanks.

PN1098.

MS NOMCHONG: That is, it formalises the way in which the respondent now addresses each of the amended questions and it is by reference to two things, your Honour. First, the review that was undertaken by Mr Langdon, and, second of all, a reconsideration of some of the positions that has occurred during the course of this arbitration. In that document we have identified eight positions that we say if an incumbent employee held one of those positions as at the date of the 2012 enterprise agreement and continues to hold that position thereby requiring them to do electrical wiring work on consumer installations as a primary part of their role then they eligible and entitled to receive the ELA.

PN1099.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1100.

MS NOMCHONG: So that having done that exercise ourselves, we can tell the Commission that currently Endeavour estimates that to be 37 employees.

PN1101.

THE SENIOR DEPUTY PRESIDENT: Right.

PN1102.

MS NOMCHONG: Perhaps that should be marked as an exhibit just to - - -

PN1103.

THE SENIOR DEPUTY PRESIDENT: Okay. What are we up to, E8?

PN1104.

MS NOMCHONG: I think we are up to E9.

PN1105.

THE SENIOR DEPUTY PRESIDENT: No, E9. Yes, so we will mark this as E9. So the respondent’s answers to amended questions is E9.

EXHIBIT #E9 RESPONDENT’S ANSWERS TO AMENDED QUESTIONS

PN1106.

MS NOMCHONG: Thank you. And, your Honour, as I think I noted yesterday, the respondent provided advice to the union that it was seeking leave to adduce some further additional evidence from both Mr Langdon and Mr Greenhill and we assume that given what has occurred today that we will be granted that leave and we can do so.

PN1107.

THE SENIOR DEPUTY PRESIDENT: Okay.

PN1108.

MS NOMCHONG: May I call Mr Mark Greenhill.

<MARK JOHN GREENHILL [10.26 AM]

<EXAMINATION-IN-CHIEF BY MS NOMCHONG [10.26 AM]

PN1109.

Would you please state for the record your full name?---Mark John Greenhill.

PN1110.

And your current address?---Two Victoria Street, Warrimoo.

PN1111.

You have prepared a statement for the purposes of these proceedings; is that correct?---I have.

PN1112.

Do you have a copy of that statement with you in the witness box?---I do not.

PN1113.

May I hand the witness – your Honour, may my instructing solicitor approach?

PN1114.

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN1115.

MS NOMCHONG: Thank you.

PN1116.

WITNESS: Thank you.

PN1117.

MS NOMCHONG: And may I also hand you the two volumes of the respondent’s bundle and also a volume of documents containing the statements that have been provided by the union. That should give you absolutely no room at all in the witness box, Mr Greenhill?---I will just quickly read these.

PN1118.

Thank you. Mr Greenhill, before I ask you any further questions, at paragraph 5 of your statement you state that you are currently engaged by Networks New South Wales ?---That’s right.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1119.

Has that changed?---It has.

PN1120.

What is the situation now?---I am holidaying during my notice period. I tendered my resignation some time ago and I finished physically in the workplace last Friday and I am taking holidays during what is left of my notice period and then I will take up a similar role in the private sector.

PN1121.

Other than that change to your statement, are the contents of it true and correct?---They are. The only thing I would add is that where I mention the ETU, I think for the purposes of this tribunal it should be taken to read “CEPU.”

PN1122.

Thank you. I am sure that is fine. Thank you. I tender that statement, your Honour.

PN1123.

THE SENIOR DEPUTY PRESIDENT: Mr Greenhill’s statement is E10.

EXHIBIT #E10 STATEMENT OF MR M GREENHILL

PN1124.

MR TAYLOR: Your Honour, we have some objections to that. Did you get our objections?

PN1125.

MS NOMCHONG: No.

PN1126.

MR TAYLOR: You didn’t?

PN1127.

MS NOMCHONG: No.

PN1128.

MR TAYLOR: It was sent to you late. Could I hand to you a schedule of objections, your Honour?

PN1129.

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1130.

MS NOMCHONG: Your Honour, just looking at these briefly, we dealt with this yesterday in the sense that this is the very exercise that we sought to avoid; that is, that this Commission, and particularly you Commissioner, are well experienced enough to identify things such as relevance and hearsay. And if we were going to do that exercise or if my friend had informed me before 20 seconds ago that this was the exercise to be undertaken the respondent would have taken exactly the same approach with all of the statements that have now gone into evidence unchallenged. And we think that that is an unfair position, particularly when I raised it first up yesterday.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1131.

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Taylor?

PN1132.

MR TAYLOR: My recollection is that when my friend raised it, I made clear that we would be objecting to parts of Mr Greenhill’s statement and that they went well beyond the areas that my friend had identified Mr Curry’s statement had gone, and we would be pressing objections. But, in any event, we do take objections. They fall into two broad categories. Those which are bolded are paragraphs in which Mr Greenhill goes beyond at that type of evidence that Mr Curry gave wherein he said that there were discussions and jointly things were done. And Mr Greenhill expresses what he was thinking at the time, not what he expressed to the union, but what he was thinking at the time when he took a certain approach.

PN1133.

We say those bolded paragraphs go beyond anything that your Honour would admit into evidence because they cannot be relevant to anything your Honour would decide as to interpretation. It cannot be relevant that Mr Greenhill was deeply put out or that at the time he was constructing a clause thought that certain things should or shouldn’t be included. So that deals with the matters in bold. Objection is not taken to those things that might arguably form some basis for common intent; that is, that there is some communication which is agreed. They are simply those paragraphs where Mr Greenhill has said that he had a certain personal motivation and we say they simply cannot be relevant.

PN1134.

That is the matters in bold. The matters that are not in bold are matters which we also say are ones which your Honour would reject and I can deal with them in terms. Paragraph 11 I just realised should have been bolded. It is again a paragraph in which Mr Greenhill is expressing his annoyance, a matter that may or may not have been a personal opinion he had at the time but cannot assist your Honour one way or the other.

PN1135.

Paragraphs 12 to 15 appear to be paragraphs in which he asked people who are not giving evidence whether they knew something and they didn’t. They are matters which really, with great respect, can’t assist your Honour at all one way or the other. The fact that Ms Cassian said that it has been paid for years and Mr Lowe says, “I don’t know, we have just paid it,” doesn’t take the matter any further.

PN1136.

Paragraph 16 again, I apologise, that should have been bolded. Again this is a paragraph in which Mr Greenhill is expressing what he was thinking at the time, what he considered at the time, which simply cannot be relevant to the proceedings. What he thoughts were at any particular point in time can’t assist your Honour to determine anything that is in issue in these proceedings.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1137.

THE SENIOR DEPUTY PRESIDENT: I mean, is it really part of either side’s arguments that, you know, that there was some – is it your argument that there was a mutual understanding of what the provision meant that is different what the employer is saying now? Is that going to be your argument or one of your arguments?

PN1138.

MR TAYLOR: Yes, it will be a view that the conduct – that the communications and conduct amount to an understanding that this was an allowance being paid for skill, a margin for skill.

PN1139.

THE SENIOR DEPUTY PRESIDENT: Yes, right.

PN1140.

MR TAYLOR: But what Mr Curry thought at a particular time or what Mr Greenhill thought at a particular time isn’t going to assist your Honour.

PN1141.

THE SENIOR DEPUTY PRESIDENT: No, I understand that. Sure. No, no, I understand that. I am just trying to make sure that all of this isn’t completely irrelevant anyway. I mean, but, look, I mean, subjective intentions clearly have no part to play in construing – there has been a few hundred decisions on that – in construing an enterprise agreement. And so Mr Greenhill’s motivations or what he was thinking, any more than Mr Curry’s or anybody else’s motivations or what they were thinking is obviously irrelevant. I might say looking at Mr Curry’s statement it was more about who said what.

PN1142.

MR TAYLOR: Yes.

PN1143.

THE SENIOR DEPUTY PRESIDENT: What his recollection of who did or didn’t say things which is a little bit different because it is conceivable that things that may have been said might possibly be relevant.

PN1144.

MR TAYLOR: Yes.

PN1145.

THE SENIOR DEPUTY PRESIDENT: That is a bit different from him saying, “I considered this” or “ He considered that” or “They did this because of this,” which can’t be - - -

PN1146.

MS NOMCHONG: Sorry, is your Honour pointing that to me?

PN1147.

THE SENIOR DEPUTY PRESIDENT: Well, yes, because I am flagging that.

PN1148.

MS NOMCHONG: I don’t know whether Mr Taylor is finished.

PN1149.

THE SENIOR DEPUTY PRESIDENT: You flagged that you got this. I mean, are you going to argue about it?

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1150.

MS NOMCHONG: Certainly the subjective intentions of parties have no role to play in determining the proper statutory construction of an award provision. I completely agree. But what is being put by the union is that there was a common intention and all of the evidence that has been put forward, that is, one of the things your Honour can take into account is, you know, the views or how parties acted in a particular negotiation to determine whether, in fact, there was common intention. So we had evidence from Mr Curry yesterday that he was saying that nothing untoward was said by Mr Greenhill whatsoever in the negotiations that would have conveyed to him that there was any concern by Endeavour in relation to this matter.

PN1151.

Now, each of the matters that are contained in here – and I should say that this is all under the umbrella of, if this exercise was going to be done, what is good for the goose, is good for the gander. If this was going to be done, it should have been put plainly.

PN1152.

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN1153.

MS NOMCHONG: But, in any event, moving on from that, Mr Curry’s evidence is really about going to those, whether those intentions that Mr Greenhill expresses in his statement became clear to him. His evidence was: “Well, I didn’t see him say anything like that to me. I thought his body language was, you know, friendly and comfortable.” All of those things has to be put against the very questions that we have here; that is, the very issues that are here. Now, if this goes out then clearly I would be seeking leave to ask additional questions about what he was conveying by his body language.

PN1154.

THE SENIOR DEPUTY PRESIDENT: I should let Mr Taylor finish, but I am just trying to think how that – because obviously these are all of similar – I assume these are all broadly similar kinds of objections, is that right, Mr Taylor? This is all about – well, a lot of this is about subjective –appears to be subjective.

PN1155.

MR TAYLOR: Yes.

PN1156.

THE SENIOR DEPUTY PRESIDENT: What I was thinking. Why I did this. Perhaps why other people might have done things which is probably not in his knowledge. I am well aware that I can’t give any weight – well, it is just not relevant to the issue I have got to determine, that kind of material. But rather than going through it, kind of forensically going and extracting every paragraph, I would be inclined to just – I do understand the point.

PN1157.

MR TAYLOR: Yes.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1158.

THE SENIOR DEPUTY PRESIDENT: I don’t think it’s really seriously in contention, to be frank, I would imagine. But, you know, I don’t want you to have waste time on the other hand cross-examining the witness on material that clearly is not going to be given any weight.

PN1159.

MR TAYLOR: Yes.

PN1160.

THE SENIOR DEPUTY PRESIDENT: So I think rather than going through every paragraph, I think I can indicate that things that are about what was motivating Mr Greenhill, why he thought things, what he was thinking, I am not going to give any weight to. If it is stuff about, “I said this to people,” that other people could have knowledge of, then that might be in a different category and I would potentially have regard to that, because all of Mr Curry’s evidence was about what was said, what he said, what he heard other people say, and I think that is potentially relevant and I wouldn’t have excluded that anyway.

PN1161.

MR TAYLOR: Thank you, your Honour. Thank you very much for that indication. Your Honour, on that basis I think your Honour doesn’t need at this stage to go through a line by line basis, but rather guided by your Honour’s indication of a view. But we are content if your Honour could receive the schedule of objections and mark it, we are happy to proceed on the basis that your Honour has a view that it may well be that as a result of things not being taken out that we will still cross-examine on some of these matters but not in a sense – on the clear understanding that your Honour is not taking this into account for the purpose of the interpretation.

PN1162.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1163.

MR TAYLOR: But that your Honour may, in light of what my friend has said, may take into account in determining whether there was or wasn’t a common understanding at various times.

PN1164.

THE SENIOR DEPUTY PRESIDENT: But I would only be relying on things that were objective facts known to the parties.

PN1165.

MR TAYLOR: Yes, thank you, your Honour.

PN1166.

THE SENIOR DEPUTY PRESIDENT: Yes. So did you want to actually mark this?

PN1167.

MS NOMCHONG: Yes, please.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1168.

THE SENIOR DEPUTY PRESIDENT: Where are we up to? So this will be CEPU23. So this is the schedule of objections.

EXHIBIT #CEPU23 SCHEDULE OF OBJECTIONS.

PN1169.

MS NOMCHONG: Sorry, your Honour, I said do I want – I said yes to mark it but it is not mine to.

PN1170.

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN1171.

MS NOMCHONG: Sorry.

PN1172.

MR TAYLOR: I was at cross-purposes.

PN1173.

MS NOMCHONG: That is right.

PN1174.

MR TAYLOR: We both thought your Honour was talking about the statement of Mr Greenhill.

PN1175.

MS NOMCHONG: The statement, that is right.

PN1176.

THE SENIOR DEPUTY PRESIDENT: Yes. Well, ignore that last one. I must say it was unusual. Didn’t I already say? Yes, Mr Greenhill’s statement is E10; sorry.

PN1177.

MS NOMCHONG: Thank you. And the schedule of objections is what, your Honour?

PN1178.

THE SENIOR DEPUTY PRESIDENT: Do you want it marked?

PN1179.

MR TAYLOR: We do want it marked.

PN1180.

THE SENIOR DEPUTY PRESIDENT: CEPU23.

PN1181.

MR TAYLOR: Thank you, your Honour.

PN1182.

MS NOMCHONG: Thank you. I am going to now ask you some additional questions, Mr Greenhill. First, in response to paragraphs 44 of your statement, prior to you holding the position of Manager Employee Relations, who held that position?---Prior to me holding it?

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1183.

Yes?---As in before me holding it?

PN1184.

Yes?---I don’t believe the position existed.

PN1185.

What was the role of Ms Nathalie Cooke?---That was after I held it.

PN1186.

I am sorry. Okay, then?---So if we go to that paragraph, which I don’t believe is 44. I believe it is actually later than that in the statement.

PN1187.

That is all right. I apologise for that. If you perhaps just divert yourself away from a particular paragraph and just - - -?---So I held the position of Manager Employee Relations from 2008 until 2012 where I became the group industrial relations lead. Following my tenure in that role, Nathalie Cooke was in the position for a period of months and after that in or about the end of 2012, I believe it was, Janelle Sheather took over that role and is presently in that role.

PN1188.

I want to take you now to the discussions between yourself and the negotiating committee of the ETU in relation to the reintroduction of the ELA just prior to the making of the 2008 award?---Yes.

PN1189.

Were you the chief negotiating person on behalf of Endeavour at that time?---I was.

PN1190.

With whom at the union did you have most of your discussions in relation to the ELA provision?---Mr Curry and Mr Riordan, but Mr Riordan’s role wasn’t that of a member of the negotiating team. He came direct to me outside of that.

PN1191.

Did these meetings take place in person or over the phone?---Both.

PN1192.

With whom did you have most of the telephone conversations?---The secretary of the union, Mr Riordan.

PN1193.

In those telephone conversations with Mr Riordan, could you please tell his Honour what views you expressed about the union’s desire to have the ELA reintroduced?---Okay. So the ELA didn’t appear in the award that preceded the 2008 award and it hadn’t been discussed or negotiated during the process of reforming the award after its, you know, expiry. In fact, the negotiations themselves had finished. We were presenting the award to the IRC of NSW for certification and in the interregnum there was a claim for the inclusion of some sort of reference to the ELA. I was extremely unhappy about this. Anyone who knows my now former boss knows that including allowances in awards is not something he turns himself to lightly. I variously complained that I had been‑ ‑ ‑

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1194.

Can I just stop you there, Mr Greenhill. When you say “I variously complained,” complained to whom?---Well, to both the secretary of the ETU at the time and also to Mr Curry, that this had come up late, that this hadn’t been raised during the negotiations, that it was not the right thing to do, not professional. I questioned what the ELA was for. It seemed to me that employees who are required to work safely in the industry are required to comply with the safety rules and there was an electrical safety rules allowance for that. It appeared to me that not all employees, no, by any stretch of the imagination work on the customer’s side of the network. So it was passing strange to me that there was a universality of the electrician’s licence allowance or as I said - - -

PN1195.

THE SENIOR DEPUTY PRESIDENT: But, Mr Greenhill, it was paid, wasn’t it, even though it wasn’t in the award. There is no doubt that a lot of people were getting it?---Yes, that’s right, yes.

PN1196.

MS NOMCHONG: And, sorry, the words that you are telling his Honour now are what you were conveying to Mr Riordan and Mr Curry?---The words I expressed, yes, yes, strongly. And basically there was a debate that lasted for a couple of weeks about this. In the end we attached a letter to the award and it was certified.

PN1197.

Just before we get to that, Mr Greenhill – I am sorry to cut you off?---That’s all right.

PN1198.

But one of the things you said was that you asked them, “Why do you get the ELA?” or something like that. What was the response that you received?---Well, their view I have set that out in my statement. But their view was that effectively you get the ELA for working professionally and my rejoinder was that it seemed that that was why you got the ESRA. But the big issue I had was that I could not understand why it was you – certainly I concede there are some employees who work on the customer side of the network who should hold an electrician’s licence. Whether they should get an ELA for that is something else, but the agreement says it and there are three criteria set out in the clause which – yes.

PN1199.

Well, just before we get to that, I am just keeping us back on what you said and ‑ ‑ ‑?---But, well, I am going to that. I questioned why this was universally applied and the answer was: “Well, it is to ensure people work professionally.” And my clear rejoinder to both gentlemen was that you get an ESRA for that. So, you know, it was - you know, I mean, the very fact that it is at the back of the award shows that it was – as an attached letter shows that it was pulled on at the last minute.

PN1200.

All right, now, when you were having – now, I have just asked you about the conversations you have had with the secretary of the ETU at the time and you say that these are the words that you were saying to him. Is that correct?---Yes, that’s correct.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1201.

Now, when you were in meetings in which Mr Curry was present, did you say the same or similar things?---Yes, the same or similar, absolutely.

PN1202.

And when you were saying them, what tone of voice did you use?---I would have – it would have been readily apparent that I wasn’t happy. I mean, I wouldn’t have been screaming. I don’t, you know, do that. But I certainly would have been clearly expressing annoyance and I would not have been, you know, happy. I would not have been smiling. I would not have been, you know, showing any form of a ‘nudge, nudge, wink, wink, no worries’ type of approach to it.

PN1203.

In the negotiating committee meetings where Mr Curry was present, did he say anything to you in response to the comments that you are making?---Well, this came up after the negotiations were completed. So - - -

PN1204.

Well, in the negotiations for the attachment or the formalisation of the ELA?---Yes, I was responding to the word “committee.” And I don’t recall that the committee was reconvened. So in any discussions we had about it, I was just very unhappy about it and we weren’t aligned. You have got to remember that I had just started with the organisation and I had just gone and told management of the organisation that, you know, I have just landed the award which had been sitting in abeyance for some time. And then I had to go back to them and say: “Well, actually, maybe not. There is this last issue.” So I wasn’t happy.

PN1205.

Just a moment ago you told his Honour about a letter. You have got the bundle of documents produced by the CEPU?---Yes, yes.

PN1206.

Can I take you to tab 2 in that and that is Mr Curry’s first statement - your Honour, that is CEPU8 - and ask you to go to paragraph 23. No, I am sorry, I withdraw that. Can I ask you to go to a document which is attached to it called BJ66?---Yes.

PN1207.

How did that letter come about?

PN1208.

MR TAYLOR: Objection. This is already in evidence. It is annexed to his first statement as MG2. There it is.

PN1209.

MS NOMCHONG: Yes, I am just taking him to it and asking him the question how did it come into it.

PN1210.

MR TAYLOR: Well, he has given evidence about this.

PN1211.

THE SENIOR DEPUTY PRESIDENT: I will allow you to. I assume it is going somewhere?

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1212.

MS NOMCHONG: Thank you.

PN1213.

WITNESS: Well, that is the letter I just referred to.

PN1214.

MS NOMCHONG: Thank you. Was that a letter volunteered by Integral at the time?---Absolutely not. I resisted it. The position I took in those discussions was that I did not want to refer to the ELA at all. The position I took with both gentlemen was that – and robustly – was that we had finished negotiations and I did not think, and I said this, having some letter hanging off the back of an award was particularly professional. We had finished negotiations and in good faith, I said, the negotiations were done in good faith and to come along later outside the negotiating committee and say, “Well, the delegates want this,” when it wasn’t there before and it wasn’t raised in the negotiations was something I expressed great anger about. And this letter effectively was – and I will be frank about it – a form of surrender by us because we wanted to have the award certified. It is actually signed by David Lowe. Although it looks like an “M,” it is apparently a “D” - only because I wasn’t present in the business that day but I don’t tarry at all with its contents. But that is how it came about. And in all of the agreements that I have been involved in subsequent to this, you won’t see something like that hanging off the back of it.

PN1215.

Now, I want to now take you to the wording of the ELA provision which was then placed in the 2010 enterprise agreement and replicated again in the 2012 enterprise agreement?---Yes.

PN1216.

During the discussions for the inclusion of that provision in the 2010 agreement, to what extent if any were particular people identified as being moving out or moving into eligibility for the ELA?---At that time none. At that time none. The role – following from what happened in 2008, I was determined to have a clause in the agreement that allowed for the ELA to be paid to those people who ought to have it and not to everybody. As I said before, I had a great concern about the universality of it.

PN1217.

MR TAYLOR: Your Honour, I just note my earlier objection. We are back into this territory of what Mr Greenhill was thinking at a certain time. I accept that doesn’t arise directly from my friend’s question.

