Home | Databases | WorldLII | Search | Feedback Fair Work Commission Transcripts

You are here: 

C2014/ 1137 , Transcript of Proceedings [2015] FWCTrans 89 (2 March 2015)

TRANSCRIPT OF PROCEEDINGS

Fair Work Act 2009                                                     1051403-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2014/ 1137 

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

10.03 AM WEDNESDAY, 11 FEBRUARY 2015

PN1.

THE SENIOR DEPUTY PRESIDENT:   Could I have the appearances, please.

PN2.

MR I TAYLOR:  Yes, if it pleases, your Honour, my name is Taylor, initial I.  I appear with Mr O Fagir, F-a-g-i-r, and also Mr J Kennedy and we all seek permission to appear for the applicants.

PN3.

MS K NOMCHONG:  Your Honour, my name is Nomchong, initial K, and I appear for the respondent in these proceedings.  I am instructed by Mr G Phillips and Ms N Petit from K and L Gates, and I seek leave to appear.

PN4.

THE SENIOR DEPUTY PRESIDENT:   I think I can form my own view without needing submissions on that.  I grant you all permission to appear where it’s required.

PN5.

MR TAYLOR:  Thank you.  If it please, your Honour, we for our part wish to commence by giving a short overview as to the nature of the dispute that falls to be determined and introduce in the briefest way the evidence that you’re about to hear and attempt to identify where there is some contests in the evidence, again only in broad terms, so that your Honour is aware of where the parties are apart.

PN6.

For the purpose of that, we thought it might be convenient to bundle together some documents which might otherwise be found scattered through materials that’s been filed.  Could I hand up what we have titled a tender bundle applicant.  I immediately start by acknowledging that both parties have filed written outlines of submissions.  These were filed, of course, last year at a time when the matter was set down for hearing in the latter half of last year before it was required to be moved to these dates, due to witness availability. 

PN7.

Our outline of submissions is found behind tab 1 and it is there for convenience.  At this stage, I am not proposing to take your Honour through that, but your Honour will no doubt have the benefit of that.  My friend has also filed an outline of submissions which will no doubt be with your Honour’s materials.

PN8.

In short, this arbitration is a dispute as to whether a certain number of Endeavour Energy employees, who are colloquially referred to as licenced electricians, are entitled to continue to receive an allowance known as the Electrical Licence Allowance, often abbreviated to the ELA.  The question of the power to arbitrate is not in dispute and it arises, of course, from a power that your Honour exercises on a regular basis in this industry.  It’s found in section 739(4) and in this particular case arises from clause 29 of the Endeavour Energy Enterprise Agreement 2012, wherein the parties have agreed to allow disputes such as this to be determined by arbitration, if they cannot be determined by conciliation.

PN9.

There are two dispute notifications that have been filed.  They are found behind tab 3, and the first was filed in January of 2014.  At that stage, a dispute had arisen concerning back pay of the ELA to some 27 or so members of our client who had not renewed the licence, and in respect of whom there was dispute about whether they should be getting full back pay.  That was a dispute that was proposed to be resolved on the basis that those employees would be back paid, but it would be limited to a particular period of time, three months. 

PN10.

There is, I think, a dispute on the evidence between Mr Currey and Mr Greenhill as to whether that back payment has in fact since been made.  That dispute led, your Honour, to make a recommendation.  That recommendation is found behind tab 4.  Your Honour made a recommendation on 18 March 2014 that Endeavour, in consultation with the union, in effect check which employees are no longer eligible because they’ve moved into positions where fulfilment on their duties does not require the electrical licence. 

PN11.

Certainly the union understood that what the dispute was about at that stage, was that there might be certain members who had moved into what might be generally referred to as office space, to desk-based roles, who were not actually working as electricians but were still getting the allowance, and that there was a view that it was appropriate to do a review of positions.  The recommendation, certainly from the union’s part, was not seen as an invitation to lead to a wholesale removal of an allowance that had always been paid to licenced electricians working as electricians.

PN12.

Then your Honour will see when the evidence comes in that Endeavour wrote a letter shortly after that recommendation was made, in which it identified that it was going to have a look at changes to Fair Trading Act requirements and a thought that they might have changed in some way.  But a couple of days after that, Endeavour wrote again in late March 2014 informing the union that it had examined the matter.  It proposed, in short, abandoning the long-standing practice of paying licenced electricians the ELA, except in a very small minority of cases. 

PN13.

At that stage it was said that there were 783 employees who were receiving the allowance and that the number that were thought to be entitled was something in the order of 20, so a very dramatic change and a change which the evidence will identify from the company, has the consequence of saving the company something in the order of $1.3 million a year, or to put it another way, reduce the wages of electricians in the order of $1.3 million a year.  This was, on the union’s case, a sudden realisation.  It’s described in the company submissions as inadvertence, but there was apparently a sudden realisation that for something in the order of four years, and despite the agreement being remade in the same terms during that period, there had been no entitlement to continue to receive the allowance in the way that it had been paid prior to the making of the allowance in its current terms.

PN14.

One of the issues your Honour will consider is whether that’s true, whether this is indeed an issue of inadvertence or whether Endeavour has decided, given the current situation in this industry, to take advantage of what might be thought to be infelicitous wording to save itself a very significant amount of money per year. 

PN15.

In any event, that correspondence from Endeavour led to the second dispute notification, which your Honour sees behind tab 3 of the tender bundle.  At this point, the dispute is described at paragraph 4 of that dispute notification dated 30 June 2014, as a dispute concerning the company ceasing payment of the electrical licence allowance to over 700 employees as of 1 July 2014.  It identifies that the union is at issue with the reasons and position Endeavour has taken regarding the eligibility of employees receiving this allowance, which will have operational, industrial and safety implications.  It identifies that that’s true, not only at Endeavour Energy but across the whole electrical distribution industry and electrical contracting industry in New South Wales.  The balance of that sentence hasn’t been a feature of the evidence, but as I understand it, electrical licence allowance provisions are found in other instruments as well.

PN16.

Following the making of that dispute notification, your Honour might recall there was some conciliation before your Honour and the upshot of that conciliation was that questions for arbitration were formulated and then, having been formulated, were amended.  The amended questions for arbitration are found behind tab 5 of the folder.  It’s a single page with three questions, followed by two annexures, although my particular copy of the folder, the amended questions appear twice, the amended question page appears twice.  It was one set of questions with two annexures, annexure A and annexure B.  I will come back to the significance of the two annexures in a moment.

PN17.

Let me now turn, your Honour, to identify so that your Honour has it in front of you, the relevant text about which we’re arguing.  It’s, of course, found - - -

PN18.

THE SENIOR DEPUTY PRESIDENT:   Just to be clear, these amended questions, both parties agree these are the questions I need to deal with.  There’s no dispute about what question it is?

PN19.

MR TAYLOR:  Yes.  The matter is proceeding, as I understand it, on the basis that these are the questions that we have asked your Honour to determine.  I have described, I think, the dispute earlier in broader terms.

PN20.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN21.

MR TAYLOR:  I will come back to the nature of the amended questions in a moment, but in the broad, there is in these proceedings a two-step or two-stage process that your Honour will go through.  The first is to identify which of competing contentions for the interpretation of the clause is the better.  Second, your Honour is also going to have evidence before you and asked to consider, having determined the threshold issue of interpretation, how that impacts on various particular classifications.  The questions are, as I will come to in a moment, designed to assist in elucidating the answer to both the first and the second stage of the reasoning process.

PN22.

Can I take your Honour to define the relevant words about which the parties are now at issue?  The agreement in its current form is found behind tab 2 of the tender bundle.  It’s the Endeavour Energy Enterprise Agreement 2012 and the allowance is found at page 133, so just three pages before the end.  It’s about point 7 on the page.  Your Honour will see that it is an allowance that is paid as an all-purpose allowance and the meaning of that is not in dispute and will be well‑known to your Honour in any event.  That means that it is a rate which, when applicable, in effect increases the employee’s rate of pay for all purposes.  So when one is considering shift penalties, overtime penalties, leave and so forth, if the allowance is payable it effectively is an increase in the rate of pay.

PN23.

The clause is drafted in a way in which there are three parts, divided by the word “and” in each case.  The first part requires the holding of what is referred to as “a current qualified supervisor’s certificate/electrical licence or its equivalent”.  The expression “qualified supervisor’s certificate” is an expression which emerges from regulatory legislation and that expression by the witnesses is generally simplified to simply “the licence” or “the electrical licence”.   The licence itself is something that’s had various names over the years. 

PN24.

The second part of the clause says that the position requires the incumbent to hold the above qualification to fulfil their duties.  That is an expression about which the bulk of the dispute on interpretation rises and falls.

PN25.

Then the third part is that the incumbent in the position has received it in accordance with past practice.

PN26.

I am not going to rehearse in detail the arguments that are set out in some detail in the opening written submissions, but in short, when it comes to interpretation, the union says that the words referring to the position requiring the incumbent to hold the above qualification and, in particular, the word “requires” would be given just its ordinary meaning.  One wouldn’t read words that aren’t there into it.  It would encompass an examination of the duties of a position as the words turn on the position and its duties. 

PN27.

If those duties require the knowledge and skill recognised by the holding of the licence, then the payment of the allowance would flow.  That is consistent, as your Honour will see when you come to our written submissions, with the history of this allowance as an all-purpose allowance.  If one goes back to the first time one finds such an allowance being inserted into a relevant electrical distributor industrial instrument, a precursor body of the current employer, it was a clause which flowed from and replicated a clause found in the then general state award applying to electricians, which adopted, as all awards did back in the day, a base rate and then various margins for skill. 

PN28.

One of the margins for skill was a $5 and then $10 sum which reflected that the person had the skills and experience that enabled them to get the licence.  The idea was that licenced electricians had additional skill and there was a margin that was added for that.

PN29.

When one comes to the industrial history, one finds that there are two organisations, Illawarra County Council and Prospect County Council that become integral which in turn then becomes Endeavour.  It is at Prospect County Council where there was a rate of pay plus the allowance.  At Illawarra the allowance was not identified as a separate item, but it was a requirement to be an electrical fitter or electrician to hold the licence.  When they merged, Integral continued to pay the rate of pay from Prospect, plus the allowance from Prospect, although like apparently many allowances, one didn’t find it in the industrial instrument. 

PN30.

