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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051419-1
SENIOR DEPUTY PRESIDENT HAMBERGER
s.739
- Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia
and
Endeavour Energy
(C2014/ 1137 )
Endeavour Energy Enterprise Agreement 2012
(ODN AG2013/6476)
[AE401346 Print PR537066]]
Sydney
10.02 AM, FRIDAY, 13 FEBRUARY 2015
Continued from 12/02/2015
<PETER ANTHONY LANGDON, CONTINUING [10.02 AM]
<EXAMINATION BY THE SENIOR DEPUTY PRESIDENT [10.02 AM]
PN2042.
THE SENIOR DEPUTY PRESIDENT: Before you start, Ms Nomchong, there's just something I was thinking about that does arise from the evidence you were giving yesterday and it's things you were saying about some of the evidence from some of the union's witnesses. You may not be able to answer this, but obviously a number of those witnesses have given evidence about the work they do, and I thought I detected in some of your responses that it's possible, if I could put it that way, that sometimes they're doing things that are not what you would be expecting them to do. So in other words, you know, a consumer, a customer, might have a problem with their power. It turns out it's not, in fact, really a problem on your network, it's actually a problem on their side of the point of connection, if that's the term?--Yes.
PN2043.
But they'll go in and fix it anyway, because they're there and, having established what the problem is, they'll go in and do it anyway. Is that something - am I putting a thought into your head that may not have been there and that this may not be true, or is that actually something that, at least, is possible that that's what's happening?-- No, I think that's quite reasonable. I call it going above and beyond, that's correct. That given that our staff do have certain expertise- - -
PN2044.
Yes?-- - - -and if we've got a customer and we value customers, they're able to effect or assist the customer with their skills, yes.
PN2045.
But even though, in some ways it's great, in terms of customer service, in terms of actually fulfilling their duties that they're required to fulfil, it's going beyond what they're really required to do, potentially, in those kind of situations?--Potentially, yes. You know, from the procedures perspective, yes, it is going beyond.
PN2046.
Yes, okay. Thanks.
PN2047.
S NOMCHONG: Mr Langdon, I'm going to take you back to some of the questions that were asked of you by Mr Taylor yesterday. Hopefully you can remember that far back.
PN2048.
MR TAYLOR: Your honour, just before my friend does that, would I be able to ask some questions arising from the questions that your Honour has asked?
**** PETER ANTHONY LANGDON XN THE SENIOR DEPUTY PRESIDENT
PN2049.
THE SENIOR DEPUTY PRESIDENT: I will allow that. I mean, I do actually - arise from the evidence, in fact, but I don't normally ask questions at this point. So I will allow you.
<FURTHER CROSS-EXAMINATION BY MR TAYLOR [10.05 AM]
PN2050.
MR TAYLOR: Mr Langdon, in light of what the Senior Deputy President asked you, you've identified that at least some work that Endeavour staff might do, might be something that they don't have to do, but they do to help the customer out. So I understand the tenor of what you just agreed with, is that right?--Yes.
PN2051.
But it's also the case, isn't it, that for some Endeavour staff, working on the customer side of the point of supply is something that is part and parcel of their duties?--Yes.
PN2052.
EMSO work, for example, does require, as part of their duties, working on the customer side of the point of supply?--Some EMSO work, yes.
PN2053.
Another example of work, which some of the witnesses described doing, investigating shock jobs, that is on the customer side of the point of supply, but it is part and parcel of their job. It's not an optional thing that they can do, only to help a customer out?--If the staff is adequately skilled - staff member is adequately skilled and capable of doing that, then yes, we would expect that. Yes.
PN2054.
And so, for example, that's why the district operators were all sent on a course, 2‑day course, on investigating shock jobs at the end of last year?--As I said, because I'm not familiar with the content of that course, I don't know that I can answer your question, yes or no.
PN2055.
But you're familiar with the fact that they did go on a 2-day course, with an outside consultant, specifically teaching them about the issue - the job involved in, investigating shocks inside the customer side of the point of supply?--No, I wasn't aware of that until you told me yesterday.
PN2056.
Thank you. Sorry.
**** PETER ANTHONY LANGDON XXN MR TAYLOR
PN2057.
MS NOMCHONG: That's all right.
<RE-EXAMINATION BY MS NOMCHONG [10.06 AM]
PN2058.
MS NOMCHONG: As I said, Mr Langdon, I'm going to take you back to some of the questions that Mr Taylor was asking you yesterday. One of the questions was in relation to trade qualified electricians and their familiarity with wiring laws. And it was put to you that they were sent out of the organisation to get the experience. You may have already answered this, but why wasn't Endeavour able to be giving that level of experience to their employees, within the organisation?--Within the normal types of work, the full range of work that Endeavour Energy undertakes, we aren't able to provide the full range of wiring experience that is expected by Fair Trading when granting a licence. And so therefore, you may recall that 12 months of wiring experience is required. They're quite comfortable with six of those months being contributing from our organisation, Endeavour Energy, but a further six is required externally.
PN2059.
Does that have something to do with the type of work that's being done by Endeavour?--That's right. The type of work that we undertake as an organisation, is just simply not broad enough to cover all aspects of attaining a licence. And so therefore, in the normal duties of our staff, they're just not able to gain that experience.
PN2060.
Thank you. Now, you were asked some questions about a meter technician, but this is a position that Endeavour has already conceded is one which requires a licence. That's correct, isn't it?--That is correct, yes.
PN2061.
You were asked some questions about the proficiency in the electrical wiring rules and the licence. Is having a licence the only way for a person to be proficient in the electrical wiring rules?--Certainly not. Much of the training that we undertake, both as - in the first year of their apprenticeship and also in the subsequent years, is around gaining experience in wiring work. Obviously the principles of working with electricity are the same, regardless of whether they're part of our network or part of a customer's installation. And so those skills are very much part of our apprenticeship.
PN2062.
So you can be proficient in wiring rules and have no licence?--That's correct, yes.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2063.
You were also asked some questions about electrical wiring done in substations and commercial buildings owned by Endeavour, and I think your answer was that whilst, under the legislation, Endeavour could use its own employees to do that, they in fact choose to use outside contractors. Is that right?--For our depot buildings, for our head office, we use external contractors to do that wiring. For new substations, we use external contractors to do that wiring. For maintenance of our substations only, we would use our staff.
PN2064.
And is the electrical wiring in the depots, the substations and the offices, a primary function of any of the Endeavour employees?--No. Maintaining the wiring in our depots would not be the primary function of any of our employees.
PN2065.
Now, you were asked some questions about whether and to what extent Endeavour employees replaced customer meter boards, and your answer was, that you were very surprised. And this actually might follow on from what his Honour just asked you. Why were you surprised that it was put to you that employees were replacing customer meter boards?--So when I read our procedures, our policies, our documents that describe how our staff undertake their roles, I don't see some documents, procedures associated with that type of work. In my experience, as Manager, Central Region, I hadn't come across our staff completely changing, replacing switchboards.
PN2066.
Would that be a primary responsibility of any of the Endeavour employee classifications that you're aware of?--Certainly not.
PN2067.
You were also asked about the fact that, from time to time, Endeavour staff replaced customer fuses. And again, the question is, to what extent if at all, is that a primary role of any of the classifications of Endeavour employees?--No, it's certainly not a primary or principal role. In fact, again, it goes to the question that your Honour asked. Replacing fuses on a customer board is, in fact, going above and beyond. In fact, our procedures do talk about advising the customer that they should gain an electrician at that point, but obviously the time taken to replace a fuse is fairly minimal and so our staff quite often do that.
PN2068.
Now, you were asked a question about whether or not the percentage of time spent on a particular duty was a determinant that you took into account in the review. And you said that because the percentage could change from week to week, that wasn't a criteria. However, when I had asked you some questions in‑chief about the percentage of time done, for example, by Mr Woolley and asked you to describe whether or not that was a primary function, you gave a percentage answer. Can you reconcile how it is that that's the- - -?--So in answering the later question yesterday, what I was referring to is the fact that quite often we don't have hard, specific, week-by-week data of a form that we would be able to break them down into that specific working on this side of the customer board versus that working side. And so therefore, we took a more broad approach, rather than specifically looking at hard, specific data and sort of backed off from that. Obviously we had in mind that the term "principal" generally - typically means more than half. And so therefore, you know, we had that in mind, but you know, where there wasn't data that would give us that specific sort of 50 per cent sort of criteria, we came back to sort of our broader knowledge of the roles.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2069.
So when you say "more than half" were you referring to time spent on particular duties or to something else?--Time total within - for that particular - that role. So principally, that role, if that role was principally undertaking wiring work, we would say that, you know, we'd be looking for doing that more than 50 per cent of the time broadly.
PN2070.
Now, you were asked some question about an error that was made in the list that was done. And can I take you to page 35 of your statement? And this was about installation inspections. Do you remember that question?--Yes.
PN2071.
The fact was that in this schedule, you have identified installation inspectors as qualifying under both filters?--Yes.
PN2072.
And the fact that it wasn't on the list was simply a typographical or administrative error?
PN2073.
MR TAYLOR: I accept for the benefit of speed, leading is something that's going to happen, but- - -
PN2074.
MS NOMCHONG: No, I accept my friend's qualification.
PN2075.
How can you explain the fact that it was on your schedule, answering yes to both filters, but didn't appear on the list?--As I explained, when we spoke about that yesterday, in my mind, the task was really to complete this schedule. The summarising of the schedule was something that I didn't spend as much time, and to be honest, I've, I believe, made that mistake and so therefore I wasn't diligent around sort of going back and picking up the yes's and the no's. And so therefore, to be honest, as I said, I believe I've made that error in summarising the table.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2076.
But there's no doubt that Endeavour accepts that installation inspectors are the people who require a licence in order to fulfil their duties?--That's correct.
PN2077.
You were also asked some questions yesterday about the classification of the electrical safety inspector. Do you remember that?--Yes, I do.
PN2078.
You were, I think, it would be fair to say, confused about the questions that were being asked of you and it was put to you that it was on the list, but you had no recollection of the duties that they did. Have you been able to, overnight, clarify your thinking on why that is so?--In reflecting the process that we went through, the process that we went through was that we looked a role. If we were familiar with the role, well then we, based upon our understanding of the role, we would put an entry in the table. If we were not familiar with the role, well we then went to position descriptions and supporting data. I suspect that that's what has occurred in this case, is that we have used the supporting data because I am not familiar with that particular role.
PN2079.
Now you were asked some questions yesterday about EFM inspections and it was put to you that from time-to-time, someone in that role might perform work at the customer point of supply. Would you regard the phrase "from time-to-time" as equating to a principal or a predominant function of the role of an EFM inspector?--I would not say it is a principal part of their role to undertake wiring work.
PN2080.
Let me just stop you there. When you say "wiring work" you're referring to the statutory definition?--I am indeed. It is a principal part of their work to undertake a test at the end of their works, to make sure that that work is complete. That is, is satisfactory. We have choice around where that test is undertaken and that test is easiest undertaken at a customer switchboard, testing the veracity of the work that has been done on the network.
PN2081.
So is it testing the electricity supply to the point of attachment or from the point of attachment?--To the - from our network - our network up to the point of supply.
PN2082.
And when you say "point of supply" for his Honour's edification, that's the same as point of attachment?--In that sentence it was, yes, and again perhaps the diagram within my statement may assist there, on page 46.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2083.
Does your Honour have that?
PN2084.
THE SENIOR DEPUTY PRESIDENT: Which document is this?
PN2085.
MS NOMCHONG: This is Mr Langdon's statement, page 46.
PN2086.
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2087.
MS NOMCHONG: Has a diagram that even I can understand, Senior Deputy President.
PN2088.
Now, just to cover this off, Mr Langdon, you were asked exactly the same questions about an EFM service line, that is about the undertaking of the test. Is the test the same one that you've just described in relation to EFM inspections or is it a different test?--No, it's the same test, yes.
PN2089.
Now you were asked some questions about the fact that an EMSO is a conceded classification, and you may have already answered this, and if you have, please just say so. What view did you form as to whether EMSOs principally work on the network or customer installations, and in answering that, how did you form the view about what "principal" mean?--Initially, when we first looked at that role, we formed a view that principally that role does not work on customer installations. However in - subsequently, sort of reviewing that particular role, we acknowledged that there are ebbs and flows in the amount of work that that - or the type of work that that particular role undertakes. And so therefore, there can be times when that - the term "principally" could apply to undertaking work on the customer side and so therefore, that's why we changed that position. And so in that view, principally - again, we didn't have at our finger tips specific data around say, for example, a percentage of 50 percent. However, we're broadly aware of the type of work over a longer period of time that that particular role would undertake.
PN2090.
So taking into account those ebbs and flows over that longer period of time, you determined by reference to this secondary review, that this should be a conceded classification?--Yes, that's the way that - yes.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2091.
Now, just while we're on that point, this arbitration, these proceedings have given you the opportunity to go back and review the review that you and Mr Watts did?--Yes, that's very true. In fact - again, just simply because of the time that this issue has been discussed, there has been quite an opportunity to review that, yes. Yes.
PN2092.
And from this secondary review that you've done, are you confident that the classifications that you've nominated are the only ones that require a licence to fulfil their duties?--Yes, I am confident. That time in between has allowed us more time to discuss with peers and therefore sort of gain some confidence ourselves that the determinations we made were appropriate, yes.
PN2093.
Mr Taylor put to you that from time to time, and I'll now turn to a different classification, that is from time-to-time, EFMs do EMSO work. Do you recall those questions?--I do recall, yes.
PN2094.
And given that you've conceded that EMSO work principally involves customer or consumer electrical wiring work, why is it that the way in which EFMs do EMSO work doesn't then also flow on to their work?--In our view, the concept of principally certainly applies here. As we discussed, an EFM can, from time-to-time, be asked to undertake the role. While similar to an EMSO, it's not the full duties of an EMSO, but it is some components. And so because of that, we are - we come back to the EFM is principally employed to work on our network.
PN2095.
Mr Taylor asked you some questions about Mr Matuelwicz and the role of district operators, and it was put to you that when district operators are scheduled on night shift, that they're required from time-to-time to do EMSO work. Did or would that influence you to change your mind about whether or not the principal work of district operators, is that on the network?--Again, we come back to that term "principally". District operators are principally employed to operate the electricity network. The electricity network that we own, they can and are, from time-to-time, asked to undertake the EMSO role. It is a much smaller portion of their role. It's typically on night shift and as I discussed yesterday, I believe more often than not, customers are encouraged to leave their no supply issue to the next day because we don't particularly want to go making noise at 2 am in the morning around customer's premises. And so therefore, whilst they are undertaking that role time-to-time, it's certainly not a principal or large part of their role at all.
PN2096.
You were then taken to the situation at the district officer in the Illawarra, and your answer was "There is a complexity within that because the EMSO duties are actually managed by Western Sydney". What did you mean by that?--Actually I didn't say "Western Sydney" I mean, or I meant to say if I did say "Western Sydney", the region, the local region there. So there are regional staff that undertake what would be described as EMSO work during the day. And in fact, what's happened over many years because I think the different nature of the customers and the way that the former organisation Illawarra, approached no supply calls after hours, that customers generally tend to ring electricians rather than ring Endeavour Energy if they have no supply. In fact, there are some contract arrangements in place to reimburse electricians, should the issue be on our - on the Endeavour side.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2097.
So just to finalise that issue. That is a district officer in the Illawarra. Would you consider their primary functions being doing the EMSO work?--No, certainly not. Their primary role is to undertake switching and operating and effect safe access to the Endeavour Energy network. It's a small part of their role that they may be asked to undertake some of the EMSO-style duties.
PN2098.
You were asked and taken to the position on the - I think you said "the far south coast" where the district officer, I think can do - EFM - I might have this the wrong way around. If there's a district officer that can do EFM and EMSO work or there might be an EFM who does district officer and EMSO work.
PN2099.
MR TAYLOR: No, I think neither of those propositions were put to the witness. I think what was put to the witness is in the far south coast, there is neither a district officer nor an EMSO nor an EFM. There's one position referred to colloquially as a fitter that does all of those jobs. That's how I recall I put the proposition to the witness.
PN2100.
MS NOMCHONG: Thank you, your Honour. I thank my friend. My notes were a little bit sketchy. So in terms of the fitter in the far south coast, your answer was that you were well aware of the location and that you considered, even notwithstanding that combined role, that the primary functions of that role didn't fall within someone who did their primary work on consumer installations?--Certainly not. The EFMs employed on the far south coast, their principal role is to work on or near the electricity network. In fact, some of the EMSO-type work that is undertaken on the south coast is, in fact, undertaken by a customer safety officer, which is one of the roles that we have agreed requires a licence.
PN2101.
Mr Taylor asked you about the classification of a system operator and put to you that it was desirable for a system operator to have knowledge gained from having a licence. And your answer was that the knowledge used to get a licence might be useful. Does that mean that you regard the knowledge gained in getting a licence as being a requirement to be a system operator?--Not a requirement. As I outlined yesterday, one of the system operators is recently retired, successfully undertook that role for many, many years and did not hold a licence.