PN1218.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1219.

MR TAYLOR: She didn’t ask that but I note that that is the nature of the evidence that is now coming out.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1220.

WITNESS: So I will take you to the words I actually drafted and you will see that basically the clause provides for three things to exist. Firstly, someone has to actually hold a licence. Secondly, they need to hold that licence in order to fulfil their duties. And, further, thirdly, they need to have held that licence in accordance with past practice. So we can get around the issue of intention by looking at what was put on the table.

PN1221.

MS NOMCHONG: Thank you. I just want to take you back to my earlier question. You have the bundle of documents from the CEPU there?---Yes.

PN1222.

Can I ask you to go to tab 11 and paragraph 19 of Mr Curry’s reply statement?---Paragraph 19?

PN1223.

Correct?---Yes.

PN1224.

He says there in the third sentence: “The justification used by Endeavour at the time was to address office-based employees who were getting the ELA but not doing electrical work.” Is that correct?---No.

PN1225.

Did you or anyone on behalf of Endeavour that was there say words to that effect?---Never.

PN1226.

Was there any identification of particular categories or groups of people that were then going to come out of the ELA payment system?---As per my previous answer: no.

PN1227.

In relation to the negotiations for the precise wording, and I think this is not contentious, you provided a proposed form of wording to the union?---Yes.

PN1228.

Then you negotiated backwards and forwards until you came to an agreement about the final version; is that right?---Yes, that is my recollection, yes.

PN1229.

I want to take you to the dispute in relation to the claims for back pay and in particular paragraph 44 of your statement?---Yes.

PN1230.

Mr Curry gave evidence yesterday that the employees who had made back-pay claims had not actually let their licences lapse, but had only forgotten to provide Endeavour with the paperwork to show the their licence was current?---Yes.

**** MARK JOHN GREENHILL XN MS NOMCHONG

PN1231.

To the best of your knowledge, is that a correct understanding of the situation?---No. As I say in paragraph 41, there are two ways in which an employee may, in fact, have made a back-pay claim. The first way was that they would have failed to have renewed their electrician’s licence on time. The second way is that they would have failed to have provided the evidence of that renewal to payroll. So both circumstances were in occurrence and this had been a long-running issue for some time.

PN1232.

Given that the way in which this became apparent was that the ELA would stop being paid to the employees. So clearly Endeavour was on notice that they had no proof that a particular employee had a valid licence?---That’s right, sometimes for long periods, yes.

PN1233.

What were those periods; just in a range?---No, I had seen a year or more.

PN1234.

Were those employees suspended from work or stopped from working during the period where they didn’t have a licence?---No.

PN1235.

Were they removed to a particular type of work if they didn’t have a licence?---No.

PN1236.

That is the further evidence-in-chief.

<CROSS-EXAMINATION BY MR TAYLOR [11.57 AM]

PN1237.

Congratulations, Mr Greenhill, on your new position?---Thank you. I will miss you.

PN1238.

Not necessarily. You are going to the mining industry; is that right?---That’s right. I might see you again, yes.

PN1239.

In the mining industry, is that right?

PN1240.

MS NOMCHONG: I object, your Honour. I object.

PN1241.

WITNESS: There is a little mining happening.

PN1242.

MR TAYLOR: I am sure the employees in the union are very pleased for your position. Now, can I start with this issue of the position of the allowance pre the letter that you have just been asked about that you say hung off the back of the 2008 award written in July 2009? Before then, I think the Senior Deputy President confirmed this, the allowance was being paid for years before then; is that right?---Yes, yes.

PN1243.

Just not recognised in the actual instrument itself?---That’s right. I understand that it was wrapped up in the old Illawarra award back in 95. But other than that – it was paid on top of that, but other than that it had just been paid.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1244.

You have referred to something that I was about to come to. Endeavour was previously Integral?---Yes.

PN1245.

And before that, Integral was the amalgamation of two county councils, Prospect and Illawarra?---That’s right, yes.

PN1246.

Prospect County Council, at the time that it merged into Integral, had in its industrial instrument an ELA?---I don’t know.

PN1247.

Do you know this, that Illawarra County Council in its award didn’t have an ELA but did have a provision which provided a higher rate of pay for those electrically qualified employees who had a licence?---From 95 is my understanding.

PN1248.

Sorry, I will just be a moment. There is a bit of confusion about what document was going to come forward?---That’s all right.

PN1249.

I just want to show you, I hope, that there is no dispute, Mr Greenhill, and not that it matters, that Prospect had relevant provisions in it with an ELA, but I don’t think so far we have had evidence about Illawarra so I just thought I would provide that?---Actually there is evidence of Illawarra. I quote the clause in my statement. I think, from memory, it might be paragraph 16 of my statement.

PN1250.

What you have said there is it was absorbed into an increased rate of pay for electrical tradesmen in the Illawarra Electricity Award?---Yes.

PN1251.

What that doesn’t make clear, but which you might know, is that the way that award was structured is that there was a rate of pay for a trade qualified electrician and a second higher grade rate of pay for a trade qualified electrician who had a licence?---I am not aware of that.

PN1252.

There is some difficulty on our part. We only have one copy of an industrial gazette which has an Illawarra Electricity Classifications and Rates of Pay Award 1993 printed as at 10 August 1993 which is an excerpt of the whole of the award including the classification of electrical tradesmen at 5.6 and has grades 1 to 5, pages 973 and 974 of the gazette. Perhaps what I can do is show the witness the only copy we have?---I will pass it back.

PN1253.

Thank you, Mr Greenhill. Mr Greenhill, I have opened it at the relevant page, but you might just want to flip to the front and just confirm that I described the document accurately. Having satisfied yourself of that, do you see there that the electrical tradesmen had five grades and that grade 1 is differentiated from grade 2 in that grade 2 required what was known then as an A grade licence?---Yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1254.

I will tender that document but my friend hasn’t seen it yet so I will need to have that returned.

PN1255.

MS NOMCHONG: No objection, your Honour. If we could get a copy at some later stage.

PN1256.

MR TAYLOR: Thank you.

PN1257.

MS NOMCHONG: 25 March 1995.

PN1258.

THE SENIOR DEPUTY PRESIDENT: So it is CEPU24. It is an extract from the New South Wales Industrial Gazette, 24 March 1995.

EXHIBIT #CEPU24 EXTRACT FROM NSW INDUSTRIAL GAZETTE DATED 24/03/1995

PN1259.

MR TAYLOR: Mr Greenhill, at the point that the two county councils merged the position was really this, that in both county councils electrical trade-qualified employees received a higher rate of pay if they held a licence as against if they didn’t?---I haven’t seen the Prospect document but I don’t contest it. That would seem to be what was suggested by what you have shown me. Again, I wouldn’t tarry with that.

PN1260.

Thereafter upon the two county councils merging, is this your understanding, that what in effect occurred is that the relevant rate of pay plus ELA that had applied at Prospect then became the rate that applied to Integral employees, even though the ELA was not actually mentioned in the awards?---What is my understanding is this, that employees – well, actually my understanding is different to that. Employees had a rate of pay that resulted from the amalgamation of the organisations and that rate of pay effectively became best of both. So you essentially had some allowances wrapped up as a result of that merger. And then you had ELA being paid on top. So, you know, it could be argued particularly after the – well, it could be argued that there was a double dip there. I certainly argued it but - - -

PN1261.

In any event, there was a rate of pay plus an ELA allowance?---Yes.

PN1262.

The ELA allowance being an all-purpose amount?---That’s right.

PN1263.

Then it would appear in the payslip as the rate of pay?---Well, it appears as an allowance that sits on top of the rate of pay for all purposes, yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1264.

You joined Integral in October 2008 in circumstances where the award was due to expire in December of that year?---That’s right, yes.

PN1265.

So you presumably get thrown straight into negotiations?---I did, yes.

PN1266.

You hadn’t come, had you, from an electrical industry background at that point?---No, I had just walked out of finalising EBA negotiations at RailCorp about four weeks prior and walked straight into negotiations at Integral and I was not from the industry.

PN1267.

I think this is already clear from the evidence you gave Ms Nomchong, but the annoyance that you have said to her that you had was because the union wanted something documented at what you considered a too late stage, as against changing conditions. It wasn’t changing conditions. It was the fact that they wanted it documented was the real concern, wasn’t it?---It was about the process of negotiation firstly. I mean, they had finished. Secondly, it was about effectively adding or hanging off or attaching to the document an allowance that wasn’t there. So, in my view, it added to the award and I saw it as a last-minute late claim when our backs were to the wall.

PN1268.

I think you have made clear that this was not something that was ever discussed in meetings of the negotiating committee that Mr Curry attended. They were over by that stage, I think your evidence is?---That’s right, yes.

PN1269.

This was something that was arising in phone calls with Mr Riordan; is that right?---With the secretary of the union and Mr Curry, there were face-to-face discussions as well, but it came up after the bargaining committee had finished its work. We had actually been before his Honour DP Harrison in the New South Wales Industrial Commission to finalise that agreement. It had a bumpy landing. We had finished all of that process and, you know, the first contact I had was a phone call from the secretary to say that we have got to add this and then there were discussions flowing from there.

PN1270.

Whenever these discussions that you say occurred, occurred, they occurred before DP Harrison formally determined to make the award?---In the interregnum, yes.

PN1271.

Can I suggest to you that in fact the conversations you had with the union throughout this process were amicable?---No, they weren’t.

PN1272.

That, in fact, you had found the union officials constructive?---Throughout all of the negotiations to that point, yes. The view I took was that they were probably under pressure from delegates, but I wasn’t amicable in the discussions about this matter.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1273.

But you certainly found that they were constructive, that the union officials had been constructive in the resolution of disputes?---Not on this matter. Not on this matter, no, no. There have been occasions when, you know, throughout the negotiations for that award and other times when I have found myself in vigorous disagreement with the unions on issues; this was one of them. But there have also been occasions when, you know, I have found that the officials – Mr Curry, in particular – to be highly professional. I took the view that he was under some pressure over this issue and I wasn’t happy about it.

PN1274.

But, in any event, you thought that overall the approach of the union officials in respect of these negotiations have been constructive and positive?---It had been mixed, but in relation to this issue, not.

PN1275.

You wouldn’t deceive a member of the Commission at any time, would you, not knowingly?---No, absolutely not.

PN1276.

Deputy President Harrison recorded that you told him that the union officials had been constructive in the resolution of what was at times difficult matters?---Yes, yes.

PN1277.

That was a true statement, was it not?---No, I did say that at the end of the negotiations, that is true.

PN1278.

It was a true statement, wasn’t it?---Yes, it was, it was. But in relation to this issue I was unhappy. And, I mean, as you proceed through negotiations you have - and you know this, I mean, you have been involved them – you have a series of fights and arguments and, you know, you engage in a whole bunch of tactics to try and force each other to move their positions. At the end when you come out you all breathe a great big sigh of relief, shake hands, and wait for the next negotiation. So, you know, it is my way to acknowledge the positives at the end of a hard-fought negotiation and I certainly did that on this occasion. But that doesn’t detract at all from how unhappy I was about this issue coming up at the end of the negotiations.

PN1279.

But as I think you agreed with me earlier, the timing of it having annoyed you, what wasn’t being asked of you was to alter existing practice?---No.

PN1280.

The practice that you set out then in the letter of 15 July 2009 was the practice up to that point?---That’s right. What was being asked of me was to enshrine a practice in the award and, of course, the issue I have with that is the practice itself then can’t be, you know, reviewed or dealt with; it gets set in stone. And that’s why I was very particular about the way I approached the 2010 negotiations.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1281.

The practice that you identified in that letter that had been the practice up to that point, continued to be the practice up to and during the time you were having the negotiations for the next award, was it not?---That’s right. People continued to get paid the ELA and claim for it in the, sort of, way they had been through that period.

PN1282.

Upon showing that they had an electrician’s qualified supervisor’s certificate as issued by the relevant authority, they must be paid an all-purpose allowance is how you expressed it in the letter?---That’s right.

PN1283.

That was the practice both before you wrote that letter and after you wrote that letter. And I don’t want to go forever. I want to go up to the point where you having these negotiations about the 2010 award?---Yes, yes. That’s why I asked Mr Lowe to draft the letter because he had been in HR for a million years and I thought it was important for the letter to not go beyond what had been the practice.

PN1284.

Mr Lowe drafted it, do I take it from what you said, because you were confident he knew the way in which it happened?---Obviously he did it in concert with me, he reported to me. But, yes, that is right. I had brought a number of new people into IR around that period of time and he was one with the most experience.

PN1285.

You have given some evidence about views that you have had or thoughts that you have had about ESRA and the ELA being for the same thing?---Yes.

PN1286.

Is that a view that you still hold?---Yes.

PN1287.

That you think the ESRA is something that is an allowance paid that is recognising the exact same skills and experience as the ELA is recognising?---Well, I have a less generous view of ESRA than that, but industrially what I understand is that ESRA is paid in recognition of a person passing a test around the electrical safety rules. So ESRA is paid so that people effectively pass that test and comply with those rules. Now, one of the things that was said to me when we had our debate about the ELA back in 2009 was that it was - - -

PN1288.

Can I just stop you? Is this relevant to you answering the question as to whether they are or aren’t the same now?---Yes, it is. Yes, it is, absolutely. It was that it was for people working professionally and I have mentioned that before. So to my mind, ESRA is about that.

PN1289.

So to that extent you think there is a crossover between the two?---At least that, yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1290.

But do you say there is a hundred per cent crossover or do you acknowledge that the ELA is recognising something different?---No, no, I don’t say there is a hundred per cent crossover and I will tell you where I think the difference is. There are some people who work on the customer side of the network, work on the customer side of – basically work on, you know, the other side of the board, the customer side. For them – and I have never contested this – they need to hold an electrician’s licence allowance. The clause as it is drafted would clearly apply to them. So I see that as being distinct. But for the rest, I don’t.

PN1291.

The fact that they might have to as part of their duties work on the customer side once a month, they still have to work on the customer side. The electrical licence allowance is recognising that they have the skills to do that. Do you accept that?---Well, there is a debatable professional point around that Mr Langdon will take you to no doubt when you speak to him. But I see it as applying to a small cohort of people. For the rest, I say ESRA is a massive crossover. And during the row we had in 2009, I remember distinctly describing ELA as another ESRA. I was still getting over my shock that ESRA existed in 2009.

PN1292.

But at that time you had been in the electricity industry for a couple of months, I think?---Yes. I was still in shock at ESRA.

PN1293.

But you now understand, I think, from what you have already said this is the case but tell me if I am wrong, you now understand that those who have to from time to time work on the customer side of the network need to have knowledge of wiring rules that come with the training that a trade qualified electrician obtains?---Yes, well, I understand that, and obviously I have no idea what he will say to you, but Mr Langdon will give you more professional evidence on that than I. My only point in answer to your question was that I do acknowledge that the ESRA crossover is not a hundred per cent. It is probably 99. There is a cohort of workers that would require a small number, a licence, and under the terms of the EBA they would attract ELA.

PN1294.

Do you accept even on your own view that the electrical licence allowance is recognising additional skills and knowledge over that which is recognised by those who get ESRA?---Yes, but I vigorously resist its application. My issue is the universality of it. I mean, I don’t think – I mean, this is not the question you asked so I won’t go where I was going to say. But, yes, my issue was with the universality of it.

PN1295.

You have given evidence about the way in which you personally were involved in dealing with an allowance known as the electrical licence allowance from the time you started up until today, really. In a broad sense, that is the nature of your evidence?---Even after I have left the organisation, I am still haunted by it, yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1296.

But you agree with me that is the nature of the evidence you have given?---Yes, yes.

PN1297.

Do you say to the Commission that you have, at least in your own view, acted competently in the management of this issue on behalf of Endeavour throughout that time?---Yes.

PN1298.

And that you have done your best to act in the interests of Endeavour at all times during this period?---Yes.

PN1299.

You haven’t made any gross mistakes or missteps you think in the way in which this has been managed?---No.

PN1300.

Do I understand your evidence that as early as 2008 when you started you already at that point thought that most of the positions didn’t require the employee to have a licence?---I formed that view talking to other managers, yes, when the issue was raised.

PN1301.

As early as 2008?---Yes.

PN1302.

Is that because you formed a view, do you say, as early as 2008 as to what the statutory regime was?---No, no, correction, 2009.

PN1303.

2009?---Yes.

PN1304.

As early as 2009 you had formed a view that the majority of positions didn’t require an employee to have a licence?---No, I formed a suspicion at that time based on the fact that it was universally applied to everybody. And I was surprised that everybody got paid it which is why when I went to the head of payroll and said, “What’s this all about?” and received the answer, “Everyone gets it,” and got the same response from Mr Lowe, I was somewhat shocked.

PN1305.

THE SENIOR DEPUTY PRESIDENT: Mr Greenhill, were you aware that people’s job descriptions required them to have a licence?---We made some early enquiries at that time and I have to say I was – I was going to use very strong language but I had very strong views about the state of Endeavour’s records and it was - - -

PN1306.

But people had position descriptions, didn’t they?---People had not position descriptions individually. They didn’t have PDs. They had classifications.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1307.

But in the documentation that related to people’s jobs, whether it was a group of people or individuals, for many of them, anyway, you don’t disagree there was a requirement that they had a licence?---For some. For many others it was unclear, is my memory. And the view I took at the time - and I think it is wrong for me to say to you – so I think I need to answer the question in this way – I formed the suspicion at that time that Endeavour had been lazy in the way it was managing ELA at the time I came into the business. And my attention was drawn to that when this issue arose just prior to the certification of the 2008 award. Now, you have got to realise we had very little time then. This was raised and we were about to have it certified so we undertook some very quickly analysis and I remained very unhappy about it.

PN1308.

MR TAYLOR: Mr Greenhill, your title, I think, was, or it may be still is while you are on holiday, an advocate?---Yes.

PN1309.

But could I ask whether you could try and keep your answers to answering the question and not giving explanations as to why you think certain things?---Yes, yes, sure.

PN1310.

My friend, of course, has an opportunity to ask those follow-up questions in re-examination?---My apologies.

PN1311.

Now, isn’t this the case that right from 2008 you had a view that most of the positions didn’t require the employee to have a licence?---I had a suspicion back then that that was the case, yes.

PN1312.

So when you said in paragraph 17 that you had an understanding to that effect, is that wrong and needs to be corrected?---No, no. I don’t see that the two things are different. I mean, I haven’t formed – you have got to understand, the union raised this issue when the negotiations had finished and we were about to certify the agreement. So this came up very quickly and I didn’t have a lot of time to deal with it.

PN1313.

I thought you said you spoke to a range of people and got information at the time?---No, sure, I did, but it was a short period of time. I formed the view; a suspicion, understanding.

PN1314.

Does the length of time matter when it comes to getting information from your staff?---Yes, I think it - - -

PN1315.

Does an answer that takes four weeks more reliable than one that you can get quickly?---Yes, I think evidently it does. So I formed the view, suspicion, understanding, call it what you will, that there was an over-application of this allowance to people.

PN1316.

But the word “most” – more than half?---I wouldn’t have had a view at that time.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1317.

You didn’t?---No, I wouldn’t have had a view at that time.

PN1318.

Is that a view you formed at some later stage?---Certainly. Certainly I would have felt it was more than half at some point in time, yes.

PN1319.

Can you identify that point of time? Was it whilst you were negotiating the 2010 wording?---Well, we would have formed the view certainly prior to the 2010 EBA negotiations that, in our view, it was grossly over-applied. I convened a meeting between myself and all of the network managers prior to the 2010 agreement. At that meeting I argued that the ELA was grossly over-applied. It is true to say that they weren’t as enthusiastic as I was about that proposition. But all of the network regional managers attended that discussion.

PN1320.

Would these tend to be people who have got some form of electrical qualification, either trade or professional?---Yes, they agreed with my proposition but were concerned about the industrial strife it would cause.

PN1321.

So when you say “grossly over-applied,” that is a view that you formed prior to 2010 negotiations concluding?---It would be, yes.

PN1322.

Sorry, was it or wasn’t it?---Yes.

PN1323.

Was it at that point that at the least that you had an understanding it was most, as you say in paragraph 17, most of the positions? Is that the view, more than half?---I mean, you know, it wasn’t – I didn’t sort of snap my fingers suddenly in 2009 and say: “This must be more than half.” But over a period of time and looking into it, because no one had previously, I developed the view that, you know, this was being grossly over-applied. Even when we were having the argument in 2009, it just seemed to me obvious that, you know, it was over-applied.

PN1324.

Are you able to answer my question or not? Did you have a view leading up to the 2010 and during the 2010 negotiations that more than half weren’t entitled to it?---I have already answered that. I have already answered that question, I think, to you. If I haven’t, yes, that was my view.

PN1325.

When you were doing the negotiations for the 2010 agreement, you say now that you were mindful, were you, of the statutory provisions which meant that the majority of employees were not entitled to this allowance?---Where do you say I say that?

PN1326.

Paragraph 31: “I determine that the requirement to hold an electrician’s licence should be determined by the legislative regime”?---Yes, yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1327.

That was something that you had a view about, you say, right back then when you were negotiating the agreement?---Yes, yes.

PN1328.

You had regard, did you, to the regime and you formed a view from what people told you that a majority of employees were not entitled to the licence; is that what you say?---Yes. I don’t say anywhere there about the majority of employees not being entitled, but that was my view. I had been, as I say, a senior advisor to the Minister for Fair Trading some years back, so I had an understanding of the regulatory regime. And I took the view that – had taken the view that the clause was grossly over-applied. That view had been developing ever since the matter was raised with us in 2009 at the death knell of the then award, developed over that period of time, took it into the negotiations and that is why I negotiated a clause in the way that I did.