You will hear some evidence from Mr Currey and Mr Greenhill about the circumstances in which this allowance continued to be paid, but was not found in the instrument and which ultimately led to Mr Greenhill writing to the union shortly after the 2008 New South Wales Integral Award was made, without reference to this allowance, confirming that it would continue to be paid in accordance with past practice.

PN31.

The union’s position is that one simply reads the words that are there, gives them, as one tends to do with awards to the extent necessary, a beneficial reading, but certainly don’t read words into it.  The contrast position of Endeavour is that one reads words into it by reading the words the position requires, adding the words by statute or, alternatively, by law.  One finds that their case is that what they apparently discovered in 2014 was that the proper way of reading this is to add those words in and then go to the legislation and work out which positions are strictly required to hold or not hold the licence.

PN32.

While there are many areas of disagreement between the parties, there are areas of agreement between them.  One of them, as I read it anyway – I hope this is right – if we read the competing written contentions of both parties, there is a meeting of the minds as to the statutory regime and how it works.  That is that now, as I might add has been the case since the time these allowances first came in, there is an exception in the statutory obligation to hold a licence that one finds in the legislation.

PN33.

The statutory obligation to hold the licence is one that one might readily infer is there to ensure that work done on wiring, whether in domestic homes or businesses, offices or otherwise, is done by people who have got the appropriate skill and knowledge to do so and to do so in accordance with standard wiring rules.  The legislation has always had an exception and the exception in the broad is that the obligation does not extend to the assets of an electricity company, in the broader since, now the distributors.   The exact language has changed, such that the poles and wires that one sees in the streets and in the substations and the like are not wiring which would capture the obligation to have a licence.  What that means is that there is some degree of - - -

PN34.

THE SENIOR DEPUTY PRESIDENT:   This goes right back.  This isn’t a recent phenomenon, this carve out?

PN35.

MR TAYLOR:  The carve-out goes right back.  There has been, in more recent times, some refinement of the carve-out and that’s set out in the written submissions.  There has always been a carve-out for electricians who are employed by electricity companies when working on the assets of an electricity company.

PN36.

Where the parties are really in dispute is whether one can read into these words, “requires by statute or by the law of New South Wales” or whether the word “requirement” would be given a broader meaning to include, for example, the employer itself requiring it.

PN37.

THE SENIOR DEPUTY PRESIDENT:   Isn’t there a more obvious reading, which is that it’s – I mean the duties of a position are determined by the employer. Obviously he might have to meet certain statutory obligations, but it’s up to the employer how he will design his jobs.  The employer might, even if he’s not required to by statute, say “I want people to do this job.  I want them to have a licence” because that’s proof, if you like, that they’ve got the relevant skills and experience.  Equally they don’t have to, except to the extent that some other obligations require that.  For example, the statute is that you can’t do the job if you don’t have that licence.  Effectively, in an immediate sense, it’s up to the employer, isn’t it, to decide whether they require you to hold the licence.

PN38.

MR TAYLOR:  Your Honour has identified the very next step of what I was about to deal with, which is this, that we say “require” at the very least would extend to “require” by the employer, even if not by statute.  What your Honour will find when we get into the evidence is that witnesses have been appointed to positions in circumstances where the job ad required them to hold the licence.  The position description required them to hold the licence, but the employer says you are not required to hold the licence.

PN39.

THE SENIOR DEPUTY PRESIDENT:   I don’t think it’s in dispute that in the past the employers required some people to have the licence.  I think the evidence is pretty overwhelming.  I don’t think there’s any doubt about it.  There’s no doubt that many people have had to have this licence to work for Integral, Endeavour, whatever.  That’s all very well and good and those people were entitled to the allowance because they were required to have the licence.  This is the key question for me, is what’s to stop the employer saying, “Well, we just don’t need you to have the licence anymore”.

PN40.

MR TAYLOR:  If the job is different, then that might be explicable.

PN41.

THE SENIOR DEPUTY PRESIDENT:   It could be.  I am being quite frank with you.  This seems to me a critical issue anyway, is that the employer may have chosen for its own reasons to require people to have a licence.  For most of these jobs, it sounds like there was no reason under the electricity regulations, under statute, that these people had to have a licence, but it decided that they should have a licence because that was a way of being competent, I assume.  I mean for whatever reasons they did but most logically it would be so they could be confident these people were proper electricians who knew what they were doing.  Because there was this licencing regime which had certain requirements, they said, “Well, if you meet those requirements and you get that licence, then that’s what we want you to have to do this job”.  That’s a choice they’ve made.  Why couldn’t it choose to say, “Now we don’t need that.  We don’t need you to have the licence.  We will have other ways of assessing whether you’re capable of fulfilling the duties of a position”. 

PN42.

All the history stuff is all very interesting.  I am not saying it’s irrelevant but it doesn’t necessarily mean that just because they’ve required it in the past, they have to require it in the future, well, not obviously anyway.  I will be frank, this is one of the issues for me.  You’re going to have to persuade me about it.

PN43.

MR TAYLOR:  We come to the three questions but, in short, the position of the union is that once someone has been appointed on the basis that they are required to have the licence, then one wouldn’t read the employer’s right, without changing the duties, without changing the role or responsibilities, to simply remove that by simply rewriting the PD.

PN44.

THE SENIOR DEPUTY PRESIDENT:   Why not?  I mean because often people, especially if you’ve worked in a place for 20 or 30 years, the job you originally applied for, you know, everybody has changes in their position descriptions and their duties and maybe even the qualifications.  They might have required you to have a degree and now they don’t require you to have a degree.  These things change over time.  Are you saying this is a contractual matter, as a matter of contract?  It’s part of your contract that you have this licence?

PN45.

MR TAYLOR:  Our position is that one thing that your Honour isn’t determining, either for or against any individual, is what contractual entitlements they have.  And so your Honour might be for us.  Your Honour might be against us.  That can’t, we say, affect an individual’s contractual obligation.

PN46.

THE SENIOR DEPUTY PRESIDENT:   No.

PN47.

MR TAYLOR:  Those individuals who receive job offers and there are those individuals who receive job offers which stated that they would get the allowance, will not have their contractual position affected by this decision.  We make that clear in a document that I am about to come to.

PN48.

THE SENIOR DEPUTY PRESIDENT:   I mean there’s clear difference between – well, arguably there’s a difference between saying, “As part of this job, you will get this allowance” and saying, “As part of this job, we want you to this licence”.  It so happens that under the agreement, if you have that licence you get this allowance, but you could argue that that’s different.  I mean it seems a bit odd to say that it’s a contractual entitlement of an employee to have to have a licence. 

PN49.

MR TAYLOR:  Yes.

PN50.

THE SENIOR DEPUTY PRESIDENT:   It’s actually an obligation the employer is imposing on someone.  It’s not an entitlement you’ve got.  I do think we need to deal with that issue.

PN51.

MR TAYLOR:  We do need to deal with it.

PN52.

THE SENIOR DEPUTY PRESIDENT:   Maybe later rather than now.

PN53.

MR TAYLOR:  We deal with it by way of that this issue is thrown up, we say, by the three questions.  Our case is that one reads the words, “position requires”, objectively not subjectively, that is that one wouldn’t have entitlements to allowances which are integral to the rate of pay, which can be added or subtracted by the subjective view of the employer as to whether the position requires it.  Our case is, at its most basic, that what your Honour is deciding is whether positions which carry with them the need to have the skill and experience necessary, are entitled to the allowance.

PN54.

THE SENIOR DEPUTY PRESIDENT:   Isn’t the issue – I mean it is one thing to say it’s subjective, as in if you really do need the licence to do the job.  Your employer can’t just say, “Well, we don’t require it but actually it is really necessary, objectively it’s really necessary”.  Then I could see if it’s not a subjective thing for the employer to say, “Well, we’re just pretending, as it were, that it’s not necessary”.  In fact, objectively it is necessary.  You’re saying that isn’t there a distinction between - and I guess is getting closer to the nub possibly of what the issue is - you’re saying you’re not adding in words, but arguably you are because you’re saying it’s not having to have the licence.  It’s having to have that skills and experience that you would need to have to get the licence.  You know, you might qualify for the licence by having those skills and experience, but it doesn’t say in this you’ve got to – it says you’ve got to hold the qualification and fulfil the duties.  Arguably it could have said you have to have the skills and experience necessary that would qualify you.  It could have said that but it doesn’t.

PN55.

MR TAYLOR:  There’s no doubt it could have been clearer.

PN56.

THE SENIOR DEPUTY PRESIDENT:   Maybe it is clear.  That’s the argument.  Maybe it’s very clear and, in fact, it’s just not what you say it says, but it’s quite clear in fact.  I am not saying I’ve formed a view on any of this obviously.

PN57.

MR TAYLOR:  I understand.  I understand.

PN58.

THE SENIOR DEPUTY PRESIDENT:  These are the issues that I want you to address at some point.

PN59.

MR TAYLOR:  Certainly for our part we say that when a position requires fulfilment of duties, what it is talking about are positions which are positions that the duties of which require someone that has the skills and experience of a licenced electrician.  The fact that the statute has a certain exception, which means that a position which no sensible employer would fill other than with a licenced electrician, can, as a matter of statute, not have a licenced electrician, doesn’t mean that this allowance isn’t payable. 

PN60.

You will hear evidence about this but if we’re talking about positions where knowledge of the wiring rules is an important part of doing the position, then the fact that under the statute there is an exception if people need to know the wiring rules, but it’s not a primary part of their role, doesn’t exclude the person from the entitlement.  Because if there is a position which, as part of its duties, requires knowledge of wiring rules in order to be done properly and safely, then it’s not for the employer to wish away the allowance by simply removing a longstanding position description requirement. 

PN61.

Now, whether in fact various positions still require it by way of Endeavour’s own position descriptions is a matter that has to be examined on a position-by-position basis.  There are a number of positions wherein there is a stated obligation in whatever material we have been able to obtain from them, requiring the holding of the licence, which Endeavour says, “No, but the statute doesn’t require it”, and so we are apart in that area.

PN62.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN63.

MR TAYLOR:  Can I come to the three questions, because if one examines them, it really throws up these three different ways of approaching the interpretation.  The first question is the question which identifies the issue that your Honour has raised as a potential way of reading the clause, that it is a position which where the requirement emerges from a requirement of the employer itself.  If this is answered positively, that is those employees whose positions were advertised as, or whose letters of appointment or position description at the time of appointment nominated them, then all of the positions in annexure A and annexure B we say will then be entitled to the allowance.