PN2102.
This is Mr Riggs?--That's correct. And as I have stated, whilst it's useful to understand some of the wiring rules within - or some of the components of gaining a licence within that role, it's certainly not a mandatory requirement.
**** PETER ANTHONY LANGDON RXN MS NOMCHONG
PN2103.
And in relation to technologists, it was put to you that they may, from time-to-time, be asked to disconnect meter boards and your answer was that they can be asked to do that. Is that a primary function of the job of a technologist?--It certainly isn't. In fact, it's - whilst we - during those circumstances would actually ask whether the staff are confident and capable and comfortable undertaking that work before they were asked to undertake that work. And if they replied that they weren't, well then we certainly wouldn't ask them to do it, because it's not part of their general role.
PN2104.
Thank you very much, Mr Langdon. That's the re-examination.
PN2105.
THE SENIOR DEPUTY PRESIDENT: Thanks very much. Thanks for coming in again this morning.
<THE WITNESS WITHDREW [10.30 AM]
PN2106.
MS NOMCHONG: That's the conclusion of the respondent's evidence in this matter. We'll be taking you to some legislation and authorities and we'll hand those up during oral submissions.
PN2107.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2108.
MR TAYLOR: Your Honour, I indicated that we would prepare a schedule that would be used as an aide memoire to the bundle of documents that we earlier sought to tender. That's been prepared overnight and it's just come to hand. It's designed to do two things, as is evident from the document. The first is simply to describe each document in order that it appears in that folder. And on the right‑hand side, in a brief manner, identify the issue of whether the licence is referred to and in what manner. We don't' tender that schedule, but we suggest that it be used by your Honour- - -
PN2109.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2110.
MR TAYLOR: - - -as an aide memoire- - -
PN2111.
THE SENIOR DEPUTY PRESIDENT: Thanks, that's helpful.
PN2112.
MR TAYLOR: - - -at the time that your Honour is otherwise looking at that bundle. But can I now take the opportunity to ask for that bundle to be received into evidence? I don't have a number for it, but I think it was given a number at the time.
PN2113.
THE SENIOR DEPUTY PRESIDENT: Yes, it has been given a number.
PN2114.
MR TAYLOR: But it was subject to my friend having an opportunity to review it.
PN2115.
THE SENIOR DEPUTY PRESIDENT: You didn’t have any problems with it?
PN2116.
MS NOMCHONG: There were one or two documents that we didn't have in our bundle, but we don't have a problem. It seems that they were just simply outside the timeframe. So they didn't come from us, but we don't have a problem.
PN2117.
THE SENIOR DEPUTY PRESIDENT: And you saw I gave it a number? I may have - I don't want- - -
PN2118.
MR TAYLOR: Your Honour normally does.
PN2119.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2120.
MR TAYLOR: So maybe your Honour didn't in this case.
THE SENIOR DEPUTY PRESIDENT: I don't know, it's just a case of I didn't actually - sorry. I don't think I did, which I think makes CEPU26.
PN2122.
MR TAYLOR: Thank you, your Honour.
PN2123.
THE SENIOR DEPUTY PRESIDENT: If I've given it two numbers, it won't be the end of the world.
EXHIBIT #CEPU26 SCHEDULE TO BUNDLE OF DOCUMENTS
PN2124.
MS NOMCHONG: What did we call it?
PN2125.
THE SENIOR DEPUTY PRESIDENT: CEPU26.
PN2126.
MS NOMCHONG: And I mean, what will it be referred to?
PN2127.
THE SENIOR DEPUTY PRESIDENT: Sorry, so it's tender bundle, the- - -
PN2128.
MR TAYLOR: The union's tender bundle of position descriptions, job advertisements and the like, because there are some other documents that aren't ‑ ‑ ‑
PN2129.
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2130.
MR TAYLOR: And I think I've earlier described this material, but I do so now, just so the transcript records it at the convenient place of the transcript. I only describe this material as documents that were produced by the respondent and documents that are found annexed to material that has already gone into evidence or are stand-alone exhibits that have gone into evidence which are repeated for the convenience of the Commission when examining the relevant document for each position.
PN2131.
Your Honour, I think, for our part, that concludes the evidence. We're in a position to now move into submissions, but there's a couple of documents that we just need to organise.
PN2132.
THE SENIOR DEPUTY PRESIDENT: Do you want to have a break- - -
PN2133.
MR TAYLOR: Can we have a 5 minute adjournment, just to do that?
PN2134.
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2135.
MR TAYLOR: We have prepared some closing written submissions. Can I provide your Honour and my friend with a copy? And if we just have a short adjournment to get - otherwise get ourselves in order.
PN2136.
THE SENIOR DEPUTY PRESIDENT: Yes. I mean, would it be useful for me to read these, obviously before?
PN2137.
MR TAYLOR: Look, in fact your Honour, it probably would be useful to read
it- - -
PN2138.
THE SENIOR DEPUTY PRESIDENT: Why don't we make it a 15 minute, or- - -
PN2139.
MR TAYLOR: - - - and perhaps a longer adjournment would be necessary for that purpose and then I can make shorter submissions.
PN2140.
THE SENIOR DEPUTY PRESIDENT: Yes. So what I'll do is - we'll have a 20 minute adjournment.
PN2141.
MR TAYLOR: Thank you.
PN2142.
THE SENIOR DEPUTY PRESIDENT: And then you can take it that I'll have read.
SHORT ADJOURNMENT [10.55 AM]
RESUMED [12.20 PM]
PN2143.
THE SENIOR DEPUTY PRESIDENT: I mean, I don't want to sort of stop you saying whatever you want to say, but obviously I have had the benefit of - it's very helpful that you've done those written submissions. Obviously it might be - and I have had a chance to read them obviously fairly quickly.
PN2144.
MR TAYLOR: Yes.
PN2145.
THE SENIOR DEPUTY PRESIDENT: But it might be useful if I just sort of indicate my areas where I've inclined to, if you like, agree with you. Anyway, already inclined to agree with you and also where, so you don't need to kind of necessarily push on an open door. And areas where I'm not sure I agree with you. So those are the things you'd need to persuade me about.
PN2146.
MR TAYLOR: Yes.
PN2147.
THE SENIOR DEPUTY PRESIDENT: So is that okay if we proceed more in that way? I know there were certain things you wanted to say in opening, but to be honest, I think that might be the best way of doing it.
PN2148.
MR TAYLOR: I'm very content with that, your Honour, yes.
PN2149.
THE SENIOR DEPUTY PRESIDENT: Okay. So make sure I don't miss anything out. Well I've actually got a sort of general question, I suppose, I want to post to you. Why does it matter whether someone renews their licence? Do you see the point of the question? Because basically, essentially in practice the evidence seems to be, and you might try and tell me if this is not correct, but that you - to get the licence, if you've done the electrician's trade - you've qualified as a tradesman, you've completed the appropriate training to get your Cert III, you've done - and it's varied over the years. And remember, a large proportion of the workforce we're talking about qualified 20, 30 years ago, we're not talking about people who have qualified in the last year or two, generally. But I gather there have only been five electrical apprentices - five electrician apprentices in the last 10 years. So we're mainly talking about people who actually qualified many years ago.
PN2150.
MR TAYLOR: Yes.
PN2151.
THE SENIOR DEPUTY PRESIDENT: So basically my understanding is that you had to get your trade, you had to do a bit of experience - and it used to be 6 months and now it's a year, 12 months - and you had to show a knowledge of the wiring rules. But that basically, once you've got your licence and you've paid your money and you've shown that you've got the experience and you've got the qualifications, and you've shown your knowledge of the wiring rules, you get your licence, pay your money and every 3 years, as long as you renew in time, that's to just fill out a form seeking a renewal.
PN2152.
So if the purpose of this provision, of the allowance, is to recognise skills and qualifications if you like, once you've got your licence, you've shown that you've got the skills and qualifications, getting it renewed doesn't add to your skills and qualifications. There's no requirement, it seems, to update your knowledge. There are other requirements that the employer has to update your knowledge. It's very important that people do update their knowledge of things like wiring rules and so on, and there's obviously quite a lot of emphasis in the organisation on that.
PN2153.
But the licence itself doesn't seem to do that at all. So if that's what it's about, why does it matter that you get it renewed? Because it's not been in dispute that if you did fail - that is where the original dispute started from because people weren't getting their licence renewed and they weren't getting the allowance paid. And no one queried that there was anything wrong with that. There was no doubt that if you didn't get your licence renewed, you didn't get the allowance - you weren't entitled to the allowance.
PN2154.
MR TAYLOR: Yes.
PN2155.
THE SENIOR DEPUTY PRESIDENT: Why on earth would anyone care?
PN2156.
MR TAYLOR: Well, there's a number of answers.
PN2157.
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2158.
MR TAYLOR: At the simplest level, because it is the first requirement of the alliance. So if one doesn't get entitled to the allowance unless you hold a current certificate, a current licence. So that the clear implication of that is that the parties understood that there was some importance, not just to the fact that you originally had one, but it's been renewed.
PN2159.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2160.
MR TAYLOR: Now, it's to be understood, as from the evidence of Mr Harris, that the obligation to renew the licence is actually a relatively modern phenomenon. Originally you got a licence for life. But it was a modern phenomenon, no doubt influenced by the legislative provisions which provide to the Department of Fair Trading, a right not to renew a licence. So there's a sort of regulatory overview. I'd hesitate to draw any comparison - to make a comparison within the Fair Work legislation and right of entry probably is not the right comparison.
PN2161.
THE SENIOR DEPUTY PRESIDENT: No, it's not a good one actually.
PN2162.
MR TAYLOR: But there's a regulatory overview here that if people - if those holders of the licence aren't able to demonstrate - as a result of complaints or otherwise - there's a view that they are not meeting the relevant professional knowledge . I use "professional" not in a degree sense, but the relevant knowledge, they cannot have their licence renewed. But there's no doubt that the licence is seen by all as the way in which it signifies that you have a certain type and level of skill.
PN2163.
So in the same way that a driver's licence recognises that you are capable of driving a car, it doesn't mean that you're not going to have an accident or be negligent, but it means that there is a recognition that you have a certain level of skill. It's a licence that can be suspended or not renewed if you demonstrate that, in fact, you don't have that for whatever reason. So the parties recognise that which we say is self-evidently the case, that the licence is - and I think we said this in paragraph 7 - not just a routine adjunct to the electrical trades qualification, it's a demonstration of something. It's a demonstration that they have that knowledge and experience.
PN2164.
Now the fact, true enough, that the parties- - -
PN2165.
THE SENIOR DEPUTY PRESIDENT: But the experience was only 6 months for a lot of these people, and yet they've been working there 20 years or 30 years. I mean, it's fairly basic.
PN2166.
MR TAYLOR: But it's fundamentally important, from a safety point of view, you do not want someone doing wiring work that does not understand the wiring rules and doesn’t do it properly. Not only does that person have to be an electrician, they have to be a licensed electrician. It's clearly the concept of the statutory regime is to ensure safety. That you don't have builders who might have some knowledge of electrical work and so forth- - -
PN2167.
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2168.
MR TAYLOR: - - -doing it. They have to be a licensed person or strictly be supervised by a licensed person, so apprentices and the like can be doing it under the supervision of someone who holds the relevant qualified supervisor certificate.
PN2169.
THE SENIOR DEPUTY PRESIDENT: See, but my - sorry, no you've just answered my question.
PN2170.
MR TAYLOR: All I was going to say is - the only other point I was going to say is that - so what we say is evident is that when the parties came - when Endeavour paid the allowance for years on the basis that people just had to demonstrate they held their licence, and then thereafter, when they drafted the clause and the clause starts with saying, "You hold the licence", both parties were recognising that it is necessary and appropriate to have some formal recognition.
PN2171.
Amongst other things, it avoids arguments. Someone says, "Look, I have those skills". "I'm not sure you do, yes you do". They either have the licence or they don't and then there's no argument about it.
PN2172.
THE SENIOR DEPUTY PRESIDENT: I mean the trouble is that obviously this payment - the allowance as you point out has been paid for, you know, many decades probably. Certainly it's lost - its origins, I think, are lost in the mists of time, I think essentially. So the reason why it was paid, when it was first paid, and it wasn't in the industrial instruments necessarily and certainly for some of that history it certainly wasn't in the industrial instruments. But it's been paid for a long while, not necessarily uniformly, but nevertheless it has been - it appears it's been paid for a long while.
PN2173.
So we don't really know why it was originally paid. I mean, we'd be guessing, I think. It may well have been - well you say you look at the award, it was a margin for skill. But obviously what you've now got is an agreement which has quite a complex - I mean this is an unusual agreement in that it doesn't actually set out a specific classification structure. That's one of its interesting features. But nevertheless at Endeavour - well, you've attached this vast array of pay points and there's a reference to a competency-based progression.
PN2174.
MR TAYLOR: Yes.
PN2175.
THE SENIOR DEPUTY PRESIDENT: So what you essentially do have at Endeavour, is actually a competency-based classification structure. It's just not all that clear from the agreement, but it is there somewhere. It's pretty clear that it's there. So obviously there's already a number - the agreement clearly recognises different levels of competency and rewards people. You know, a margin for skill or some kind of allowance is what, 30 bucks or so a week, is kind of sits, quite frankly, a bit oddly with that, if that's what it is, if it's a margin for skill. Because those skills, I would suggest, are well recognised in the classification structure itself, as a general proposition.
PN2176.
But it just got lost in the mists of the time, this was paid, possibly for a margin for skill once upon a time.
PN2177.
MR TAYLOR: Can I deal with those two propositions? Firstly, we say your Honour will have no difficulty accepting that the allowance was originally understood to be a margin for skill in an award that applied to a range of electrical workers to indicate that they were working at a higher level of skill. And this dates back to the time when awards had base rates and then margins for skill.
PN2178.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2179.
MR TAYLOR: If you had a trade qualification, you got a margin. In this case, in addition to that trade qualification, if you had a licence that was another margin, and so forth. Now your Honour says the idea of such an allowance recognising this skill sits oddly with the fact that there are trade qualified electricians that have a rate of pay in the agreement.
PN2180.
THE SENIOR DEPUTY PRESIDENT: No, but not just that, but there's a whole array of levels recognising different levels of skills.
PN2181.
MR TAYLOR: But we would submit, your Honour, that your Honour would proceed from the basis that when the parties have been negotiating the appropriate rates of pay that recognise the work, value of the work, they take into account the allowances that are in place. And so if there's been an allowance for skill, then the rate of pay would take that into account. There's no reason why one would think that the parties would disregard that.
PN2182.
And so we rather rely on the existence of the allowance at all relevant times as being the parties at all times recognising that electricians, at the point where they have a licence, are working at a higher level. Now, they could have done what they did in Illawarra and have a separate grade for that and said, "Well, you're a Grade 1 without a licence" and a Grade 2 with a licence.
PN2183.
THE SENIOR DEPUTY PRESIDENT: Right.
PN2184.
MR TAYLOR: What they chose to do is follow the prospect approach which results in the exact same outcome, where you have a rate of pay and then if you have a licence, you get an additional amount which is an all-purpose allowance. So it's, in effect, just a higher rate of pay recognising the higher skill.
PN2185.
THE SENIOR DEPUTY PRESIDENT: Okay. Thanks, that's number one. Can I just indicate that I think I am inclined to agree with you, and I guess Ms Nomchong needs to be aware of this, that the evidence I think is pretty overwhelming that in the past, and until certainly the very recent past, Endeavour has actually had a requirement for many jobs that they have this licence. And they made it quite clear in job ads in position descriptions and, you know, I don't sort of need to be persuaded about any evidence, it's pretty clear. So I'm sort of agreeing with your proposition, I guess, in paragraph 10 of your outline, that that has been the practice.
PN2186.
We don’t really know, I would suggest, or I’m not sure why that’s been the practice, and there could be all sorts of different reasons why that has been the practice, and I don’t think we know why, we just simply know that it has been the practice to require the licence. I would suggest that trying to work out why it’s been required gets you into guesswork.
PN2187.
So if we get to your suggestion there are three possible ways of construing the relevant clause that we’re looking at, because this is really what it turns - well, a lot of it turns on - a lot of this, not all of it, a lot of it turns on how to construe this clause. In fact, I don’t think there’s actually - they’re pretty clear - the language is pretty clear. I actually don’t think the language of the clause is particularly ambiguous.
PN2188.
I mean the only area where there’s an issue is about what does it mean to say that the position - that it’s required to perform the duties of the position. Well, “The position requires the incumbent to hold the above qualification to fulfil their duties.” I think it’s an objective proposition. I don’t think the employer can just, at a whim, say, “It’s not required” if it, in fact, objectively is required. But, at the end of the day, however, it’s for the employer to determine what the duties of the position are.
PN2189.
Certainly if the employer was to employer was to determine duties for which you needed the licence, then, in fact - and they said, “Well, we don’t need the licence” but in fact you did need the licence, and they just said it, “We’re not going to pay the allowance because we’re saying we don’t need it,” then that would obviously be inconsistent with the agreement.