PN1329.

So you say that having achieved this negotiated outcome and got the words into the award that was the words we now see, you immediately knew that a majority of employees were no longer entitled to the allowance?---Yes, I knew that.

PN1330.

That you had achieved by this wording a saving in the order of over a million dollars a year?---Possibly, yes.

PN1331.

You knew that at the time. You must have been very pleased with yourself. You knew you had saved that much money right then?---I obviously didn’t know what the precise effect would be in terms of cost savings. But what I did know was that I had negotiated with the unions a clause that wasn’t just an industrial clause. It was attached to the regulatory regime as well.

PN1332.

No, no, you are asking the Commission to believe you knew a lot more than that. You knew that a majority of electricians who were getting an all-purpose hourly bump in their rate of pay were not entitled to it as a result of your wording?---Yes.

PN1333.

That you knew that at the time. That is what you are asking the Commission to believe?---I believe that to be so, yes, obviously subject to whether or not the business had the appetite to use the tools I have given them.

PN1334.

You agree, don’t you, that at no point in these negotiations with the union did you identify that this particular wording would result in a significant removal of employees entitled to the allowance?---I was in a room full of people who understood the regulatory regime at least as well as I did. If they didn’t understand that I am surprised.

PN1335.

Do you think that answered my question?---Yes, I do.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1336.

I will ask it again. At no point in the negotiations did you ever identify that the wording you were proposing would have the effect of removing the majority of electricians’ entitlement to the licence?---No, no.

PN1337.

By “No” you are agreeing with me?---I am agreeing with you, yes.

PN1338.

You put forward a presentation called Management of Allowances, didn’t you?---Yes.

PN1339.

That is a document that you have seen attached to the statement of Mr Curry?---Yes.

PN1340.

Do you agree with Mr Curry when he said that the presentation that was given by Endeavour made clear that the management of allowance initiatives was not designed to reduce anyone’s entitlement to allowances?---I don’t agree with that. I think it actually does say that.

PN1341.

Do you have Mr Curry’s statement there?---Yes.

PN1342.

Can you open up BJC-7?---Yes. Which one is it?

PN1343.

If you have got Mr Curry’s statement, you will have to - - -?---Yes, seven, is it?

PN1344.

Yes, it is no. 7. It is not immediately easy to find?---Yes.

PN1345.

But eventually you find what is a PowerPoint presentation?---Yes, let me just have a look.

PN1346.

Can I ask you, Mr Greenhill, just firstly, you have already seen this document before?---It has been a while.

PN1347.

But this was the PowerPoint presentation that Endeavour provided to the unions during the course of the negotiations for the award, was it not?---That is correct.

PN1348.

It is headed on the first page: “2010 Agreement Negotiations Employee Related Savings.” Do you see that?---Yes, that is right.

PN1349.

That expression “employee related savings,” is that an expression that is familiar to you from dealings with the New South Wales government and treasury?---It is, indeed.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1350.

Is that an expression which arises from the then New South Wales government wages policy that increases in pay had to be offset by employee related savings?---Yes, that is correct.

PN1351.

Was the purpose of this document to identify employee related savings that would emerge from this particular initiative, the management of allowances?---It was our starting point, yes.

PN1352.

You agree with me that at no point during this presentation did you identify that the proposed change to the ELA would lead to a saving?---No, it doesn’t say that.

PN1353.

It doesn’t say that. It does, though, if one goes through to the final pages, it does have some estimated results of savings that will arise from this proposal, does it not?---That’s right.

PN1354.

Those savings, the first of which there is a potential saving of – tell me if I am reading this wrong – under different scenarios ranging up to $479,000 at the top end?---Yes.

PN1355.

That was the meal break allowance?---Yes.

PN1356.

The next one, a saving in the order of $384,000 for changes to the start and finish onsite allowances?---Yes.

PN1357.

The next one, travel allowances, there was a potential annual saving of around $100,000; is that right?---Yes.

PN1358.

The last one, I think, I might be wrong, it doesn’t appear to identify any particular savings in respect of standby and call-outs whilst on leave. Was there a particular saving that was attached to that?---Yes, but that was more of what we sort of call a hygiene issue. It was a bit hard to defend people being paid standby and call-out when they are actually on holiday. It was less about saving money.

PN1359.

One of the critical things that you had to do in this negotiation is not just negotiate with the union. You had to satisfy treasury, didn’t you?---Yes, that’s correct, yes.

PN1360.

You had to show treasury that the increases in pay that were being agreed with the unions were offset by employee related allowances?---Yes.

PN1361.

You presented to treasury, do I take it, figures basically of the exact same nature that you presented to the unions; is that right?---Yes, yes, it is very similar. Well, it would have been identical.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1362.

Just as you didn’t tell the unions, you didn’t identify to treasury any employee related saving in respect of your new wording of the ELA, did you?---No.

PN1363.

By “No” you are agreeing with me?---I am agreeing with you, yes.

PN1364.

Yet I think the Commission is to proceed on the basis that at this point in time you knew that this new wording immediately gave a saving of certainly something in the order of a million dollars a year?---Potentially, yes.

PN1365.

Notwithstanding that you were negotiating with treasury to demonstrate employee related savings - - -?---But, look, I don’t know – yes.

PN1366.

- - - and you needed every dollar, didn’t you?---But that was never part of what we put to treasury. We didn’t know that management would have the appetite immediately to apply it. They had a history of management paying this allowance for no reason, you know? And I gathered managers before me on this issue and they had no appetite for the industrial fight. So I couldn’t go to treasury and say, well, in this period, this two-year period, we will deliver this, because I had no way of knowing the organisation would have the appetite for it. What I did do was produce a clause for the organisation that gave us the ability to clean up an overpayment of an allowance. Now, in my job you give your employer the best tools you possibly can. There are umpteen occasions when they have not pulled the lever. The reason the lever was pulled on this eventually is in my evidence, but there wasn’t an appetite in those early days to use it, but it was well understood what I had done.

PN1367.

So you ask the Commission to proceed on the basis that you had just achieved a million-dollar saving which you didn’t tell treasury about and in your position as head of HR took no steps to implement thereafter?---Well, it is not my decision whether it is implemented or not. But certainly people who have any history of dealing with me know that I don’t accidentally come up with a clause that says precisely what is said in that one.

PN1368.

I think what I am going to suggest to you is that there is nothing in the clause that refers to statutory requirements is there? The word ‘statute’ doesn’t apply?---Well, no.

PN1369.

Is it there?---No, but the words are pretty clear. In order to receive the allowance you have got to hold a licence. That is self-evident. And then we come to the second one and I think this is where you run into some trouble. “The employee must be required by the regulatory regime” - now, I don’t know what ‘regulatory’ would be but, anyway – “regulatory regime to hold the electrician’s licence in order to perform their duties.” Now, if there is no reference to ‘statute’ I don’t know what regulatory is. Regulated by whom?

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1370.

Where are you reading that from?---From the clause.

PN1371.

Precisely what document have you got in front of you?---Well, actually, no, you need to look at paragraph 32 of my statement.

PN1372.

Yes, don’t worry, I have read paragraph 32 of your statement. But I thought you seemed to give the impression you were reading the clause?---No, no, my statement. The clause says – you know, the clause is worded differently to that but that is - - -

PN1373.

It doesn’t have the words “regulatory regime” in it, does it?---Well, “required to do so.” Required by whom?

PN1374.

His Honour will be thinking about that question; don’t worry. But the words “regulatory regime” or reference to “statute” are not in that clause, are they?---Well, but, again, I would say it is self-evident. Required by whom?

PN1375.

THE SENIOR DEPUTY PRESIDENT: Well, I mean, it says what the (indistinct words) says is that the position requires the incumbent to hold the above qualification. Would you agree that if the organisation requires someone, if they say to do this job, rightly or wrongly, but if the organisation says to do this job you must have this licence then you are required to have that licence to fulfil the duties of that job?---Yes, but it is a matter for the organisation to determine.

PN1376.

I am asking you the question: if the organisation says you must have it for whatever reason the organisation decides that, isn’t it the organisation presumably who determines the duties of a position and the qualifications necessary to do the job?---Yes. The intention was as is set out in 32, because - - -

PN1377.

Well, no, can you answer my question?---No, I will come to your question. I will come to your question. What was in my mind was what was in 32.

PN1378.

I am not really asking what was in your mind then. I am asking you the question now?---You are putting me in a difficult position, your Honour. I don’t work for them anymore.

PN1379.

Well, you can be honest then, can’t you?---Yes.

PN1380.

MS NOMCHONG: Your Honour.

PN1381.

THE SENIOR DEPUTY PRESIDENT: Even more honest.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1382.

SPEAKER: (Indistinct words).

PN1383.

I certainly would think it was – I actually object to the comment that came from the back of the room, from the back. The fellow in the buttoned sleeves. He needs to apologise for that. He just called me a liar, your Honour.

PN1384.

SPEAKER: Your Honour - - -

PN1385.

THE SENIOR DEPUTY PRESIDENT: No, no, I am not going to debate that. Can we just ask you to answer the question?---I would think that is possible, yes.

PN1386.

MR TAYLOR: Now, let me come to – I think we are clear so far that you are asking the Commission to accept that at the time you drafted the 2010 wording you had a very clear idea that there were statutory provisions which would mean that the majority of electricians were going to lose their licence and there was a saving, therefore, of a million dollars a year that had just been achieved?---A million dollars a year never entered my head. I took the view that there was a circumstance where the ELA was being over applied and it needed to be opened up. So I produced a clause that did that.

PN1387.

Having done that, Endeavour, you agree, did nothing to realise the significant savings you had achieved until three years later in March 2014 when it commenced a review?---That’s right.

PN1388.

There is no document prior to that date prior to the dispute in January of 2014 which documents that Endeavour had a view that the clause hinged on a statutory limitation, is there?---No.

PN1389.

Do you accept that your failure to take any action from the time that you achieved this clause cost the organisation some millions of dollars?

PN1390.

MS NOMCHONG: I object, your Honour. I object. The witness has answered that it wasn’t his responsibility to implement the clause. His job was to actually get in the clause so I think it is a very unfair question.

PN1391.

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to respond? I think that is a reasonable objection, I have to say.

PN1392.

MR TAYLOR: I am happy to ask a different question then. Was it any part of your role to have meetings with those involved in payroll and the like to ensure that the award was being complied with? Was that any part of your responsibility?---Yes. After we got the new award inserted into the agreement, as I said to you, we had a meeting with all the network managers prior to.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1393.

Is this answering my question?---Yes, yes.

PN1394.

Was that part of your responsibility or not?---Yes.

PN1395.

It was?---And I will take you through what I did.

PN1396.

No, did I ask you to do that?---Okay. Well, I did many things and didn’t get support until Mr Curry did a certain thing.

PN1397.

So do you say, do you, that you did a number of things to bring to the organisation’s attention that it was spending large amounts of money that it didn’t need to spend?---I did. I did.

PN1398.

That is something that we do not find mentioned at any point in your statement?---No.

PN1399.

You agree with me?---I am responding to a question you have raised.

PN1400.

Do you agree with me?---Yes.

PN1401.

It is not something that was ever documented at any point?---Not to date, but I am responding to a question you have raised.

PN1402.

When you say “not to date” you are agreeing whatever steps you took never got to a point of documentation at any point?---In these proceedings?

PN1403.

Prior to January 2014?---Yes, but I am responding to a question you raised.

PN1404.

When the dispute arose in January 2014, there was a backwards and forwards about 27 employees, should they be paid or not?---Yes, yes.

PN1405.

You agree with me that at no point in those first months between January and March did Endeavour say: “Well, in fact, they are not entitled anyway if you look at the allowance because of the statutory nature of their duties.” At no point was that said, was it?---That dispute was about back-pay. It wasn’t about the overall application. Prior to that dispute being raised, there had been at least two metres since the 2010 EBA with management where firstly myself and after that myself and Ms Sheather were urging the organisation to act on the clause. Then there was the dispute that you have mentioned. That dispute was just about back-pay.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1406.

These are meetings with management that didn’t result in anything being documented. They were sort of verbal discussions only, you say?---I am not sure what Ms Sheather would have by way of notes.

PN1407.

When this issue arose initially isn’t it the case that the response from the company was not, “These people don’t need a licence,” but rather, contrary, Ms Sheather wrote saying that it was necessary for these people to have a licence to meet statutory obligations?---Yes, it was in Ms Sheather’s letter.

PN1408.

You have seen that attached to Mr Curry’s correspondence?---I have seen it, yes.

PN1409.

Then was the next thing that happened some reference to a letter that referred to something called “Change to Fair Trading requirements.” Do you recall that letter?---I don’t.

PN1410.

If you have a look at Mr Curry, his statement, I think it is the first attachment is a letter from Mr Howard?---The first attachment?

PN1411.

Yes, it is BJC-1. So it is page immediately after Mr Curry’s signature page?---Yes.

PN1412.

The letter of 24 March 2014. This letter is written by Mr Howard straight after the recommendation that his Honour issued?---Yes.

PN1413.

That is clear, I think, from the first paragraph?---Yes.

PN1414.

Were you involved at all in this dispute at this point?---No. I became involved at the Commission. I was not necessarily involved in this stuff because I was at Ebsworths New South Wales by then. So I was involved here in the Commission. I had some involvement prior in advising the business but - - -

PN1415.

And no doubt when it came up you would have immediately told them that, in fact, most of these people are entitled to allowances like this?---Well, Mr Howard had been at meetings where I had been urging the business to make use of the clause.

PN1416.

No need for you to mention it. It would be in the back of his mind, do you say?---Well, I certainly expressed a view about ELA whenever it was discussed with me. But, I mean, I don’t want to use the word that I used but I had a view about it.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1417.

You have a general view that the allowances one that you think is inappropriate. That is quite different from the view that you now claim you had at all relevant times that the allowance in its current form doesn’t apply to the majority of employees. Do you agree with me there is a distinction there?---There is, yes.

PN1418.

Do you agree with me that the view that you expressed to anyone who wanted to listen is that you thought the allowance was wrong and inappropriate but that you didn’t express a view that as it was drafted, the vast majority of people are not entitled to it?---No, you are wrong.

PN1419.

Certainly, do I take it from what you said earlier, when this dispute arose in your new role with Networks New South Wales, you didn’t at that point say: “Well, don’t forget this clause as drafted by me back in the day means most of these people are entitled anyway, why didn’t you look at that?” You didn’t say that, did you?---I can’t specifically remember saying that, no.

PN1420.

So what happened is a recommendation that came out of from the Commission to have a review and that was in circumstances, was it, where there was some understanding reached between Endeavour and the union that there might be some employees who had moved into office-based positions in respect of whom the allowance might not be applicable anymore?---No.

PN1421.

You don’t recall it being that the recommendation that there be a review to see who is entitled emerged out of a background of such discussions?---No, no, not at all.

PN1422.

You say, do you, that you had no hand in identifying that there might be some alterations in fair trading requirements that Endeavour might need to look into?---I didn’t have a role in drafting that letter.

PN1423.

Did you say anything to them that maybe they should look at changes in fair trading requirements?---In relation to that letter being drafted?

PN1424.

Well, prior to that letter being drafted?---I certainly did. In the aftermath of the recommendation I certainly did re-express my view that the ELA was being given to people it shouldn’t be given to. Now, my strong view about that was well known in the organisation and in the aftermath to the proceedings that occurred here I pushed that very strongly. Now, when Ms Sheather and I came down here for that matter, his Honour asked to see Ms Sheather alone. I don’t know what conversation took place between them alone because I was out of the room and I gather it was a confidential discussion and she kept that confidence. But whether or not she and his Honour had that discussion, I can’t guess.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1425.

In any event, are you familiar with the fact that there is nothing in respect of fair trading requirements that have changed to your knowledge that have any impact on these proceedings?---I am not aware of any. I simply have a strong view that, you know, the ELA is applied to far more people than it should be.

PN1426.

But is this the case that you think you expect the Commission to accept the proposition that Endeavour had achieved a substantial saving back in 2010 which it didn’t tell anyone about at the time and took no steps to implement until 2014?---On three occasions, as I have said, once prior and then two times after the 2010 agreement, I, with senior management, expressed the view the clause that had – you know, that firstly prior that we could succeed in getting a clause and then post we have a clause that allows us to properly apply the ELA. Now, I had no idea what that was worth. All I did know was that it allowed us to address what I saw as a misappropriation of the clause. Now, I raised that several times within the business. It was never something we costed, hence it wasn’t on the treasury spreadsheet for the EBA in 2010. That is why it wasn’t there. But often in industrial relations you will provide your employer or client, dare I suggest, with tools they won’t take up initially. Now, you know enough about Endeavour to know there is an awful lot going on in those years as well, and senior management takes the role of prioritising what is going to change. But any change, even though the clause was written the way it was, would have required, you know, consultation with the unions first.

PN1427.

But what I am suggesting to you is that if you had been attempting to set out a complete account of what occurred, it would have been obvious to include in your statement any such internal advice which you hadn’t done?---Look, it wasn’t obvious to me but I have done it here in response to your questions.

PN1428.

After - I withdraw that?---I think that is wise. We have had a good relationship today and if you say something nasty to me you will hurt me.

PN1429.

You are an advocate?---I know. I can’t help myself.

PN1430.

Now, let me just get a couple of things clear. You had given some evidence in your statement about what you were thinking at the time?---Yes.

PN1431.

You have now given some evidence which was in your statement about what things you said to people internally. One thing is categorically clear, that at no point during the 2010 negotiations, or afterwards up until March 2014, do you ever say to the union that you had a few that this clause in these terms would dramatically change the number that would get the allowance, did you?---Mr Taylor, I will not mislead you. I did not say that.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1432.

Indeed, at the point it was being negotiated, I just want to get something clear that you said to Ms Nomchong, I don’t want to get this wrong, in those negotiations with the union I think you said this to her, nothing was no categories identified of any employee who was going to come out as a result of that drafting?---Sorry, what was that again? That was in relation to - - -

PN1433.

My note, of course, is scrawled?---Yes.

PN1434.

But my note of what Ms Nomchong asked you is that in the discussions in respect of the wording for the ELA that was negotiated in 2010, those discussions did not at any point identify that any particular people were moving in or moving out and your answer was at that time: “None”?---That’s right.

PN1435.

Now, at that time it is no doubt that the practice was that every qualified electrician who held a licence got the allowance?---Yes, I don’t argue with that.

PN1436.

And nothing was said in that negotiation to draw attention to there being any change to that practice as a result of this wording?---No.

PN1437.

By “No” you are agreeing?---I am agreeing with you, yes. It is hard because nothing was said. Yes, nothing was said. Nothing was said but equally I wasn’t misleading anybody. We had a room full of people who well understood the regulatory regime, most of them far better than I did, so I certainly didn’t feel when I negotiated that clause that I was being misleading. But I deliberately negotiated a clause that, you know, contrasted with another business in the industry which has a very different clause.

PN1438.

But am I right that the nature of this negotiation was one where you needed to try and get from the union employee related saving?---Yes, that is true.

PN1439.

So any area where you could identify a saving was going to assist you in the negotiation to the end result?---Yes, but you have to identify those to - - -

PN1440.

Do you agree with me?---Well, no. You have to identify those to the government before you start negotiating and it is not the case that, you know, you might achieve a better result of an EBA than you told treasury, but you can’t have the extra savings. It doesn’t work like that. If you achieve a better result of an EBA than you told treasury: happy days for all concerned. Now, also, while I had a view about how many people this would pick up, it wasn’t clear, you know, that my view was that a hundred per cent correct. I am not an expert. And I wasn’t sure that management have the appetite to fight it at that time. But what I did know was that I put a clause in place that I could faithfully report back as removing what I saw as, you know, a misapplication or an over-application of an allowance.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1441.

Two things arise. Firstly, before Endeavour could get approval from the shareholders to sign that EBA, you needed to go back to treasury and identify that there were employee related savings that matched increases?---That is right.

PN1442.

So whatever you said about the starting point, it was also the end point too, was it not?---Yes, yes, but it was never costed.

PN1443.

It was never costed?---Yes.

PN1444.

Can I say this to you: one other thing you knew at all relevant times is if you had said during those negotiations that the import of your new wording was to deprive the majority of electricians of this allowance it would never have been agreed, would it?---Look, I agree with that. There are any number of issues that unions have sought to negotiate in our agreements that they then later on took to the Commission, you know, with a certain slant and had they in negotiations said to me, “Well, this is what we think this means,” I wouldn’t have agreed to it. That is the nature of industrial relations.

PN1445.

It follows from your answer that you knew that whatever knowledge these people had in the room, no member of the union had identified this as something that was going to reduce wages for electricians, had they?---Well, they ought to have known.

PN1446.

None of them did, did they? And you knew at the time.

PN1447.

MS NOMCHONG: I object, your Honour.

PN1448.

WITNESS: Well, I didn’t.

PN1449.

MS NOMCHONG: I object.

PN1450.

WITNESS: We are talking about - - -

PN1451.

MS NOMCHONG: I object.

PN1452.

WITNESS: Yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1453.

MS NOMCHONG: Your Honour, the question is directed to what was in other people’s minds. It is not something this witness can answer. He has given some information about how he was in a room full of people who knew the regulatory regime better than he did. I think that is as far as it goes and he has given some information about what he said and didn’t say. He is not required to say what they knew and what they didn’t know.

PN1454.

THE SENIOR DEPUTY PRESIDENT: It also making certain assumptions that I am not sure are correct about that the clause itself could lead to a reduction in costs.

PN1455.

MR TAYLOR: Yes, I think - - -

PN1456.

THE SENIOR DEPUTY PRESIDENT: I am not sure that is actually a correct presumption that that is what the clause would do anyway.