PN64.

There is evidence from position descriptions, letters of offers and advertisements that will come before you, some of them annexed to witness statements, and some of them we will tender from materials that have been produced by the employer in answer to an order to produce materials.

PN65.

The second question adopts the narrowest view, the view that’s put forward by the employer, that is the employer contends that it is only employees who principally perform work on consumer installations and wiring who are entitled to the allowance, because that is the statutory obligation, regardless of whether there are positions – and counting positions wherein some work is required on consumer installations and wiring but is not said to be the principal part of the work.  That dispute is limited to the positions in annexure A.  In other words, whilst the union hasn’t at any time excluded the possibility that they have overlooked a position that should be in annexure A, there are, I just interpose, a number of positions wherein there’s only one or two people in the entire organisation that have that position title.  So it is possible that some have been overlooked, but as best as the union has been able to do, it has identified that the positions in annexure A are ones which would meet the employer’s limited definition.  Initially there was resistance to a number of those positions, but that has reduced and there are only now three positions in dispute.  I will identify what they are in a moment by reference to a schedule at the back, but there has been concessions that a number of those positions are entitled to the allowance on the employer’s interpretation.

PN66.

The third question adopts the union’s contention as to the way one reads the clause, meaning that if the position requires the qualification, that that is the position where the adequate discharge of the role requires the employee to have qualifications and experience necessary to get the licence.  That is what it’s there for.  It is intended to be, on the union’s case, no more or no less than a margin for skill, as it always was.  Where people have the qualification and they are an electrician and they’re working in a role that requires them to use their skill and knowledge, then they would be entitled to the allowance as they have traditionally.

PN67.

This can be evidenced, we say, by asking yourself this question, your Honour, if in fact virtually every electrical mechanic or fitter employed by this organisation has the licence and if, in fact, that is because the way it’s worked is that they’ve come through the apprenticeship and at the end of the apprenticeship they were required to go and get the licence and obtain it, then if that is the case then does that not help you come to the view that the proper way of reading this clause is that it is an allowance which is supposed to be paid to all these people who the organisation has encouraged, indeed required, to get the licence.

PN68.

Can I just identify now what the documents are behind tab 6 in the bundle.  There was some correspondence between the parties wherein Endeavour asked for what it referred to as further and better particulars of the questions.  Whilst at first glance that seemed an odd thing to do, the response, which your Honour will see the letter of 13 November 2014, is I would suggest a useful document for your Honour to have reference to and to be read in with the submissions of the union, because the response in that letter of 13 November clarifies the basis upon which the union is proceeding in this matter and the way in which your Honour might approach the questions.

PN69.

The first thing I highlight in that letter of 13 November is the first paragraph under the heading, “Overview”.  Your Honour will note there that the union contends to three separate factual bases upon which an entitlement to the allowance arises, represented by the three questions.  As would be clear to your Honour already, they’re not mutually exclusive.  If your Honour takes the view that all three categories in fact give rise to the allowance, then someone could be entitled under all three.  That paragraph goes on to note that there is a separate and additional capacity for entitlement to arise as a matter of individual contract and as I have made clear earlier, we say your Honour isn’t having to deal with that issue.

PN70.

In respect of question 1, the paragraph at the top of page 2 identifies the union contention that the positions that Endeavour Energy filled on the basis of the position must be held by a person who holds a licence, are positions where the requirement are the sort that qualifies the employee for the allowance and that that is the case, regardless of whether the position is one that requires a licence as a matter of statute.  The answer then goes on to identify the types of material which would demonstrate that certain positions meet that requirement, if that is one aspect of the requirements that’s said to be the proper interpretation of the clause.

PN71.

In respect of question 2, the letter identifies that even on Endeavour Energy’s view as the limited application of the allowance, it’s payable to those positions where a principal part of the duties of the position involves work on consumer installations.  It then identifies exactly how that arises under the statute and, as I earlier identified, it is those in annexure A which fall into that category.

PN72.

Your Honour, before I turn to the evidence, an overview of the evidence, can I just identify two other matters where your Honour will hear some difference of views.  The first is a proposition which emerges from the employer submissions and evidence that there is something in the order of double dipping involved when electricians obtain the ELA and also another allowance, which is well familiar to your Honour, known as the Electrical Safety Rules Allowance or ESRA.  At issue is whether they are indeed allowances for the same thing or, as the union will contend, allowances for quite different things. 

PN73.

The union’s case is that the ESRA allowance, which is not unique to electricians by any means, is an allowance for knowledge of rules that deal with working safely on the network, whereas the ELA is directed at qualified electricians who need to have knowledge of something quite different and much more extensive than the material in ESRA, and that is the wiring rules.  Whilst they are very large and detailed and therefore I almost hesitate to provide them to your Honour, they are going to be a feature of this proceeding and I take the opportunity to hand a copy of the wiring rules to your Honour now.

PN74.

THE SENIOR DEPUTY PRESIDENT:   We probably don’t need to formally tender them.  Do we need to formally tender them in evidence or can we just ‑ ‑ ‑

PN75.

MR TAYLOR:  I do wish to tender it, your Honour.

PN76.

THE SENIOR DEPUTY PRESIDENT:   We may as well mark them now.  The wiring rules AS/NZS 3000:2007 are CPU1.

EXHIBIT #CEPU1 WIRING RULES AS/NZS 3000:2007

PN77.

MR TAYLOR:  I referred, I think, earlier to these rules.  These are detailed requirements for how to safely do electrical wiring work, whether that is in a home, an office or otherwise.  There are obvious reasons why wiring work is always done in the same way.  So that when one is maintaining wiring, as a licenced electrician, you have a proper expectation as to what each wire is going to represent and how it’s been done and to ensure the safety of all those who come into contact with plugs and the like.  These are materials which are not dealt with in ESRA.  This is not something that ESRA is dealing with.  ESRA is dealing with the network.

PN78.

One other aspect of this case I just highlight at this stage before I come to the evidence of the second aspect, the employer’s outline of submissions at paragraph 39 take a view that to give the words proper meaning, that is to fulfil the duties of the position, one would need to go beyond the formal requirements of each position and look at the actual day-to-day duties of each particular employee.  We take a different view, lest we have to call 700 witnesses.

PN79.

THE SENIOR DEPUTY PRESIDENT:   Yes, I was thinking how we’re going to do that.

PN80.

MR TAYLOR:  We take a different view.  We say that your Honour will be able to determine the question of whether certain positions are positions which fall in or out of the interpretation your Honour prefers by dint of position title, having heard the evidence.  One thing that will be immediately apparent to your Honour once we get into it is that the union is not attempting to lead evidence as to every position in annexure B.  There’s a reason for that.  The parties have agreed to pick a subset of those positions and use them as exemplars and hence the only positions in annexure B that are the subject of evidence are five positions. 

PN81.

If your Honour takes a broader view than the employer’s case, then your Honour will then turn to those positions and consider whether they are positions which fall within the meaning of the clause.  It is the parties’ understanding that, having done so, they will then be in a position to look at the rest of annexure B to see whether there’s any reason why any of the balance of the positions would take a different view.

PN82.

I should say, I forgot to mention this about annexure B, annexure B to the questions is not every position which, at the time the dispute was notified in June, was receiving the allowance.  Annexure B does not include those positions wherein the persons who are receiving the allowance have moved into positions that might be generally referred to as office based positions, where the person is no longer needing to have the knowledge and skill of an electrician.  For our part, the union understood that in light of your Honour’s recommendation, annexure B was a trimmed version which reflected those positions which it says are positions where the duties of the position do require knowledge of electrical wiring rules and knowledge and skill of the sort that one has to have in order to get the licence.

PN83.

Let me turn now, your Honour, to identifying an overview of the evidence.  By reference to the last document in the folder, the tender bundle behind tab 7, it’s a schedule.  It lists the annexure A positions and the agreed exemplar positions from annexure B.  You will immediately see, your Honour, that a number of the positions were either conceded from the outset - there were four of those – or have subsequently been conceded by Endeavour between the time the proceedings commenced and now, such that in respect of annexure A, being those positions which even on Endeavour’s narrow interpretation, the union says should be entitled to the allowance, one finds there are three positions left in contest, EFM Inspections, EFM service lines and electrical safety inspector.

PN84.

The evidence as to those positions is limited.  The evidence of Mr Dale, who is not being required for cross-examination in reply, deals with positions number 2 and 3.  And we’ve been told yesterday that Mr Langdon, while he hadn’t given evidence to those positions, they intend to lead some evidence-in-chief from him about them.  The position in respect of electrical safety inspector I will need to confirm but my recollection is that there is either little or no evidence at this stage about that position, which appears to be held by one person.

PN85.

The exemplar positions for annexure B, you will see there number 12 to 16, one of them, the emergency service officer, was included in both annexure A and annexure B.  It was a position at one point in dispute but now conceded.

PN86.

THE SENIOR DEPUTY PRESIDENT:   Just to be clear, the employer agrees that all the people under annexure A that are listed there, all that 1 to 11, those positions, those classifications, even on their reading, would receive the allowance.

PN87.

MR TAYLOR:  No, your Honour.

PN88.

THE SENIOR DEPUTY PRESIDENT:   Sorry.

PN89.

MR TAYLOR:  All except for positions number 2, 3 and 6.

PN90.

THE SENIOR DEPUTY PRESIDENT:   I see.  Sorry.  Okay.

PN91.

MR TAYLOR:  Those positions, 2, 3 and 6, are not conceded and the positions 2 and 3 are the positions in which I identified that the evidence is limited to some reply evidence from Mr Dale and some evidence that we are told Mr Langdon will give in-chief, but is not in the written evidence that’s been filed.  As to position 6, what I said to your Honour earlier, is that as best as I can recall, neither party has put on evidence yet about what appears to be a position held by one person.  Those positions are not conceded.

PN92.

I was moving now to the annexure B exemplar positions.  These are the positions which the union says are entitled to the allowance.  Certainly on its interpretation, each of these positions are ones which, on the union’s case, they are held by people who are all or overwhelmingly licenced and are held by people in respect of whom the duties of those positions are ones where they need to have the skill and experiences which are reflected by the licence.  They are also positions, on the union’s case, in respect of which Endeavour has required a licence at the point that they were appointed.  In some cases, the evidence as to whether that’s remained the case or not is something that’s going to have to be dealt with on a position-by-position basis.