PN2190.
On the other hand, it’s up to the employer to determine, ultimately, I mean there are various consultation requirements in this agreement, but leaving those to one side, at the end of the day it’s up to the employer, I assume. I mean I don’t think you’ll cavil with this, to determine what the duties of the position are and if those duties don’t require the licence to fulfil the duties, then there is no requirement to pay it.
PN2191.
So, in other words, it is an - you’ve got to objectively examine the duties, which is actually what a lot of the evidence has been about, perfectly appropriately. So I guess that’s where I’m coming from on your different ways of reading the clause. So I agree with you that its objective, it’s not - the employer can’t capriciously just say, “Well, even though actually the duties do require it, we’re just going to say they don’t.”
PN2192.
But what is it that you’re required - why would you require the licence? And I do think, therefore, you have to fall back on the - I can’t see why - this is where the crunch comes, I guess, the regulatory regime requires that certain kinds of work have to be performed by people with a licence. Some of the positions at Endeavour Energy involve duties where you have to - which mean, under the legislative scheme, you have to have a licence and you could reasonably say that in those duties - to fulfil those duties the licence is required.
PN2193.
But there are arguably lots of - well, there are definitely lots of other positions, I mean ones that aren’t electrical for a start, where there simply is no requirement to have a licence. There’s nothing about the duties that requires the licence.
PN2194.
I don’t see why you would want to read in anything more than the requirement - why you would have to start going to having particular skills, or particular attributes, beyond having the licence. I just don’t see why you need to - that’s adding words that are simply not there. Do you understand the point I’m making?
PN2195.
So if you look at the clause - effectively - arguably you’re trying to read words in which, just as you accused the employer of trying to read words into the clause - I don’t think you can read - I would take a lot of persuading that you can read words in, along the lines that you’re alleging the employer is trying, I’m not sure whether they are or not, that says that requires - well, certainly Mr Greenhill did, quite cunningly, try and read them in. I had to read closely the correct way, the clause which said I’m required by the legislative scheme - the regulatory scheme. Clearly, I don’t think you can read those words in, but then you need to read those words in and saying that - I think you’re trying to read words in that “have the skills and qualifications necessary that you would need to obtain the licence” or words to that effect.
PN2196.
So, in other words, it’s for the - the employer determines the duties and it’s a question of looking at do the duties require you to hold the qualification - do you need that licence to fulfil your duties? Well, you do if the job’s where the regulatory scheme requires it. That’s not adding in any words, that’s just plain reading, in my view. That’s kind of where I’m coming from and that’s what I think you’ll probably have to - or see if you can persuade me I’ve got it wrong.
PN2197.
MR TAYLOR: There are a number of points I need to deal with, and it might best be I deal with them by reference to some of the material I was prepared to speak on and put them in. But can I say merely, from the outset, I think this is clear that whilst we have said that there are three possible ways of reading what the word “requires” means, we immediately accept that there’s no reason why your Honour would proceed on the basis that they’re mutually exclusive.
PN2198.
You could be required ‑ ‑ ‑
PN2199.
THE SENIOR DEPUTY PRESIDENT: It’s a bit of a mess, yes.
PN2200.
MR TAYLOR: ‑ ‑ ‑ for example, by the statute, but you could also be required by the employer, and that requirement from the employer might emerge from, amongst other things, the necessity to comply with safe work method statements.
PN2201.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2202.
MR TAYLOR: So the requirement can arise in different ways. We have no difficulty with the notion that one way in which someone might be required is because the statute requires. We just say you don’t stop at that.
PN2203.
THE SENIOR DEPUTY PRESIDENT: Yes. No, I agree.
PN2204.
MR TAYLOR: You have to ‑ ‑ ‑
PN2205.
THE SENIOR DEPUTY PRESIDENT: If the employer said ‑ ‑ ‑
PN2206.
MR TAYLOR: You’d have to read words in to say that’s the only requirement.
PN2207.
THE SENIOR DEPUTY PRESIDENT: I think the employer says, “You cannot do this job unless you hold an electrical licence” it’s pretty hard to say it’s required.
PN2208.
MR TAYLOR: That’s right. Now, could I - I’ve made a note of some of the matters your Honour has identified, but if I could maybe address some of these issues as I go and then if there are matters which I have overlooked I’d be very happy if your Honour would identify them before I sit down, but I’m hoping I can pick them up as part of the submission.
PN2209.
Starting from one of the matters that your Honour has indicated, and I’m pushing on an open door, we have clearly, at the time the award is being negotiated, a well-established custom and practice. If your Honour wants to know exactly what that custom and practice is, we say it’s captured by attachment 2 to Mr Greenhill’s statement, that is the letter, written in July 2009, which I think he said was attached to the award but, in any event, it was a letter which he accepted expressed precisely the practice at that time and the practice that continued and was in place at the time the 2010 award was being negotiated, that is, any Endeavour employee received the allowance upon proof that they hold the licence. No other requirement existed.
PN2210.
That is relevant because part of our case, as to how you read this clause, rests on the notion of that which the parties agreed when the wording was being written in 2010. We say it was a common intent to codify but not change the practice. We say Mr Greenhill gives evidence about what was in his mind, what he was thinking. We invite your Honour, again, to disregard any of that material.
PN2211.
THE SENIOR DEPUTY PRESIDENT: But the words are different than what was in the letter that was attached to the previous instrument.
PN2212.
MR TAYLOR: I accept that, your Honour. But we say it’s very powerful that when the parties are sitting down negotiating this clause, they understood exactly what the practice was and, contrary to Mr Greenhill’s evidence, we say your Honour will find, contrary to his evidence, there was no common intent - there was no intent, on either side, to reduce the entitlement. There’s no identification of savings. Mr Greenhill’s concession was something that your Honour would have taken from the Bar table at any event, that is this, that if there’d been any suggestion that this change in wording was going to reduce entitlements from 780 down to 30, or anything - even half that, half the number, it would never have been accepted.
PN2213.
THE SENIOR DEPUTY PRESIDENT: Sorry to interrupt you again. One way of looking at it is there hasn’t been a change. It’s not a change in entitlements and that didn’t induce a change in entitlements. The entitlement was it codified the existing entitlement which was, “If you needed it to do the job, then you got - if you need the licence to do the job, you got paid this allowance” putting it kind of crudely. It’s just that the employers decided, not necessarily capriciously, that in the past, for whatever reason, which we don’t really know, the employer - well, we can guess, I guess. The employer decided they wanted people to have this licence, because maybe it was a way of being confident that people had the right qualifications. It was a very easy way of knowing people had the right qualifications and experienced, so they required it. So there were hundreds of electricians who were required to have the licence, and therefore they got paid the allowance.
PN2214.
MR TAYLOR: Not every electrical trade.
PN2215.
THE SENIOR DEPUTY PRESIDENT: Yes. Well I hadn't meant thousands, I’m not quite sure how many it was, but lots. Maybe every electrically qualified person. Now, nothing changed in that it continued to be the case that everybody who was required to have it gets paid the allowance. It’s just that what’s happening now - it wasn’t a change - the agreement didn’t change anything, without the - what’s changed is now the employer’s decided we don’t require it.
PN2216.
Now, the question is - you’re saying that’s capricious and they can’t do it capriciously, but ‑ ‑ ‑
PN2217.
MR TAYLOR: Yes.
PN2218.
THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ that’s what you’ve got to address.
PN2219.
MR TAYLOR: I will address that.
PN2220.
THE SENIOR DEPUTY PRESIDENT: It’s arguably not a change in the agreement, it’s not a change in the entitlement. You can have an entitlement that said, “If you work past 6 o’clock you will get paid time and a half.” That could be - maybe that was custom and practice, then codified in an agreement that says, “If you work past 6 o’clock you get paid time and a half” but the employer, who used to have people working to 7 o’clock now says, “Well, we’re not going to let anybody work past 6 o’clock.” People will be out of pocket, knowing a lot of organisations, they’ll be jumping up and down saying, “You’ve taken our money. We’ve had this pay reduced.” But there’s no change in the entitlement, it’s just that the effect of it has change.
PN2221.
The argument, to be devil’s advocate, I guess, is that there isn’t a change. I think it’s just the way it’s working in practice the effect of it has changed.
PN2222.
MR TAYLOR: What we say that your Honour will do is try and determine what the party - what a reasonable person, in the position of the other party, would have believed was being said and agreed at the time, that’s the test.
PN2223.
Now, at that time, in 2010, not only was there an established custom and practice, such that there was an understanding of who it would apply to and nothing said to suggest that was changing, but also there was, at that time, position descriptions, job advertisements and the like, which said it was a requirement.
PN2224.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2225.
MR TAYLOR: Now, our case is that the job - unless there’s some evidence that the jobs have changed, the duties have changed, if it was a requirement at the time it was negotiated, it was a requirement at the time it was negotiated, it was understood by the parties that those positions that were getting it would continue to get it. That was the agreement that the parties reached. The fact that the employer, in the case, for example, of the system operator changed the position description from a licence required to a licence desirable doesn’t alter the position that what the parties agreed was that that was - that and all other positions for which a licence was required, were the positions that were going to get the licence. There was no need for - I mean another way of doing it would be to list every position, but at that time when it says “the position requires” there was an understanding, and one, it emerges from the material of the positions for which it was required, and these were all the positions that are in dispute in these proceedings.
PN2226.
THE SENIOR DEPUTY PRESIDENT: But that might have been true at the time.
PN2227.
MR TAYLOR: Yes. But that is the time the parties reached their agreement.
PN2228.
THE SENIOR DEPUTY PRESIDENT: Yes. But that’s - what I’m saying is there wasn’t - it wasn’t devious, it was a common understanding of what the clause meant, we’re not talking about a change in the meaning of the clause, but the effect of the clause has changed because it’s no longer required, for some positions.
PN2229.
MR TAYLOR: We say that it does lead to a change in the meaning of the clause. As we understand it, it’s Endeavour’s case that when you read the word “incumbent” in the clause, you read it as an incumbent as at the date the clause went in. Those words aren’t there. But if we’re talking about incumbent as at the date, then we’re talking about the positions required, as at that date. Why would one take a date for one side of the equation only?
PN2230.
What might be useful at this point is for me to identify what we might say about this schedule of documents in the tender bundle, the aide memoir document that went with the last exhibit, CEPU26. If your Honour has that document I just wanted to say some things about it, in any event, and it seems a convenient time to do so.
PN2231.
The first set of materials is in respect of the district operator, and one sees that the position description, up until 2014, required the licence. Your Honour might recall that the latest job ad requires the licence and while Mr Langdon thought, perhaps, there’d been some typographical error in that regard, the true position is that anyone applying for that job is currently required to demonstrate a licence, or they wouldn’t apply if they didn’t have one, unless - and there’s no evidence that that ad has been corrected or some communications have been sent out that it was wrong and people who don’t have a licence shouldn’t be put off.
PN2232.
The other thing to note about the district operator, or two other things to note about that, the current grading criteria and the current accreditation list, about which Mr Matuelwicz gave evidence, it was not suggested to him that they were not the current grading criteria. You cannot get to grade 5 without the licence. There’s no evidence to the effect that that grading criteria has changed or that the accreditation requirement to get to grade 5 has changed.
PN2233.
Now, we understand that the district operator in training is the apprenticeship position to get to district operator. You can’t become a district operator unless you’ve been a DOIT. I can stand to be corrected by my friend but, from what I understand, the latest job description for the DOIT continues to require a licence. Now, if that’s wrong I’m sure my friend will identify that. I asked our people whether they were aware of a later one and they hadn’t been able to identify one, but if there is such a thing no doubt it will be identified.
PN2234.
When we come to system operator, again we see that the - this is a classic area where we say this sort of objective/subjective distinction is one that comes in to play. The licence is required - it’s considered to be a position which you must have a licence to do and your Honour will recall that Mr Langdon, who is in charge of system operators, could recall only one person who held that position who didn’t have a licence and he was no longer in that position. So the net result is that every single system operator, just like every single senior system operator, has a licence. So whilst it might be said to be desirable, it seems to be something that it still required.
PN2235.
Now, you’ve seen our evidence - you’ve seen our submissions, the word “require” is one that can have a different meaning in different contexts and the Telstra case from which that extract comes was a case to whether voluntary overtime was a requirement. Certainly here we say that in those positions where Endeavour, by its clear conduct, appears to require a position - the licence, even if it’s not formally found in the PD, that continues to be a way in which your Honour can find an ongoing requirement.
PN2236.
Now, when it comes to senior system operator, our schedule does not include what we are told is the latest position description dated 2013. It is an Annexure F in the employer bundle. And it no longer contains a reference to the licence and that was an oversight in preparing this bundle.
PN2237.
I will skip over the customer safety officer, a position that has been conceded. The electrical safety inspector appears to be that position about which Mr Langdon ultimately simply didn’t know enough about. There has been some suggestion from the Bar table that that position doesn’t exist anymore. There is evidence of a job offer in 2010. Ultimately, your Honour, we contend there is just not enough evidence for your Honour to find one way or the other this position. If it doesn’t exist anymore, then the absence of a finding from your Honour will be of no consequence. If it does exist then it is a matter which there simply isn’t enough evidence for your Honour to make a finding one way or the other, we say.
PN2238.
Because, ultimately, position descriptions assist, but it is what the people actually do and, hence, we have relied on the evidence of witnesses who say, “This is what I do,” and that is to be distinguished from position descriptions which I think the evidence makes clear, certainly Mr Langdon’s evidence, is that what individual do varies from day to day but also varies from area to area. So a generic position description must be read with that in mind.
PN2239.
My understanding is – again I can stand to be corrected – that the latest position description for emergency service officer, also known as the EMSO, requires a licence. And in those circumstances, I was about to say it is surprising that Mr Langdon didn’t immediately accept that that was a position for which a licence is required. But, in fact, it isn’t surprising for this reason. As your Honour would have read from our submission, Mr Langdon’s evidence in this area must be understand on the basis that he was not determining whether a licence was required from some sort of safety angle, from sort of desire or preference. He was simply saying: “If it is the statutory regime, then on that basis I form a view.” So presumably that is why even though the PD requires the licence, he initially didn’t include the EMSO and then did.
PN2240.
The substation technologist, we understand that there is no position description. Certainly none has been produced and that is also the case, oddly, for the most populous position, the EFM. What we do find for those positions, though, are offers; the letters of offer. And they use a letter of offer which - - -
PN2241.
MS NOMCHONG: What tab is that?
PN2242.
MR TAYLOR: So the letters of offer, I was dealing with both substation technologist and the EFMs together. My friend asked which tabs they are. I think they are in tabs 8 and 10 according to the schedule. The letters of offer both predate and postdate the making of the 2010 award. So if your Honour takes a view that what we are talking about is, who are the people who at the time of the award was being made were thought to be the incumbents in respect of whom a position required the ELA. This material we say assists your Honour to the conclusion that what the parties understood was that these positions were positions that did require the licence.
PN2243.
They were offered positions on the basis that they would get it.
PN2244.
MS NOMCHONG: I am sorry, your Honour.
PN2245.
MR TAYLOR: Are they not – yes, I see. They are not numbered.
PN2246.
MS NOMCHONG: No.
PN2247.
MR TAYLOR: Sorry. I was talking about the substation technologist. I am working off this document; the substation technologist and the EFM.
PN2248.
MS NOMCHONG: Right, thank you. I am sorry, your Honour.
PN2249.
MR TAYLOR: So we say that if we are talking about what the parties’ agreement was, what each party by words and conduct would have led a reasonable person in the position of the other party to believe, it is that these positions which we are arguing about, and in this case it is the exemplars, it is not every other position, are positions which the parties understood was a position that required the allowance to be paid. I hear what your Honour says. The employer might change the requirement, but I would rather in answer to that adopt something else your Honour said. This has got to be an objective, not subjective exercise.
PN2250.
It would be different if the evidence was that at the time that these district operators were required to have a licence and the agreement was being made, they from time to time went on night shift or in the country areas did EMSO work, but there had been a shifting of responsibilities and they didn’t do that anymore, as a result the need for the licence had changed because their duties had changed. There is simply no evidence of that. But, rather, the evidence is that what we find – and I think Mr Langdon was quite upfront about this, in recent years they have just read the legislation and decided that certain positions don’t require it as a matter of statute.
PN2251.
That is a matter of statutory interpretation, but that doesn’t assist your Honour to decide whether it was a position that required it at the time and that that effectively was the agreement of the parties that these are the positions that require the licence. So if your Honour is searching for the agreement, the fact that the employer has made a unilateral decision without changing the duties to move in the case of a system operator from required to desirable, doesn’t actually objectively change the nature of the position in a way that would mean that the allowance no longer is payable.
PN2252.
SENIOR DEPUTY PRESIDENT: So you are saying in 2010 it was agreed by the parties that, you know, if the position required the incumbent to hold the licence they only got paid the licence. But they also agreed on what those positions were because everyone understood what they were. That is what you are saying.
PN2253.