PN1457.

MR TAYLOR: I am sorry, your Honour.

PN1458.

THE SENIOR DEPUTY PRESIDENT: So can you move on?

PN1459.

MR TAYLOR: Isn’t this the position that when this was being negotiated at the point it was being negotiated and identified, neither Endeavour nor the unions identified this as something that would lead to any reduction in costs?---I presented a plain-English clause to a room full of people who ought to have been able to easily understand it.

PN1460.

So you thought it was going to lead to a reduction in costs, notwithstanding. You thought it was going to lead to a reduction in costs?---I certainly formed the view that it would – this is what I keep saying this morning, that it would deal with a misapplication of the ELA and the over-application of it.

PN1461.

You thought it would lead to a reduction, didn’t you?---Well, it certainly would deal with the over-application of ELA. Now, to the extent that that is going to save the business money, you know, that is to be determined. You have continually raised the million dollars at me and I keep saying to you I don’t know that that is right.

PN1462.

Isn’t this the true position that contrary to what you have said in your statement at the time this clause was being put forward it was being put forward on the basis that you did not understand that it would lead to the majority of electricians losing their licence?---It was put forward on the basis that I set out in my statement.

PN1463.

MS NOMCHONG: The licence or the allowance?

PN1464.

MR TAYLOR: Sorry, the allowance. I should have said the allowance?---It was put forward on the basis that I set out in my statement.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1465.

That basis is that from as early as 2008 you had a view or an understanding that most of the positions of Endeavour did not need a licence and an understanding that if your wording went into the award, the consequence would be that most would no longer be entitled to the allowance?---Yes, that was a developing understanding, as I have said.

PN1466.

But it was an understanding that had developed by the time you were putting the words forward in 2010?---Yes, you are right.

PN1467.

Notwithstanding that, you didn’t highlight any impact that would have on wages in those negotiations with the employees and the unions?---It would have had no impact on wages.

PN1468.

It would have a direct practical effect on the hourly rate of electricians?---On the take-home pay, yes.

PN1469.

So notwithstanding that you had a view that it was going to have that change, you didn’t raise that in negotiations with the unions?---You have asked me probably six times and I have answered it the same way. The answer is I did not say that this is going to, you know, reduce your take-home pay.

PN1470.

The reason you didn’t say it, I want to suggest to you, is because it was not the intention of either Endeavour or the unions this new wording would in fact change the entitlement to the allowances in the way that Endeavour now says it did?---I categorically reject that.

PN1471.

Can I just take you to paragraphs 34 to - - -?---Of my statement?

PN1472.

Of your statement?---Yes.

PN1473.

To 36?---Yes.

PN1474.

At this point you are discussing the negotiations for the 2012 agreement?---Yes.

PN1475.

You identify that there was a number of priorities and for that reason you continued the ELA provision in the same form?---Yes.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1476.

Have you included that because you had a view that but for those other priorities you would have wanted to change the wording of the ELA provision?---We might have. We might have changed it further, yes. We might have decided to apply it. We moved into a period where electricity prices – and this is one of the reasons why whenever I kept raising the issue it wasn’t taken on – electricity price rises were sky-rocketing at that time. The project’s challenge to compete were all about reducing those price rises which I am here to say they successfully did to CPI. But we were looking at 20, 30 per cent price rises in that period so the focus was on that. And they were a whole range of projects that were all about market testing and outsourcing parts of the business to reduce cost.

PN1477.

If the wording you had successfully slipped through the negotiations in 2010 ‑ ‑ ‑

PN1478.

MS NOMCHONG: I object to that. “Slipped through” is a pejorative term. It was put through and it was agreed by both parties.

PN1479.

MR TAYLOR: I will withdraw the question and put it differently. If the clause that you negotiated and had inserted in 2010 had the effect of reducing the entitlement of this allowance, from something over 780 down to 30 people, then what possibly would you have wanted to renegotiate in 2012 that other priorities got in the way of?---Look, who knows? The point is that I - - -

PN1480.

Removing it from the other 30 as well?---Well, that wasn’t in our mind.

PN1481.

Just give me a moment to check there was nothing else I needed to ask. I might not have put this squarely to you, but going back just to the issue that you were asked some questions about by Ms Nomchong about who you expressed unhappiness to about the lateness of the issue arising back in late 2008, early 2009, I think, firstly, it is clear that this arose after then negotiating committee meetings had concluded. That is your recollection. And can I suggest to you that it arose in conversations directly with Mr Riordan on the phone?---Yes, and in person.

PN1482.

And that if you were unhappy or had any particular views about the allowance, that these were views that were expressed not in Mr Curry’s hearing. Do you accept that?---I expressed my unhappiness in Mr Curry’s hearing too. Thank you, your Honour.

PN1483.

MS NOMCHONG: Your Honour, I make an application just for a short adjournment. I need to get some instructions. I won’t speak to the witness, but I just need to get instructions on something else before I re-examine.

PN1484.

THE SENIOR DEPUTY PRESIDENT: How long do you want? How long do you want?

PN1485.

MS NOMCHONG: Fifteen minutes.

PN1486.

THE SENIOR DEPUTY PRESIDENT: Okay, okay.

**** MARK JOHN GREENHILL XXN MR TAYLOR

PN1487.

MS NOMCHONG: Thank you.

SHORT ADJOURNMENT [12.05 PM]

RESUMED [12.20 PM]

PN1488.

MS NOMCHONG: Thank you, your Honour.

<RE-EXAMINATION BY MS NOMCHONG [12.20 PM]

PN1489.

Mr Greenhill, I would like you to go to the second statement of Mr Brad Curry which is behind tab 11 and to go to BJC-9. It might be cut off at the top. It is a letter from the Electrical Trades Union headed “Integral Energy Agreement 2010”?---I am sorry. The attachments are not on it.

PN1490.

I hand you the attachment being BJC-9?---Thank you.

PN1491.

You were asked some questions about the discussions that were had in relation to the negotiations for the 2010 agreement and I think on a number of occasions you told my friend that you didn’t raise the regulatory regime because you were in a room full of people who understood it?---That’s right.

PN1492.

First of all, was this a document that was provided to you by Mr Curry during the negotiations?---I believe it was.

PN1493.

When you read the words “maybe required to use an unrestricted licence,” what did you take that to mean?---A plain-English meaning.

PN1494.

MR TAYLOR: Objection. This is the territory your Honour has already ruled on as to what one person was thinking as against what was said. So I take the objection that what one person was thinking is not going to help your Honour.

PN1495.

MS NOMCHONG: Your Honour, my friend – sorry.

PN1496.

THE SENIOR DEPUTY PRESIDENT: No, go on, go on.

PN1497.

MS NOMCHONG: My friend has asked a number of questions exactly about this. Why didn’t you say something or why didn’t you raise these issues. And then - - -

PN1498.

THE SENIOR DEPUTY PRESIDENT: Yes, no, I am going to allow the question.

**** MARK JOHN GREENHILL RXN MS NOMCHONG

PN1499.

MS NOMCHONG: Thank you?---The plain-English meaning to me is clear: may be required. Now, I take that to mean that when you are talking about a regulated regime, the regulatory authority.

PN1500.

Did you take any opportunity to clarify that with Mr Curry?---At the time I recall feeling it was self-evident.

PN1501.

You were asked a number of questions and I think you said to my friend that he had asked the same question six or seven times about why the clause was not implemented and your answer on a number of occasions was that your job was to get the clause and then it was management’s job to determine whether they had the stomach to implement it?---Yes.

PN1502.

You have been involved in industrial negotiations for Endeavour and its predecessor Integral really for close to seven years now; is that right?---That’s right.

PN1503.

From your experience, in terms of having the (indistinct) to implement a change like this, what has been your experience in relation to the industrial push-back?---On three occasions once prior to 2010 negotiations and twice after, I met with senior managers out of the Network business. On the third occasion I took the then CFO, Joe Pizzinga, with me. He is now the CFO of Ausgrid. He was the CFO of Endeavour then. And we pushed for implementation of the clause as we saw it. We hadn’t done any costings but we certainly felt – and Joe was very on board with the fact that we needed to wind back the impact of allowances in the business generally. There was a great deal of push back from Network managers on each occasion, largely because of Projects Challenge and Compete, which as I said at the time were becoming increasing contentious, and they were all about outsourcing chunks of the business in order to reduce price rises. So there was just a lot on and people weren’t keen to use that tool.

PN1504.

What, if anything, was anticipated would be the union response to implementation of this provision?

PN1505.

MR TAYLOR: This is in the territory of thinking what other people will think.

PN1506.

MS NOMCHONG: No, no, it was what discussions, if any, were there, in relation to what the push back would be from the union?---Managers felt, and I agreed, that there would be a very serious industrial dispute, as has been the case.

PN1507.

Prior to putting this clause forward for the 2010 agreement, had you or anyone in Endeavour to your knowledge actually undertaken a review as to who actually required a licence to perform their duties?---Not to my knowledge.

**** MARK JOHN GREENHILL RXN MS NOMCHONG

PN1508.

So at the time that you put forward this clause it was possible that there might be some slight savings but not huge savings?---Look, I mean, Mr Taylor raised the million dollars. That is not a figure that I had in my mind at that time. I had no idea. I had just had a view that it was being over-applied – the ELA was being over-applied.

PN1509.

You had a view that it was being over-applied, but you didn’t have any numbers to crunch about whether or not your view was correct or not?---No, no, no.

PN1510.

So in one sense it could have been possible in 2010 that this clause would have had no effect on the existing practice?

PN1511.

MR TAYLOR: This is just - - -

PN1512.

THE SENIOR DEPUTY PRESIDENT: No, no.

PN1513.

MR TAYLOR: It is leading.

PN1514.

THE SENIOR DEPUTY PRESIDENT: Okay.

PN1515.

MR TAYLOR: My friend is now cross-examining the witness, putting propositions to him which is contrary to the evidence he has given up to date.

PN1516.

MS NOMCHONG: Let me rephrase it. That is as at the time of the 2010 agreement you view you held about the over-application, was that a personal view or something informed by information that you had been provided?---It was both. When we had that argument in 2009 about tacking it on, as I have said in my statement, I made certain enquiries and on the basis of those I formed a view that it was over-applied and certainly there were other in the business who, you know, agreed with me. I think previously the approach to industrial relations had been a bit different to mine so they were a bit surprised that someone was saying, “Hey, what are we doing about this?”

PN1517.

But you didn’t have any actual numbers?---No, no, no.

PN1518.

Thank you. That is the re-examination.

PN1519.

THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr Greenhill?---Thank you.

<THE WITNESS WITHDREW [12.27 PM]

**** MARK JOHN GREENHILL RXN MS NOMCHONG

PN1520.

We might break for lunch now.

PN1521.

MS NOMCHONG: What I was going to suggest, if I could, Mr Langdon is literally minutes away and given that I have got just some questions in further examination-in-chief, I was hoping to get those done before lunch only because my friend says he is going to be some time with Mr Langdon and we would really like to try and finish the evidence early, or we could come back earlier.

PN1522.

THE SENIOR DEPUTY PRESIDENT: Yes, but it won’t make it any – I will still break for an hour.

PN1523.

MS NOMCHONG: Okay.

PN1524.

THE SENIOR DEPUTY PRESIDENT: We will just come back at half past one.

PN1525.

MS NOMCHONG: All right.

PN1526.

THE SENIOR DEPUTY PRESIDENT: Okay.

PN1527.

MS NOMCHONG: Thank you, your Honour.

PN1528.

THE SENIOR DEPUTY PRESIDENT: We will adjourn until half past one.

LUNCHEON ADJOURNMENT [12.28 PM]

RESUMED [1.32 PM]

PN1529.

MS NOMCHONG: Mr Taylor tells me that he has no objection to them.

PN1530.

MR TAYLOR: That’s correct, your Honour.

PN1531.

THE SENIOR DEPUTY PRESIDENT: This is the tender bundle?

PN1532.

MS NOMCHONG: Yes. There should be two volumes.

PN1533.

THE SENIOR DEPUTY PRESIDENT: Two, yes. Correct. I think we’re up to E11, is that right? Yes, so the respondent’s tender bundle is E11.

EXHIBIT #E11 RESPONDENT'S TENDER BUNDLE

PN1534.

MS NOMCHONG: You will note, your Honour, that during the course of Mr Greenhill’s evidence, in his statement he makes reference on occasion to documents within the bundle. Thank you. I now call Mr Peter Langdon.

<PETER ANTHONY LANGDON, AFFIRMED [1.33 PM]

<EXAMINATION-IN-CHIEF BY MS NOMCHONG [1.33 PM]

PN1535.

MS NOMCHONG: Could you please state for the record your full name?---Peter Anthony Langdon.

PN1536.

And your business address?---51 Huntingwood Drive, Huntingwood.

PN1537.

That’s in New South Wales?---Yes.

PN1538.

You are currently the manager of Electrical Safety Authorisations for Endeavour Energy, is that correct?---That’s correct.

PN1539.

Now, you swore a statement for the purposes - I shouldn’t say you swore, you made a statement for the purpose of these proceedings, is that correct?---That is correct.

PN1540.

Do you have a copy of that statement with you in the witness box?---I do.

PN1541.

You also have a copy of the two volumes of the respondent’s tender bundle, is that correct?---That’s correct.

PN1542.

Do you have anything else with you in the witness box?---I also have the respondent - the statements ‑ ‑ ‑

PN1543.

The union statements?---Union statements.

PN1544.

Thank you. Are there any corrections or alterations you wish to make to your statement?---No.

PN1545.

Before signing the statement, did you ensure that its contents were true and correct?---I did.

PN1546.

I tender the statement, your Honour.

PN1547.

THE SENIOR DEPUTY PRESIDENT: Mr Langdon’s statement is E12.

EXHIBIT #E12 STATEMENT OF MR PETER ANTHONY LANGDON

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1548.

MR TAYLOR: Your Honour, as for the question of objection, can I just indicate that in this area, our position is that Mr Langdon, at various points in his statement, expresses what might on one view be no more than an opinion as to whether certain positions do or don’t fall within the definition of the clause, or they might be taken to be a matter of statement of fact ‑ ‑ ‑

PN1549.

THE SENIOR DEPUTY PRESIDENT: Right.

PN1550.

MR TAYLOR: - - - that they don’t. We understand they have been put forward in a former case and that the ultimate question will be for your Honour to determine.

PN1551.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1552.

MR TAYLOR: On that basis, we don’t try and take the time to identify each of them, but take that general point, and that’s the only matter we take.

PN1553.

THE SENIOR DEPUTY PRESIDENT: I note that.

PN1554.

MS NOMCHONG: Thank you. Again, with your leave, some additional evidence‑in‑chief, your Honour.

PN1555.

Mr Langdon, you commenced work for Illawarra County Council in 1986, is that correct?---That’s correct.

PN1556.

You have remained in employment with that organisation through its various transmogrifications since that time?---That’s correct.

PN1557.

At paragraph 5 of your statement, you refer to the various roles that you’ve had, and that you say that from those roles, you have a good appreciation of the activities undertaken by field-based and frontline roles. Can you please tell his Honour how you have come to have such an appreciation, by what manner?---In particular, I’d refer to the two roles, Regional Manager Central and Manager System Operations, and my current role. In those three roles, I do require and have required a very good working knowledge of what our staff do. In leading those groups, I receive reports, I receive information on a daily basis in terms of the activity of our staff.

PN1558.

Do you have any role in resources to be allocated to various areas?---Yes. Certainly I do, particularly in those - the roles regional manager and manager system operations. Part of that role was to undertake resource plans based upon future workload, where we took information associated with the types of tasks that our staff undertake and then determine what future requirements there are.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1559.

Mr Woolsey gave evidence yesterday and said that you had no day-to-day contact with him, but in paragraphs 102 to 104 of your statement, you’d expressed a view on the sort of work that he does. On what basis do you say you’re able to make the assertions that you set out in paragraphs 102 to 104?---In the role of regional manager central, I managed a number of both urban and rural groups, in particular the groups based at both Moss Vale and Picton. The role that Mr Woolsey undertakes is very similar, if not the same, as the roles undertaken by staff within those two locations.

PN1560.

Mr Woolsey is at Lithgow?---That’s correct, yes.

PN1561.

Thank you?---In the northern region.

PN1562.

In your role as manager, what opportunity, if any, did you have to directly observe the duties undertaken by field workers, district operators and the like?---Part of the role requires myself as a manager to get out and talk with staff, undertake safety observations and observe the types of tasks that they do, and I certainly took a number of opportunities throughout the years that I undertook that role, to undertake those safety observations.

PN1563.

Were any of the employees in your - when you were a manager, were any of the employees required to report back to you in relation to the duties that they had undertaken?---Staff would normally complete job cards or job packets, that type of activity, and as a regional manager and as manager system operations, I received those reports that have completed tasks and that described the types of activities that staff do.

PN1564.

Upon receiving them, did you read them?---Certainly. Yes.

PN1565.

What is the position in relation to the current apprentices at Endeavour, in terms of the requirement to hold an electrician’s licence?---As I mentioned in my statement, over the last almost 10 years, Endeavour Energy and Integral Energy has moved away from offering trades - or offering apprenticeships based upon electricians. We’ve moved to what we call the distribution power-line worker. In fact, in the last five years, of the almost 200 apprentices that we’ve offered - apprenticeships that we’ve offered, only five of those have been for the electrician type.

PN1566.

And when you say being five of the electrician type, you mean five of the 200 would require a licence?---That’s correct. Five of the 200 that would be able to gain a licence. That’s correct.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1567.

Mr Woolsey also told the Commission yesterday that new apprentices have lesser skills because, for example, they’re only trained on new switchboards. Do you have a response to that?---I think Mr Woolsey’s actually judging the apprentice after their first year. It’s a four-year apprenticeship and part of the apprenticeship is to gain experience on the wide variety of equipment that there is, and so I think, to be honest, that’s pre-judging somewhat the experience that the apprentice is going to gain by the end of their apprenticeship.

PN1568.

Mr Woolsey also stated that when doing his apprenticeship, he was seconded to a domestic commercial firm to get work experience because there was insufficient work at Endeavour for him to gain that experience. Do you have any knowledge as to why persons like Mr Woolsey were seconded out to firms?---As you’d said, we are unable, within Endeavour Energy, to provide sufficient broad experience to gain a full electrician’s licence and so therefore we take the opportunity for those apprentices that are indentured to become an electrician to gain experience externally.

PN1569.

When you say you don’t have enough work for them to be able to gain experience, in terms of - in percentage terms, is most of the work done on the network or most done in consumer installations?---Most of our work is done on the electrical network. A very small percentage is done at the interface to customer installations.

PN1570.

Does Endeavour require Mr Woolsey to undertake standby work?---Standby is not compulsory.

PN1571.

We’ve established that Mr Woolsey works in Lithgow, are you familiar with the work performed by EFM leading hands like Mr Woolsey in country areas?---As I said before, the work undertaken at our Bowenfels depot would be very similar in nature to the work undertaken at Moss Vale and Picton, the two areas that I led and managed in a previous role. So, yes, I would be quite familiar with it.

PN1572.

Mr Woolsey says he does standby work one week out of every four. From your knowledge that you had when you were regional manager, when an EFM is on standby work, what percentage of time would be used performing electrical wiring work on consumer installations?---My recollection based upon my experience would be roughly half or less of the work undertaken would be associated with individual customer supply and a lesser portion of that would be associated with installations.

PN1573.

Just to be clear on that answer, and you’re aware that this dispute is in relation to the necessity to have a licence, so in terms of that figure that you just gave his Honour, half or less, of those duties, and looking at it from a statutory point of view, how often would an EFM performing standby work be required to have a licence because they were working on electrical wiring work for customer

installations?---When I undertook my review, I don’t believe that that role does require a licence, that part of the duties of that role are to ensure that the - or to do diagnostics to ensure that the customer installation that’s connected to our network is safe, that’s done at the interface and I wouldn’t call that a predominant part of their role.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1574.

So you may have already answered this, and please say so, but overall, taking into account both the standby work that Mr Woolsey says he does, and also his normal duties, what percentage of time would be used performing electrical wiring work in customer installations as a whole?---I estimate that to be in the order of 10 to 20 per cent, at the most.

PN1575.

At paragraph 77 of your statement, you state that in or about 1977, the electrical licence allowance was rolled into the wage rate - I’m sorry, 1997, the ELA was rolled into the wage rate for the classification of an electrician grade 2. That was about the time of the merger of Illawarra and Prospect County Councils. Is that correct?---That’s correct.

PN1576.

To your knowledge, and by reference to the prevailing awards and agreements, how were the rates of pay first combined in the Integral Energy Conditions of Employment Award?

PN1577.

MR TAYLOR: Objection. The assumption in that question is this witness has knowledge of this. We’ve already had Mr Greenhill, the expert in IR, who has given evidence exactly what happened and what the allowances were. This witness, on any view, is a witness of great knowledge about a whole range of areas, but nothing in his statement would suggest that he is someone who would know more than Mr Greenhill about this issue.

PN1578.

MS NOMCHONG: Let me rephrase. A moment ago, we referred to paragraph 77 about the rolling in of the wage rate to the ELA and to the electrician grade 2. How were you made aware of that? How did you come by that knowledge?---As a line manager responsible for staff when that award was compiled, we were given a briefing by the then HR group as to the process that they went through in order to establish that now combined award between Prospect and Illawarra.

PN1579.

During that briefing, were you told that that’s what had occurred, that the ELA had been rolled in?---Yes, that’s correct.

PN1580.