PN93.

What this schedule attempts to assist your Honour with is to identify which witness that your Honour’s going to hear from is relevant to which position.  Not all our witnesses are required for cross-examination, but we have listed in the third column the witnesses against the positions in dispute.

PN94.

The next column, “Number of employees receiving the ELA in this position”, we are working there off the last piece of information we got from the company, but that information which is annexed to Mr Currey’s statement is, we accept, something that was provided at a very early stage of the dispute.  It may well be the numbers have changed in that time but, as far as I am aware, the company hasn’t put on any evidence itself identifying the numbers for each position that postdates that material being provided by the company to the union.

PN95.

Then the last column just has some notes which we say assist your Honour just to understand what the evidence otherwise reveals.  The customer safety officer, we say the evidence will reveal is the same as an installation inspector and that the emergency service officer is often referred to as an EMSO, E-M-S-O.

PN96.

The evidence of the union in addition to the witnesses that are identified in that schedule, there are two further witnesses of the union who give evidence that is not specific to particular positions, but rather evidence about the history of the industrial instruments.  That’s Mr Currey and he will be our first witness.  He will also give evidence about the background to the dispute.  Another witness, whose name doesn’t appear there, is Mr Harris.  He also gives some evidence about the history of the allowance and particularly about the requirements of the licence.  He is not required for cross-examination. 

PN97.

Can I now indicate those witnesses that we understand are not required for cross‑examination and tender their evidence.  I don’t have it in a convenient bundle, so I hope your Honour is able to locate the relative statements.

PN98.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN99.

MR TAYLOR:  The first statement that I wish to tender is that of Mr Colin Harris.  He has been one statement.  There has been one statement filed in respect of Mr Harris dated 29 September 2014.  It’s a three-page statement, with 12 paragraphs.

PN100.

THE SENIOR DEPUTY PRESIDENT:   I’ve got an unsigned version that was received on 23 September, so it may view exactly the same.

PN101.

MR TAYLOR:  I have a signed version which is unchanged, dated 29 September, hand dated 29 September.

PN102.

THE SENIOR DEPUTY PRESIDENT:   Are you able to give me copies of the signed - - -

PN103.

MR TAYLOR:  I will.

PN104.

THE SENIOR DEPUTY PRESIDENT:   Anyway, Mr Harris is - - -

PN105.

MS NOMCHONG:  Before it’s tendered, your Honour, can I say this.

PN106.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN107.

MS NOMCHONG:  Mr Taylor and I have been in discussions about the nature of the evidence and we both appreciate that objections could be taken to the hearsay evidence, the quality of the evidence.  If I am correct, we will come to some particular clauses in a moment, but generally we would like to put on the record that we note that there are a lot of what we would say sub-quality evidence, in the names of hearsay.  We are not taking the objections formally but we would appreciate your Honour noting on the record that it will be afforded the weight in the Commission’s experience by looking at the material.  So if there are statements which are broad-based, not backed up by any documents or such like that, then you would treat those sorts of statements with caution.

PN108.

THE SENIOR DEPUTY PRESIDENT:   Yes, I can indicate that.

PN109.

MS NOMCHONG:  Thank you.

PN110.

MR TAYLOR:  I hear what my friend says.  We would make a similar submission, of course, about the various parts of Endeavour’s evidence.

PN111.

THE SENIOR DEPUTY PRESIDENT:   Yes, obviously it applies to all the evidence.  Also it would be helpful if it’s on an important point that in your closing submissions you point to areas where you say I really shouldn’t be relying on things, because you think they’re just hearsay or vague or unsupported.

PN112.

MR TAYLOR:  Can I add, an unsurprising submission, that to the extent to which there is evidence going forward which is not the subject of cross-examination, then weight will be accorded, arising from that fact.  If the matter is going in uncontested, then that doesn’t prevent your Honour from finding contrary to a witness if there was other material, but it certainly assists your Honour that that material hasn’t been contested when weighing up any evidentiary contest.

PN113.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN114.

MR TAYLOR:  I have with me a stamped copy of the statement of Colin Tannock, T-a-n-n-o-c-k, Harris, which is dated by hand on the third page, 29 September, and I hand that to your Honour.

PN115.

THE SENIOR DEPUTY PRESIDENT:   Mr Harris’s statement of 20 September is CEPU2.

EXHIBIT #CEPU2 STATEMENT OF COLIN TANNOCK HARRIS DATED 29/09/2014

PN116.

MR TAYLOR:  The next statement I tender is that of Mr Webb.  Mr Webb has one statement, Christopher Phillip Webb, Phillip with two Ls.  That is a statement that is signed on 22 September 2014, three pages with attachments.

PN117.

THE SENIOR DEPUTY PRESIDENT:   All the ones I’ve got are the unsigned version, so if you’ve got a signed version, I would appreciate it.

PN118.

MR TAYLOR:  I’m sorry.

PN119.

THE SENIOR DEPUTY PRESIDENT:   Christopher Webb’s statement of 22 September is CEPU3.

EXHIBIT #CEPU3 STATEMENT OF CHRISTOPHER PHILLIP WEBB DATED 22/09/2014

PN120.

MR TAYLOR:  The next two statements are statements of Mr Gibson, Andrew Phillip Gibson, Phillip with two Ls.  There is a statement and a reply statement.  The statement is 22 September 2014, four pages, and the reply statement is 20 November 2014, a single page.  I hand those two documents.

PN121.

THE SENIOR DEPUTY PRESIDENT:   Mr Gibson’s first statement is CEPU4, and his reply statement is CEPU5.

EXHIBIT #CEPU4 STATEMENT OF ANDREW PHILLIP GIBSON DATED 22/09/2014

EXHIBIT #CEPU5 REPLY STATEMENT OF ANDREW PHILLIP GIBSON DATED 20/11/2014

PN122.

MR TAYLOR:  Finally, two statements of Mr Allan - A-l-l-a-n - Keith Dale - D‑a‑l‑e.  The first two-page statement signed on 22 September 2014 and the second, a reply statement signed on 24 November 2014.

PN123.

THE SENIOR DEPUTY PRESIDENT:   Mr Dale’s first statement is CEPU6, and his reply statement is CEPU7.

EXHIBIT #CEPU6 STATEMENT OF ALLAN KEITH DALE DATED 22/09/2014

EXHIBIT #CEPU7 REPLY STATEMENT OF ALLAN KEITH DALE DATED 24/11/2014

PN124.

MR TAYLOR:  Your Honour, that then takes us to the first witness required for cross-examination, that is Mr Brad Currey, C-u-r-r-e-y, and whilst Mr Currey is coming, unless there’s other matters that need to be dealt with, I call Mr Currey.  Your Honour, there will be two statements of Mr Currey that I will be tendering, they are statements signed on, in the first case, 24 September 2014 and the second case, 3 November 2014.  I have copies of those to provide to your Honour and I also have extra copies for my friend because Mr Fagir tells me that these copies have been paginated, whereas the previous ones haven’t.

PN125.

I see that our other witnesses have left the Commission.  I now call Mr Brad Currey.

<BRADLEY JOHN CURREY, SWORN                                           [11.10 AM]

<EXAMINATION-IN-CHIEF BY MR TAYLOR                            [11.10 AM]

PN126.

MR TAYLOR:  Your name is Bradley John Currey?---That’s correct.

PN127.

Is your work address Level 5, 370 Pitt Street, Sydney?---That’s correct.

PN128.

Are you employed as an organiser by the Electrical Trades Union of Australia, New South Wales Branch?---That’s correct.

PN129.

Have you prepared for the purpose of these proceedings and signed two statements?---That’s right.

PN130.

Do you have copies of those statements with you?---I do.

PN131.

Starting with the first statement titled simply, “Statement of Bradley John Currey” and dated 24 September, by hand, do you say the contents of that statement are true and correct to the best of your knowledge and belief?---I do.

**** BRADLEY CURREY XN MR TAYLOR

PN132.

I tender that statement.

PN133.

THE SENIOR DEPUTY PRESIDENT:   That statement is CEPU8.

EXHIBIT #CEPU8 STATEMENT OF BRADLEY JOHN CURREY DATED 24/09/2014

PN134.

MS NOMCHONG:  Just to rise to my feet at that point, your Honour, and just say that in particular we would like you to note that we will be making submissions about paragraphs 16 and 17 of Mr Currey’s statement, on the basis that it is subjective intention in relation to what he thought the clause meant, is to be treated with a high level of caution.  Mr Taylor will be saying the same thing about particular clauses in my witnesses’ statement, but I thought I had better put it on the record, your Honour.

PN135.

MR TAYLOR:  My friend is correct as to anticipating objections.  There’s a couple of aspects of Mr Greenhill’s evidence that go even further, and we will take objection to those.

PN136.

Now, can I move on, Mr Currey, to the statement.  It’s titled “Reply Statement of Bradley John Currey”.  It’s dated 3 November 2014.  Do you say that the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑I do.

PN137.

THE SENIOR DEPUTY PRESIDENT:   Mr Currey’s reply statement is CEPU9.

EXHIBIT #CEPU9 REPLY STATEMENT OF BRADLEY JOHN CURREY DATED 03/11/2014

PN138.

MR TAYLOR:  Mr Currey, at paragraph 21 of your first statement you annex a document marked VJC8, which you say is a copy of a list of classifications that currently receive the ELA, including the number of employees in each classification.  You don’t say in that paragraph the source of that information or how it came to be compiled.  Could you tell his Honour what the background to that document is?---The background came out of the initial dispute conciliation that we have been going through that was provided to myself and the ETU by Endeavour Energy.  I believe it was by Ms Janelle Sheather that provided it.  The table that you see is a consolidated version of what was provided to us.  What they had provided to us was an Excel spreadsheet with 783 different lines on it.  So each classification, or each employee, was under one classification.  So if you see, for an example, one classification might have 108 employees against it.  That’s why we just, for ease of understanding, we just consolidated it down, that was all.

PN139.

Beyond consolidating 108 EFM entries into a single EFM entry with 108, did you otherwise alter the document by adding or subtracting any classifications?---No.