MR TAYLOR: Well, yes.
PN2254.
SENIOR DEPUTY PRESIDENT: Because everyone understood what they were, what those were, and they would never change. And I agree there is no evidence, I don’t think, of any changing duties. Well, in the work they do, in that sense, yes.
PN2255.
MR TAYLOR: Yes, I think your Honour has captured the point. Now, can I deal now, your Honour, with a different requirement. So at this point now I am dealing with that possibility where your Honour says, look, it is what the employer requires at any point in time and if the employer today says a district officer must have a licence and then tomorrow says, look, we have looked at the legislation. You don’t have to have one any more. That is then a proper basis to stop paying the licence even though the duties haven’t changed.
PN2256.
We say that what hasn’t changed is the obligation and continues to exist is the obligation for people doing certain tasks to have a licence that emerges from the SafeWork method statements. Now, we have prepared a separate note which I should have handed up at the same time as my written submission. Thankfully it is short so it won’t take – and the legislation. Your Honour might recall that Mr Langdon’s evidence was to the effect that the obligations in the SafeWork method statements for those particular tasks that were there described on the obligations on the first page were optional, not mandatory.
PN2257.
SENIOR DEPUTY PRESIDENT: Well, I mean, he said in his written statement he had to comply with it.
PN2258.
MR TAYLOR: Well, indeed, and it seemed a remarkable - - -
PN2259.
SENIOR DEPUTY PRESIDENT: I suppose it is, kind of: what does that mean in a practical sense to comply. But I don’t think there is any question you have to comply with it. I think you would be in trouble if you had an accident and you found hadn’t complied with it.
PN2260.
MR TAYLOR: Indeed.
PN2261.
SENIOR DEPUTY PRESIDENT: And then you lodged an unfair dismissal case, you wouldn’t get very far, I suspect. Well, not with me anyway.
PN2262.
MR TAYLOR: Indeed. What this note that we have handed up titled “Note re SafeWork method statements,” does, and the legislation behind it confirms, is that certain types of work in New South Wales require SafeWork method statements and then by Regulation 300 of the Work Health and Safety Regulations require arrangements to ensure that they are carried out in accordance with those SafeWork method statements. Now, this is important because Mr Langdon accepted that the SafeWork method statements applied to the work done by EMSOs. I think he said two of them, but on any view EMSO work requires compliance with the SafeWork method statements.
PN2263.
He then accepted, and he did so again in re-examination this morning, that district operators and EFMs do EMSO work. They don’t it every day and so when one is trying to determine whether it is more than 50 per cent or not, he says it is not more than 50 per cent. But on our contention, if they are doing EMSO work, then they are required to comply with the SafeWork method statement and the employer requires the people doing that work have the licence. So it doesn’t matter at that point.
PN2264.
It perhaps matter as a matter of the statutory interpretation, we accept that, but if your Honour is interpreting the words in a manner which means the position requires, dot, dot, dot, the duties, if your Honour interprets those words as it is the objective duties of the position then once you accept the uncontested evidence that district operators and EFMs do EMSO work. Second, that EMSO work requires compliance with the SafeWork method statements. And, third, that compliance with the SafeWork method statements is mandatory. Then the conclusion is that even if they do it for less than 50 per cent of their time it is a current requirement that district operators and EFMs hold a licence.
PN2265.
Now, if in response to that it is said, look, there might be some of them who don’t get asked to do that work, then one might come down to having to analyse a particular person. But so long as we are dealing with the evidence as we are, the evidence is to the effect that there is a safety requirement. And we say, with respect, an obvious one, the wiring rules, large, detailed, are there for a reason. They exist for a reason to ensure that wiring is done in a standardised manner to ensure safely.
PN2266.
And, of course, it makes sense that Endeavour would want people who are doing work that would involve this wiring work to do it in accordance with those standards and so, of course, they would want people to demonstrate that and they do so by requiring them to have a licence. Which really comes back to your Honour’s first question: does it matter if they renew it or not? Well, yes, here is an example where to demonstrate to the world, if there is ever an incident that occurs to demonstrate that these people have the require skill, they must have a licence. So, just as an employer in an incident in a warehouse where someone is driving a forklift injures someone, the first thing you would want to demonstrate is that that driver had the appropriate certificate of competency to drive a forklift. Here, the SafeWork method statement says the first thing you have got to demonstrate is that you have the licence to do this work.
PN2267.
This is work which Mr Pollock said this SafeWork method statement is relevant to his work as a technologist; not every day, but part of his duties. And Mr Langdon had no difficulty with the fact that whilst it was an irregular event he did work for which is covered by one of these SafeWork method statements that require the licence. So, your Honour, as you will see from our written submission, if your Honour accepts the proposition which we say that your Honour will have little difficulty doing, that the SafeWork method statements require the holding of a licence, it follows that the Annexure B positions with, I accept, the exception of the system operator, are all ones which are caught by that requirement.
PN2268.
Now, can I just say I have got some notes here that come back to some of the larger questions? But I am conscious of the time. Let me just try and say something quickly about each of the specific positions in issue. Firstly, the Annexure A positions. As I have already dealt with the electrical safety inspector, and that there is just simply no evidence that would allow your Honour to make a finding one way or the other.
PN2269.
When it comes to the EFM inspections work, your Honour will find the evidence in Mr Dale’s reply statement which is CEPU-7. In paragraphs 10 and 11 he deals with both the EFM inspections position and then the EFM service lines position. Mr Langdon’s evidence was to the effect that both positions do work on the customer side, but not a principle part of their responsibilities. And Mr Dale, if one is talking about percentages, accepts that. One sees that he says it is about 25 per cent of their work in each case. He wasn’t required for cross-examination. There was no evidence that contradicted – that took specifically to Mr Dale’s evidence and contradicted it.
PN2270.
So there is no doubt that we say your Honour won’t need to be troubled by the fact that there was customer work that these positions do and we say that there is evidence that would allow your Honour to form a view that some of this work such as reconnecting and disconnecting is the sort of work that falls within the SafeWork method statements. It might be, and I accept this, that the evidence in this area is less than perfect. It certainly is. We have Mr Dale giving evidence of what he was told by people who do the job and he wasn’t cross-examined so your Honour didn’t get a lot of help from that.
PN2271.
We had Mr Langdon say nothing in-chief about this. Sorry, nothing in this written statement about this and he gave some short evidence in-chief and in re-examination about it. But his evidence only really went to whether it was principally part of their work and never really got down to the notion that this is work which for at least part of which requires knowledge of the wiring rules. Didn’t take issue with what Mr Dale said that this is work which does require knowledge of the wiring rules. So it might be that your Honour can make findings about it, but I accept that your Honour might simply decide that even on those two positions there is not enough to be categoric and that your Honour could make some general findings about the interpretation without ultimately determining these two positions.
PN2272.
Can I just make a general proposition about ‘principally,’ the word ‘principally,’ and how it is interpreted? Mr Langdon in cross-examination appeared to accept the proposition that one is not looking at that from a time point of view. In re-examination, as a result of the particular questions in the form they were asked he appeared to embrace the idea that time was actually a useful criteria. But the one thing that was clear, even in re-examination, is that work ebbs and flows. There can be times where the obligation to have a licence could apply. They were the words he used. And that accords exactly with the evidence of witnesses such as Mr Curry and some of the union witnesses who were pressed by Ms Nomchong as to how much of their work was customer work and they said: “It is very hard to tell. It varies. There might be days where I do a lot it and there might be days where I don’t do it at all.”
PN2273.
It does vary but if one is approaching it from the point of view – and at this point I should make clear I am dealing with the proposition that the employer interpretation is the one to be preferred and one is simply adopting the regulatory regime. If you are dealing with that regulatory regime, on our part we would say that if a job is part and parcel of what someone is employed to do, that it matters not that it is less than 50 per cent. It is a principal part of their role. If someone is employed to do 10 tasks and they happen to be asked to do an eleventh that is not what they are employed to do, I would accept that is not a principal part of their role. But the notion that ‘principal’ is to be determined on a time basis is, we say, not one that should be accepted.
PN2274.
So that if you have employees like the EFM inspections and the EFM service lines who spend 25 per cent of their time, it is not 25 per cent of their time doing things that isn’t part of their job, they just decided to do it. It is part of their job. It is part and parcel of their job. It is just not the majority of their job. But that is still a principal part of their job. And the regulation which removes from the obligation on electricity distributors to have employees licensed if it is not a principal part of their job, would be read narrowly in circumstances where the licensing regime is a protective regime.
PN2275.
The clear intent of the legislation is to protect the public when it comes to consumer commercial wiring from people doing wiring who don’t have the requisite knowledge and skill. So when you are looking at the word ‘principally,’ you would be looking at it from the point of view of ensuring that the legislature was ensuring as far as possible that properly qualified people were doing this work recognised by the licence. So the fact that you might have a linesman who in the course of their duties assist a customer to change a fuse, well, clearly not part of a linesman’s normal role. That person would not be breaking – the fact they don’t have a licence wouldn’t breach. But if you are talking about people for whom 25 per cent of their work or just is doing this work, then we say they are caught within ‘principally’ and so the other Annexure A positions are caught.
PN2276.
I hear what your Honour says about the notion that we are reading words in. We, of course, resist that. We simply say that if one does take the objective view, we are doing nothing more than taking the words “the position requires to fulfil their duties” and saying that what one is doing at that point is looking at what the position requires. And we say, and you have read our submissions, that that is a reference to the need to have certain knowledge and experience to do those duties. And that is the way it was always understood and that is the way in which the parties would have understood it to mean.
PN2277.
If they had considered a different intention, then that would have been something that there would be some evidence to suggest by way of a common intention. Rather, the fact that it had been paid for decades and there was no suggestion that there would be any alteration, assists your Honour to come to the view that what the parties were doing was proceeding on the basis that, as Mr Harris explains in his evidence, not cross-examined, is the understanding of the industry that you don’t touch consumer wiring unless you have a licence. Now, whether that is a strict understanding of the statute, clearly, given the regulation, it isn’t. But that is how the parties proceed.
PN2278.
They draft a clause which has a common understanding that if the duties of the position involved consumer wiring, then the duties require it. That would accord with ensuring no change to the long-established procedure, the long-established method of payment, and we say that that is the obvious interpretation and the one your Honour would ultimately prefer.
PN2279.
Now, let me just check, your Honour. In light of my written submissions there is obviously a lot I don’t need to deal with. Let me just check whether there is anything that your Honour wanted me to deal with or that I was otherwise going to deal with that I haven’t. Following on from the notion of certain positions are understood to need – sorry, certain types of work is understood to need this licence. To use Mr Langdon’s words, there is ebbs and flows and there can be times where it could apply. There is some industrial sense in the employer having staff for whom it is not their day to day work having a licence which would allow them to step in and do the emergency work.
PN2280.
SENIOR DEPUTY PRESIDENT: So you don’t have to worry about who to send to do the job. That is what I imagine.
PN2281.
MR TAYLOR: When the system goes down and customers have lost supply, you want all hands to the deck.
PN2282.
SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2283.
MR TAYLOR: You want Mr Pollock, the technologist, out there assisting customers and assisting the system to come back on. And, so, it makes sense.
PN2284.
SENIOR DEPUTY PRESIDENT: I have sort of thought about that and it is quite possible that that is actually what part of the history is, that they wanted everyone to be. Because if everyone has got the licence then, you know, you don’t have to worry about who you can get to do this work. And obviously if only some people have the licence, maybe, you know, that could potentially restrict who you could send out to do certain kinds of jobs. But isn’t that just a problem for the employer that they have to decide? That that is a risk they run that it will make it more difficult for them to manage their staff, but then that is their problem. I mean, I can see it from a management point of view why you might just make sure everybody has got it. But, you know, if only some people have it and it is required to do certain jobs, I mean, as in certain tasks, and something happens. And, of course, the nature of this work is fairly unpredictable and they will just have to cope. I mean, it might be a problem for them but it is their problem. That is what I was thinking about this.
PN2285.
MR TAYLOR: Yes. That is a line of thought which might be of great concern to members of the public but we say it doesn’t arise anyway if your Honour is with us on either our primary interpretation or the interpretation which says, look, it is the incumbents and who was required to do what, that is what the parties were agreeing at that date and they are the people who are required at that date. And then the fact that the employer says, “Well, you don’t need a licence anymore,” and it might mean that certain people can’t do certain work because the SafeWork method statement requires it. They say, “I am sorry. I don’t have a licence. I can’t touch it,” and they have to go to someone else.
PN2286.
I mean, Mr Woolsey, I think, gives evidence that in his area, and he is out of the city, he does standby work covering for EMSOs because he has a licence. There are power line workers who can’t do the standby work because they don’t have a licence. Now, that is his evidence. It wasn’t contradicted. And that then in a sense accords with what your Honour is saying that, yes, Endeavour could take a view that we won’t have licensed people in the evenings on standby.
PN2287.
SENIOR DEPUTY PRESIDENT: But that is the risk. I mean, they can choose to do that, can’t they?
PN2288.
MR TAYLOR: Yes, but they haven’t chosen to do that. Yet what they are trying to do is remove the licence from people while still taking the advantage that they have the licence.
PN2289.
SENIOR DEPUTY PRESIDENT: So you think, well, they will have the licence anyway, we will just say we don’t require it so we won’t pay for it.
PN2290.
MR TAYLOR: Yes, we will change it from required to desirable and we don’t have to pay the allowance.
PN2291.
SENIOR DEPUTY PRESIDENT: Yes, actually we want you to have it, yes.
PN2292.
MR TAYLOR: But you are still on standby doing the work. From an industrial fairness point of view, the notion that they hire people, appoint them to positions with letters of offer and position descriptions that require the licence, and having got them into the positions then say, “Well, we don’t require any more but you are now in the position so we can satisfy our statutory and safety duties because you have the required skill but we don’t have to pay for it.”
PN2293.
SENIOR DEPUTY PRESIDENT: Well, they presumably just let the licence lapse. Well, they may or may not.
PN2294.
MR TAYLOR: But nevertheless whether they let the licence lapse or not, what that means is that Endeavour has placed someone in the position on an understanding of the skill they needed, on an understanding that that would have to be paid for and then no longer want to pay for it without actually changing the work they are doing, that we say would not be - so industrially unfair it would not be an interpretation that would appeal to your Honour.
PN2295.
I said I would check. I wanted to say something specific about two of the other Annexure B positions. The first is the system operators. The evidence of Mr Langdon accepted that it was desirable that these people have knowledge of the wiring rules. These were the people your Honour will recall who don’t themselves have hands on responsibility, but they have a critical role in the safety of the network and of dealing with emergencies. They need to understand whether loss of power in a customer is something which may well be affecting the security of the network. It is clearly desirable, as Mr Langdon accepted, that they have this knowledge.
PN2296.
Mr Egan, a senior system operator of 42 years’ standing within the organisation that holds at any point when an emergency arises, it is his role which is in control of the entire network. It was his evidence in reply that in his opinion it was critical that he have wiring knowledge and that people in his position have it. Your Honour, we say, can rely on that evidence as a proper basis as to what is objectively required, added to the fact that they indeed all do have the licence.
PN2297.
Technologist was the second position. Mr Pollock gave evidence about the importance of having wiring knowledge to fulfil that position. Mr Langdon took issue with the need to have a licence to check appliances but did not take issue with the evidence that Mr Pollock gave in his reply statement, CEPU-21, as to the need to have knowledge of wiring rules in respect of the design of protection panels and conductors within substations. Mr Pollock gave detailed evidence about how these technologists need to know the cable appropriate conductor sizes, also known as the cable sizes. If a cable is undersized when it is installed it is less able to carry current. There is a potential for a cable to overheat and if a cable overheats there is the potential for significant damage both to that cable and the cables around it. In short, they will melt and potentially catch fire.
PN2298.
Knowledge of what circuits require, what size cabling, is something taught in the electrical fitter apprenticeship course and is part of the practical knowledge of wiring rules that is necessary in order to obtain the licence. Clearly, a central part of his role as the technologist and, again, not challenged by Mr Langdon, not crossed at all, that this was central and a very important part of his role, one that goes directly to the safety and one, we say, would assist your Honour to find that objectively the knowledge of wiring rules is something that has been established for the position of technologist.
PN2299.
Mr Langdon in his statement at paragraph 38 drew an analogy to a farmhand, a position advertised on the basis that they must have a driver’s licence, and he said in his hypothetical scenario the farmhand only has to drive on the property and being a private property he strictly doesn’t require a driver’s licence. The job ad is a shorthand way of saying that a person must be able to operate a vehicle. Here the position is, to come back to your Honour’s first question, the holding of a licence is a shorthand way of saying that someone has the skill and capacity to do work safely that is the consumer wiring work.
PN2300.
It is not for the employer to remove that by saying that as per the farmhand because you as a matter of law don’t require a licence that you don’t pay for the skill and knowledge that is represented by that licence. That is what the ELA was always intended to be: a recognition that people have certain skills that are needed. The farmhand needs to know how to drive a car safely. Trade qualified electricians who are doing consumer work need to know how to do that work safely. And the licence was always a shorthand way of recognising that skill and the payment of the allowance was a way in which that skill was recognised.