Can you briefly describe the broad components of the safety system utilised by Endeavour, and by asking you that, I don’t want minute detail, but in broad ways, how does Endeavour deal with safety at work?---So we have a safety management system which is a system that includes lots of procedures, policies. Within that, my area of expertise is the electrical safety area. We have the electrical safety rules, which is sort of the preeminent document, and then sitting beneath that, there’s a whole host of procedures and workplace instructions and Safe Work Method statements that all need to be built to adhere to the electrical safety rules.

PN1581.

In terms of some of the components you’ve just mentioned, do the electrical safety rules require employees to have an electrician’s licence?---No, they don’t.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1582.

In terms of the work safety methods, I think you mentioned, to the best of your knowledge how many of those statements require employees to hold the licence?
---Three.

PN1583.

Can I just hand you - just take a moment to look at those. The first is SWM 4.011 metering, reconnection, disconnection at meter board?---Yes.

PN1584.

The second is SWM 10.001 customer installation?---Yes.

PN1585.

The third is SWM 10.005 customer installations, install, repair or replace LV customer earthing systems. Are they the ones that you were referring to?---Yes, they are.

PN1586.

I tender those, your Honour.

PN1587.

MR TAYLOR: No objections.

PN1588.

THE SENIOR DEPUTY PRESIDENT: This is E13.

PN1589.

MR TAYLOR: Just in case I’ve misunderstood, my friend might just to be able to confirm this on record, these are the current Safe Work Method statements in effect. I know that they bear earlier dates, but is that how we’re supposed to understand that?

PN1590.

MS NOMCHONG: I’ll just ask Mr Langdon.

PN1591.

You heard the question from Mr Taylor; are these the current SWMs for the particular procedures?---Yes, they are.

PN1592.

THE SENIOR DEPUTY PRESIDENT: Even though there’s a number of them, I’ll have them as one document, so it’s E13, the Safe Work Method statements.

EXHIBIT #E13 SAFEWORK METHOD STATEMENTS SWM 4.011; 10.001; 10.005

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1593.

MS NOMCHONG: Thank you. You have the bundle of statements that have been put forward by the union?---Yes, I have.

PN1594.

Would you please go to tab 3 which is the statement of Mr Colin Egan. Your tabs might be a bit different to mine, and please tell me if they are?---I have that.

PN1595.

I want you to go to paragraph 9 of Mr Egan’s statement, and could you tell me, what are the primary - first of all, you have a lot of familiarity with the work done by a senior system operator?---Yes, I do.

PN1596.

How do you have that knowledge?---I was the direct manager of that role for a number of years. In fact, I recommended Colin’s appointment.

PN1597.

Does Mr Egan supervise staff who are doing electrical wiring work at customer installations?---No, he doesn’t.

PN1598.

Where does Mr Egan work?---He works within a control room.

PN1599.

At the control room, does he supervise any staff there?---He would supervise the on duty system operators within that same control room.

PN1600.

Are, in your view, system operators required to have a licence to perform the duty of a system operator?---No.

PN1601.

What about a senior system operator ‑ ‑ ‑

PN1602.

THE SENIOR DEPUTY PRESIDENT: Can I just ask, why not?---From my perspective, in with the benefit of this review, your Honour, somebody that is not directly undertaking wiring work or directly supervising wiring work does not require a licence and Col is ‑ ‑ ‑

PN1603.

By “work”, this is work on customer installations?---That’s correct. That’s correct. He’s in the control room, your Honour.

PN1604.

MS NOMCHONG: To your knowledge, have there been system operators or senior system operators who have not held the licence?---Yes, I know of one.

PN1605.

Who was that?---John Riggs.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1606.

Did he not hold the licence or a short period of time or for a longer period of time?---John started with our organisation - well, he came across from the Electricity Commission and for the full time that John worked for us, which would have been at least 15 years, John did not hold a licence.

PN1607.

You’ve read the statement of Mr Matuelwicz?---Yes.

PN1608.

Are you familiar with the duties of a district operator like Mr Matuelwicz?---Yes, I am. Again, the district operators were part of a group that I managed for a good number of years.

PN1609.

In terms of the rostering arrangements, Mr Matuelwicz told his Honour yesterday that he is required from time to time to do night-shift?---That’s correct, yes.

PN1610.

To what extent, on those night-shifts, would a district operator be required to perform the duties of, say, an EMSO?---On occasion, but not often. What would generally occur is that if customers do ring up after 10 pm, we would talk to those customers and ascertain whether they genuinely require their fault attended in the middle of the night. Typically they would say no, and so that job would then be given to the EMSO at 6 am the next morning.

PN1611.

When you say “on occasion”, not often, if you could put a percentage term on it, would you be able to do that?---I would estimate that we would get, at most, 10 calls of that nature a shift and I would estimate that, at the most, one of those calls would in fact be dispatched. The majority would not.

PN1612.

THE SENIOR DEPUTY PRESIDENT: That’s across the whole network?---That’s correct, your Honour.

PN1613.

MS NOMCHONG: Could the witness be shown exhibit E8, please. This is a position description for a district officer?---Yes, it is.

PN1614.

This position description doesn’t have a requirement for the incumbent to hold an electrician’s licence. I take you to page 4 of 5, when it’s looking at “Qualifications, Certifications, Licences”, et cetera?---Unfortunately the copy that I have here does not have a page - - -

PN1615.

Perhaps let me show you this one.

PN1616.

MR TAYLOR: That’s the position we’re in as well, your Honour. This is an exhibit that was tendered by my friend. There was only one copy, and inadvertently, I think the Commission staff have only copied the odd pages, not the even.

PN1617.

THE SENIOR DEPUTY PRESIDENT: I see. Sorry about that.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1618.

MS NOMCHONG: Does your Honour have one with all five pages?

PN1619.

THE SENIOR DEPUTY PRESIDENT: Yes, I’ve got that.

PN1620.

So if you go to page 4 of 5, you’ll see there that there’s no requirement to hold an electrician’s licence?---That’s correct.

PN1621.

We were told in evidence yesterday, Mr Langdon, that this differed from the previous position description. Do you have any knowledge as to why holding a licence is no longer a requirement?---The organisation has been progressively going through and reviewing position descriptions, particularly as we’ve understood more broadly requirements for electrician’s licences, and so I’m not surprised at all that there has been that difference between an older version and your version.

PN1622.

THE SENIOR DEPUTY PRESIDENT: But just on that, do you agree that there have been a lot of positions which the position descriptions have required a licence, the electrical licence, even while you might consider that, looking at the regulations, not really necessary to do the job, in fact that the organisation has required people to have the licence?---I’m certainly aware that in the past, there’s been a good number of position descriptions, advertisements, that type of thing, that have listed the requirements.

PN1623.

I think you sort of more or less answered this, so why the change?---I think, to be honest, as we have understood when a licence is required ‑ ‑ ‑

PN1624.

Because the rules about licensing haven’t actually changed for a long while, have they?---I think that’s - to the best of my knowledge, that’s true. I must say, I didn’t do a history search on that. I also reflect that as time has gone on, the role that our organisation has played in terms of ensuring customer safety has - within the installation, has been diminished, if you like. We used to have roles that inspected every house prior to connection. We don’t have those roles now, and so they’re more done on an audit perspective. So sort of I think it tends to reflect the maturity of the electrical wiring sort of business, if you like, that they’re more self‑sustaining these days and so therefore our role has - we’ve been withdrawn from that.

PN1625.

But you’ve been doing this - you talk about the review of what jobs needed the licence, but had there been a change prior to - has there been a broader change prior to that in terms of the requirements to have the licence?---I spoke before about the change in apprenticeship. That reflects a slow change in understanding of requirement to have an electrician’s licence, and therefore a requirement to have that type of tradesman work without our organisation and that’s been over a period of time. It hasn’t been a sudden change, if you like.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1626.

MS NOMCHONG: Given that the position description that you have, which is exhibit E8, says that you don’t need a licence, may I show you this document which is CEPU17. This is a job advertisement that appears on the Endeavour intranet in January 2015, and you’ll see highlighted there in orange that what it says is that you need an electrician’s licence. Do you have any explanation as to why that appeared?---I can only guess. What tends to happen ‑ ‑ ‑

PN1627.

MR TAYLOR: Objection.

PN1628.

THE SENIOR DEPUTY PRESIDENT: Well, if you can only guess?---Yes.

PN1629.

MS NOMCHONG: Exactly?---My apologies.

PN1630.

When you say you can only guess, do you have any role at all in the way in which these advertisements are put out, or do you have any knowledge about how advertisements are put on the intranet, what system is undertaken?---When I have written advertisements of this nature, what has happened in the past is that - taken advertisement that’s been previously used and simply copied and pasted and started from that version and so I’m suspecting that’s what has occurred here.

PN1631.

But if someone answered that advertisement, to what extent, if at all, would the person applying for the job be required to prove that they have a licence?---They would not be.

PN1632.

Thank you.

PN1633.

THE SENIOR DEPUTY PRESIDENT: I can’t actually find out where it says you need a licence. Can you just tell me which line it is? I’m sure it’s in there.

PN1634.

MS NOMCHONG: Perhaps if I hand this copy up? The orange highlighted point.

PN1635.

THE SENIOR DEPUTY PRESIDENT: Yes?---Under the hearing “Experience and qualifications.”

PN1636.

The qualified supervisors. Yes, I was looking at the wrong words. Yes, it’s the same thing.

PN1637.

MS NOMCHONG: Yes. That’s it alter ego, your Honour.

PN1638.

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1639.

MS NOMCHONG: In the respondent’s bundle, may I ask you to go to tab G. That is the position description for a district officer in training. We were told yesterday that a district officer in training is someone who is, for want of a better term, doing an apprenticeship to become a district officer - district operator, is that right?---That is correct, yes.

PN1640.

That position description also says that the person who would be retained in that doesn’t need a licence; is that the correct view?---Yes, that is correct. On page 4, the required qualifications are listed. In fact, it says there that you can be either an electrical fitter mechanic or a distribution power-line worker. A distribution power‑line worker is a role that can’t achieve a licence unless they go and do further studies.

PN1641.

To what extent, if any, are EFM inspectors required to undertake electrical wiring work on customer installations?---The purpose of an EFM inspector is to inspect our assets, so the assets owned by Endeavour Energy and so I would not think that they would undertake any work - electrical wiring work at all.

PN1642.

Yesterday, his Honour heard about something called the POA, that’s the point of attachment?---Yes.

PN1643.

So in terms of the network owning everything from the point of attachment back to the supply and the customer owning from the point of attachment through to the home ‑ ‑ ‑ ?---Yes.

PN1644.

- - - the evidence that you’ve just given about EFM inspectors is that they would do everything up the line from the POA?---Yes, that’s correct.

PN1645.

What are the primary duties of an EFM service lines?---An EFM service line is responsible for renewing, maintaining the line between the - what is the service line, which is the line between the poles and the wires in the street and the customer’s premise, that point of attachment that you mentioned earlier.

PN1646.

Is an EFM service line required to work on customer installations at all?---Not work on, they will be required to undertake a test of their workmanship and that’s typically done at customer’s board, testing the veracity of their work back into the network.

PN1647.

So all they’re doing at the switchboard is testing the quality of the energy coming in?---Making sure that the connections that they’ve made are correct. That’s correct.

**** PETER ANTHONY LANGDON XN MS NOMCHONG

PN1648.

Now, I want to show you an exhibit. Do you recognise that tag, Mr Langdon?---It’s a tag typically used for tagging and testing appliances.

PN1649.

Is it a tag utilised by Endeavour?---I have seen these used within Endeavour, yes.

PN1650.

You’ll see that on the tag there’s a space for the person who fills in the tag to insert their licence number?---Yes, I do see that.

PN1651.

Is that a requirement, as far as you know?---No, not as far as I know. In fact, there is an Australian Standard for this type of activity that defines what is required and when I’ve read that Standard, it does not require a licence.

PN1652.

Is the Standard you’re referring to AS/NZS 3760:2010?---Yes, that is correct.

PN1653.

Can I hand you a copy of that and ask you to identify it?---Yes, this is Australian Standard 3760.

PN1654.

Thank you. I tender that, your Honour.

PN1655.

THE SENIOR DEPUTY PRESIDENT: That will be E14.

EXHIBIT #E14 AS/NZS 3760:2010

PN1656.

MS NOMCHONG: First of all, that is at paragraph 1.2.1 of the Standard, it identifies that the supplier is deemed responsible for initial electrical equipment and that it need not be tested, but thereafter the responsible person has to undertake the testing of it, is that right?---That’s correct.

PN1657.

At 1.4.4, that responsible person is a competent person, defined there?---Yes. Correct.

PN1658.

At note 1 it says a competent person is not required to be a registered or licensed electrical practitioner, and the requirements vary from jurisdiction to jurisdiction?
---That’s correct, yes.

PN1659.

That’s the further evidence-in-chief, your Honour.

PN1660.

THE SENIOR DEPUTY PRESIDENT: Thanks.

<CROSS-EXAMINATION BY MR TAYLOR [2.05 PM]

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1661.

MR TAYLOR: Mr Langdon, do I understand you are a professional engineer by training?---That’s correct.

PN1662.

I think we’ve already heard evidence that you have a particular knowledge and expertise on safety in respect of electrical work done on a system?---That’s correct, yes.

PN1663.

In addition to being a qualified electrical engineer, you tell us you also are someone who yourself has an electrical licence?---That is correct, yes.

PN1664.

That’s the qualified supervisor’s certificate?---Yes.

PN1665.

You set out in your statement the requirements that are the current legal requirements to get a certificate - sorry, to get a licence. When you got your licence, you didn’t have to meet those requirements, did you?---That’s correct.

PN1666.

At that time, the qualification you have, the degree qualification you had, was one matter that could be used in order to satisfy the department that you had the relevant skills to get a licence?---That is correct, yes.

PN1667.

What other further things did you need to show at that time?---I recall that a letter was put together outlining the wiring experience that I’d gained and I also recall that I sat for a test on the wiring rules AS 3000.

PN1668.

Is that a test that’s referred to as the “Capstone” test?---No. No. It’s a test that’s administered - or it was administered at the time by Office of Fair Trading or whatever they were called at the time, that ensured I had sufficient knowledge to gain that.

PN1669.

The things that you had to demonstrate in addition to a degree in electrical engineering is specific knowledge in what’s referred to as the wiring rules?---That’s correct, yes.

PN1670.

The wiring rules are in evidence - I don’t think I need to show them to you - but you’re familiar with them enough to know it’s AS 3000?---I am. Yes.

PN1671.

The latest iteration of that is the 2007 edition?---Yes.

PN1672.

Those rules are updated from time to time, are they not?---Yes, that’s correct.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1673.

Currently, the current requirements are such that a degree-qualified professional engineer could not obtain a licence any more, even if they satisfied some wiring rule test. It’s no longer possible, is it?---As I understand - as I put in my statement, the requirements are as I’ve listed there, which requires that trade qualification.

PN1674.

Indeed. Now, you can maintain your certificate because you have one ‑ ‑ ‑ ?---Yes.

PN1675.

- - - but if it was a grad engineer coming through the system now, they couldn’t get a licence unless they could demonstrate that they had the relevant trade qualification?---That is my understanding.

PN1676.

Now, that trade qualification that does entitle you to get a licence, that involves both theoretical and practical training in the wiring rules, does it not?---Yes, it does. Yes.

PN1677.

That’s to be distinguished from the training that a DPW, a distribution power worker, gets as part of their apprenticeship; they don’t get that training in the wiring rules, do they?---They wouldn’t get the full extent of that training. They certainly get training, for them to be able to undertake their role.

PN1678.

They don’t have to pass any test demonstrating a knowledge of the Australian Standard 3000?---There would be tests as part of their apprenticeship that would include knowledge and understanding akin to that, but you are right in saying that there isn’t a specific test associated with the wiring rules.

PN1679.

The licence signifies, does it not, that the holder is someone who does have knowledge of both theoretical and practical knowledge of the wiring rules?---It’s a way of doing that, yes.

PN1680.

Yes.

PN1681.

THE SENIOR DEPUTY PRESIDENT: Presumably, if somebody - and given the nature of the workplace we’re talking about, there will be a lot of people - do you know when the requirement to sit the test in the wiring rules came in? It hasn’t always been the case, has it? Or has it?---I did sit the test and I gained my licence, it was well over 20 years ago, sir.

PN1682.

So it has been there for quite a long while?---Yes.

PN1683.

But just to be clear, though, the wiring rules change ‑ ‑ ‑ ?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1684.

- - - and you don’t need to re-sit the test?---No.

PN1685.

So you knew what the rules were 20 years ago?---That’s right.

PN1686.

And they’re probably different now, but you don’t have to refresh? I mean, not for the purposes of having a licence, you might need it for other reasons, but you don’t have to re-sit the test?---That’s correct.

PN1687.

MR TAYLOR: The Senior Deputy President identified you might need to update your knowledge of the wiring rules for other reasons, and that is the case, isn’t it, that if you are actually doing electrical wiring work, you would need to have a knowledge of the current wiring rules, would you not?---Yes.

PN1688.

Indeed, is this your understanding, that whilst - well, firstly, that you can renew your licence without having to demonstrate any particular - that you have kept up to date, there’s no obligation to demonstrate you’ve kept up to date to renew the licence, is that right?---That is my understanding, yes.

PN1689.

But is it also your understanding that those who fail to work to standards that the department think is appropriate can lose their licence?---Yes.

PN1690.

And that the department has the power to require people who have fallen short of what they consider appropriate standards to have to do additional education before they can have their licence renewed?---I actually don’t know about that process.

PN1691.

Within Endeavour, there are two broad types of employees who are entitled to get the electrical safety rules allowance at the 100 per cent mark, namely, electrical trade fitters and distribution power-line workers?---That’s the current sort of qualifications or the current tradesmen that we have. There would also be cable jointers and linesmen that would also be gaining the electrical safety rules allowance.

PN1692.

At the 100 per cent mark?---At the 100 per cent mark, yes.

PN1693.

I’m sorry?---Yes, at that 100 per cent mark, yes.

PN1694.

They are ‑ ‑ ‑ ?---Those would be considered as electrical positions.

PN1695.

They’re electrical positions who do not have - they have not completed an apprenticeship and are therefore trade-qualified?---They are qualified under the regime that they - that was there when they commenced their employment.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1696.

Are they treated as equivalent now to a distribution power-line worker?---No. A distribution power-line worker is a full trade qualification that’s able to undertake tasks beyond those linesmen and cable jointers.

PN1697.

You’ve described in your - identified two categories that get 100 per cent ESRA and you’ve identified some others, the cable jointers and jointers. Can I just come back to the two I identified?---Yes.

PN1698.

Because I want to ask you some questions and I want to make sure we’re using the same terminology. Those who have completed an apprenticeship, which I think you refer to when Ms Nomchong was asking you questions, as in electrician-type apprenticeship, is the first category. They are people who might be called electrical trade fitters?---These days, the true term is electro-technology technician.

PN1699.

Can you and I, in this cross-examination, shorten that to simply trade-qualified electrician?---Yes.

PN1700.

And if I use that expression, you understand who I’m talking about. Distribution power-line workers are - and sorry, that first category, the trade-qualified electrician, they are people who can successfully apply for a licence?---Yes, that is correct.

PN1701.

Distribution power-line workers who are also entitled to the full 100 per cent ESRA complete an apprenticeship, but it’s not one that would enable them to successfully apply for the electrical licence?---That’s correct, yes.

PN1702.

That is because in order to get an electrical licence, one must demonstrate experience in all types of low-voltage electrical wiring work in single dwellings, multiple dwellings, industrial and commercial work?---Yes.

PN1703.

And DPWs would not, as part of their training, attain the experience that I have just identified which is a prerequisite to obtaining the licence?---Yes.

PN1704.

I was reading some words from a document. Can I show you a document. It’s a document that I’m told comes from the Department of Fair Trading website.

PN1705.

Your Honour, I’m sorry ‑ ‑ ‑

PN1706.

THE SENIOR DEPUTY PRESIDENT: Are you going to take it off me?

PN1707.

MR TAYLOR: I’ve got one here, do I? I’m sorry. I’ve just got to find mine. Yes, here it is.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1708.

This document, do you see, is titled, “Referee’s Statement Electrical Work” and do you agree with me that this is a document that is provided as part of an application for someone to obtain a licence, by which a person attests that the applicant has the necessary level of low-voltage electrical wiring work experience to qualify and meet the requirements?---Yes.

PN1709.

Can you turn to page 2? I read some words to you. There’s some boxes there and do you see in bold in the second row these words:

Please note that applicants must have experience in all types of low-voltage electrical wiring work listed below.

PN1710.

Do you see those words?---Yes.

PN1711.

And is it your understanding that a successful applicant must have and be able to demonstrate that they have experience in all those areas of work to get the licence?---Yes.

PN1712.

Yes, I tender that document.

PN1713.

MS NOMCHONG: No objection.

PN1714.

THE SENIOR DEPUTY PRESIDENT: This is CEPU25.

EXHIBIT #CEPU25 DOCUMENT TITLED REFEREE'S STATEMENT ELECTRICAL WORK

PN1715.

MR TAYLOR: Now, I think it follows from what you have said about your understanding of requirements, but given that a distribution power-line worker is unable to obtain a licence, it follows, does it not, that there are certain tasks which Endeavour has or maybe I should remove “tasks” for a moment, certain positions which Endeavour has which cannot be filled by a distribution power-line worker?
---Yes.

PN1716.

These are positions which, as you understand it, require the holding of a licence to do that work?---That’s correct, yes.

PN1717.

So for example, a DPW cannot work as a meter technician?---That is my understanding, yes.

PN1718.

That is because, as you understand it, there is a statutory requirement that people doing that work have a licence?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1719.