**** BRADLEY CURREY XN MR TAYLOR

PN140.

Thank you, your Honour.  They’re my questions.

<CROSS-EXAMINATION BY MS NOMCHONG                          [11.14 AM]

PN141.

MS NOMCHONG:  Just before I start, Mr Currey, I just wanted to take you to your reply statement, which is CEPU9, and just ask you – and I think that these are just simply typographical errors – if I can ask you to go to paragraph 28.  Paragraphs 28(b), (c), (d), (e) and (f), all have dates referenced to 2014.  Should they be 2013?---I will just have to check the annexure.  Yes, I believe so.

PN142.

Thank you.  Would you like his Honour to change those dates on the record that he has?

PN143.

THE SENIOR DEPUTY PRESIDENT:   Is this in all paragraph 28.  I didn’t quite catch it.  Are you saying that all those – that is really 2013?

PN144.

MS NOMCHONG:  Only subparagraphs (b) through to (f) should be changed to 2013, your Honour?‑‑‑Referring to 26 August 2013.

PN145.

Mr Currey, this is a dispute, as you’ve heard Mr Taylor say, about an allowance in relation to an electrician’s licence.  I think that we might be in agreement about the requirements that one has to have about getting a licence.  So you would agree with me that first of all the licence is issued by the Department of Fair Trading in New South Wales; is that correct?---Yes.

PN146.

In order to get the licence, you need to have three things.  First of all, you have to have trade qualifications, and that’s usually a Certificate III in Electrotechnology or an equivalent, say university degree.  But most commonly people get a trade certificate through a four-year apprenticeship; would you agree with that?---Yes.

PN147.

Then having got their qualifications, what they do is that they get a Certificate of Proficiency from the Department of Education; you’d agree with that?---Yes, a craftsman’s certificate, I think, is what my understanding of it is, after their apprenticeship.

PN148.

Then they give that document to Fair Trading to prove that they have their trade qualifications?---Along with their evidence of - - -

PN149.

I am going to come to the others as well?---Yes.

**** BRADLEY CURREY XXN MS NOMCHONG

PN150.

The second thing the person has to prove to the Department of Fair Trading is that they’ve had at least 12 months relevant electrical wiring work, utilising a knowledge of the wiring rules; you’d agree with that?---Sorry, what was – could you repeat it?

PN151.

Twelve months work experience, in particular, having reference to experience of work using the wiring rules?---Post their apprenticeship.

PN152.

Yes, that’s right?---Yes, I believe so.

PN153.

The third thing they do is they pay a fee, currently $209; did you know that?‑‑‑I wasn’t aware of it.

PN154.

There’s no test that a person has to sit with Fair Trading in order to get their licence, is there?---Not with Fair Trading, but they have to pass the electrical wiring rules test, the Capstone test, to be able to qualify for it.

PN155.

All of the qualifications are gained before you make the applications for a licence, the knowledge, the skill, everything is gained before you get your licence?‑‑‑Obviously, yes.

PN156.

THE SENIOR DEPUTY PRESIDENT:   Just to be clear, so the only qualifications you need, apart from the 12 months’ experience, are what you need to get your Certificate III.  There’s no like post-trade qualifications you have to do.  You get your Cert III, which is a trade qualification.  You don’t have to do any other - - -?---That’s a prerequisite to then sit - - -

PN157.

Yes, but you don’t have to do any other training?---Apart from sitting the electrical wiring rules exams and the Capstone test to pass that.

PN158.

Sorry, when you say “to pass that”, sorry, I’m a bit – be clear with me, I really don’t know the answer to this?---To my understanding, your Honour, they’ve got to have completed their apprenticeship, successfully completed their apprenticeship.  They would have to pass the electrical wiring rules, the Capstone test, which is - - -

PN159.

Is that part of the apprenticeship?---No.  No, it’s over and above, yes.  So in my view I see that as an extra competency and skill that they have to demonstrate.

**** BRADLEY CURREY XXN MS NOMCHONG

PN160.

What is it again?  It’s electrical wiring test?---Yes, I believe it’s known as the Capstone test, and demonstrating their acceptance and proficiency in both their apprenticeship and that, then they can make their application to Fair Trading.

PN161.

MS NOMCHONG:  The fee is a one-off fee, isn’t it?---I believe so.

PN162.

You’d agree with me that the licence is an indicator to members of the public that the holder of the licence has completed the relevant apprenticeship, study, training, and has proficiency to work as an electrician?---I wouldn’t say it’s an indicator to the general public.  I think it’s a requirement under the licencing in carrying out that type of work to work within the bounds of the legislation.

PN163.

But the skill doesn’t arise from the fact that you have the licence.  The skill arises from the fact that you’ve completed all of this training before you apply for the licence; you’d agree with that?---Yes, well it’s what comes first, the chicken or the egg.  You’ve got to be able to pass that to get a licence.

PN164.

You mentioned just a moment ago that the requirement is something to do with a regulatory screen.  Can I show you the webpage from New South Wales Fair Trading about what you need to do to get a licence, and I will hand one up to your Honour.  Are you familiar with this website, Mr Currey?---No, I’m not.  I understand it is the Fair Trading website, but I don’t visit it regularly.

PN165.

You didn’t look at it for the purposes of this dispute or this arbitration?---No.

PN166.

You can see what it says in relation to it at the top:

PN167.

An electrical licence is required before any electrical wiring work can be undertaken in New South Wales, regardless of the cost of the work and regardless of whether the work is residential, commercial or industrial.

PN168.

You’d agree with that?  That accords with your information?---Yes.

PN169.

Then underneath the title, “Electrical wiring work”, it says, “Electrical wiring work is” – it’s a term of art, isn’t it.  It’s defined by the Home Building Act 1989 for licencing purposes; you’d agree with that?---Currently, yes.

PN170.

Then it refers to the wiring rules and thereby reference to an Australian standard, and you’re familiar with that?---(No audible reply)

**** BRADLEY CURREY XXN MS NOMCHONG

PN171.

Then this legislative scheme that you heard Mr Taylor talk about, this is all contained in here and it works in this way.  So electrical wiring work means ‑ ‑ ‑?‑‑‑Sorry, I heard Mr Taylor talk about?

PN172.

Yes, in his opening.  Did you listen to his opening, Mr Currey?---No, I was outside the room.

PN173.

I’m sorry.  Put it this way, you would agree with me that electrical wiring work is a term under the legislation, that is it comes from the Home Building Act; you would agree with that?---Yes.

PN174.

It means the actual physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervision of that work.  You’d agree with that?---That’s my understanding, yes.

PN175.

For your Honour’s benefit, that comes from section 3 of the Home Building Act.  And electrical installation, generally speaking, means any appliances, fittings, apparatus used for the conveyance or control of electricity, but it has an exemption, doesn’t it.  It says that electrical installation will not include any such apparatus owned by an electricity supply authority or located in a place that is owned or occupied by an electricity supply company.  So you understand that?‑‑‑It says that, yes.

PN176.

In a sort of shorthand way, electrical wiring work is really what we will call consumer installations, rather than network installations; would you agree with that?‑‑‑That’s what it says.  I believe that the evolution of the Act, in my personal belief from what I have been instructed on and in the course of my work that I do because I am not an electrician by trade, is that the early Act provided for an exemption for the electrical distribution for work like the linesmen’s work and cable joining work which aren’t a Cert IV electrical qualification outcome.  It was never transferred properly with the evolution coming in to the Home Building Act.  I believe it’s – from my own personal belief, I believe it’s an oversight that’s been done but it’s a very dangerous oversight that if used incorrectly could be very risky to not only the person carrying out the work that’s not qualified, but to the consumers as well.

PN177.

The carve out of installations owned by the electricity supply officers, you have helpfully as an attachment to your statement, BJC5, attached an extract?---The original statement?

PN178.

I’m sorry?---The original statement for the 24th?

PN179.

The original statement, yes?---Yes.

**** BRADLEY CURREY XXN MS NOMCHONG

PN180.

In BJC5 there’s an extract of the Electricity Development Act and you will see that at clause 4, where it says “Electrical Installation”, it basically sets out almost the same definition that we now have in section 3 of the Electricity Consumer Supply Act, which is the one referred to on the Fair Trading website?---If I could just come back to my previous statement, that’s why I say “the original Act”, and the difference between this and where it’s evolved to is in subsection A, just after it says:

PN181.

Does not include any electricity supply main or service line of an electricity supply authority.

PN182.

Which is the reference I make to the linesmen or cable joiners on the network, not once it gets past the point of attachment to the consumer side or any other installation which is outside of your normal power lines.  That’s where I think in the Home Building Act, went that little bit further.

PN183.

That’s your personal opinion?---Yes, and that’s the way I read it, the difference between the original Act and the way the Home Building Act is written, because it doesn’t - - -

PN184.

Thank you.  Just for his Honour’s purposes - and I am not sure if I am telling your Honour something that you already know - a POA is a point of attachment, and that’s the point at which the network accesses either a consumer, industrial or commercial premises and so your Honour would say - - -?---Where the network stops and the consumers assets kick in and they could be varied in very different ways, very different installation structures.

PN185.

For example, it could be something as easy as the electrical wire we see coming from the power poles attaching to the front of the house, and where it attaches to the front of the house is the POA?---That’s right.

PN186.

It could be where the network goes underground and then the POA is where the underground wire meets the residential house?---Or it could be prior to the residential house.

PN187.

Or it could be prior to it?---It could be somewhere between the network and the residential or commercial structure or industrial structure.  It could be - - -

PN188.

So anything owned up-line, if I can put it that way, of the POA ‑ ‑ ‑?---So the network side.

**** BRADLEY CURREY XXN MS NOMCHONG

PN189.

- ‑ ‑ is the network, and anything down-line would be something we could call for shorthand, a consumer installation?---That’s my understanding, yes.

PN190.

What the Fair Trading website refers to in relation to the regulatory system is that you don’t need a licence for any electrical wiring work done on the network, do you?‑‑‑Currently, as the way it stands, I believe, yes.  That’s the way it could be read, that way.  Again, I say I believe it’s more the wrong way I think it’s being read into.  When you’re talking about the network and you’re talking about the poles and wires and the transmission through that, there’s no requirement for licences, but when you come to the electrical wiring definition of what is hands‑on electrical wiring, it goes a lot further than just what the poles and wires are up to the point of attachment.