PN2301.
I have nothing further, your Honour, but we have referred in our written submissions to the case of Telstra Corporation v Peisley; P-e-i-s-l-e-y. We extracted a paragraph from it but for your Honour’s assistance we have a complete copy of the case.
PN2302.
SENIOR DEPUTY PRESIDENT: Yes; thanks.
PN2303.
MR TAYLOR: Thank you, your Honour.
PN2304.
SENIOR DEPUTY PRESIDENT: Thank you.
PN2305.
MS NOMCHONG: Your Honour, I will just start with some basic principles because we didn’t get the opportunity to make an opening submission and so I am sorry if I am going over old ground but I will try to be as quick as I can. This is a dispute about the correct construction or interpretation of the ELA provision in the 2012 Endeavour Energy Agreement. As part of that dispute, the parties posed for consideration a series of questions to be determined by the Commission in this arbitration. We rely on the written outline of submissions dated 21 October 2014. We also, as I pointed out when they were tendered, rely on the answers to amended questions which are Exhibit E9.
PN2306.
This case is not about any contractual entitlement that might arise from the job ad. It is not about a contractual entitlement that might arise from a position description and that is a matter that has been conceded quite properly by my friend. Whilst the ELA has continued to be paid, we say that does not prejudice any rights that we have. Clearly as an industrial custom and practice, the maintenance of the status quo has been part of Endeavour’s view pending the outcome of this arbitration. Having said that, it is Endeavour’s contention that the proper construction of the ELA means that there are really only a very small proportion of employees who currently receive the allowance who are genuinely entitled to it.
PN2307.
I think the parties are ad idem in relation to relevant construction principles, save for a few areas that I would like to take your Honour to. Certainly in our written submissions we have referred to, at paragraph 13, your Honour’s decision in Australian Municipal Administrative Clerical and Services Union v Essential Energy 2014 FWC 5601, where you referred, your Honour, to the decision in SDA v Woolworths, and therein set about what is well settled that the primary focus of any enquiry of this kind is what the words look like on the page. So the first and foremost job is to look at the language and your Honour said, and we agree, the contents of this clause are pretty clear and there really isn’t much ambiguity.
PN2308.
Similarly, the parties are in agreement that the subjective intentions of the parties are irrelevant and in that way any evidence of historical background to an agreement can be permissible but only if your Honour comes to a view that there is ambiguity that requires an extrinsic aid and that is well settled as a matter of contract and award and the authority of that proposition is, of course, Codelfa Constructions v State Rail Authority, Merchant Services Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores, and of course the decision of Short v F W Hercus Pty Ltd [1993] 40 FCR 51l.
PN2309.
In Short v Hercus - and I will hand up a copy of that, your Honour – at pages 517-518, his Honour Burchett J said at 517:
No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so.
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance.
PN2310.
What you cannot do, however, your Honour, is look at what has happened after a particular award provision has been put in and you cannot, as Mr Taylor has assumed to do, say: “Well, this allowance has continued to be paid.” And you recall the cross-examination of Mr Greenhill where Mr Taylor went at length to say: “You can’t tell me that you thought that this was a provision and you took no steps to implement it.” Your Honour cannot have regard to what the parties have done after the date of the agreement and the authority for that proposition is Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57 at 35. May I hand a copy of that up to your Honour.
PN2311.
In that, the High Court said that in addition to approach issues of construction in this way would be at odds with the general principle that it is not legitimate to use as an aid in the construction of a contract anything which the parties said or did after it was made. And I don’t need to take your Honour to the authorities that show that principles of construction of a contract are adopted and applied in relation to principles of construction in awards.
PN2312.
The common intention of the parties is to be derived from the plain meaning of the text and other relevant principles only come into play if the Commission determines that there is ambiguity. If that be the case then the Commission we say may look at the industrial context and in that you would look at the EAs as a whole. It is nascent, as it has come into this federal jurisdiction for the first time in 2010 putting behind it all other state awards. You would look at objective evidence as to the common intention of the parties and we will come to that. And then you would look at the consequences of adopting one construction over another and that flows from the decision of the High Court in Project Blue Sky.
PN2313.
However, those considerations really don’t allow the Commission or the parties to rewrite the clause itself. So the plain meaning of the text, as your Honour has said, really only gives rise to ambiguity, we say, in one area and that is – well, let me withdraw that. We say that there is no ambiguity for the reasons that I will give. That is, the three criteria are simply that: you hold the licence; that the position requires the incumbent to hold the licence to fulfil their duties; and, thirdly, the incumbent in the position received the allowance in accordance with past practice.
PN2314.
So let’s go first to ‘requires a licence’. The job requires the employee to have a licence to fulfil the duties. So let’s look at where licences come from. A licence is a creature of and derives solely from a regulatory scheme, a statutory scheme. So in New South Wales that regulatory scheme about the issuing of licences is administered by Fair Trading. That regulatory scheme stipulates that in order to do electrical wiring work, a term of art under the legislation, a person must have a licence. But as we showed when we handed up Exhibit E1 which was the webpage from Fair Trading, that term of art then flows through and it is specifically set out on the page.
PN2315.
So electrical wiring work is set out in section 3 of the Home Building Act and section 3 of the Electricity Consumer Safety Act. Does your Honour have a folder of the relevant legislation?
PN2316.
SENIOR DEPUTY PRESIDENT: Yes, well, you have given it to me, yes.
PN2317.
MS NOMCHONG: Thank you. The term ‘electrical wiring work’ refers to doing work on an electrical installation. ‘Electrical installation’ is a term of art also defined by the legislation and has a specific meaning and that is in section 3 of the Electricity Consumer Safety Act. In that regulatory scheme, determined by the New South Wales Parliament, what has been exempted for people needing a licence to perform this sort of work, is any work on any electrical equipment owned or operated by the Electricity Supply Authority. So it is clear and common ground that if you are doing work on the network, as we have used it, you don’t need the licence.
PN2318.
SENIOR DEPUTY PRESIDENT: And that has been the case for time immemorial virtually.
PN2319.
MS NOMCHONG: That is right.
PN2320.
SENIOR DEPUTY PRESIDENT: It is not a recent phenomenon.
PN2321.
MS NOMCHONG: So don’t need it and we will come to the ESRA and the ESRs in a minute and how that falls under that statutory scheme as well. But you don’t need it working on the network and a further exemption applies under clause 22 of the Home Building Regulation and this is the one that we have all been talking about when we talking about ‘principally.’ So it is worth having a look at the provision itself. That regulation should be behind tab 8 of the folder that we gave you and it appears at page 14. This regulation is a regulation to the Home Building Act which is at tab 7.
PN2322.
SENIOR DEPUTY PRESIDENT: Sorry, is this in the tender - - -
PN2323.
MS NOMCHONG: No, it is not in the tender bundle.
PN2324.
SENIOR DEPUTY PRESIDENT: No, it is the other. Yes, okay. No, that is all right. I will just get the right folder.
PN2325.
MS NOMCHONG: Do you have enough folders up there, your Honour?
PN2326.
SENIOR DEPUTY PRESIDENT: Yes. No, no. It is the other folder. Yes.
PN2327.
MS NOMCHONG: It says “Respondent’s Legislation” on it.
PN2328.
SENIOR DEPUTY PRESIDENT: Yes, no, I have got it. So which page was it?
PN2329.
MS NOMCHONG: Thank you. Page 14, behind tab 8. Now, the way in which clause 22 works, your Honour, is that under section 14 of the Act one is required to have a licence to do electrical wiring work. So there is a prohibition that exists in section 12 and 14 of the Act. What subsection 2 of clause 22 says is that despite the prohibition on performing electrical wiring work that lives in sections 12 and 14 of the Home Building Act, you can actually do electrical wiring work on consumer installations. So this isn’t on the network. You can do it on consumer installations if you satisfy two criteria. One: the individual is employed by the supply authority. So that is everyone we are talking about. And they are employed principally for the performance of work other than electrical wiring work. So principally their job is working on the network and not doing consumer installations. So if you are employed in that category you can tick criteria one.
PN2330.
Secondly, the electrical wiring work is done in the ordinary course of your duties. So that would be, we say, all of that night shift or EMSO work that is done from time to time by people, let’s say, district operators or EFMs. That is, they do that in the ordinary course of their duties and that is then covered by this exemption. So that if you are employed you get an exemption. So it goes to really the very last thing that I think Mr Taylor said just a moment ago. He said really, you know, what you want for industrial peace of mind is that when you send these people out, you know, as they might be required to do from time to time, it is comfortable to know that they have a licence.
PN2331.
Well, clause 22 says you don’t actually need a licence to do that. And, in fact, the New South Wales Parliament has said: “When you go out, as you might from time to time, if your principal job is doing the network stuff you can in fact do consumer installation electrical wiring work. We will let you do that.” And that is because there is a whole raft. We are not limited to these two pieces of legislation. What also sits, as you will see in this folder, and no reference has been made to the rest of the legislation by my friend, but the whole remainder of the legislation starting from the Electricity Supply Act, governs safety in relation to the way supply authorities deliver, deal with, maintain, repair, and do all of their work. So the ESRs sit under that.
PN2332.
What happens is that that legislation requires supply authorities to negotiate a set of electrical safety rules and that ensures all of the safety training for work on the network. So the New South Wales Parliament says: “Well, because that system is set in place, we are comfortable with the fact that someone predominantly working or principally working on the network can from time to time go out and do electrical wiring work on consumer installations without the necessary to have a licence.
PN2333.
So really what is available and is legal and is necessary is that people like Mr Pollock can go out and do this work without the need to have a licence. But it is notable that my friend made such a significant reference in his oral submissions to the legislative scheme, its objective of safety, because if the parliament has determined that this a safe way in which to operate then it is not for this Commission, we would humbly submit, nor for Mr Taylor to say, well, we have to go beyond that. That is, that every time someone who goes and, you know, changes a fuse on a consumer switchboard or meter board needs to have a licence, because the parliament of New South Wales has said that is not necessary.
PN2334.
SENIOR DEPUTY PRESIDENT: So it sort of begs the question in a way: why up until recently anyway, did Endeavour and its predecessors require all these people to have a licence?
PN2335.
MS NOMCHONG: Well, there is no evidence of that and that is really not one of the enquiries that we say that needs to be made because what we are looking at is statutory construction of an award provision where the words have the meaning. And I think your Honour said that at the very opening when you said, well, you know, it is fairly plain. ‘Requires’ really means ‘requires’ in the statutory sense and maybe that you were open to persuasion about whether ‘require’ might also include an additional requirement where the employer requires it.
PN2336.
If in the past Endeavour has required certain people to have licences, then it is a matter of managerial prerogative about whether or not they need those licences. And you heard Mr Langdon say that they are actually going through this formal review process to see if their position descriptions are, in fact, apt.
PN2337.
SENIOR DEPUTY PRESIDENT: Yes, I suppose, fair enough. I mean, I suppose there must have been a reason. There may not have been but you are right. Well, I guess, the question is whether it matters what the reason was.
PN2338.
MS NOMCHONG: That is right; whether it matters.
PN2339.
SENIOR DEPUTY PRESIDENT: You are saying there is no evidence and so therefore I just won’t go there.
PN2340.
MS NOMCHONG: Correct. So where we are is in the sense that if you are looking at it in this two-pronged effect, which we say you shouldn’t. We say our primary position is ‘requires a licence’ must be referrable to the statutory scheme. That is our position. That is, it really is only referrable.
PN2341.
SENIOR DEPUTY PRESIDENT: But are you actually saying that if the employer, for whatever reason, said: “To do this job we are requiring you. We believe as your employer that you need to have a licence to do this job,” for whatever reason, but not necessarily because of the statutory regime, “we don’t have to pay you the allowance”? Because I think if you were going to put that – well, what is your answer to that question?
PN2342.
MS NOMCHONG: I think it would be hard to put that. I mean, our primary position is, of course, that we say that the licence is a creature of statute and therefore, you know, ‘requires’ must go back to the statutory scheme. But we hear what your Honour says. That is, that if there have been situations - - -
PN2343.
SENIOR DEPUTY PRESIDENT: Well, clearly in the past they have required it.
PN2344.
MS NOMCHONG: Yes: “We require you to do that.”
PN2345.
SENIOR DEPUTY PRESIDENT: There is no doubt about that.
PN2346.
MS NOMCHONG: But that doesn’t mean that is set in stone.
PN2347.
SENIOR DEPUTY PRESIDENT: No, that is a different issue.
PN2348.
MS NOMCHONG: Yes.
PN2349.
SENIOR DEPUTY PRESIDENT: But I am just saying that I just want to be clear on this point. You are not saying, are you, let’s – I appreciate the argument about whether they can change the requirement. But if they say, “You must have this,” which is what they have done up until now for lots of jobs, “You must have the licence to do this job. We will not allow you to do this job. It is in the position description. It is in the job ads,” to say, “Yes, but it is not really required so you don’t have to pay you the allowance.” You are not really putting that, are you?
PN2350.
MS NOMCHONG: No.
PN2351.
SENIOR DEPUTY PRESIDENT: Good, okay, good.
PN2352.
MS NOMCHONG: I mean, I would like to be able to put that but I think that would be unreasonable.
PN2353.
SENIOR DEPUTY PRESIDENT: I would find that very hard to accept.
PN2354.
MS NOMCHONG: That is right. But the point I want to make is that it is not set in stone.
PN2355.
SENIOR DEPUTY PRESIDENT: That is a different issue, yes.
PN2356.
MS NOMCHONG: So that the review that is currently being undertaken and we have seen these position descriptions change. Because what this arbitration is about, because we have paid the allowance as part of the status quo is where we go now in the future. What is available to us?
PN2357.
SENIOR DEPUTY PRESIDENT: What Mr Taylor said is that, “Well, when the agreement clause was first put into the instrument in 2010, everyone knew what jobs for which the licence was required.”
PN2358.
MS NOMCHONG: Yes.
PN2359.
SENIOR DEPUTY PRESIDENT: And, indeed, those jobs haven’t actually changed since. There is no evidence that the jobs have changed since then. So I think I might be paraphrasing him incorrectly.
PN2360.
MS NOMCHONG: Yes, I know the point.
PN2361.
SENIOR DEPUTY PRESIDENT: But he is saying those are the people who should get the allowance.
PN2362.
MS NOMCHONG: That is right. Well, let me break that down into a couple of sections. First of all, there is absolutely no evidence that there was a common intention about who was in a position that needed a licence. In fact, it is self-evident from the evidence of Mr Greenhill that he was outraged that there was an over-application of the ELA.
PN2363.
SENIOR DEPUTY PRESIDENT: Well, this is his - yes, if I accept it, yes.
PN2364.
MS NOMCHONG: That is right. But in the sense that he said that there was – it can’t be put by Mr Taylor and it can’t be accepted we say, with respect, that there was any common intention that it was: “We knew all of the people who needed a licence.” In fact the very argument that Mr Greenhill had with the secretary of the ETU at that time was clear that the ELA was some sort of rort because there had been an application, you know, that there was some issue and an overlap, a double-dip with the ESRA. That was the source of the conversation. So rather than to say, well, look, we are just going to move forward.
PN2365.
SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2366.
MS NOMCHONG: Because what your Honour has put to me, it is very important, that is, the premise of this argument is that everyone knew at the time who needed a licence. Now, that very first foundational factor, there is absolutely no evidence about that.
PN2367.
SENIOR DEPUTY PRESIDENT: It is just assumed that the people who were getting it then were the ones who - - -
PN2368.
MS NOMCHONG: No, everyone knew that everyone was getting the allowance but not everyone knew who needed the licence to do their job. They are two different factors and there keeps being this overlapping. So we say that you cannot assume that everyone who got the allowance needed the licence. There is no evidence about that. In fact, the evidence is the opposite.
PN2369.
SENIOR DEPUTY PRESIDENT: There doesn’t appear to have been any kind of review.
PN2370.
MS NOMCHONG: No, there wasn’t a review.
PN2371.
SENIOR DEPUTY PRESIDENT: There is no evidence there was any, but there is clearly evidence that there were a lot of jobs where, in fact, the licence was required by the employer.
PN2372.
MS NOMCHONG: When you are looking at things like, say, the PDs or job ads, for example.
PN2373.
SENIOR DEPUTY PRESIDENT: Yes, and the job ads.
PN2374.
MS NOMCHONG: Yes, but that is not all of them. So there is not a complete overlap.
PN2375.
SENIOR DEPUTY PRESIDENT: No, we don’t know about all of them.
PN2376.
MS NOMCHONG: Well, there are some of the job classifications for which there aren’t PDs, for example.
PN2377.
SENIOR DEPUTY PRESIDENT: Sure.
PN2378.
MS NOMCHONG: And there weren’t job ads and, you know, if that is the painstaking enquiry that has to be done that would be - - -
PN2379.
SENIOR DEPUTY PRESIDENT: Sure, and I don’t know if we really want to go there.