Is it also the case that in your opinion, such work, even if the statute permitted it, could only be done safely by someone who had the requisite training in wiring rules represented by the existence of the licence?---No, I disagree with that on the grounds that meter - installing meters is a fairly small part of what a licensed electrician is able to do, and so I would disagree that you would need the full requirements of an electrician’s licence in order to install or remove meters.

PN1720.

Yes, but what I was suggesting to you is that as someone responsible for safety, you would want tasks that involve electrical wiring work to be done by people who have both practical and theoretical training in electrical wiring, would you not?---I’d certainly want them to be proficient and understand and be safe in what they’re doing, yes.

PN1721.

Now, those who complete the trade qualified electrician apprenticeship, I might shorten that to simply the electrician apprenticeship, as against the DPW apprenticeship, is part of that apprenticeship Endeavour requires that they take steps to obtain a licence?---I wouldn’t have put it that way. Endeavour Energy facilitates the application for the licence, but they don’t mandate or require it.

PN1722.

If there are documents that use the word “must”, you “must” provide certain material and make application and so forth, you’d agree the word “must” would normally carry through some understanding to the apprentice that that’s something they need to do?---However, if the apprentice is appointed to a role that doesn’t require a licence, well then that then - I don’t believe Endeavour would mandate that they - the apprentice goes through and applies for the licence.

PN1723.

In any event, what Endeavour does do is mandate that all those doing the electrician apprenticeship are required to spend in the order of six months with an outside contractor as part of that apprenticeship, does it not?---Yes.

PN1724.

That is so or to enable those persons to obtain the electrical wiring experience that would allow a document like CEPU25, referee statement, to be completed in a manner that would enable them to obtain the licence?---Yes.

PN1725.

The wiring rules, AS 3000, these are rules that govern how wiring in buildings is to be done safely?---Yes.

PN1726.

And not just residential buildings, but offices, courtrooms and the like, is it not?---Yes.

PN1727.

You would agree with me that it is important that there is a standard that everyone follows in order to ensure that it’s done safely, and that when maintained, it can be maintained in a safe manner?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1728.

Endeavour requires, when wiring is being done by its staff in its offices, that that work is done in accordance with the wiring rules?---Endeavour Energy typically does not do wiring in our offices. It’s done by external contractors that would hold the licence.

PN1729.

There’s no doubt, is there, that if wiring is being done within a building by Endeavour staff, that those staff would be required to follow the Australian Standard?---The exception to that would be substations that we own. We have chosen, as an organisation, to adopt the Australian Standard 3000 as the minimum requirement for our substation buildings, but there’s no statutory requirement for that to occur.

PN1730.

You use the word “exception” in that answer, but can I suggest to you it’s not an exception to require the wiring in substations to be done in accordance with the Standard? That is the way in which Endeavour would want all its wiring to be done in any office, whether it’s a substation or an office?---Yes.

PN1731.

The wiring rules that I’ve been asking you about are not replicated in Endeavour’s electrical safety rule document, is it?---That’s correct.

PN1732.

The electrical safety rules can be described fairly as the rules for working on or near the network?---Including connecting customers to our network, but yes, I’m happy with your description.

PN1733.

Wiring rules are additional rules that should be followed when doing electrical wiring work?---Within a customer’s premise, yes.

PN1734.

MS NOMCHONG: I just rise to my feet. My friend has been using the term “electrical wiring work”, but we know that there’s electrical wiring work that happens on the network and electrical wiring work that happens in the customer installations, and it’s a very important distinction and I think for the purposes of this witness, he needs to be informed as to what’s being referred to when that term is being used, because we’ve now been moving from wiring work in substations, which we know is not wiring work because of the statutory definition, that is, it excludes all places where they’re located and I just want to be clear that the answers are precise.

PN1735.

MR TAYLOR: I thank my friend for that.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1736.

There is both a statutory definition of electrical wiring work and then at other times in your statement you’ve simply referred to wiring work. Can you, just so that we’re not at cross-purposes, when I asked you about wiring work, did you

understand that I was talking about not wires on the network, the poles and wires of the network, but rather, the wires that end up at a power point within a substation or a light bulb in a house, in a substation?---To be honest, we’d need to

go back over which particular question you meant, for me to be able to definitely answer that.

PN1737.

Let’s do that, then. When we talk about wiring rules being, amongst other places, need to be followed when doing wiring in a substation, we are talking, are we not, about an obligation to follow rules when talking about the wiring that runs to a power point or a light bulb in a substation?---So as I said before, we’ve chosen - for that wiring because that is not wiring work in the statutory definition, we have chosen to adopt Australian Standard 3000 as the rightful, I suppose, standard to define how that work should be done.

PN1738.

Not a difficult choice, I might suggest to you, that it follows the Australian Standard for work of that type?---You’re right, although we didn’t - haven’t always.

PN1739.

When I’m talking about offices that are owned by Endeavour Energy, I think you take - or Endeavour takes a point of statutory interpretation that that doesn’t fall, technically, they say, within the definition of electrical wiring work for a statutory sense, but when wiring work within an Endeavour office needs to be done, a fuse goes, there’s some tingle on a power point, such work is work that would need to be done in accordance with the wiring rules?---In fact, we would consider the wiring within an office building to be covered by the statutory definition.

PN1740.

I see. Even if it’s an Endeavour office?---That’s correct.

PN1741.

Just to answer my question, that is work that you would expect, to the extent to which it’s done by Endeavour staff, to be done in accordance with the wiring rules?---Yes.

PN1742.

At the point my friend quite helpfully rose to make sure we were talking about the right things, we were talking about the electrical safety rules and the wiring rules, and I was suggesting to you that the wiring rules are not - I think we’d already covered this - contained within the electrical safety rules and you agree with me that the wiring rules provide an additional set of rules to be followed by those who are doing wiring work, whether that’s wiring work in a substation or electrical wiring work in an office?---Yes.

PN1743.

In your statement you have said that a person can have the electrical licence, but unless authorised to work under the electrical safety rules, is not allowed to touch the network?---That’s correct.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1744.

That’s correct, is it not? Do you accept it’s equally correct that a person can be authorised under the electrical safety rules to work on the network, but unless they have a licence, are not entitled to be employed in a position which involves a customer residential electrical wiring work?---That was - I would need - in order to answer the question, I would need to go to particular positions, as I have done with the review, and apply the statutes as I understand them, as Bill and I understood them, and so it’s a very broad question, to be honest, and I would - so I can’t answer your question in the way it’s framed.

PN1745.

That’s entirely fair. Can I put to you this, at least, though; you do accept that there are some positions, at least, in respect of this, which this is true, that the mere fact that someone is authorised under the ESR does not mean that that person is able to do the work that their job requires unless they also have a licence?---For those specific positions that require a licence, yes.

PN1746.

I will, of course, come to the positions; I wanted to deal with it in the broad. Can I move on. You have, in-chief, given some evidence about three Safe Work Method statements and they’ve now gone into evidence as E13. Do you still have copies of them with you?---No, I don’t.

PN1747.

I thank my friend. Mr Langdon, do I understand your evidence correctly, that these three Safe Work Method statements each deal with a particular type of work that can only be done by someone who has a licence?---No, I wouldn’t say that. There are tasks that are covered by these Safe Work Method statements that require a licence, but not all of the tasks that would be associated with the Safe Work Method statements. So, for example, with SafeWork Method 4.011, some of the tasks listed within there require a licence, but not all.

PN1748.

I see. I might be misunderstanding what the tasks are. Is not the task described in the title, “Reconnection, disconnection at meter board”?---Yes, although there are different ways that can be achieved, and one of those ways requires a licence.

PN1749.

Anyone reading this document would understand, do you accept, that in order for them to do a reconnection or disconnection at the meter board, they must have each of the training and qualifications that are set out under the heading?---If I may, the fourth dot point under the heading, “Training and qualifications” in that final box there does say that the electrician’s or contractor’s licence or supervisor certificate as required for live load tails, which is a specific type of disconnection.

PN1750.

What sort of disconnection is that?---Well, as the title infers, it’s one that’s done within the meter and done live and so it’s considered to require a licence. So staff are predominantly employed to do that task and we separate out the staff that do ordinary disconnections compared with the staff that do these - that type of disconnection. We in fact call them licensed field officers, and they require a licence.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1751.

You used the word “predominantly”. I take it that a Safe Work Method statement is required to be followed whenever a task is done, whether it’s something that someone only does once a week or once a month or once a year?---When you say “followed”, the Safe Work Method statement is a list of hazards that need to be considered when undertaking a task, and so, yes, they do need to be considered, those hazards need to be considered when undertaking the task, no matter whether you’re doing it once or multiple times, yes.

PN1752.

Whenever someone does the specific type of disconnection that you referred to, a live load tail within the meter, when it’s live, whenever that happens, if that’s being done by an Endeavour employee, they must have a licence?---No, I disagree with that. I would say that if somebody is employed principally to do that task, well then they would require a licence.

PN1753.

We might be at cross-purposes. I thought I understood you earlier to say that whether someone does it once a year or every day, they must comply with the Safe Work Method statement?

PN1754.

MS NOMCHONG: No, I object. What was said by the witness was that the Safe Work Method statement describes hazards that need to be considered, whether they do it once or multiple times. Not that they need a licence.

PN1755.

MR TAYLOR: I didn’t say they need a licence. Let’s start this again. Is this Safe Work Method statement something that must be complied with by those who are doing reconnection, disconnections at the meter board?---Should be used. It’s not a compliance document, but it should be used, referenced, considered, when undertaking that task.

PN1756.

So is it always necessary for people to have safety footwear when they’re doing this work?---Yes.

PN1757.

I see. And to have leather gloves?---No.

PN1758.

So even though it’s described as lists of things that are there under the heading of a Safe Work Method statement, you say that Endeavour doesn’t actually require each of these to be followed in respect of any particular job?---That’s a fair statement. This is a reference document that is used to inform the hazard assessment that will be undertaken before a task is undertaken.

PN1759.

So when it comes to training and qualifications, is that left to the individual employee’s discretion as to whether they have or don’t have the training and qualifications that are set out in those dot points, whether they need them or not?
---No, I would think that would be more the supervisor that dispatches the task.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1760.

I see. Is this not a document that’s provided to the people who are doing the tasks?---Yes.

PN1761.

It is, is it not?---It is, yes.

PN1762.

And is there not a direction by Endeavour that people who are doing this task must comply with the Safe Work Method statement?---As I said, it’s a reference document which should be considered when undertaking the task. It’s not meant as a how-to, you know, step 1, step 2, et cetera. It is a reference document that assists undertaking that hazard assessment.

PN1763.

But you say that these numbered steps, 1, 2 and following, are not mandatory steps that must be followed by employees who are doing this work?---There will be a mixture of mandatory tasks listed and suggestive things that need to be considered.

PN1764.

Let’s look at the second - well, they weren’t numbered, so let’s look at another one, there are two others. There’s one titled, “Customer installation”, it bears a number 10.001. This one has, as a training and qualification, amongst other things, the words, “Qualified supervisor’s certificate”, which is another way of saying “licence”, is that right?---That is correct.

PN1765.

This, as I understand it, tell me if this is wrong, is the document that those who do customer installation audits and inspections are told they must comply with in order to ensure the work is being done safely?---As I’ve said before, this is a document that gets referenced when undertaking hazard and risk assessment, rather than a document that must be followed - it must be used, right. It’s a reference document. It lists a number of hazards that need to be considered.

PN1766.

Dealing with the first page, things under the heading, “General, PPE equipment, documentation and training”. Is it the case that under the heading, “General, training and qualifications”, is it the case that every person doing this work needs to have electrical safety training, have passed the annual electrical safety training test?---Yes.

PN1767.

They must have passed an annual assessment for CSOs?---To be honest, I actually can’t answer that question. Honestly, I don’t know. I can read it there, but I don’t know the answer.

PN1768.

Isn’t this the case that those who do customer installation audit and inspection work are required by the Safe Work Method statement, amongst other things, to have a qualified supervisor’s certificate?---The staff that predominantly, principally under this task, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1769.

Please, we might be at cross-purposes. I am not asking you questions about what the statute requires, I’m asking you about what Endeavour requires to ensure that work is done safely, this particular type of work is being done safely, and it may well be, assume for the purposes of the debate, that there is a staff member who spends something less than 50 per cent of their time doing customer installation work, that you would take a view they’re not required to have a licence as a matter of statute. My question is not that. My question is, is that whether they spend 99 per cent of their time or 49 per cent of their time doing customer installation work, whenever they are doing customer installation work, they are required by the Safe Work Method statement to have a licence?---But I don’t interpret the Safe Work Method statement as mandating those training qualifications, and so therefore, the - I have to answer no to your question.

PN1770.

Now, I think we’ve established that you have some expertise in electrical safety, but you surely accept, do you know, the proposition that Endeavour does mandate that staff follow the Safe Work Method statements when they’re doing work covered by the Safe Work Method statements?

PN1771.

MS NOMCHONG: I object, your Honour. This question has now been asked, I think, at least 15 times, and Mr Langdon has given the best answer he can.

PN1772.

THE SENIOR DEPUTY PRESIDENT: Can I ask a slightly more direct question. In the Safe Work Method statement for customer installation, it says, under “Training and qualifications”, qualified supervisor’s certificate. Do you know why it says that?---I would say because the staff that predominantly undertake this task do and need to hold that licence.

PN1773.

So you’re saying that if they predominantly do this work, they need to hold that licence?---Yes.

PN1774.

And if they don’t predominantly do it, but only do it occasionally or incidentally, they don’t need it?---Yes.

PN1775.

Is that what you’re saying?---Yes, that’s correct.

PN1776.

MR TAYLOR: Isn’t this the case, that whether - doesn’t it follow from what you’ve agreed, that is, that whether someone does it once a year or every day, they must always do it safely, that they must always have the licence whenever they do the work?---I disagree. The requirement for a licence, in my mind, becomes - originates from regulation. The licence in its own right, this piece of paper, will not affect the safety, if you like, of the particular person undertaking the task.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1777.

You understand, don’t you, that when an incident arises in the workplace, a safety incident, the question of whether the Safe Work Method statement relevant to that job was complied with or not is always a feature of that investigation?---Again, I come back to whether the Safe Work Method statement was used, referred to, rather than complied with. Because I again come back to the fact that it is a reference document. So the question wouldn’t be asked, was it complied with, the question would be asked, was it used?

PN1778.

Yes, and isn’t it the case that if it was referred to but departed from, then that is something that Endeavour would have concern about?---Yes.

PN1779.

That is because Endeavour expects people to comply with the Safe Work Method statements?

PN1780.

MS NOMCHONG: Well, I object again. Again, it’s the same question.

PN1781.

THE SENIOR DEPUTY PRESIDENT: Well, it is the same question ‑ ‑ ‑

PN1782.

MR TAYLOR: But I don’t disagree ‑ ‑ ‑

PN1783.

MS NOMCHONG: It is the same question and he’s going to get the same answer, which is ‑ ‑ ‑

PN1784.

MR TAYLOR: I don’t - no, no, no ‑ ‑ ‑

PN1785.

MS NOMCHONG: - - - it’s a reference tool. Surely ‑ ‑ ‑

PN1786.

MR TAYLOR: In cross-examination, it’s clear that this witness has accepted certain parts of the underlying proposition and in those circumstances it’s quite appropriate to come back to the question, in circumstances where the witness has accepted that it would be of a concern to someone to depart from the Safe Work Method statement. It’s incredibly acceptable to put the proposition as to whether it needs to be complied with. So I press the question.

PN1787.

THE SENIOR DEPUTY PRESIDENT: Okay. But I just warn you, I don’t think we’re getting anywhere.

PN1788.

MR TAYLOR: So now can you answer the question?

PN1789.

THE SENIOR DEPUTY PRESIDENT: Do you need to ask the question again? Did you want the question again?---Yes, please.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1790.

MR TAYLOR: In circumstances where Endeavour would be concerned if there was any departure from the Safe Work Method described in the statement, do you agree that what follows from that is that Endeavour requires compliance with the contents of its Safe Work Method statements?---Endeavour requires that the document be utilised as part of the hazard assessment for the job, and if that hazard assessment was not undertaken, yes, there would be some concern.

PN1791.

The document goes beyond simply identifying hazards. It describes how the work is to be done in response to each hazard, does it not?---It actually describes how those hazards should be controlled.

PN1792.

Endeavour expects that in respect of each hazard, if it arises, that particular form of control is the way in which it should be dealt with?---Are actually their suggestions, they aren’t - you know, you say that they are - the - the staff member is required to assess all of the hazards and select the appropriate method by which those hazards should be controlled.

PN1793.

When an Endeavour employee is doing electrical shock investigation, firstly, that is something that from time to time Endeavour electrical employees do, is that right?---Yes.

PN1794.

Am I right to say that they would need, as you understand it, to have regard to the Safe Work Method statement that deals with customer installation audits and inspections?---They would have - yes. They would need to refer and use that statement, that’s correct.

PN1795.

From time to time, you’ve read the evidence, that Endeavour staff replace customer meter boards; not a common occurrence, but it occurs, does it not?---I have read the statements to say that that occurs. To be honest, I was unaware that full meter boards were being replaced until those statements - until I read those statements.

PN1796.

When staff are replacing meter boards, am I right to say that that work is work that would involve a need to have regard to the Safe Work Method statement that deals with reconnection and disconnection at meter boards?---That would be a component of the works, yes.

PN1797.

Is there another Safe Work Method statement that deals specifically with electrical shock investigations?---I don’t know the answer to that.

PN1798.

Is that because I’ve assumed a level of knowledge that you don’t have? I thought you were familiar with the entire electrical safety documentation; am I wrong about that?---We have, as an organisation, a number of hundred Safe Work Method statements. I don’t, to be honest, sit here and recall every one of those.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1799.

Repairing blown protection devices on a customer’s switchboard, you’ve read that that is something that Endeavour do on occasion?---I have read that, yes.

PN1800.

Is that, again, work that would require reference to one of these Safe Work Method statements?---No.

PN1801.

It is work on the customer side of the point of supply, though, is it not?---Repairing a fuse? Yes, it would be, yes.

PN1802.

You’ve read the part of the jobs done by Endeavour staff include investigating the source of faulty appliances and fittings after fires?---Yes, I have, yes.

PN1803.

Is that work that falls more generally within the work that is covered by the Safe Work Method statement of customer installation audits and inspections?---Would you mind repeating the task?

PN1804.

Investigating the source of faulty appliances or fittings after fires?---No, I wouldn’t say that, no.

PN1805.

That work certainly is on the customer side of the point of supply?---Yes.

PN1806.

And is there a Safe Work Method statement that corresponds with doing that known task?---Again, I’d have to answer I don’t know.

PN1807.

I see?---If I may explain, there is a procedure that covers that activity and certainly I’m more familiar with the procedure rather than the Safe Work Method statement, if there is one.

PN1808.

I see. In addition to Safe Work Method statements, are there documents which set out the particular procedure that is adopted for doing certain tasks on the customer side of the point of supply?---There are - I’m aware of one procedure at least associated with - and it’s actually in the respondent’s bundle there, associated with diagnostics when our network causes a problem within the customer installation.

PN1809.

Are you aware of whether there are procedures, as different to Safe Work Method statements, that deal with electrical shock investigations?---If I may? I’m aware of the existence of a procedure that is quite related to that activity which, as I said, is in the bundle, but no, I am not expressly aware of whether there is a procedure that covers customer shocks.

PN1810.

Is there a reference that - I think you’re looking at a document?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1811.

Just for the record, so we understand which document you’re looking at ‑ ‑ ‑ ?---It’s tab B, which is the procedure WBS 5009 which is inspections of consumer installations following possible damage caused by over-voltage.

PN1812.

I apologise, your Honour. Just one page of my copy that I couldn’t read.

PN1813.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1814.

MR TAYLOR: This particular procedure is a procedure for which installation inspectors have the authority and responsibility for adhering to, is that right?---That’s correct, yes.

PN1815.

That is a classification which, if I remember correctly, you initially determined not to be one for which a licence was required, but which, having given it further consideration in light of the union evidence, you take a view is one for which a licence is required?---That’s correct, yes.

PN1816.

I want to ask you some questions now about the review that you undertook. I’ll come back to some aspects of the Safe Work Method statements later. You start that from paragraph 47, and do I understand that your starting point was a list of 783 employees listed by position title?---That’s correct, yes.

PN1817.

Are all of those employees contained within the schedule that you have attached as the outcome of your review that’s PAL3, it starts at page 29, or does that schedule have some removed from it?---No, I believe they align. I believe they align. That was the list.

PN1818.

Is this the position, that you proceeded to conduct that review on the basis that the allowance is one that is payable where a position is required to have a licence as a matter of statute?---Yes.

PN1819.

You did not proceed on the basis that if the job was one for which skills and experience of the sort that would qualify for the allowance are needed, that that falls within the meaning of “required”. You didn’t include those people, did you?---No, I didn’t.

PN1820.

Nor did you include any people who endeavour in any position description or otherwise, says a licence is required for if - that wasn’t part of your criteria for determining whether they fall in or out of the test; is that right? The only test you applied is your understanding of what positions do electrical wiring work within the statutory definition?---Both the electrical wiring work and the clause 22 exception. Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1821.

So even if a position does electrical wiring work, if you took a view that it wasn’t the majority of their work, you took a view that they would not be required to have a licence?---Yes.

PN1822.

And whilst I think you, in your statement, gave the benefit of the doubt to a particular classification where you thought it was about 50/50, is it the case that generally you adopted, rightly or wrongly, a test of determining whether a position is entitled to allowance, as to whether more than 50 per cent of their duties are electrical wiring work or less than 50 per cent?---No. I didn’t - or Bill and I didn’t have in mind a particular percentage. We actually - the term, if I recall correctly, is “principally” and so therefore, to be honest, that was more a term of, I suppose, generally principally part of their role, I tended to - rather than have a specific percentage in mind.