PN191.

Your Honour, I won’t go to it but it may assist your Honour’s question of Mr Currey to read the qualifications and the different pathways that you can have in terms of the trade qualifications that are necessary in order to fulfil that.  May I tender that document, your Honour.

PN192.

THE SENIOR DEPUTY PRESIDENT:   Yes.  The extract from the New South Wales Fair Trading website is – let’s call it E1.

EXHIBIT #E1 EXTRACT FROM NEW SOUTH WALES FAIR TRADING WEBSITE

PN193.

MS NOMCHONG:  Thank you, your Honour. 

PN194.

May I have that document back now, Mr Currey?‑‑‑That one?

PN195.

Not only are installations owned by the electricity supply authority exempt from the requirement to have a licence to work on them.  That’s a very badly constructed sentence, Mr Currey, let me try again.  A person working on the network is not required to have an electrical licence by the New South Wales Department of Fair Trading, if they’re working on any installation, owned or operated or located in a place that’s owned or operated by the authority.  We’ve agreed with that, haven’t we?---That’s the way it reads, yes.

PN196.

In addition, there’s another exemption and that’s in clause 22 of the Home Building Regulation.  Your Honour, I wonder if at this point I might just hand up a volume of the relevant legislation, which might assist you.

PN197.

THE SENIOR DEPUTY PRESIDENT:   I think I’ve got this already.  I have actually already got one.

**** BRADLEY CURREY XXN MS NOMCHONG

PN198.

MS NOMCHONG:  Thank you.  Perhaps that folder could then be given to the witness so that he could follow.  May I take you, Mr Currey, to tab 8 of that volume, which is the Home Building Regulation 2004 and ask you to go to clause 22, which is on page 14, and the pages are at the bottom of the page.  What this regulations says and I won’t read it out to you, but it creates an exemption for licencing that is you can see that under subsection 2, it says - - -?---Sorry, which clause, 22 or 23.

PN199.

Clause 22?---Twenty-two.

PN200.

Do you have that, Mr Currey?---Yes, I found it, yes.

PN201.

Thank you.

PN202.

An individual who does electrical wiring work is exempt from the requirements of section 12.

PN203.

That is the requirement to have a licence.  And section 14 also, a requirement not to undertake electrical wiring work, as we’ve defined. 

PN204.

If the individual is employed by an electricity supply authority principally for the performance of work other than electrical wiring work, and the electrical wiring work concerned is done in the ordinary course of the employee’s duties.

PN205.

Are you familiar with that regulation, Mr Currey?---No, I am not.

PN206.

You’re not?---No.

PN207.

Are you aware that if an employee employed by Endeavour Energy has as their principal role electrical wiring work on consumer installations, they’d be required to have a licence, but if their principal role is actually working on the network and only doing some consumer installation electrical wiring from time to time, they’re not required to have a licence.  You’re familiar with that concept?

PN208.

MR TAYLOR:   Objection.  This is a matter that is in contest between the parties, and I’ve got no difficulty with my friend asking questions on the basis that this witness has certain common understandings as a precursor to going off, but I object to your Honour effectively getting a legal interpretation of the meaning of a regulation from witnesses, when he already said he hasn’t – is unaware of it.

**** BRADLEY CURREY XXN MS NOMCHONG

PN209.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN210.

MR TAYLOR:   I’ve got no difficulty with my friend asking him to assume that that’s right for the purpose of other questions, but I do object to a question that asked him to accept it is actually correct.

PN211.

MS NOMCHONG:   That wasn’t the intent of my question, your Honour.  It was really whether Mr Currey was familiar with this concept, and it’s because he uses these phrases “principally performs work” in his statement, and so I want to get him to acknowledge that he has an understanding of this concept, this exemption.  That’s why it’s referred to – that’s why those phrases are used.

PN212.

THE SENIOR DEPUTY PRESIDENT:   With all respect to Mr Currey, I’m not going to be relying on him for interpretation of the Act or the regulations.

PN213.

MS NOMCHONG:   No.  I understand that, your Honour. 

PN214.

Let me see if I can repeat the question, Mr Currey.  Are you familiar with the concept that if someone is principally performing electrical wiring work on the network and only occasionally doing work consumer installations, they don’t need a licence?  You’re familiar with that?---I wouldn’t agree with that, no.

PN215.

You’re not familiar with the concept?---Even occasionally, if they have to work on the consumer side they’re required to have a licence.

PN216.

That’s your understanding, is it?---Yes.

PN217.

Okay?---If they have to do anything.  You know, you can’t drive a car once if you don’t have a licence.  It’s the same thing.  If you’re going to work on the consumer side, whether it’s commercial, domestic or industrial, you need to be required to have a licence to carry out electrical wiring work.  I think that’s - in my limited understanding of it at 22(2)(a), it says the individual is employed by an electrical supply authority principally for the performance of work other than electrical wiring work.  Again, I come back to my understanding of it which would be for the poles and lines – the erection and installation of the power cable – power lines up to the point of attachment.  There’s a lot of other infrastructure that comes off, that is utilised through the network, so it’s hard to give a broad scope of the network.  The network isn’t just the poles and lines.  The power is supplied through substations which have a lot of protection equipment, which have a lot of intricate electrical wiring inside there.  So when you say, you know, the network, it’s a very broad statement, my understanding.

**** BRADLEY CURREY XXN MS NOMCHONG

PN218.

I’m going to suggest to you, Mr Currey, that the only employees at Endeavour who are required to have a licence are those who are principally on customer installations.  You would agree with that, wouldn’t you?---Personally, no, no.

PN219.

Now - - -?---Even if it’s from time to time or on a limited basis because it depends case-by-case.  You have people in certain areas – the large geographical nature of this franchise, when you get out in the regions you’ve got employees who are multi-skilling because of lack of resources.  So one classification, say, at Hoxton Park may do a different sort of work to the same classification at Nowra or Lithgow.  Do you understand what I’m saying?  Because there are limited resources there, they multi-skill, so they would be required to utilise those provisions of their licence.

PN220.

I now want to talk to you, Mr Currey, about the electrician’s licence allowance.  At paragraph 5(a) of your first statement which is exhibit CEPU8?---Sorry, are you finished with that?

PN221.

Yes, you can hand that back if you like, Mr Currey?---That’s all right.  Running out of room.

PN222.

Certainly.  In paragraph 5(a) of your first statement, you assert that the electrical licence allowance – and I’ll abbreviate that to ELA.  You’re familiar with that term?---Yes.

PN223.

First appeared in the Prospect County Council wages and salaried employees consolidated award in 1983, and that you have annexed an extract of that award at CEP – sorry – BJC3 to your statement.  Is that right?---Yes.

PN224.

On the second page of BJC3 we see at subparagraph 14 the electrician’s licence allowance?---Yes.

PN225.

It says that:

PN226.

         Employees who possess a New South Wales electrician’s licence and who in the course of their duties are required to work in situations involving electrical functions or the control or supervision of electrical functions shall be paid an allowance equivalent to the amount of the allowance prescribed in the Electricians State Award.

PN227.

Then it goes on to say what happens to a contractor’s licence, and then states that it’s all-purpose award.  Is that right?---That’s correct.

PN228.

You then attach the extract from the Electrician’s State Award at BJC4, and on the third page of that annexure we see about two-thirds of the way down the page, “Electrician’s Licence” and it says:

**** BRADLEY CURREY XXN MS NOMCHONG

PN229.

         Additional margin to be paid to an employee employed and working as a tradesman and possessing the electrician’s licence.

PN230.

Do you see that?

PN231.

THE SENIOR DEPUTY PRESIDENT:   Which page are we on, sorry?

PN232.

MS NOMCHONG:   Sorry, your Honour. 

PN233.

THE SENIOR DEPUTY PRESIDENT:   Is that 997 of the annexure?

PN234.

MS NOMCHONG:   Yes.  Page 997 at the bottom but in the paginated copy that Mr Taylor just handed to me a moment ago - - -

PN235.

THE SENIOR DEPUTY PRESIDENT:   I’ve got that, thank you.  Which was $5 a week at that time.

PN236.

MS NOMCHONG:   That’s right.  So it appears you’ve done some research into the beginnings of the ELA and its presence in various awards and agreements.  Would that be correct?---I’ve had some experience in it because before I was allocated in 2008 into the supply industry I was organising in the manufacturing – the metal industry which we did a lot with the maintenance employees within those industries.  So that’s where I was first exposed to it.

PN237.

Paragraph 5(c) of your first statement you say that the Electricians State Award didn’t define electrical installation work, but then the Electricity Act did, and we’ve already looked at that just a few moments ago.  That’s annexed to your statement at BJC5.  That’s right, isn’t it?---That’s right.

PN238.

You don’t mention in your statement but it is correct, isn’t it, that in 1987 the wording of the ELA in the Prospect County Council Award changed.  Are you aware of that?---Yes, I wasn’t around in the organisation back then.

PN239.

No, it’s just that you’ve referred to the earlier one and I was wondering if you were aware of it?---Just through hearsay from what I’ve heard through – I couldn’t confirm.

PN240.

Your Honour, I wonder if at this point I might hand up a chronology which we’ve prepared which has the relevant extracts, and hand to the witness a copy of the New South Wales Industrial Gazette dated 29 June 1988. 

PN241.

Now, you’ll see that the variation made in 1987 didn’t really do much of a difference but referred to an A grade or a B grade electrical mechanics licence, and said that:

**** BRADLEY CURREY XXN MS NOMCHONG

PN242.

         who, in the course of their duties are required to work in situations involving electrical functions, or the control or supervision of electrical functions, shall be paid the allowance.

PN243.

Again making reference to the Electricians State Award.  So you’re not familiar with this?---Broadly I am but not word for word.

PN244.

Thank you?---I mean, I know that’s where – because, as I said, when I was first exposed to it was through the electricians at the – in the manufacturing and metal industry because that was the underlying award in a lot of those manufacturing shops.

PN245.

I tender that, your Honour.

PN246.

THE SENIOR DEPUTY PRESIDENT:   The chronology?

PN247.

MS NOMCHONG:   I think the chronology is an aide-memoire but I think that – unless your Honour wants to mark it as an exhibit, but I tender the extract from the New South Wales Industrial Gazette, 29 July?---I don’t have that.

PN248.

Perhaps it could be given from the witness.  Have you got one?