PN2380.
MS NOMCHONG: No.
PN2381.
SENIOR DEPUTY PRESIDENT: But I guess we can really make an inference in fact most if not all these electrical jobs they said you needed it. The people at the time knew that all these jobs had an obligation and were required to have the licence. And so therefore there was no need to. Everyone knew what they were; they were all of them.
PN2382.
MS NOMCHONG: No, well, we say that is not true and we say there is no sufficient evidence before your Honour to come to that conclusion. That hasn’t been put and nor is there evidence, as Mr Taylor said, that the allowance was for skills and knowledge. In fact, that was expressly disavowed and so that particularly in those sort of conversations which Mr Greenhill described about it being an overlap, what is it for? We don’t know what it is for and it is also, as your Honour has quite rightly said, not available because this is a competency based award.
PN2383.
If I could just stop there, I suppose, maybe I am jumping around a bit. But at this point in time you have to look at what the 2010 agreement was and, if your Honour just bears with me for a moment. That is the predecessors to the first Endeavour Energy Enterprise Agreement in 2010 was a series of State awards. So that the predecessors were all in the State IR system.
PN2384.
The 2009 letter that was foist upon Endeavour Energy, at the heel of the hunt on the 2008 award, was something that reflected the custom and practice that had been in the state system. But the 2010 EBA was a quite different - and the provision in the - as your Honour’s noted, in the 2010 agreement looked completely different to what was in the letter. What Mr Taylor’s asking you is to read the 2010 EBA as if nothing changed. But the fact is that Endeavour Energy moved from a state-based system to a federal IR system and that that point all of the other agreements were extinguished, the 2009 letter was extinguished. Effectively the clock was reset in 2010 and you ought look no further than clause 33 of the 2012 EA and its predecessor in the 2010, which says that this overtakes and repeals all previous agreements.
PN2385.
So what you can’t do, we say, is then say, “Well, there was an assumption that everyone knew what it applied to.” We were in new ground. We were in new territory when the 2010 provision was put in place. So when you come to look at the word “requires” we say you have to look at it in that category. But I want, I suppose, to then go to a couple of things that were raised by Mr Taylor, that is, first, Mr Taylor put that where Endeavour appears to require a licence, they were his words, then the ELA should be paid. You can’t really have that sense of vagueness and in the sense that, in one sense, your Honour’s accepted, we hope, and appreciated that position descriptions are not set in stone, that Endeavour is able, as part of its managerial prerogative, to determine for itself whether or not licences are necessary or required to carry out the duties of a particular position.
PN2386.
THE SENIOR DEPUTY PRESIDENT: No, especially with this issue of while the PD isn’t set in stone, PD isn’t the total way of describing a job, if you like, in the sense that if you’re looking whether the job requires something, PD is a pretty good place to start but it’s arguable that you also need to look at - well, you would normally look at what actually the job entails, as opposed to what it says on a piece of paper.
PN2387.
MS NOMCHONG: Absolutely. And that’s what we’ve done, the review has done that. Mr Langdon and Mr Watt sat down and they said, “Well, we want to look at what these people actually do.” And they used their own knowledge, they used reference to PDs. We agree totally. That is, so that if those people require a licence, under the statutory scheme, that is, they’re not going to fall into the exemption in clause 22, then we concede they need a licence, and we’ve conceded the eight positions.
PN2388.
THE SENIOR DEPUTY PRESIDENT: I’m a little bit worried that people who - especially where there are PDs or job ads that say “Well, it’s desirable,” for example. Sort of saying - not actually saying it’s required, but in reality it is required to have the licence. I mean that’s a hard thing to work out but ‑ ‑ ‑
PN2389.
MS NOMCHONG: That’s a vague way of looking at it too, with respect, your Honour, in the sense that if it’s a requirement, that’s a plain word that means necessary, it means mandatory, it means - you know, it’s an essential precondition. That’s very different to something that’s desirable. So we say you can’t really move away from the statutory scheme. As I said before, and I don’t want to harbour this - well I do want to harbour this point, quite a lot actually, if you’re in the clause 22 exemption the New South Wales Parliament says, “You are able to go and do electrical wiring work on consumer installations if you meet the criteria.” Well, it’s not then to say well just because Endeavour says, “Well, it’s desirable to have it” that that really means that it’s required.
PN2390.
THE SENIOR DEPUTY PRESIDENT: Well, because it might be - in practice is it required?
PN2391.
MS NOMCHONG: Well if it’s in practice required we say they are the eight classifications that we’ve identified in our answers. That is, those eight classifications don’t fit the criteria, that is - and you heard Mr Langdon, he said that even in those parts where he determined that he wasn’t really sure if it was 40 per cent or 50 per cent of their time, he gave the benefit of the doubt to those classifications and said, “They really do need a licence because I’m just not comfortable with the ebbs and flows that might put them over the list.”
PN2392.
But that’s very different to these categories where we have, and you heard the evidence, time after time the evidence was, “Oh, well, occasionally I go and do that. I might do it one week out of four.” Mr Landon’s evidence, “This might be 10 per cent, at most 20 per cent, if we’re being generous, of their job.” That can’t be considered a primary role, and it wouldn’t, we say, fit within the statutory - it seems to me that now what you’re being asked to do is to go and reject the plain meaning of clause 22 of the Home Building Regulation and say that “primary” doesn’t mean primary.
PN2393.
Mr Taylor’s submissions seem to say, “Well, if they ‑ ‑ ‑
PN2394.
THE SENIOR DEPUTY PRESIDENT: What tab is this under again?
PN2395.
MS NOMCHONG: Clause 22, your Honour.
PN2396.
THE SENIOR DEPUTY PRESIDENT: Which tab is it?
PN2397.
MS NOMCHONG: Tab 8, page 14.
PN2398.
THE SENIOR DEPUTY PRESIDENT: Hang on.
PN2399.
MS NOMCHONG: Clause 22(2).
PN2400.
THE SENIOR DEPUTY PRESIDENT: Okay.
An individual is employed by an electricity supply authority principally for the performance of work other than electrical wired work.
Okay.
PN2401.
MS NOMCHONG: So this is where - this is exactly the district operators, these are exactly the EFM service line people, that is, they’re principally employed for the performance of work on the network but they do electrical wiring work, from time to time, in the ordinary course of their duties.
PN2402.
The third thing that Mr Taylor has put which we say is erroneous is this confusion that seems to have come through in the evidence and in Mr Taylor’s submissions is between the knowledge of the wiring rules and a licence. Having a licence doesn’t give you knowledge of the wiring rules, and I think your Honour picked this up on multiple occasions. Just because someone got a licence 42 years ago doesn’t mean that they’re conversant with or proficient in wiring rules as they exist at 2014. So if this argument about skills and knowledge of the wiring rules had any veracity, which they don’t, there would have to be some sort of requirement to re-sit the test for wiring rules every time you renewed your licence, which there isn’t. So there is no equation between the two. That is, it’s really just, again, a regulatory system, if, as appears the case, the New South Wales Parliament says if you pass the wiring rules test 42 years ago you can still renew your licence without a test, well that’s the safety regime that the New South Wales Parliament has.
PN2403.
So I think that you need to put aside all of that material about the wiring rules because it really doesn’t assist. That’s about knowledge of the wiring rules, it’s not about the requirement to have a licence. The licence, of course, is also not a way to secure safety, it’s errant nonsense. The electrical safety legislation and the ESRs are really the way that safety is secured in the electricity supply industry, and that’s the raft of other legislation which your Honour has in that folder.
PN2404.
Now, I want to go to the third criteria because Mr Taylor and I ‑ ‑ ‑
PN2405.
THE SENIOR DEPUTY PRESIDENT: Just on that - you mentioned safety, what do you say about the safe work method statements, what Mr Taylor had to say about those?
PN2406.
MS NOMCHONG: I’d say he’s wrong about that.
PN2407.
THE SENIOR DEPUTY PRESIDENT: In what way?
PN2408.
MS NOMCHONG: Well, your Honour said something from the Bench that is - it’s right and it’s wrong, in the sense that there’s no regulatory, statutory compliance with SWMS, as we’ll call them. That is, that the legislation that is handed up to you about regulation 299 is about high risk construction work. But if you look at the definitions, this is all about construction work on a structure. That is, repair, maintenance, refurbishment of a structure. That is obviously something that’s going to be happening on the network, it’s not going to be matters that’s happening within a consumer board.
PN2409.
The SWMS set out, and you’ll see at least one of the SWMS, this is exhibit E13, actually has, in relation to the licence, A/R, which means “as required”. So these aren’t mandatory components, at least for that SWIM. We concede, of course, that they seem to sit in under the training and qualifications. But what’s required, in relation to a SWIM, and this is the way Work Health, and I’m sure I’m telling your Honour material that he already knows, but what’s required for a SWIM is that, as Mr Langdon said, that is it is a procedure that the employer tells its employee is the correct way, the desirable way to carry out a particular procedure. What’s in the front about PPE, what’s in the front about documentation and training and qualification sits there as those things to be considered when you’re going through the procedures. The steps to be followed aren’t in relation - and you won’t find anything in each of the hazard containing safety risks, the contact with the customer, all of those sorts of steps that come afterwards, and my favourite, the identification of dangerous dogs.
PN2410.
THE SENIOR DEPUTY PRESIDENT: Yes, I know, that’s good, isn’t it?
PN2411.
MS NOMCHONG: I know. German Shepherds, really? Sorry, I shouldn’t be frivolous, but I was concerned myself.
PN2412.
What’s required is to follow the process, and they’re not mandatory because what happens, and you’ll see this in lots of cases, that an employee will come to a work area, they’ll have their safe work method statement and then there might be something that raises some other need for a risk assessment or something else, and that’s the point in time where they step back and then they make an assessment about whether or not the SWIM must be followed to the order or whether or not there’s some discretion. What they’re required to do is, of course, go to their supervisor and discuss it.
PN2413.
THE SENIOR DEPUTY PRESIDENT: But I mean it is true, isn’t it, that these - you have to implement these controls? If that risk is there you have to implement those controls, don’t you? You can’t sort of say - I mean it says, you know, “Impact with switchboard panel or lid” so you’ve got to check the meter board cover is securely mounted prior to opening it. You’ve got to use a prop to support the lid whilst working. You’ve got to use the correct manual handling techniques. If you didn’t do those things and you had an accident you’d be in trouble.
PN2414.
MS NOMCHONG: Yes. But what I’m trying to differentiate between is the procedure and the qualifications you need to do the procedure.
PN2415.
THE SENIOR DEPUTY PRESIDENT: Right. So what’s the distinction?
PN2416.
MS NOMCHONG: Well, the point is that, for example let’s say, well most of the people who do customer installations on a regular basis we’ve conceded anyway. But let’s say reconnection/disconnection. Let’s say that there is a point in time where there’s a disconnection/reconnection by reason of, let’s say, one of these electrical shock matters that have been talked about. That is, a person can come and do the disconnection/reconnection whilst working on the consumer installation if their primary job is, in fact, working on the network. They don’t need a licence to do this. So that what we say, these safe work method statements, and of course these are in the same category, of course, as position descriptions. That is, these are the safe work method statements that have been identified by Endeavour Energy as being the safe work method to do this job. In terms of listing the training and qualifications of the persons there, we say that that must be read in the context of the statutory requirement to have the licence.
PN2417.
So the answer to Mr Taylor’s submissions is, first of all, there’s no legal obligation, under a statute, to follow a SWIM, save for when working on structures. Secondly, even if it were the case that the - and we say that, obviously, the SWMS are put there so that employees follow them, but then to put that into a requirement category we say would be too high a bar, particularly when you look at the statutory scheme for electrical wiring work.
PN2418.
Now, this might be chasing a rabbit down a hole, because, as I’ve indicated, most of the people performing most of this work are already in classifications that we’ve conceded. So what the union wants you to do and what we say is impermissible is then to draw down from the safe work method statement, some sort of legislative requirement that overrides clause 22 of the Home Building Act exemption. It really does flow.
PN2419.
THE SENIOR DEPUTY PRESIDENT: I don’t think it’s a legislative requirement, but it is a requirement. They’re saying that if you’ve got to follow these safe work method statements and the safe work method statement says you’ve got to have the licence then you’ve got to have the licence.
PN2420.
MS NOMCHONG: Well, ‑ ‑ ‑
PN2421.
THE SENIOR DEPUTY PRESIDENT: And you’ve got to have the licence to get the allowance.
PN2422.
MS NOMCHONG: Yes, your Honour, but, again, these are no more than guidelines about the way in which the employer identifies the way to do this work safely. It falls into the same category, does it not, as position descriptions? That is, if, in review of these safe work method statements, what the employer determines is that in fact there should be an A/R after qualified supervisors certificate in each of them, as there is in one of them. That is, that then it will be “as required” so that - and, again, this is a matter for management. They will say, “If you’re not a person who” sorry, let me rephrase that. Management will then have to make that decision to say, “If you are going out to do this work and you don’t have a licence, we have to ensure that, in fact, your principal performance of work is on the network because then you’re covered by the legislation.” So you’re covered by the clause 22 exemption.
PN2423.
It’s a matter for management as to who they send to do this work and it’s a matter for management to comply with the legislation. So these safe work method statements aren’t set in stone. These change all of the time, as and when particular parts of them are seen to be necessary, not necessary, safe, more safe, less safe, then all of those matters change.
PN2424.
So what you don’t do is draw down from the safe work method statement to say, “Well, that’s a matter that every person whoever does anything that looks like customer or - that’s probably a bad one to choose, but anyone who ever does a reconnection and disconnection at a meter board has to have a licence.” We say, “Well, of course, that’s one of the ones where it says “as required” so therefore it’s not a requirement, it’s something that is to be determined, depending on the circumstances.” Then we say you don’t draw down and so then that becomes a requirement for the purposes of the ELA.
PN2425.
Can I turn now to the third requirement, or did your Honour want to grill me a little bit more about SWMS?
PN2426.
THE SENIOR DEPUTY PRESIDENT: No, no, that’s all right.
PN2427.
MS NOMCHONG: May I turn now to the third requirement?
PN2428.
THE SENIOR DEPUTY PRESIDENT: Make you earn you money.
PN2429.
MS NOMCHONG: Sorry, your Honour?
PN2430.
THE SENIOR DEPUTY PRESIDENT: Make you earn your money.
PN2431.
MS NOMCHONG: I’m sure I’ve done that this week, I’ve been listening to Mr Taylor. He’s really a very good friend, he won’t mind that.
PN2432.
Your Honour, about the third criteria, I think there’s a little bit of division here between Mr Taylor and myself, about what this means. We say that the criteria also has a plain meaning. The incumbent, the plain meaning of the word “incumbent” is the holder of the position, an actual person. So we say the criteria is essentially a grandfather clause, this third criterion. It means that the ELA only applies to the incumbents, the actual people who held the positions as at the date the 2012 enterprise agreement came into play, and were then, at that point, required to hold the licence to do their duties.
PN2433.
That has to be read in context - and we say that actually flows from all of the evidence your Honour’s received about the very precise wording that was put forward and exchanged backwards and forwards between Mr Greenhill and Mr Currie.
PN2434.
So you’ve heard a great deal of evidence about the evolution of this allowance, how it was then absorbed into the award, it was still paid as some informal over award payment, no doubt to gain industrial peace, and then you’ve heard the evidence as to the way in which Mr Greenhill constructed this very carefully and it was negotiated.
PN2435.
Now, if you go to paragraphs 16 and 17 of Mr Currie’s statement you’ll see that was his view as well. He says:
With one exception noted below there was no claim or demand to alter the scope or operation.
PN2436.
That’s his view:
The allowance provisions, including the LA, were negotiated, drafted and inserted into the agreement on the basis that the allowances would continue to be paid to employees who had been receiving them to that point.
PN2437.
So not to classifications, not to job descriptions, to employees. So this was a grandfather clause that it would be continued to be paid to people who had them up to that point but then when the new people came along into those positions this ELA didn’t apply. So Mr Currie backs that up.
PN2438.
He then says - and that’s reinforced by the fact that he says, “Well, what we did was we looked at-” and this was contested, but Mr Currie says so, “What we did was that we conceded people who’d moved off into office jobs.” So particular people again.
PN2439.
So we say, objectively, the ordinary meaning of the word “incumbent” is a particular person. It’s a grandfather clause. And if your Honour needs to go and look at objective evidence or objective intention of the parties, you’ve got both Mr Greenhill’s evidence and Mr Currie’s evidence that this was meant to apply to people who had been receiving it up to that time, not to classifications.
PN2440.
Now, of course, we say, your Honour, that you wouldn’t need to go to any extrinsic factors and that you would then be able to deliver an interpretation that we say is in accordance with our submissions. The way in which - and now we want to satisfy you, I suppose, about some nuts and bolts matters which probably won’t take too much time. The recommendation that was made by your Honour, on 18 March 2014, was really the naissance of this particular dispute. It’s contained at the respondent’s bundle, at tab M, page 512.
PN2441.