PN1823.

I see. If a job has three tasks, a hypothetical job, has three tasks that you are examining and a person spent an equal amount of time in each, but one of them was one that was involved in electrical wiring work in customer premises, just so I can try and understand how you’ve approached it, was that a job that, in your view, would have principally included customer wiring work?---As I’m sure you can appreciate, that’s a sort of hypothetical situation.

PN1824.

It is?---It may well have, if I could respond that way. We would probably explore that one further, just to make sure and make a decision.

PN1825.

Mere attempts to calculate percentage of time spent, I take it from what you’ve said, was not the - in your - the way you’ve approached it, the determinant one way or the other?---That’s right. I mean, percentages could change week to week, and so therefore that wasn’t a specific criteria.

PN1826.

I know that you did this as a two-person team, but did you review every position in that chart that goes from page 29, or were some positions reviewed by your colleague on the review team, Mr Watts?---Yes, in answer to your question, yes, we did all, many of which we did together in a room, some of which one of us would form a view and the other one would sort of critique that view, if you like.

PN1827.

That chart that we find at page 29, was that produced after you had determined that there were only four positions that were entitled to the allowance, or before you determined that?---That’s actually the working document that we used, so it’s actually a spreadsheet that we put up on the wall and we used a projector and we went from top to bottom.

PN1828.

Having completed that exercise, you then concluded that there were four positions for which a licence is required?---To be honest, the concluding was me packaging the spreadsheet and sending it back. At that point, I thought the task was completed. So to be honest, whether there was four or any other number was sort of not - was almost by-the-by. It was that that was the task.

PN1829.

You, in a sense, had a formula and the answers that were generated by that formula were the answers generated; is that the position?---Yes.

PN1830.

Just so I can get clear, I thought, in paragraph 71, you said that utilising the methodology, you concluded there were four roles in which the licence was required. Is that right?---Yes. That - yes.

PN1831.

But this is the case, isn’t it, that the formula in fact produced a fifth role, installation inspector, that wasn’t listed there?---Wasn’t there? My understanding is that installation inspector was one of the roles that I later ‑ ‑ ‑

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1832.

That’s right?---That’s correct, yes.

PN1833.

But indeed, the formula itself spat out installation inspector. If you look at that category, it passed both your filters?---Yes, that’s correct.

PN1834.

So just on the application of the formula, there should have been a fifth position and that was an error that emerged at what point in the process?---To be honest, I actually don’t recall when within the process that error occurred, but yes, you are correct. That error did occur.

PN1835.

Now, you know now, having read the evidence, that the title “Installation inspector” describes a set of duties which is almost identical to the job also known as the “Customer safety officer”, is that right?---Yes. Yes, correct.

PN1836.

Yet when you adopted your formula to the customer safety officer position, you got an entirely different answer than the one you got the installation inspector position; do you agree with me?---I agree that - yes.

PN1837.

Even though they’re the same position?---They’re not quite the same position, but yes.

PN1838.

There’s no distinction of relevance between those two positions that should have led to a different outcome; do you agree with me?---At the time, when Bill and I undertook that review, it was in fact, to be honest, Bill has more to do with that role than I do. We did - it was our understanding at the time that that role did not predominantly work on customer installations and we made that call at that point and it was later that we reviewed that based upon - based upon the evidence provided and subsequent review. But you are right to highlight that those two did result in a different answer at the time, yes.

PN1839.

And shouldn’t have?---That’s correct.

PN1840.

Now, I thought you told us in your statement that you personally was aware of what each role does due to your extensive experience in the electricity industry?
---Mm-hm.

PN1841.

Is that not right?---Yes.

PN1842.

So at the time you did this chart, you knew exactly what a customer service officer did, did you not?---Exactly is not a term that I would use, but I would - have a good, sound knowledge of what those roles do, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1843.

Is it the case that the Commission must treat perhaps with some caution - sorry, I withdraw that. Would you accept the proposition that one shouldn’t proceed on the assumption that what’s set out in the chart on pages 29 and following is necessarily 100 per cent correct?---It reflects the best efforts of Mr Watts and myself.

PN1844.

Now, the formula applied what you call two filters. The first filter, do I understand it, was the amount of what the statute would define as electrical wiring work?---That’s correct, yes.

PN1845.

Or I might have put that unfairly because I actually put it squarely to you when I’m not sure it is correct. Was it rather the amount of wiring work before you determined whether it’s wiring work that falls in or outside the definition?---Filter 1 was about wiring work and where that wiring work occurred.

PN1846.

Yes. So if someone got a “1” against filter 1, they simply did no wiring work, whether it was inside a substation or in a customer home, that just wasn’t part of their job?---That’s correct, yes.

PN1847.

If they got a “2”, then they did do wiring work, but only on Endeavour’s own poles, wires, cables and transformers?---Yes.

PN1848.

If they got a “3”, they did do wiring work, but in respect of buildings that Endeavour operates, like substations and offices and the like?---Subs - so substations; again, I refer back. We would consider, or Bill and I considered, offices to be wiring work per the definition.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1849.

So if the view was that the only wiring work that someone did was either on Endeavour distribution assets or within substations, then the person would fail at filter 1?---That’s correct.

PN1850.

But do you accept the proposition that those who do wiring work, even if it’s on Endeavour’s assets, that it is desirable, even if not necessary, that the person has the additional wiring rule knowledge that comes with someone who’s done the electrical apprenticeship?---It’s desirable that they have some of that knowledge, but I would certainly not say that they would require all of that knowledge.

PN1851.

When it comes to the third category, those who are doing wiring work when it comes to issues such as no longer the - sorry, I withdraw that. When it comes to doing wiring work not on poles, wires and cables, but within office environments on things that will run to the plug or the light bulb, do you agree with me that whether it’s statutory, necessary or not, it would be desirable for those people to have knowledge of the wiring rules to ensure that such work is done in an appropriately safe and a manner that complies with the standard?---To be honest, I lost you part-way through the question. Would you mind - - -

PN1852.

It was a long question. When it comes to doing wiring work that is in respect of wiring that runs to plugs and lights and so forth, that type of wiring work, do you accept that it is desirable that that work is done by people who have knowledge of the Australian Standard to ensure that the work is done in accordance with that standard?---For the staff - the answer - yes, there is staff that undertake that wiring work and it’s for those reasons that the review showed that some staff should have the licence and because they predominantly undertake that work, yes.

PN1853.

But even if they don’t do it predominantly, is it not the case that it’s desirable that whenever someone is doing something that involves compliance with the Australian Standard, that they have knowledge of that standard?---Yes. Yes.

PN1854.

Now, filter 2 only applied if someone passed filter 1, is that right?---That’s the way it - yes.

PN1855.

In this case, what you were examining, people that you had considered do electrical wiring work within the definition, but you were deciding whether they did it - it was what they primarily did or not? Have I captured filter 2?---That’s - yes.

PN1856.

This brings us back to that conversation we were having earlier as to what “primarily” meant, and you’re saying that you had to then consider that on a case‑by-case basis?---That would be fair, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1857.

Do you accept the proposition that even if it’s less than 50 per cent of the work, if it forms an important part of their usual duties, it is one which would mean that you would - am I right, accept that primarily that is part of their role?---Again, you’ve raised a sort of theoretical question. We applied that filter to the positions as we understood them, rather than thinking sort of in terms of a theoretical example, and so to be honest, I’m sort of struggling to specifically - or understand what your question is.

PN1858.

Let me post an example, perhaps, that might help. If a role requires repair of customer equipment, then do you accept that that person that does that role, even if they have other duties as well, needs to have the necessary skill and experience on customer wiring work to be able to do that role properly?---It would need some of the experience associated with AS 3000, yes.

PN1859.

Such a person needs to be familiar with the Australian Standard wiring rules to ensure that the wiring is done in accordance with those rules?---If this person was - or this role was required to install wiring or install and maintain wiring as per the definition, yes.

PN1860.

THE SENIOR DEPUTY PRESIDENT: Sorry, can I ask, how much longer do you think you’re going to be? We might just have a short break.

PN1861.

MR TAYLOR: Of course, your Honour. To answer your Honour’s question, something in the order of an hour to an hour and a quarter.

PN1862.

THE SENIOR DEPUTY PRESIDENT: Okay. We’ll just take a 10-minute break.

SHORT ADJOURNMENT [3.16 PM]

RESUMED [3.26 PM]

PN1863.

THE SENIOR DEPUTY PRESIDENT: I just have to warn you, I don’t want to sit past 4.30 today, so if we haven’t finished, we’ll just come back - well, we’ve got to come back tomorrow anyway, but the witness will just have to come back tomorrow. I’d rather do it that way. I’m not trying to - you take as much time as you need.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1864.

MR TAYLOR: No, I’ll bear that in mind, your Honour. We certainly both, Ms Nomchong and I, are keen to get the evidence done today if we can, but I will certainly bear that in mind.

PN1865.

THE SENIOR DEPUTY PRESIDENT: Yes. Normally, I would be able to sit later, but - - -

PN1866.

MR TAYLOR: Mr Langdon, you may or may not have seen the Endeavour Energy submissions in this matter. Have you had a chance to look at those?---I was - well, I didn’t have a chance to have a look.

PN1867.

Can I ask whether you can recall this or not; can I ask you to assume that they include the proposition at paragraph 39 that to properly understand whether a licence is or isn’t required requires an examination of the actual day-to-day duties of each particular employee. I ask you to assume that. It’s not the case that you’ve done that exercise, have you?---We’ve examined each role.

PN1868.

Yes, not each particular employee?---No. We’ve - that’s right, we examined each role.

PN1869.

Now, at paragraph 63, you identify that one of the first things you did was remove any position that had in its title the words “manager” or “supervisor”?---Yes.

PN1870.

Is that because you took a view that those people would not be doing the work personally?---Or supervising it.

PN1871.

Well, people who are managers or supervisors may well supervise, presumably, people doing this work, might they not?---In terms of the term “supervision” we took the direct supervision, so at the place of work.

PN1872.

I see. But managers or supervisors of those who do need a licence would need to firstly plan what work needed to be done, would they not?---Yes, managers would need to plan work, yes.

PN1873.

They would need to allocate work and prioritise it?---Yes.

PN1874.

They would be, ordinarily, a source of information for the staff doing the work whenever they had queries about the way in which particular tasks should be undertaken?---Yes.

PN1875.

And from time to time, particularly if there was any incident, but from time to time, they would check the work, would they not?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1876.

In each of those roles, to do each of those tasks that I’ve just identified, they would need to have no less knowledge of wiring than the person that they’re supervising?---No, I disagree with that.

PN1877.

I see. So you say that in order to be a source of information on how to do the work and to check the work, that could be done by someone who actually knows less than the person who’s doing it?---There are circumstances that that occurs, yes.

PN1878.

But there are also, are there not, positions which are filled, supervisor or management positions, which are filled on the basis that at the very least it is desirable that these people have electrical wiring knowledge themselves?

PN1879.

MS NOMCHONG: Your Honour, could I just object? My friend keeps using the word “supervisor”, but in paragraph 63, it actually is “project supervisor” and I just wonder if there’s a difference between the two.

PN1880.

THE SENIOR DEPUTY PRESIDENT: Well, it says “manager, project supervisor or other similar role”, so “These roles are not full-time site supervisors and therefore would not be called upon to supervise any electrical wiring work”, that’s what the statement says.

PN1881.

MS NOMCHONG: That’s right. It’s sort of differentiating between the two.

PN1882.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1883.

MR TAYLOR: I’m certainly not trying to take the witness away from the type of person he’s describing as not included, I was only dealing with those, there was a manager, project supervisor and like employees. The witness has been quite careful to identify that what he’s not talking about are people who are actually supervising there and then as the work is being done, but some higher people, and I’m asking him about those people. I didn’t think we were at cross-purposes.

PN1884.

Did you understand, Mr Langdon, that I was asking about people of the sort that you say you excluded from the outset?---Yes, I’m comfortable with that.

PN1885.

What I’m suggesting to you is that at the very least, it’s desirable for those people that you excluded from the outset to have electrical wiring knowledge if they’re going to be able to do their job of being a manager or supervisor of those staff that you say need a licence?---I would agree, desirable, but not mandatory.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1886.

Not mandatory as a matter of the statute, as I just ‑ ‑ ‑ ?---No, not mandatory. There are quite a number of supervisors that are quite able to do their job well that don’t have that explicit knowledge.

PN1887.

Now, you do indicate that whilst you personally were aware of every role, if you were in doubt, you went to a position description. I take it you didn’t go to a position description for every position?---That’s correct.

PN1888.

When it came to the EFM role, was that a role in which, in order to work out whether it was caught or not, you went to a position description?---No.

PN1889.

I see. Did you try and find one?---No.

PN1890.

Tell me if you know this or not; are you aware that there is no position description for the position EFM?---I am aware of that, yes.

PN1891.

Is that the reason you didn’t ask for one, you knew it didn’t exist?---No. We had no cause to go and look for that particular position description when we undertook it - undertook the review, but I am aware, yes, that there is no position description for that role.

PN1892.

Now, I want to deal first with the positions that are left in dispute between the parties in what we refer to in these proceedings as annexure A. There are three positions left in dispute, but before I do so, I just want to have you identify what it is about one of the other annexure A positions that led you to take a view that they are required to have a licence, and that’s the position of customer safety officer, not one of the original ones, but one, on reflection, that you’ve decided does require a licence. Now, are you able to recall now what it was about that position that led you to form the view that that position is one for which a licence is required?---That recommendation was made after I read some of the - well, in particular, Mr Alan Dale’s submission.

PN1893.

Yes. What was it, not about - what was it about that position that led you to form a view that it was one that fell within the criteria?---To be honest, it was - if I recall correctly, the criteria that originally knocked that position out was the criteria around whether it predominantly or - undertakes wiring work and it’s one of these that, on reflection, benefit of doubt, around that whole “predominantly” term, similar to the role of the installation inspector, made the recommendation that it should have a licence.

PN1894.

So you read Mr Dale’s evidence that, amongst other things, he is required to comply with the Safe Work Method statement that he had attached one page of, the front page of. Is that one of the things that you read when you saw his statement? Are you able to turn up Mr Dale’s statement, it’s marked CEPU6?---Yes, I have, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1895.

You see in paragraph 7 of that statement that he says:

The Safe Work Method statements which I have to follow in carrying out my duties also require that I hold a licence.

PN1896.

Do you see that?---Yes, I do. I see it.

PN1897.

He attaches the first page of one of the Safe Work Method statement that have now gone into evidence, SWM 10.001, Customer installation audits and inspections?---Yes.

PN1898.

Was that one of the factors which you took into account in deciding to review your decision earlier made as to the nature of whether this position fell in or out?
---Yes.

PN1899.

Was another factor that you took into account that when he was appointed back in 1999 to the position, the position description required, as an essential competency, the holding of that certificate?---No.

PN1900.

Was the fact that Mr Dale recorded that a substantial amount of the work he did involved customer installation inspections a factor that decided the matter one way or the other?---Yes, it is.

PN1901.

Can I move now to the first of the three positions that’s in issue. That is, of electrical safety inspector. I know that you made a broad statement that you have a knowledge of every position. Is this a position that’s known to you?---Yes, it is.

PN1902.

Where is it located?---We have a number of those located in a number of our depots.

PN1903.

Do you recall this is a position which in your list only came up once, indicating there’s only one employee? We might be at cross-purposes, I’m not trying to trick you. There’s a position called EFM Inspections, I’m going to come to that in a moment. This is a position called Electrical Safety Inspector. It only appears once?---Yes, thank you for the clarification. Yes, I do recall that role.

PN1904.

You do? Are you able to identify where that role is?---My understanding is that role is based at Hoxton Park.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1905.

So the suggestion that it doesn’t exist anymore, you wouldn’t accept that proposition?---Would you mind restating the title of the role?

PN1906.

Yes. Electrical safety inspector?---To be honest, I do not recall specifically the thinking behind that particular role.

PN1907.

So when you said a moment ago that you knew there was a position at Hoxton Park, I don’t want to - again, I’m not trying to trap you here, I just want to say is it now the case that, having thought about it further, you’re now not sure whether there is such a position at Hoxton Park, or you know there is?---If I can have a minute? My apologies. The role I thought you were referring to was the role of EFM, customer installations. That is a role, as I understand it, that is based at Hoxton Park and I was confused. My apologies.

PN1908.

So coming back to the position that appears, I think, only once in your chart of electrical safety inspector, is this a position that’s known to you?---No, it’s not.

PN1909.

I see. Can you recall how you managed to complete the entry in your chart without any knowledge of the position?---I believe that that role doesn’t exist.

PN1910.

Is there a reason why, then, you completed the chart to the effect that it does? You seem to actually answer the filter questions for that position. Was there a reason for that?---Again, I can’t recall the specific thinking.

PN1911.

So I don’t want to sound critical, but at various times in answer to my questions, you have thought you recalled, haven’t recalled, thought you recalled. The last step, I think, in this process is that you now think that it doesn’t exist anymore. Do you actually know that or not?---Not categorically.

PN1912.

Does it follow that if the position does exist, you simply don’t know what that position is, and therefore whether it would fall in or outside of the requirements?
---No, I don’t think that follows at all.

PN1913.

Well, if it still exists, do you know what the duties and position are?---As I said, I can’t recall the specific thinking that I went through, or Bill and I went through when we got to that particular line item.

PN1914.

When you said you know every position, this is not a position, at least now, sitting in the witness box, that you know what his duties are?---(No audible reply).

PN1915.

I’m not trying to trap you, but that’s true, is it not?---With what I have in front of me at the moment, that’s correct.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1916.

Let me move to EFM inspections. Now, you gave some very clear answers to my friend about what this role does or doesn’t do a little earlier today?---Yes.

PN1917.

Is that because you know who these employees are?---Yes.

PN1918.

Do you know their work location?---It’s at various locations.

PN1919.

Isn’t this the case that this is a position that’s only found at the Penrith depot?---No.

PN1920.

Do you know that Mr Joe Bird is one of these people that holds this position?---Not with the information specifically in front of me, no.

PN1921.

I see. You’ve read Mr Dale’s reply statement where he makes clear that this is a position which is at Penrith depot only and Joe Bird is one of the people? Did you read that?---I did read that, yes.

PN1922.

And this is a position for which there were 10 employees which were externally advertised and six of those positions were filled by external electrical contractors?---Yes, I believe that to be the case.

PN1923.

And this is a position which, amongst other duties, involves doing disconnections and reconnections of customer point of supply?---Typically not. That role typically is involved in inspecting, as the term - inspecting our assets. There may be a requirement to effect disconnection and reconnection at point of supply.

PN1924.

Given Mr Dale’s evidence, you don’t deny that that - it might not be all of the job, but from time to time, these EFM inspectors do disconnection and reconnection at customer point of supply work?---I don’t deny that that - those people that do that work can be asked to undertake those tasks.

PN1925.

And also to test customer switchboards?---I would not expect those staff to be frequently undertaking that task, no.

PN1926.

But from time to time, that’s something they would do?---They may be required to test their work at a customer switchboard. However, that is testing back on the customer switchboard back into the network.

PN1927.

They are people who, from time to time, would repair customer mains?---They may be required to put some additional insulation on customer service mains.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1928.

MR TAYLOR: When doing jobs such as disconnecting and reconnecting customer point of supply, these people would need to – sorry, I’ll withdraw that – when doing work of disconnecting and reconnecting customer point of supply, one of the Safe Work Method statements that we’ve gone into evidence, is relevant to that work, is it not?---No.

PN1929.

Is it not the case, that disconnecting and reconnecting is dealt with by one of the Safe Work Method Statements titled Reconnection/Disconnection at Meter Board?---Typically, the work that you’ve described, disconnecting at the point of attachment is not disconnecting at the meter board.

PN1930.

When it comes to testing customer switchboards, is that not work that would involve the need to apply Safe Work Method Statement 10.001, customer installation audits and inspections?---I think we’ll need to define what we mean by – would you mind defining what you mean by testing customer switchboards, in order to help me understand the question.

PN1931.

Well I think you agreed with me, that part of the duties, although I think you qualified that as not being a feature of the job, was testing customer switchboards. What work did you have in mind when you accepted the proposition I put earlier?---I had in mind the work required to test the veracity of the work being undertaken to replace or repair a service main.

PN1932.

You accept, do you not, that the tasks that I’ve identified, are tasks which involve the employee spending at least some of their time on the consumer side of the point of supply?---In word, to effect, the test that I just described, yes.

PN1933.

The reason that six outside electrical contractors would be suitable for the job is because this is work which is one that one can be qualified to do without having distributor experience on the network?---No, that’s untrue.

PN1934.

Certainly, these people were outside electrical contractors and they met the requirements of the position, did they not?---They did require some additional training.

PN1935.

We move to the EFM service lines. Again, I think you spoke about these employees as if you had a good understanding of them. Do you accept that this is a title that is found only at the Kings Park depot?---No.

PN1936.

That there is a limited number of these employees, according to your chart, it’s not a popular position title, do you agree?---That’s correct, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1937.

That you are familiar the fact that one of these people who had this title, is someone called Paul Cochrane, who was at the Kings Park depot?---Not specifically.

PN1938.

Part of the role of an EFM service lines includes ensuring the quality of supply following voltage complaints?---Again, I think we will need to define what you are meaning before I can answer that question.

PN1939.

You are unable to say whether that is right or wrong on what I’ve put to you so far?---That’s correct.

PN1940.