PN249.

THE SENIOR DEPUTY PRESIDENT:   I don’t think so.  So we’ll leave the chronology as an aide-memoire but the – okay.  The extract from the New South Wales Industrial Gazette dated 9 June 1988, is E2.

EXHIBIT #E2 EXTRACT FROM THE NEW SOUTH WALES INDUSTRIAL GAZETTE DATED 09/06/1988

PN250.

MS NOMCHONG:   In 1991 the wording of the ELA in the Prospect County Council Award changed again.  Were you aware of that?---No.

PN251.

Okay?---Because I’m only broadly aware of the history.  As I said, I only came into the industry in 2008 when it was Integral Energy.  I’m broadly aware of the situation of how Integral Energy came about, and some of the conditions and entitlements that came out of the merging of the two county councils, and how it flowed on through the Integral Energy Award.  Again, I have limited knowledge and understanding on that because it was way before my involvement in this industry.

**** BRADLEY CURREY XXN MS NOMCHONG

PN252.

Your Honour, the version of the award is referred to in the chronology but if your Honour requires the New South Wales Industrial Gazette containing that provision, I can tender it, but I think it’s probably not necessary.

PN253.

THE SENIOR DEPUTY PRESIDENT:   Where are we?

PN254.

MS NOMCHONG:   9 August 1991 on page 6 of the chronology.  You’ll see it’s the wording of the changed clause that came into effect on that day.

PN255.

THE SENIOR DEPUTY PRESIDENT:   Unless there’s any objections I’m happy to - - -

PN256.

MR TAYLOR:   If my friend says that that is what the gazette says, I have no difficulty of course accepting it.

PN257.

THE SENIOR DEPUTY PRESIDENT:   Perhaps you should tender this as evidence.

PN258.

MS NOMCHONG:   Thank you.

PN259.

THE SENIOR DEPUTY PRESIDENT:   So we’ll just formally mark the chronology that we’re relying on as evidence, as E3.

EXHIBIT #E3 CHRONOLOGY

PN260.

MS NOMCHONG:   Thank you, your Honour.

PN261.

MR TAYLOR:   We’ll do our best to have a look at it, your Honour, and - - -

PN262.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN263.

MR TAYLOR:   - - - if there’s things that we don’t agree with, no doubt we will – that are relevant, we will bring them to your Honour’s attention.

PN264.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN265.

MR TAYLOR:   I hadn’t seen it before and my friend just handed it to me.

PN266.

MS NOMCHONG:   At paragraph 6 of your statement, Mr Currey, you refer to the merger of the Prospect County Council and the Illawarra County Council.  You’ve not mentioned in your statement the position in relation to ELAs under the Illawarra County Council awards.  That’s correct, isn’t it?---That’s correct.

**** BRADLEY CURREY XXN MS NOMCHONG

PN267.

The position, however, was that prior to the merger of the two county councils there was no provision for an ELA in any of the awards covering members in the Illawarra County Council.  That’s correct, isn’t it?---Well, I couldn’t agree with that, no.  My broad understanding is that there was payment to the ELA in those areas.

PN268.

The question is, there was no provision in any of the awards covering Illawarra County Council members prior to the merger?---I couldn’t answer one way or the other because - - -

PN269.

You just don’t know?--- - - - I haven’t seen a copy of those awards.

PN270.

Okay?---So I couldn’t answer yes or no.

PN271.

Prospect and Illawarra merged to form Integral Energy in 1997 and a new award was made called the Integral Energy Conditions of Employment Award.  You’re aware of that?---Yes.

PN272.

That award did not contain any provision for an ELA, did it?---Not that I’m aware of.  Again, it was only in 2008 that I became involved in the industry.

PN273.

But in that award what happened was that the ELA was in fact absorbed into the rate of pay for the electrician grade 2.  That’s correct, isn’t it?---I can’t answer that.

PN274.

You don’t know?---I’m not aware of that.

PN275.

There was no provision for an ELA in the Integral Energy Awards of 2001 or 2003 or 2005.  That’s correct, isn’t it?---I have no answer for it because I have no knowledge of it.

PN276.

I think you just said a moment ago you first became involved or familiar with this industry when you started with the ETU and were transferred to work for members covered or working in Endeavour in 2008.  Is that correct?---Yes.

PN277.

So would it be fair to say that the negotiations for the 2008 Endeavour Energy Award were the first set of negotiations you were involved with for this particular employer?---Yes.

**** BRADLEY CURREY XXN MS NOMCHONG

PN278.

At paragraph 7 you state that you did not lead the negotiations on behalf of the ETU.  In fact, that was Mr Bernie Riordan who was then the secretary of the ETU, who lead the negotiations, wasn’t it?---That’s correct.  As I said, I only became involved – we had an organiser that had retired, so we shuffled around some of our areas of authority that we were looking after.  Mr John Thornton was the organiser at the time for many years for Integral and he was being allocated to look after South Coast BHP Steel and places like that, and that’s where I came in in December.  So I basically sat in those negotiations as an observer, and Mr Riordan led the negotiations.  Riordan C, I should say.

PN279.

Indeed.  So what his Honour can take is that the majority of the negotiations took place between Mark Greenhill from Integral and Mr Riordan on behalf of the union?---Yes.

PN280.

So it’s certainly the case when Mr Greenhill had either a private conversation or a telephone conversation with Mr Riordan, you may not have been privy to those conversations?---Correct.

PN281.

Therefore, you would agree that there would have been discussions where you wouldn’t have seen or observed things that were said between those two people?
---There could be.  I can’t answer yes or no.

PN282.

The issue of the ELA arose at the very end of the negotiations of the 2008 award.  That’s correct, isn’t it?---Yes.

PN283.

It was put by the union just before the proposed award was to be put to the vote by the members.  Would you agree with that?---It was raised as a concern by the members through their negotiating team and obviously Mr Riordan and that, that there was a customer practice that it was paid but it hadn’t been identified.  They just wanted that formalised, the payment of the electrical licence allowance in the agreement.  And the electrical licence allowance wasn’t the only one.  There was a couple of other allowances that had been paid and were still being paid but weren’t actually formally identified in the industrial instrument of the day.  So it was agreed between the parties there would be a letter of commitment given.  That was accepted, and that the intent and principle of that letter would then flow onto the next – and then be inserted in at the next industrial meeting.

PN284.

We’ll come to that in a minute, Mr Currey, but the question I asked you is that this provision about the ELA was really raised at the heel of the hunt in the negotiations, wasn’t it?---It was raised towards the end of it, yes, as a concern of the members.

PN285.

In fact, it was put by on behalf of the union that there be some formalisation on the ELA, otherwise the members wouldn’t be encouraged to vote in favour of the award?---I wouldn’t say that, no.  It was – the agreement was broadly agreed to in principle that it was a commitment that the members were concerned about and asked for that commitment to be put in writing, which it was.

**** BRADLEY CURREY XXN MS NOMCHONG

PN286.

In fact, it was put that there wouldn’t be a recommendation in favour of the award if the ELA wasn’t agreed to in some formal way by Integral?---Sorry, what was the question again?

PN287.

It was suggested by the union to Mr Greenhill that the award would not be recommended to the members unless there was some formalisation of the ELA.  That’s correct, isn’t it?---No.  I wasn’t a party to that.

PN288.

You didn’t hear that conversation?---At any discussion that I was at, that never occurred.  The discussions we had were quite amicable.  There was no put under duress or anything like that between Riordan C and Mr Greenhill.

PN289.

So when you say the discussions, they were the discussions where you were an observer but you’ve, I think, appreciated and said to his Honour that there could have been other discussions where you weren’t present?---There may have been.

PN290.

In your reply statement, just to follow up on that - - -?---You’ll have to ask Riordan C that one.

PN291.

In your reply statement at paragraphs 5 through 12, just to be clear on this issue ‑ ‑ ‑?---Five to 12.

PN292.

- - - you make a number of comments, in fact over and over again, that you didn’t hear Mr Greenhill tell you or anyone else that he was annoyed about the ELA or that he didn’t communicate his view that he was – and I paraphrase here – being blackmailed or pressured into agreeing to the ELA.  You just didn’t hear anything?---That’s correct.

PN293.

But you would accept that it was possible that those conversations were had with other members of the negotiating team during discussions where you weren’t present?---I wouldn’t agree to that.  I don’t believe – because you could tell by people’s body language and the way they react, and their relationship with each other.  And the relationship between Riordan C and Mr Greenhill, from what I observed in the early parts, was more of not just a professional one at the industrial level.  They had personal relationship outside of work.  So it was quite an amicable relationship between the two.  They obviously had a common interest outside of work.

PN294.

So the basis of you saying that it’s unlikely that these things were said, was because of your observations of body language in meetings where you were present?---Yes, that and that I never witnessed anything along those lines.  Never saw it, never heard it and it was never relayed to me by Riordan C at any stage.

**** BRADLEY CURREY XXN MS NOMCHONG

PN295.

I’m going to suggest to you that Mr Greenhill did say a number of things to you and to Mr Riordan in your presence, and you can either agree or disagree with me, Mr Currey.  But it’s true, isn’t it, that Mr Greenhill said to you on at least a number of occasions, words to the effect of, “The application of the ELA at Integral Energy is impossible to understand.”  He said something like that?---No.

PN296.

He said that, “This is just not on,” expressing his annoyance that it had been raised at the heel of the hunt?---No.

PN297.

He said words to the effect that “This isn’t the way to do business.  It’s unprofessional”?---No.

PN298.

He said, “If you wanted the ELA in the award it should have been discussed in the negotiations.  Not now at the end of it all”?---No, I disagree.

PN299.

“You’re only putting it to us now.  You’re putting a gun to our heads”?---No.

PN300.

“The ELA is not compensation for any money that has to be paid out by anyone.  Why do you have to have it?”  You don’t – you never heard him say that?
---That’s correct.  I never heard him say that.

PN301.

He said something like, “This is just another ESRA”?---That’s correct.  I didn’t hear him say any words to that effect.

PN302.

It’s true, isn’t it, that Mr Greenhill said something, “Tell me why you get the ELA” and you or Mr Riordan said, “Well, staff who work on customer installations need a licence”?---That’s incorrect.  Parts of the conversation you referred to never happened.

PN303.

Or they never happened in your presence?---Yes.

PN304.