When you read this recommendation, your Honour, you’ll see that these words resonate, that is:
It will be paid to employees who need the licence to fulfil their duties. It should only be payable to employees who need the licence to fulfil their duties.
PN2442.
Then it recommends that a review be undertaken. Now, that review was undertaken by Mr Langdon and Mr Watts. There was the relevant consultation, and you’ll be satisfied that that consultation took place by reference to exhibits E4 to E7. Your Honour will also be satisfied that the ‑ ‑ ‑
PN2443.
THE SENIOR DEPUTY PRESIDENT: That’s true, but I have to say the review that was being recommended there - I just want to say - I don’t necessarily want to criticise the employer for doing this, except that the recommendation was really focused on people who had moved jobs who had - as Mr Currie referred to, people who had been in blue collar jobs, being electricians if you like, and then had gone off to office based jobs.
PN2444.
MS NOMCHONG: Yes, we accept that.
PN2445.
THE SENIOR DEPUTY PRESIDENT: That was actually what that recommendation was about. I’m not saying you couldn’t put it more widely if you wanted, but that’s what the ‑ ‑ ‑
PN2446.
MS NOMCHONG: That’s right. Then, indeed, what happened, of course, that being a recommendation from the Commission then it wasn’t - it didn’t mean that Endeavour was limited to ‑ ‑ ‑
PN2447.
THE SENIOR DEPUTY PRESIDENT: No, no.
PN2448.
MS NOMCHONG: That is, it then conducted a more comprehensive review to see, “Well, were the first two criteria really needed?” That is, not only had people moved jobs, but were there people getting the allowance who weren’t entitled to it because they didn’t need a licence to do their job?
PN2449.
So we will say, as a result of that review process and the consultation with the union, initially four positions were identified, but Mr Langdon, quite properly, said that he then conducted almost a second review in doing this arbitration and then looked again. We say that’s something that Endeavour should be applauded for, not criticised for. That is, it made the concessions where it needed to be to say that in fact there were an additional four job classifications that may be eligible to receive the ELA.
PN2450.
We’ve determined those eight classifications and they’re set out in the answers, which are exhibit E9. So if your Honour goes to that, you’ll see that the classifications that we say are the ones where the incumbents in those positions, as at 25 December 2012, being the operative date of the 2000 agreement, and who had received it prior to that, are entitled to the ELA. So these are the positions that have been conceded.
PN2451.
On the basis of that, and I think I said this in the short opening remarks that I made, your Honour, was that of the employees who hold those positions, there are currently 37 employees who were the incumbents in those positions as at the time of the 2012 EA and were receiving it, in accordance with past practice. They, in our submission, are the only people who should be entitled to continue to receive that ELA, in accordance with the grandfather provision.
PN2452.
Now, if one needs to, and we say you don’t, needs to go and look at the extrinsic factors, to determine the objective common intention of the parties for this, we would say that your Honour would look at the following factors. That there was a high level of resistance to the formalisation of the ELA, back into this federal award. I’m sorry, the 2008 state award, because Mr Greenhill said, quite rightly, once you put in the award it becomes set in stone.
PN2453.
Secondly, that you’d take this EA as a workplace specific, where the employer is the electricity supply authority and that the experienced parties doing the negotiations were well aware, not only of the raft of safety legislation, but also in relation to negotiating agreements as well.
PN2454.
We would say that your Honour would find, if you need to go this far, that the union and the employer negotiators were so familiar with the regulatory and statutory scheme that the terms of the use and licence, and the statutory derivation of it, goes without saying.
PN2455.
Mr Greenhill said:
I was in a room full of people -
PN2456.
I see your Honour smiling?
PN2457.
THE SENIOR DEPUTY PRESIDENT: Well, I actually suspect that’s not true. I don’t think I need to make a finding on that.
PN2458.
MS NOMCHONG: Well, two things. Can I take you to two things? First of all ‑ ‑ ‑
PN2459.
THE SENIOR DEPUTY PRESIDENT: Because particularly - possibly on the union side, I don’t know, but in terms of the people working in the company I’m actually pretty confident that they actually weren’t terribly familiar with the - the industrial people, at least, were not particularly familiar with the regulatory scheme, and no particular reason why they would have been. In terms of home building, which is basically where this comes from.
PN2460.
MS NOMCHONG: Yes. But in terms of the statutory scheme and the licensing scheme, everyone’s familiar with that. Everyone who’s got into the witness box has said, “We know what we needed to do to get a licence.”
PN2461.
THE SENIOR DEPUTY PRESIDENT: Well, we do know, because we’ve had a good look at it. But I suspect nobody in this organisation had looked at it for a long while, to be perfectly frank. Actually, I’m quite sure of that. I don’t think it matters, but I think ‑ ‑ ‑
PN2462.
MS NOMCHONG: Well, let me persuade you, your Honour, because what was said by Mr Currie, in his evidence, was that he had no familiarity with clause 22 of the Home Building Regulation. But I want to take you to, in fact, paragraphs 23 and 24 of his statement because it uses precisely the same phraseology. He was familiar with it. He was familiar with the fact that the classifications which need a licence are those principally performing work on consumer installations and wiring, that’s the phrase he used.
PN2463.
THE SENIOR DEPUTY PRESIDENT: No, I think people are familiar with it now. I’m just saying that when they were negotiating - it doesn’t matter. I don’t think much stands or falls on it, to be frank, but I am actually not persuaded that the people involved in negotiating the agreement were particular familiar with the licensing regime.
PN2464.
MS NOMCHONG: Thank you.
PN2465.
THE SENIOR DEPUTY PRESIDENT: Well, not the licensing regime but with the whole regulatory system surrounding it.
PN2466.
MS NOMCHONG: Thank you. Your Honour, we’d also ask you to take into account that the union, in particular, was aware that this provision, when it went in, was going to apply to particular people and particular duties. Because if you go to BJC9, which is an attachment to Mr Currie’s reply statement, exhibit CEPU9, these are words that we referred to yesterday in the evidence. The proposed clause that was put forward by the union for the 2010 agreement was:
An electrical worker who was an electrical mechanic who holds, and in the course of their duties may be required to use an unrestricted licence must be paid an all-purpose allowance.
PN2467.
So they’re looking at an unrestricted licence, they’re knowing that the duties require the unrestricted licence, so it’s referrable to particular duties and particular people.
PN2468.
So we say that taking into account all of those factors that you would say that in fact that there was a common intention that arises to interpret the award the way in which we provide for in the answers, which is exhibit E9.
PN2469.
I’ve taken your Honour to the authorities that a provision must be construed at the time it was made and subsequent conduct can’t be taken into account. But we agree with your Honour, and your comments this morning, that there was no change in the meaning of the clause, only a change in its effect. That is, as Mr Greenhill said:
What I did was negotiate a clause that gave Endeavour the tools to implement it if they wanted to.
PN2470.
And the fact that Endeavour didn’t have the stomach for the sort of industrial disputation that’s lead to this arbitration at that time was a matter that it could do. It doesn’t detract from the purpose or meaning, in fact, of this particular matter.
PN2471.
Secondly, what we say about that is that your Honour would reject the argument that this is a margin for skill, for the very reasons that your Honour set out this morning. Your Honour clearly has the proper appreciation of what this award is, that is, that this is a competency-based wage system. That is, any margin for skill is already contained in the wage rates. The submission that these allowances, the submission put by my friend, was that the allowances were somehow taken into account because everyone knew that they would continue when they were negotiating about the base rates, well, there’s just simply no evidence for that, absolutely no evidence whatsoever.
PN2472.
The fact that there was an informal arrangement for many years that this allowance would be paid and that there was a three-line letter in July 2009 did not then give rise to the basis to say, “Well, when we negotiated for and agreed competency wage rates that this allowance was always in the back of our mind that we’d be getting that as an all-purpose allowance as well.” You can’t do it. There’s no evidence for it and it should be a submission that wasn’t made.
PN2473.
I note the time, your Honour.
PN2474.
THE SENIOR DEPUTY PRESIDENT: How long?
PN2475.
MS NOMCHONG: I think I’ll be probably about 20 minutes. Do you want to bat on and then we can get an early mark.
PN2476.
THE SENIOR DEPUTY PRESIDENT: How long, Mr Taylor, do you think you’re likely to be?
PN2477.
MR TAYLOR: At this stage something between five and 10 minutes.
PN2478.
THE SENIOR DEPUTY PRESIDENT: Let’s keep going, if that’s okay with you.
PN2479.
MS NOMCHONG: I’ll try and speed up, because I think that we’ve had some conversations along the way ‑ ‑ ‑
PN2480.
THE SENIOR DEPUTY PRESIDENT: I’ll try not to interrupt too much.
PN2481.
MS NOMCHONG: ‑ ‑ ‑ where I need a little bit more persuading of your Honour.
PN2482.
In terms of the position descriptions, I think I’ve really answered that question. We say it’s a matter for the employer as to what qualifications and experience it expects of each particular position. Therefore, we disagree that what you do is, you know - look at the position description and say that that creates a necessity, except - say, for example, now, what we have for, for example, district operators that whilst it used to be a requirement is now desirable. So that’s a matter that the employer can take into account. It can say, for example, that it’s - would your Honour just excuse me for a second? Yes.
PN2483.
We have the position descriptions. We can change our views, when I say “we” obviously Endeavour. We can change our views about what it is that we need each position to do and that doesn’t bind us in order to keep paying someone who holds that position an ELA because we’ve now determined we don’t necessarily need that as a requirement. We’ve done the review that we should have done years ago probably, and we’ve determined that these position descriptions don’t need a licence because of the statutory regime.
PN2484.
We are not required to apply the EBA in a way which maximises entitlements for employees. We’re required to apply the EBA in accordance with this proper construction and its proper construction, on requirement - if we’ve got a PD that says, “Now, you need a licence” well, it’s going to be pretty hard for me to resist your Honour’s views about that, isn’t it? But if we have a PD that says, “In fact, you don’t need the licence to do this job, we’ve reviewed it and the amount of times that you go out and do electrical wiring work on consumer installations is minimal,” and reverse it, then there’s no necessity for the licence and therefore the ELA doesn’t apply. That’s what we say is the proper way in which you look at it.
PN2485.
We can also change the duties of any particular position, clearly that’s open to us and, in fact, the EBA, like all industrial awards, has provisions that say that people can be required to do jobs in and around their own skill set and their own skill level.
PN2486.
So what we would say is that you objectively need to look at the job duties done by these people, PD or no PD. We say the best way to do it is the way we’ve done it. That is, you look at it and you say, “Objectively speaking, what is this person required to do? Do they fit into the exemption in clause 22? If they do, they don’t need a licence, if they don’t they need a licence.”
PN2487.
Maybe I said that the wrong way. If they fit into the exemption they don’t need a licence, if they - sorry, I’m doing it the wrong way. If they don’t fit into the exemption they do need a licence and vice versa. Sorry, I got myself tied up there, your Honour.
PN2488.
So what we say is that that’s the only objective way that you can do it, because otherwise it just creates uncertainty and the uncertainty ‑ ‑ ‑
PN2489.
THE SENIOR DEPUTY PRESIDENT: I suppose you might choose, and possibly this is what happened in the past, well, who knows, it could have been what’s happened in the past, which is that the - the company’s used the licence as a proxy to something else, as it were. In other words, it’s an indicator that you’re a properly qualified electrician. You don’t have to ‑ ‑ ‑
PN2490.
MS NOMCHONG: It’s an indicator that once upon a time ‑ ‑ ‑
PN2491.
THE SENIOR DEPUTY PRESIDENT: You don’t have to accept - but there’s some reason why they’ve required it in the past and one possibility is that they thought that it was the safest thing to do because of the regulatory regime. That actually strikes me as somewhat unlikely, but we don’t actually know. You said this before.
PN2492.
MS NOMCHONG: Yes.
PN2493.
THE SENIOR DEPUTY PRESIDENT: But you might have a - you can, at least, conceive of a reason why you might require a licence, even though actually under the regulatory regime you don’t require a licence. The job doesn’t require a licence, under the regulatory regime, but you decide, for some reason, and there could be a coherent reason to do this, but you will require it.
PN2494.
MS NOMCHONG: I accept that, your Honour. If we issue a position description for a job classification that says, notwithstanding our view that this job classification doesn’t need a licence under the regulatory regime, but we want you to have one ‑ ‑ ‑
PN2495.
THE SENIOR DEPUTY PRESIDENT: We’re going to require it.
PN2496.
MS NOMCHONG: ‑ ‑ ‑ then we’re done for. But if we issue a position description to say that we’ve actually looked at the job duties that you do, we’ve looked at the regulatory regime and we’ve determined that you don’t need a licence then, similarly, the parties are bound in the same way.
PN2497.
Just quickly, in relation to what’s principal work, I think I’ve mentioned this quite quickly, that is, your Honour would construe the word “principal” to mean primary or most important, and it doesn’t mean, as Mr Currie said in his evidence, that it could mean occasionally or time-to-time.
PN2498.
There’s been evidence given about ‑ ‑ ‑
PN2499.
THE SENIOR DEPUTY PRESIDENT: I don’t think he quite said that, to be honest.
PN2500.
MS NOMCHONG: Well, I think he did. I think that I grilled him about that and he wouldn’t concede that principally meant most of the time or that it was the primary or predominant role. His view is that if you did it occasionally ‑ ‑ ‑
PN2501.
THE SENIOR DEPUTY PRESIDENT: I think - I don’t want to put words into Mr Taylor’s mouth, but - sorry, maybe Mr Currie, but ‑ ‑ ‑
PN2502.
MS NOMCHONG: Anyway, it’s irrelevant, your Honour.
PN2503.
THE SENIOR DEPUTY PRESIDENT: Whether it’s - it’s whether you give the word something like significant or of substance. I think that’s the counter argument.
PN2504.
MS NOMCHONG: Yes, that’s right. But it’s not, as my friend said, if it’s one part of a 10 part job description that doesn’t mean it’s significant and it doesn’t mean that it’s primary or the most important. That’s what “principal” means, it’s a dictionary meaning that says, you know, it’s not just a significant part of the job, it really is primary. “Primary” is more than significant, in our submission.
PN2505.
Now, whist your Honour has evidence of percentages of time, we concede that’s not necessarily the only criteria that you would use. Nor do we put it forward as some stringent mathematical basis. But considering the way in which you have to determine “primary” it’s a way that you can do it.
PN2506.
What I intend to do now, your Honour, is just go quickly through each of the contested classifications and say what evidence we say you should take from it. In relation to EFM inspections; Mr Currie, at paragraph 23 of his statement, his first statement, said:
Employees in these positions principally perform work on consumer installations.
PN2507.
But as I’ve said, that when he was cross-examined on that, he agreed that it was, in fact, from time-to-time, or occasionally. We would say that your Honour would not take from that that the primary role of an EFM inspector was someone doing electrical wiring work on consumer installations.
PN2508.
In cross-examination he said that EFM inspections could be asked to do wiring work on consumers, and that’s as high as he put it. There is no example or exemplar being put forward by the union for this description for this classification and Mr Langdon, in his cross-examination, said:
Time-to-time there was testing on the switch, but that was to determine the integrity of the supply up the line, rather than into the consumer premises.
PN2509.
On the basis of that evidence, your Honour, we would say that you would not find that EFM inspections fulfil the criteria in the provision that they are required to have a licence to fulfil their duties.
PN2510.
In relation to EFM service lines; again Mr Currie, at paragraph 23, said the same thing that he said about EFM inspections. He said, again, that they could be doing electrical wiring work, depending on where the POA is. Well, that simply has to be regarded as nonsense, we would say, because everything up line from the POA belongs to the network and everything downward from the POA - I’ll just leave it at that. But everything up the line from the POA is the network. So the POA itself has nothing to do with it.
PN2511.
When he was questioned by your Honour on this basis, he said it was really a case-by-case instance, and that’s as high as he could put it. Again, no exemplar has been put forward by the union for this position and Mr Langdon, in his cross-examination agreed that there was testing on lines but he confirmed that it was to test the quality of the integrity of the electricity coming into the consumer installation, not the other way round.
PN2512.
So we would say that your Honour would not find that EFM service lines is a classifications which would attract the ELA, if they were eligible under the other criteria.
PN2513.
In relation to electrical safety inspector, I think I’m in furious agreement with Mr Taylor that it’s probably a position that doesn’t exist and there’s very little evidence about it. Therefore we would say that you wouldn’t be satisfied at all that an electrical safety inspector requires a licence, one way or the other.
PN2514.
In relation to district operators and DOITs, that is district operator in training, we accept the proposition put forward by Mr Currie, in paragraph 24 of his statement, where he says:
District operators are employees who will regularly work on customer installations, although this is not their principal form of work.
PN2515.
So that’s a matter that is electrical wiring work is not a principal or primary role and we accept that.
PN2516.
Mr Matuelwicz's evidence was that he - we took him through the PD for his job, which is exhibit E8, and while I’m on that point, your Honour, and I know it’s a rather odd time to tender something, but the position description for the district operator in training was raise by my friend and saying that he was unaware of what qualifications or skill. May I just show it to him, and I’m sorry that I’m doing it at this late stage, but again this position description doesn’t require the qualifications of a licence.