You agree with me that part of their role will be working on a customer switchboard and conducting repairs from time to time?---Part of their role will require them to undertake tests of the veracity of their work, which is undertaken at a customer switchboard.

PN1941.

Their role also will extend, in emergency situations, where there’s been accidents or incidents, to changing meters on customer switchboards, where they’ve been damaged by things such as a lightning strike?---Yes, that may be required, yes.

PN1942.

If they are changing the meter, is that something that would be work that is covered by the Safe Work Method Statement 4.011, the reconnection/ disconnection at meter board?---Typically, not.

PN1943.

Presumably if they are changing the meter board at the end, they’ve got to reconnect it to the system, do they not?---Typically a meter is changed without the need to disconnect the complete supply.

PN1944.

I see, but there is at least some component, on the customer side, that needs to be connected back into the point of supply, so that there’s live power coming back into the home?---Yes.

PN1945.

What I am suggesting to you is that, that is work of a nature that this Safe Work Method Statement would need to be followed, to ensure it is done safely, as is identified and the like?---No, I wouldn’t accept that at all.

PN1946.

Is there another Safe Work Method Statement that would deal with then, that work?---Again, I don’t know the answer to that.

PN1947.

When you gave evidence that these are the only Safe Work Method Statements that refer to a training qualification requirement of a licence - - -?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1948.

- - -what were the steps you took to satisfy yourself, that that is in fact, the case, and there aren’t others?---I asked one of the – we have an administrator of the Safe Work Method Statements and she did a word search on a number of different ways of describing the licence and came up with that result.

PN1949.

It wasn’t an exercise of actually reading them, or going to someone who you were confident, knew them? It was an electronic word search only?---That’s right.

PN1950.

I want to move to those classifications in dispute that are being used as examples, the annexure B classifications and there are five of them in annexure B. One of them has now been conceded, that is the - referred to as the MSO, that that is a position which is accepted by Endeavour to be one that requires a licence?---Yes.

PN1951.

An MSO does a range of work that is both on the network and on the customer side of supply?---Yes.

PN1952.

That work requires, because of the customer side of supply work, it requires, does it not, knowledge of the electrical wiring rules?---It requires some knowledge, yes.

PN1953.

I think it follows, from the obligation that you think arises to have a licence, that a DPW could not become appointed to an MSO role?---The logic is sound, yes.

PN1954.

The work that MSOs do, includes work which requires them to – sorry, it includes duties, in respect of whom each of these three Safe Work Method Statements will have application?---I would say that there is similarities between the work undertaken by MSOs and the work described by two in particular, of those Safe Work Method Statements, if that answers your question.

PN1955.

Can you identify those two?---Two would be Customer Installation Audits and Inspections and Reconnection/Disconnection of Meter Board. The Install or Repair of Low Voltage Customer Earthing System is less likely to be done by an MSO.

PN1956.

When one comes to examining the position of the EFM, you accept do you, that EFMs from time to time do the exact same tasks that form the central role of the MSO?---Particularly in rural areas, where we don’t have MSOs, an EFM may be called to undertake that type of activity, yes.

PN1957.

Even in the city, on night shifts, EFMs might do the work that would otherwise be done by an MSO during the day?---EFM typically - or doesn’t work shift work, but an EFM may be called upon as part of a standby arrangement, or called in to undertake tasks that are similar to that, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1958.

In a country area, such as that where Mr Woolsey works, where there is only one MSO, there is a need for staff to be on standby to do the work that would otherwise be allocated to an MSO - emergency work as and when it comes up?
---Need not necessarily. The standby arrangements don’t exist in all locations. The alternative is calling people at home and asking whether they would like to come in.

PN1959.

Regardless of whether someone is strictly on standby, or is capable of being phoned at home, there is a need for, when MSOs are not available, for EFMs to be called to deal with customer no-supply work?---I would say need is too strong. There is the alternative of leaving the job till the next day.

PN1960.

Some work can’t be left till the next day. Do you agree?---The decision to leave single customer type work till the next day, is taken very often.

PN1961.

That wasn’t my question. Some work can’t be left till the next day?---Work on the electrical network, typically can’t.

PN1962.

Some of the customer no-supply work, also can’t be left till the next day?---No, I wouldn’t say that’s true.

PN1963.

One takes an aged care home or hospital and the like; one can’t wait till the next day in these situations, that supply needs to come back on?---With those types of faults, typically the fault is back within the network rather than within the customer supply. If the fault is within the customer, typically the nursing home would ring their electrician.

PN1964.

The knowledge that the MSO is required to have in order to be appointed to that position, is knowledge of the wiring rules so that they are able to do the customer supply work - sorry the customer electrical wiring work, in accordance with the statutory requirements?---If we asked the MSO to undertake that work, yes.

PN1965.

This is the exact same work that the EFM does in lieu of the MSO, is it not?---
We may not ask the EFM to undertake that task.

PN1966.

From time to time, EFMs do have to undertake that task. Mr Woolsey is not lying about that, that’s what he does?---We always have the alternative of suggesting to the customer that they hire their own electrician.

PN1967.

You read what Mr Woolsey’s evidence is; when he is on standby, he is doing the work, the customer no-supply work that would otherwise fall to an MSO during a shift that an MSO is on?---Yes, he is doing similar types of work, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1968.

That work includes replacing, from time to time, customer switchboards?---I must say, that was – when I read that, I became quite concerned, because in my view, and I have spoken with others about this, that is extending well beyond the role that Mr Woolsey should be doing.

PN1969.

If the switchboard is up on one of Endeavour’s poles, the customer can’t do it; it has to be done by Endeavour, does it not?---No, that’s not correct. There are certainly a number of accredited people who can undertake that work.

PN1970.

You don’t deny the fact that he is doing work that involves replacing customer switchboards, do you?---No I don’t deny that he’s under – yes, I don’t say – no, I don’t deny that at all.

PN1971.

Is that work, which is work where the Safe Work Method Statement dealing with reconnection and disconnection of the meter board, is going to be one of the things that must be taken into account?---Yes, that is related to that type of work, yes.

PN1972.

You are familiar, are you not, with the fact that EFMs, as a matter of course, have an electrical licence?---I’m aware that the majority of our EFMs have a licence.

PN1973.

That the majority were appointed, in response to job ads which required them to have a licence, in order to qualify successfully to obtain a position.

PN1974.

MS NOMCHONG: I object your Honour.

PN1975.

MR TAYLOR: He either knows, or he doesn’t know.

PN1976.

MS NOMCHONG: How can Mr Langdon answer a question about the majority of current EFMs?

PN1977.

THE SENIOR DEPUTY PRESIDENT: Well he may know; he may not know?---I’m certainly not in a role where I vet job advertisements and so, to be honest, I couldn’t categorically answer your question.

PN1978.

MR TAYLOR: I’ll come back to that in a moment. The district officers, about which Mr Matuelwicz gave evidence, I think you accept, do you not, that every district operator – did I say officer or – that every district operator will be required to do the work that is otherwise allocated to MSOs from time to time?---That’s a fair statement, yes.

PN1979.

District operators in effect, are MSOs on night shift?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1980.

In those roster patterns, where there are MSOs on day shift, when they are away on leave, then district operators will be rostered on to take the MSO role from time to time?---From time to time, that happens very occasionally, to be honest, simply because we preferentially find others within the regions to do that, or we would take the hole in the roster and move on.

PN1981.

Mr Matuelwicz, the fact that he might be rostered to be the MSO for one or two or even three days in a row, is something that you would accept occurs in various depots. A district operator is rostered to be a MSO during absences of MSOs?---Can happen, but seldomly.

PN1982.

Outside of Sydney, there are no MSOs in the Illawarra, such that the district operator has a job that carries both the duties of a district operator and the MSO. So, is this an area where, one has to go beyond the title district operator and start to look at what are the primary duties of a person with that title in a particular area; in this case the Illawarra?---If there was sufficient differentiation, I could accept that.

PN1983.

There is a differentiation, is there not, that the position in the Illawarra, is that a district operator is both a district operator type role in the city and an MSO role in the city, rolled up into one position?---There’s actually a complexity within that, in that part of the MSO duties within western Sydney are handled by the region down in the Illawarra.

PN1984.

Some of the district operators from the Illawarra will come to western Sydney to do MSO work?---No, no, what I meant was that what we would call MSO duties, some of those MSO duties are actually managed through the region rather than given to the district operators.

PN1985.

In the south coast, one doesn’t find either district operators or MSOs; one finds instead the position is simply referred to as a fitter or an EFM, is that right?---I presume you mean the far south coast, yes.

PN1986.

Yes, and those people then do a mixture of work in the other areas, in the city would be split into DO work and MSO work and EFM work?---Although in that location there is the role that Mr Dale fulfils which fills much of that void as well.

PN1987.

You started that answer with "although", but did you agree with the proposition I put to you?---That the EFMs can be asked to do work similar to that of district operator and MSO, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1988.

When you are considering – when you, for the exercise of allocating positions, whether they met or didn’t meet certain filters, that you were looking at, were you a district operator in the sense of the ones in the city and not necessarily the ones in the Illawarra or the far south coast?---To be honest, Bill and I did – we were quite aware that there are district operators in more than one location. We’re quite aware that there are EFMs in more than one location, and so we did test that from various different sort of, points of view.

PN1989.

At one point you mentioned earlier, you were a manager with responsibility for the control room, I can’t remember the exact title. What was it again?---Manager, System Operations.

PN1990.

During the time you had that role, is it the case that you expressed a view to people that you considered district operators should have a licence?---I may have. I don’t recall.

PN1991.

Up until 2012, sorry, up until 2014, when a position description changed, you were aware that the position description for a district operator did have, as a mandatory requirement, the person holds a licence?---I’m not specifically aware of that, but - - -

PN1992.

You gave evidence earlier when the Senior Deputy President asked you a question about changes to position descriptions; you said something to this effect, “that they’ve changed particularly as we’ve learnt about the statutory requirements”. Are you able to put a date upon which you learnt about the statutory requirements?---Me personally, or - - -

PN1993.

You use the word “we”, so I wasn’t sure who you were talking about at that point. Maybe we need to clarify that first?---Typically – well I’ve been broadly aware of the statutory requirements but I hadn’t looked deeply into it until I undertook this task. More broadly, however, the organisation has been aware of statutory requirements and that has been reflected in some of the decisions that have been made.

PN1994.

If there’s been a change in the PD between 2012 and 2014 for district operators, do I understand it’s your evidence, that that has been influenced by what we, to use your words, what we learnt about statutory requirements?---I believe so, yes.

PN1995.

It’s not that the roles have changed, the duties and the roles have changed, it’s just a view as to whether it’s a statutory requirement to hold the licence or not?---Yes.

PN1996.

To the extent to which the roles find it as a matter of fact, that one needs to have knowledge of wiring rules, that is, to the extent to which a district operator needs to have knowledge of wiring rules, that hasn’t changed under 2012 and 2014? The same knowledge was required at all times, was it not?

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN1997.

MS NOMCHONG: I object to the question. I think there’s an underlying assumption that the district officers need to have knowledge and competency in the wiring rules to do their job as a district officer, and I don’t think that’s been asked.

PN1998.

MR TAYLOR: I accept that.

PN1999.

MS NOMCHONG: Sorry your Honour, I just had a conference at 4.30 pm and I was just - - -

PN2000.

THE SENIOR DEPUTY PRESIDENT: Well we are finishing at 4.30 pm.

PN2001.

MR TAYLOR: Part of the role of district officer is to investigate what’s sometimes referred to as shock jobs. That’s electric shocks that have occurred within a customer residence?---Yes, they may be asked to attend those, yes.

PN2002.

They were all sent on a course conducted by a consultant Chris Halliday in second half of last year; a two day course that specifically dealt with how to investigate electric shocks?---I don’t specifically know, so I can’t answer your question yes or no.

PN2003.

District officers are often the first persons to a scene where there’s been some accident involving electric shock?---They can be, yes.

PN2004.

They need, in that circumstance to go past the point of supply into the customer premises, and they need to make the place safe. I think I’ve asked two questions there, let me break that up. They need to examine the wiring past the point of supply, do they not?---No.

PN2005.

They do need to make the place safe?---Yes.

PN2006.

That will sometimes mean that they need to disconnect the power?---Yes.

PN2007.

They will, from time to time, need to identify the source of the electric shock which might involve isolating a particular circuit?---Yes.

PN2008.

For that, do you accept, that that role is one for which knowledge that is derived from knowledge of the wiring rules, is required?---Knowledge that is also required to undertake their role on the network as well.

PN2009.

So they need two lots of knowledge? Network knowledge?---No, it’s the same type of knowledge, would be required to diagnose that particular fault.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN2010.

They need to have - it’s in order to do that particular role or particular job which they do from time to time, they need to have this knowledge of the Australian wiring laws, do they not?---No.

PN2011.

When district operators in training were being appointed to their positions in 2006, you then, at that point, would have been the manager of system operations

?---That’s correct, yes.

PN2012.

All those appointed at that time were told, were they not, when their appointed, that they would be receiving the electricians’ licence, upon proof that they had the certificate? Sorry, the allowance – I’ll just put that question again. Those staff, who are district operators in training in 2006, when you were the manager of system operations, were told that upon providing proof of their licence, they would receive the electricians’ licence?---Whilst I wasn’t privy to those specific conversations, I would expect that to be true.

PN2013.

Isn’t this the case, that if they had any questions about that, they were to speak to you about it?---There is a layer of management between my role and those particular roles and I would think that their first question would go to their direct supervisor.

PN2014.

System operators, as a matter of fact, all senior system operators are licensed, to your knowledge?---The question was senior system operators?

PN2015.

Yes?---To the best of my knowledge, yes.

PN2016.

I think when you identified one person that you are aware did not have a licence, Mr Riggs, was that person not a senior system operator, but a system operator?
---That is correct.

PN2017.

That I take it, was the only system operator that you are familiar with, and you are obviously very familiar with the manager, that did not have a licence throughout this period?---Yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN2018.

Is this the case that when you were manager of system operations, it was your – you made clear that you wanted them all to be licensed?---I don’t recall that, no.

PN2019.

You don’t deny the proposition?---I don’t recall that.

PN2020.

The position description for system operators, up until 2014 required a licence as a mandatory requirement to get the position; are you familiar with that, from your time as the manager?---I don’t recall specifically that position description.

PN2021.

The current position description from 2014 - I’ll move on and I’ll come back to that once we’ve sorted the document out. The role of the system operator, I think you accept, involves the need to assess and advise in respect of emergencies as to what steps should be taken, once they’re called in from the call centre?---That’s a reasonable description, yes.

PN2022.

They are in effect diagnosing possible sources of issue that arise once matters are reported to the call centre, of loss of supply?---There is some element of diagnosis within that role.

PN2023.

A single customer suggesting a loss of supply, might lead them to diagnose a different course of action than if two or three in the same area identify a loss of supply?---Yes.

PN2024.

Depending on the nature of the particular customer supply problem, they draw upon, do they not, their knowledge of wiring rules to help them diagnose what’s the issue and whether it is in fact, a problem that is going to effect the network and needs to be dealt with straight away, or is something that can perhaps be left till the next day?---No, I wouldn’t say that it’s their knowledge of the wiring rules that leads to that diagnosis.

PN2025.

What I understand to be the current position description for system operator – I’ll withdraw that – let me just put more neutrally. A position description for the position of system operator, dated July 2011 identified it to be desirable that the person hold an electrical supervisor’s licence; not required, but desirable. Do you agree that is the fact because the knowledge that comes with holding a licence is something that it is desirable for system operators to have?---I would agree that some of the knowledge gained in being trained and therefore gaining a level that would allow the person to apply for a licence, is useful in the role.

PN2026.

When it comes to technologists, they, I think you’ve heard, not as a central part of their role, but in emergency situations, will go to customer installations and disconnect meter boards as part of something they might be asked to do?---I’m aware that they can be asked to do that type of role in a storm, yes.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN2027.

When doing so, would they need – sorry withdraw that. That work is work that is covered by the Safe Work Method Statement 4.011?---Apologies I’m - - -

PN2028.

The reconnection, disconnection of meter board?---That would be the type of work that’s described that doesn’t require a licence within that. It does not require a licence within that Safe Work Method Statement. So it’s not the type that is involved in live load tails.

PN2029.

You took issue with – you were asked some questions about Mr Pollock’s reply statement, and I think you took issue with one particular aspect, 6(d); I don’t ask you to go to that, but can the Commission take it, that to the extent to which you haven’t taken issue with Mr Pollock, that you don’t seek to – that your view is that what he has set out there, is not something you think is incorrect?---Sorry, I didn’t follow the question.

PN2030.

Mr Pollock has put a reply statement on?---Yes.

PN2031.

In which he has detailed a number of different ways in which he believes, and his evidence is, knowledge of wiring rules is a very important part of his job. When Ms Nomchong was asking you questions, you took issue with two of them; one that the tag, the licence tag and whether it needs a licence number and the second – that might have been the only one. Apart from the matter he identified about the tag, you hadn’t otherwise said that what he said in paragraph 6(e), (f) and following is wrong. Can we proceed on the basis that you have no reason to think that is incorrect?---If you wouldn’t mind, I’d like to just briefly read that. So this is in Mr Pollock’s reply statement, that you’re referring? Just to clarify you’re talking about 6(e)?

PN2032.

And (f)?---There is nothing that I read there, that seems incorrect to me.

PN2033.

When you read this statement, if there was anything wrong in it, you – I’ll withdraw that. I’ll move on. Can I deal with finally, this proposition? I’m returning to the issue of Safe Work Method Statements. Are you familiar at all with the obligation under Work Health & Safety Regulations for Endeavour to have Safe Work Method Statements in respect of the work that it’s done, on or near energised electrical installations or services?---Yes.

PN2034.

There is that obligation, is there not?---Yes.

PN2035.

That obligation to have a Safe Work Method Statement extends to an obligation as, a matter of penalty, that the work must be done in a manner that ensures it’s carried out in accordance with that Safe Work Method Statement. Are you familiar with that?---No, I’m not.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

PN2036.

If you assumed, and we can provide his Honour, of course, with the relevant legislative material, that if you assume that there is a statutory obligation to comply with Safe Work Method Statements, then there would be, will you accept, an obligation to comply with these three that have been marked E13?---I agree, that if, yes, that if there was a statute that said you needed to comply with the Safe Work Method Statements, then yes.

PN2037.

These don’t just bear the title Safe Work Method Statements, they are, Safe Work Method Statements, are they not?---Yes, they certainly are.

PN2038.

Thank you your Honour. Thank you Mr Langdon.

PN2039.

THE SENIOR DEPUTY PRESIDENT: How long are you going to be, or would you rather wait?

PN2040.

MS NOMCHONG: Quite a while.

PN2041.

THE SENIOR DEPUTY PRESIDENT: Yes, I think we’ll have to resume tomorrow morning. So we’ll adjourn till 10 o’clock tomorrow morning.

**** PETER ANTHONY LANGDON XXN MR TAYLOR

<THE WITNESS WITHDREW [4.26 PM]

ADJOURNED UNTIL FRIDAY, 13 FEBRUARY 2015 [4.26 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

NATHAN JEFFREY POLLOCK, SWORN [10.06 AM].................................... PN1000

EXAMINATION-IN-CHIEF BY MR TAYLOR [10.06 AM]............................ PN1000

CROSS-EXAMINATION BY MS NOMCHONG [10.10 AM]......................... PN1018

RE-EXAMINATION BY MR TAYLOR [10.16 AM]........................................ PN1042

THE WITNESS WITHDREW [10.19 AM].......................................................... PN1062

MARK JOHN GREENHILL [10.26 AM]........................................................... PN1108

EXAMINATION-IN-CHIEF BY MS NOMCHONG [10.26 AM].................... PN1108

CROSS-EXAMINATION BY MR TAYLOR [11.57 AM]................................ PN1236

RE-EXAMINATION BY MS NOMCHONG [12.20 PM].................................. PN1488

THE WITNESS WITHDREW [12.27 PM].......................................................... PN1519

PETER ANTHONY LANGDON, AFFIRMED [1.33 PM]................................ PN1534

EXAMINATION-IN-CHIEF BY MS NOMCHONG [1.33 PM]....................... PN1534

CROSS-EXAMINATION BY MR TAYLOR [2.05 PM]................................... PN1660

THE WITNESS WITHDREW [4.26 PM]............................................................ PN1042

EXHIBIT CEPU20 STATEMENT OF MR N POLLOCK DATED 22/09/2014. PN1009

EXHIBIT CEPU21 STATEMENT OF MR N POLLOCK DATED 25/11/2014 PN1011

EXHIBIT E9 RESPONDENT’S ANSWERS TO AMENDED QUESTIONS.. PN1105

EXHIBIT E10 STATEMENT OF MR M GREENHILL..................................... PN1123

EXHIBIT CEPU23 SCHEDULE OF OBJECTIONS......................................... PN1168

EXHIBIT CEPU24 EXTRACT FROM NSW INDUSTRIAL GAZETTE DATED 24/03/1995. PN1258

EXHIBIT E11 RESPONDENT'S TENDER BUNDLE...................................... PN1533

EXHIBIT E12 STATEMENT OF MR PETER ANTHONY LANGDON......... PN1547

EXHIBIT E13 SAFEWORK METHOD STATEMENTS SWM 4.011; 10.001;
10.005................................................................................................................ PN1592

EXHIBIT E14 AS/NZS 3760:2010...................................................................... PN1655

EXHIBIT CEPU25 DOCUMENT TITLED REFEREE'S STATEMENT ELECTRICAL WORK PN1714

Fair Work Commission Transcripts

C2014/1137, Transcript of Proceedings [2015] FWCTrans 91 (2 March 2015)