PN2517.
Mr Matuelwicz went through each of those and, when your Honour comes to read that document, you’ll see that electrical wiring work on consumer installations is not a primary role, either in time or prominence or significance. He said that he was required to work on consumer installations in shock investigations but when asked about how much time he spent doing this sort of work, not just on shock investigations but electrical wiring work on consumer installations generally, he rejected the 10 to 20 per cent but then he said he couldn’t put a figure on it.
PN2518.
So even taking into account the ebbs and flows we would say that it is inconceivable that having worked in the position for 10 years he would be unaware, even in broad percentage terms, how much time he’d spent on it. We would say that you would prefer the evidence of Mr Langdon, at paragraphs 91, 92 and 94 of his statement, and take into account that in cross-examination Mr Langdon said:
In night shift they might be required to go and do -
PN2519.
If I could just use a shorthand word “electrical work” for the purpose of the rest of these. I might just use “consumer work”. That is:
Taking into account night shift, work on the consumer installations can happen, but it was seldom. In relation to the Illawarra district officer -
PN2520.
He said:
You can also work as an EMSO, but that was managed by the region.
PN2521.
And your Honour heard his evidence this morning:
and therefore electrical wiring work would be done by an EMSO, directed by the region, rather by the district officer.
PN2522.
And on the Far South Coast he said:
It was seldom occurring and that again it was managed in a way that these things didn’t happen.
PN2523.
So you wouldn’t find, we say, your Honour, that a district officer, or a DOIT, requires a licence to fulfil their duties.
PN2524.
THE SENIOR DEPUTY PRESIDENT: Just before you hand it up, can I just make a couple of notes?
PN2525.
MS NOMCHONG: Sure, no problem. I’ll just keep going while Mr Taylor does that.
PN2526.
In relation to EFMs, the only person that the union brought forward was Mr Woolsey, and he was a leading hand EFM. There’s nothing in Mr Currie’s statement about what he thinks EFMs do, so the only evidence that we have is that of Mr Woolsey and Mr Langdon.
PN2527.
Mr Woolsey, in cross-examination, said that there were different types of EFMs, line work, cable joining, service work, and he agreed that all of that work was done on the network.
PN2528.
Mr Langdon, in his evidence, said that EFMs roles, whilst they might do EMSO work from time-to-time, and his evidence was that this formed a very small part of their duties and that their principal role, of all EFMs, was network work.
PN2529.
Your Honour will remember the apprenticeship evidence, that is, that of the vast majority of apprentices, now distribution power line workers, are not required to have a licence and that gives you some idea of where we are.
PN2530.
Also, too, it’s an interesting factor, isn’t it, that what happened - some of this evidence was they were saying, “Well, we got sent off site to go and get our experience.” Well, the necessary corollary to that is that if had to go off site to get consumer wiring work there’s just simply not enough of it to do at Endeavour. And the answer is that that can’t be their primary role because there’s just not enough of it there for them to do.
PN2531.
In relation to system operators and senior system operators, Mr Currie made no reference at all to these classifications. Mr Eagan was the person who was brought forward to give evidence and at paragraph 10 of his statement, which is - and we adopt what he says, in relation to this. He said, at the second sentence:
Whilst I would not say that I worked principally on customer installations or wiring, that forms part of my daily duties.
PN2532.
So, again, he’s using that same phraseology that we find in the clause 22 exemption.
PN2533.
Mr Eagan agreed with the key accountabilities of his position description, which is at tab F of the respondent’s bundle and, again, by reading that document, your Honour, from any objective basis, we would say that you would say that you would clearly find that electrical wiring work on customer installations is not a role, either in time or prominence. He doesn’t perform any electrical wiring work himself, he supervises from the control room. His stated work depends on the desk, what the running sheet was done for the day, and he communicates with workers in the field by radio or telephone.
PN2534.
As an aside, during re-examination he acknowledged that the wiring rules had changed and that, in fact, he hadn’t had to sit any extra test to do that. So we would say, your Honour, that you wouldn’t find that a district officer or district officer in training requires a licence to carry out the duties of their job.
PN2535.
In relation to a technologist, your Honour, and this is my last classification that we’re going through, so everyone can breathe a sigh of relief, again, Mr Currie says absolutely nothing about this. Mr Pollock was called and his evidence is contained at both of his statements, in CEPU 20 and 21.
PN2536.
The case in regard to a technologist is reliant on is recollection that at some time he was required to have a licence and that it’s conceded, I think, there’s no PD for any technologist role, and, indeed, your Honour would be satisfied that on the basis of the evidence that he might be required to do some electrical wiring work on occasion or from time-to-time, that this would not be a classification which, if otherwise eligible, would attract the ELA.
PN2537.
Your Honour, in conclusion, we would say that, as industrial fairness goes, industrial fairness would also take into account what we say is the double-dipping aspect, and that’s been referred to in my submissions. It occurs in the fact that the margin for skill that the union relies so heavily upon is already contained in the competency-based wage rates in this agreement.
PN2538.
Secondly, compliance with working safety and the allowance for working safely is comprehensively dealt with by the ESRA. It is a double-dipping because the ELA, at $32.10 a week, represents nothing that the workers actually have to pay out, it doesn’t compensate them for anything. They’re not required to do anything, sit tests, spend particular times actually keeping - doing something in order to renew their licence, it’s merely the filling out of a form.
PN2539.
So we would say, your Honour, that you would agree with the answers that we have put forward, in exhibit E9, and those are the submissions for Endeavour.
PN2540.
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2541.
MR TAYLOR: My friend wishes to tender something after I’d closed my case, but I - whilst obviously I have a proper basis to object I don’t do so and allow your Honour to take it.
PN2542.
THE SENIOR DEPUTY PRESIDENT: Very good of you. I think that makes it E15, I think. E16, District operator in training PD, E 16. It is 15. E15.
EXHIBIT #E15 DISTRICT OPERATOR IN TRAINING PD
PN2543.
MR TAYLOR: The schedule we handed up, your Honour, that, in a sense, adds to that CEPU 26. My friend - I don’t now have it in front of me, but can your Honour just open the document up to the key accountabilities? My friend has spent a lot of time talking about “principally” and what is or isn’t principally part of the role. If you look at those key accountabilities you’ll see that the first deals generally with knowledge, the second is an accountability that goes to network and responsibilities for the network and so is, I think, in fairness, the penultimate and last dot points, they deal with network issues. But the third, fourth and fifth dot points are key accountabilities, not peripheral tasks, that deal with customers.
PN2544.
The third is, my note, your Honour can read the precise words, “Rectify and repair problems on customer’s low voltage switchboards.” Not, with great respect to Mr Langdon, something you might just do as a matter of discretion, this is a key accountability.
PN2545.
The fourth is, “To make safe customer installations and advise customers problems on safety and service available.” The fifth is, “To liaise with customers, police, et cetera.” Your Honour will recall evidence about, for example, shock jobs and the like. This notion that it’s not a principal part of their work, with respect, fails on the evidence that’s just been tendered at this late stage.
PN2546.
Mr Fidier(?) helps me, that if one goes to the position description for district operator, one, perhaps unsurprisingly, finds the same key accountabilities, given that one’s the training position, which also emphasis that key accountabilities involve working on the customer side of the point of supply.
PN2547.
Now, this is all relevant to this issue of what “principally means in clause 22, that was one of the things I wanted to deal with. It’s said that 10 per cent of a job can’t be a primary role. We take a different view, we say that if it is a key accountability that it’s clearly part of the primary role.
PN2548.
THE SENIOR DEPUTY PRESIDENT: Can we just go back to the actual provision in the - it’s the Home Building Regulation, isn’t it?
PN2549.
MR TAYLOR: It was tab 8 of my friends respondent’s legislation. Page 14, clause 22, subclause (2) and the words are:
Principally for the performance of work, other than electrical wiring work, and (b) the electrical wiring work concerned is done in the ordinary course of the employees duties.
PN2550.
THE SENIOR DEPUTY PRESIDENT: Obviously the fact that it’s just a normal part of your job, in itself, is already embraced by (b), so the fact that it’s just an ordinary - it’s not something you might do in your own spare time, for example.
PN2551.
MR TAYLOR: Your Honour’s precisely onto it.
PN2552.
THE SENIOR DEPUTY PRESIDENT: Or something you’re choosing to do voluntarily, on top of your normal duties, I have to say. It’s probably not covered, actually.
PN2553.
MR TAYLOR: They are the two things which (b) is dealing with.
PN2554.
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2555.
MR TAYLOR: So (b) is dealing with if Mr Woolsey decides - I don’t know why I picked Mr Woolsey. If an Endeavour employee decides, in their own time, to go and do some private wiring work for someone, then that wouldn’t be covered, because that’s not part of the ordinary course of their duties.
PN2556.
But Ms Nomchong seems to want to adopt these words to say, “Well, that means that it can be part of what’s, in effect, their key accountabilities.” It’s whether it’s the principal part.
PN2557.
THE SENIOR DEPUTY PRESIDENT: Well, no, I don’t think she actually relied much on (b) at all, I’m just throwing that in.
PN2558.
MR TAYLOR: No, I think she did, your Honour. I think she did.
PN2559.
THE SENIOR DEPUTY PRESIDENT: Okay. Anyway, let’s look at (a):
The individual is employed by authority principally ‑ ‑ ‑
PN2560.
MR TAYLOR: I took it - that was the only thing I was responding to.
PN2561.
THE SENIOR DEPUTY PRESIDENT: You’re employed by the electricity supply authority principally, so in the main, you might say, for that.
PN2562.
MR TAYLOR: And some employees might only have one task, some employees, the nature of their job is they’ve got four or five or six tasks. That is all part of what they’re principally employed to do. The notion that you can say, “Well, because you spend a bit more time on one than the other, so that’s the principal one and the others are less” is ‑ ‑ ‑
PN2563.
THE SENIOR DEPUTY PRESIDENT: I’ll have to have a look at the dictionary. I don’t normally do that, but in this case I might.
PN2564.
MR TAYLOR: But in this case, your Honour, the fact that this is a legislative regime which is designed to always ensure someone is licensed, with an exception, exceptions will be considered narrowly. One would, we say, read this in a way that says that if it’s one of your key accountabilities then that is a principal part of your job.
PN2565.
The other note I wanted to make is this regard is that Mr Langdon, contrary to my friend’s position, Mr Langdon seemed to accept that even within a job there can be ebbs and flows and there can be times when it could apply, was his words this morning. If you have a district operator who, during a particular period, is allocated by their manager to be doing - of their key accountabilities, two and three most of the time, then that’s their principal work for that period of time. The thought that the legislature has some sort of averaging over, I don’t know, I think Ms Nomchong’s question seemed to be over the year, or the last year, wouldn’t be the way you’d read this, with respect.
PN2566.
Now, I’m conscious of the time and I’m happy to move past that point, I think I’ve hammered it. There are just a small number of other points. First, Ms Nomchong took your Honour to some of the principles and, in particular, the extent to which context can be taken into account at an early stage. Your Honour is probably familiar with this, but there’s the recent Full Bench decision of this Commission that involves a party by the name of Golden Cockerill. It’s (2014) FWCFB 7447, so it’s decision 7447 of last year. A Full Bench, headed by the President, set out in paragraph 41 what are the - in the President’s usual way, a very useful summary of all the principles. In there one will find that one of the principles that the Full Bench determined is that context can be taken into account in order to determine whether there is ambiguity and then, again, to determine the ambiguity. So we say that your Honour would be assisted by that line of country.
PN2567.
The safe work method statements. Ms Nomchong accepted that if the employer does, itself, has a requirement, for example, in position description, then that position is required to - in the sense of the ELA. She nevertheless contended that the fact that these requirements appear in the safe work method statements doesn’t amount to a relevant requirement, we say that is not the case.
PN2568.
Mr Langdon, at the very end of the cross-examination, accepted that when the relevant employees are doing work on customer premises they are doing work that is on or near electrical installations, on or near the network. Ms Nomchong said these regulatory provisions, which I handed to you, only apply if it’s in respect of construction work on a structure. We didn’t include the definition of structure, but if one goes to the definition of structure it means, “anything that’s constructed,” that’s pretty broad, “whether fixed or moveable,” so presumably that includes someone’s home, “Any component of a structure or any part of a structure.” Well, that would at least get us to a meter board.
PN2569.
So here we are talking about work which there is a statutory obligation to comply with the safe work method statement and that means that we say your Honour will find that every position which is held by a person whose tasks require them to do something by which they must comply with the safe work method statements that they are positions which currently are required to hold a licence. I add a rider, as we did in a footnote in our written submission, we accept what Ms Nomchong said that one of those position descriptions there’s a particular aspect of the task which only arises in a particular way. But the other two don’t have the “as required” words that Ms Nomchong pointed to.
PN2570.
So we say that that is something that your Honour will find and it will inevitably mean your Honour’s unable to determine what all of those positions are, but it will inevitably mean, on the evidence you’ve already heard, that district operators, DOITs, EFMs who are doing EMSO work, the EMSO have to comply with the work safe method statements to do a lot of their tasks, are going - are required, currently, by the safe work method statements, to have a licence. That’s the current requirement and if my friend, quite rightly, concedes that any current requirement of the employer to have a licence is one that means the clause applies, it follows that these are positions which require it.
PN2571.
Your Honour might say, “The employer might decide that those tasks are no longer done by those people.” Well, right now - and that’s why I said your Honour could, in a sense, stop at the point that says:
Any position which requires compliance with these safe work method statements is, on any view, regardless of any other arguments, is entitled to the allowance, so long as that continues to be a requirement.
PN2572.
As to the issue of whether there is or isn’t evidence as to who was required to have a licence, as at the date that the agreement was made, when the clause went in, for the first time, in to the 2010 agreement. Ms Nomchong put, very forcefully, that there is no evidence of a common intention as to who was required, at that date, to have a licence. We say that your Honour does have that evidence, it’s the folder, CEPU 26, that contains the position descriptions and job ads.
PN2573.
Now, it’s true that it’s not every position, but it is every position in the annexure B category is there. It’s true that there’s not every job ad - sorry, every PD, but it’s every PD that Endeavour has, because they were asked to produce them, and if there’s ones that aren’t there it’s because they don’t have them, and then you can rely on the job ads at that point - sorry, the job ads or the job offers at that point, because they are evidence of what was required for those positions at that time.
PN2574.
So we accept that that folder doesn’t contain every position, but that’s unsurprising, we’re only dealing with exemplars and ‑ ‑ ‑
PN2575.
THE SENIOR DEPUTY PRESIDENT: I think there was agreement that we wouldn’t go through every single ‑ ‑ ‑
PN2576.
MR TAYLOR: There was.
PN2577.
THE SENIOR DEPUTY PRESIDENT: I think we can’t really say ‑ ‑ ‑
PN2578.
MR TAYLOR: There’s no doubt about that, and that was really the last thing - I think it’s the last. I think that’s the last thing. I just want to say, your Honour, as to that, that Ms Nomchong has said that your Honour will find there are only eight classifications for whom the licence applies. Your Honour, I think, is mindful of the fact that we’ve been dealing with exemplar positions and so, your Honour, whatever findings you make ‑ ‑ ‑
PN2579.
THE SENIOR DEPUTY PRESIDENT: It may be that what I have to say - I’m not going to give my decision now, but I might structure my decision to, “Well, these are the principles” rather than me necessarily determine every single job that should or shouldn’t get the allowance. “This is how I interpret it and this is what it should mean in practice.” I guess if there’s still arguments we’ll just have to deal with them on an individual basis, but I don’t think I’d be able to go through every single position necessarily.
PN2580.
MR TAYLOR: I think your Honour is absolutely right. You couldn’t say every single position. There are some positions, even within the exemplars, where the evidence is limited, but the fact that there are exemplars may assist your Honour to identify that when applying the principles how they apply in light of certain exemplar positions. It certainly would appear that that was the thought that the parties had when they came before you with exemplar positions that your Honour would be given that assistance.
PN2581.
Thank you, your Honour.
PN2582.
THE SENIOR DEPUTY PRESIDENT: Thank you. I’m going to reserve my decision.
PN2583.
MS NOMCHONG: Thank you, your Honour.
ADJOURNED INDEFINITELY [1.34 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PETER ANTHONY LANGDON, CONTINUING [10.02 AM]........................ PN2042
EXAMINATION BY THE SENIOR DEPUTY PRESIDENT [10.02 AM]....... PN2042
FURTHER CROSS-EXAMINATION BY MR TAYLOR [10.05 AM]............. PN2049
RE-EXAMINATION BY MS NOMCHONG [10.06 AM]................................. PN2057
THE WITNESS WITHDREW [10.30 AM].......................................................... PN2105
EXHIBIT CEPU26 SCHEDULE TO BUNDLE OF DOCUMENTS................ PN2123
EXHIBIT E15 DISTRICT OPERATOR IN TRAINING PD............................. PN2542
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