Is that correct?---That’s correct.  You will have to ask Riordan C if it happened to him.

PN305.

When the proposition was put forward by the union for the ELA, what was the basis of it?  Why did – what did you say to Mr Greenhill about the rationale for it?---The rationale, as I identified just a minute ago, was that the members were concerned that they wanted the provisions of the ELA formalised into the 2008 award because it hadn’t been in previous awards.  It’s customer practice.  It had been paid.  They just wanted it formalised in there.  That wasn’t the only one.  There was a switching allowance, by memory.  There was a couple of other allowances.  I’m just trying to remember which – you’ll see from my statement in the later agreement negotiations we tried to have inserted those allowances in at the later version of the EBA in 2010.  That was the principle of it.  There was a number of things that were being paid for that weren’t actually formally identified in the industrial instrument.

**** BRADLEY CURREY XXN MS NOMCHONG

PN306.

The award itself was made on 30 June 2009, even though we refer to it as the 2008 award.  That’s correct, isn’t it?---That’s correct.

PN307.

There was no ELA provision in that award, was there?---The 2008 agreement you’re talking about?

PN308.

Yes?---Yes.

PN309.

The 2008 award?---Award, sorry.  Yes.

PN310.

What happened was a letter from Mr Greenhill dated 15 July, which is BJC6 to your statement.  Is that right?---My statement, yes.

PN311.

What that letter says is:

PN312.

         Please note that the Electricians Licence Allowance will be paid in accordance with past practice, and the decision handed down by his Honour on 30 June 2009.  That said, if an employee is the holder of a current electricians qualified supervisors certificate or equivalent, as issued by the relevant authority, the employee must be paid an all-purpose allowance of 28.75 a week. 

PN313.

Is that right?---That’s correct.

PN314.

That was the formalisation of the allowance that was sufficient for the union at that stage?---That was the letter that was accepted, and the members accepted the commitment from the company for the preservation of the payment of that allowance, which they raised outside of the award, being written into the award.

PN315.

I want to turn now to the negotiations for the 2010 Endeavour Energy Award.  Your Honour, I just note the time and I seem to have gone past the morning tea break.

PN316.

THE SENIOR DEPUTY PRESIDENT:   Do you want to just keep on going, unless anyone needs a break.

PN317.

MS NOMCHONG:   Thank you. 

PN318.

I’m going to give you a copy of a folder called the respondent’s bundle – and I think you have that, your Honour – and ask you to go to tab J?---I’ve got two volumes.

**** BRADLEY CURREY XXN MS NOMCHONG

PN319.

The first volume.  This is a copy of the enterprise agreement 2010.  You would agree with that?---Hang on, I’ll just get it.  You picked the ones right at the end of the tabs. 

PN320.

I want you to go to page 337 of tab J, Mr Currey?---Page 337.

PN321.

The Electricians Licence Allowance is set out about two-thirds of the way down the page, and it says:

PN322.

         An employee who holds a qualified supervisors certificate, electrical licence or its equivalent, and the position requires the incumbent to hold the above qualification to fulfil their duties, and the incumbent in the position has received it in accordance with the past practice, will be paid $29.90 per week from 25 December 2010 and $31.10 from 25 December 2011.  This allowance is paid an all-purpose allowance.

PN323.

At paragraph 15 of your statement you say that this clause that I’ve just read out was jointly drafted by both parties.  Is that correct?---That’s correct.

PN324.

Would it be fair to say that you, on behalf of the union, was well aware of the agreement of the ELA in 2008 being something that was opposed by Endeavour to be inserted into the award?---I wouldn’t say it was opposed.  It was the time when the parties agreed to what the request of the employees were.  That was why it went into a letter of commitment, a side letter so to speak to the industrial award.

PN325.

It didn’t go into the award, did it?---Not in 2008 but the - as I said earlier, the intent of it was, and agreed between the parties, that the provision of that would go into the next industrial award.

PN326.

I see?---Which was why it’s in the 2010 with some amendments to wording which came out in discussions then.

PN327.

So let me get this straight, Mr Currey.  That you say that after the negotiations at the heel of the hunt in the 2008 award, the parties then agreed that they would discuss this in more detail when the negotiations for the 2010 agreement came up?---No.  No.  You’re misunderstanding me.  The parties agreed on the 2008 EBA when – sorry – award, when it was agreed to in principle, it was going through and the issue was raised about formalising the electrical licence allowance, the ongoing payment of that provision.  The parties agreed that it would go in the side letter of commitment, which is the letter of 15 July, and that allowed then the Integral award to go through, to be ratified, and the parties relied on that side letter for the term of that agreement, for then the intent of that letter to go into the next industrial instrument, which is not an uncommon position in agreement negotiations.

**** BRADLEY CURREY XXN MS NOMCHONG

PN328.

I’m going to suggest to you that you were aware that the agreement of the ELA in the 2008 was hotly contested by Mr Greenhill.  He didn’t want it to go into the award.  He didn’t want it to continue at all, did he?---No, that’s incorrect.  We didn’t have any discussions along those lines.

PN329.

In any event, you would agree with me, the inclusion of the ELA in the 2010 agreement was not simply a rolling over of what was in the 2009 letter that we’ve looked at, was it?---Broadly it is.  There’s a little amendment that was agreed to between the parties, which is the insertion of the words “the position requires the incumbent to hold it”.

PN330.

Mr Currey, you’re not suggesting, are you, that the provision that we see on page 337 is in fact simply a rolling over of the letter dated 15 July, BJC6 to your statement?---I didn’t say that.

PN331.

No?---I said that’s why there was discussions and there was a slight amendment to that between the parties.  The intent was still there and to satisfy the concerns of the organisation, there was some wording amended.

PN332.

I take it that you take your responsibilities in negotiating awards and agreements on behalf of the union very carefully?---Yes.

PN333.

I assume that you exhibited that same care in negotiating the 2010 agreement?
---Yes.  To the best of my ability.

PN334.

What occurred was that Mark Greenhill put forward a proposed wording of the ELA provision, and then you I think put forward the document that we find at BJC9 of your reply statement.  That’s BJC9, your Honour, to exhibit CEPU9?
---Yes, that was the proposed wording that we were working on between the parties at the time.

PN335.

Then, after you put your version and Mr Greenhill put his version, you negotiated about the particular words that went into the ELA eventually.  Is that correct?
---That’s correct.  In line with the position that Mr Greenhill put on the table and the concerns for the company.

PN336.

Right?---That was agreed to.

PN337.

Paragraphs 16 and 17 of your first statement, you state that:

PN338.

         There was no claim or demand by Endeavour to alter the scope or operation of the ELA –

PN339.

but this version is very different to what was in the 2009 agreement, isn’t it?
---2008?

**** BRADLEY CURREY XXN MS NOMCHONG

PN340.

You don’t agree that it’s different?---2008.

PN341.

2008, I apologise, Mr Currey?---Yes, could you reword it, the question?

PN342.

You say at paragraphs 16 and 17 of your statement that:

PN343.

         There was no claim or demand by Endeavour to alter the scope or operation of the ELA –

PN344.

But you have to accept, Mr Currey, that the wording of the provision that we see on page 337 and the wording of the letter that was given to you in July 2009 are very different, aren’t they?---I wouldn’t say they’re very different.  Blessed with hindsight – remember those discussions happened a few years prior to those wording that went into the 2010 agreement.  So at the time that was the agreement between the parties to go into the Integral Award 2008.

PN345.

Well, you would have - - -?---If I could raise a question – to help you understand, is the concern the company had is why those words for “the position requires the incumbent” to be pushed in because the company had concerns that they had a number of people in positions that had been promoted out off the field staff, into office-based positions, and did not in any way, shape or form meet the criteria for the utilisation of the Electrical Licence Allowance, so why should they pay them.  It was actually bad management.  We agreed with the company on that point, that if they had people that weren’t utilising the provisions and the skills in the requirement of the Electrical Licence Allowance then why should they pay them.  That was the reason and the intent why the union agreed to those words going in.

PN346.

Mr Currey, you’d agree with me that this clause at page 337 has three separate limbs to it, doesn’t it?  First of all, the employee has to hold the licence.  You would agree with that.  Secondly, the employee is an incumbent in the position that needs the licence to fulfil their duties.  So we’re talking not about employees generally or classifications generally;  we’re talking about an incumbent, a particular person in a particular job.  You would agree with that?---That’s correct.

PN347.

That, thirdly, the person, that is the incumbent, received the ELA in accordance with past practice as at the date that this award came into play.

PN348.

MR TAYLOR:   Sorry, I’m not sure if my friend is reading that or just adding something to the words.

PN349.

MS NOMCHONG:   No, I’m putting a proposition.

**** BRADLEY CURREY XXN MS NOMCHONG

PN350.

MR TAYLOR:   It has to be clear if my friend is just reading or is putting something that’s different to what’s written, as a matter of fairness.

PN351.

MS NOMCHONG:   I’m putting a proposition to you, Mr Currey, that the third criteria was that the incumbent was receiving the allowance in accordance with past practice.  When we refer about incumbent, it means an actual person, doesn’t it?---Yes.

PN352.

So you’d agree that the incumbent must refer to Joe Bloggs or Fred Smith, who was receiving that money in accordance with past practice at the time that this award was agreed?---I read it the way that if it was a classification that was being paid, they were field staff utilising the electrical wiring work, then they would be the incumbent that would receive it as in accordance with past practice which in my interpretation is the same intent as the letter of 15 July.

PN353.

I think you and I are at cross-purposes, Mr Currey.  I’m asking you if you would agree with this proposition.  That is, the third criteria refers to a specific person.  The incumbent in a position has received it in accordance with past practice.  That’s what it’s meant to refer to, isn’t it?---So the incumbent in the position has received it in accordance with past practice?

PN354.

Yes, and necessarily because this - - -?---They had been receiving it.

PN355.

- - - as at the date the award was made.  You’d agree with that?---That’s right.

PN356.

Thank you?---May I go further?  To qualify that, if they had moved and been promoted into a position that didn’t require it, like an office-based position, then it agreed between the parties that they shouldn’t be paid that allowance by the addition of the wording that’s there.

PN357.

So the qualification that you’ve just put on it, that is about these people who had moved to office positions, obviously that was referring to particular people, yes?
---Yes, it could be someone that’s promoted, say, from field staff into a supervisory role that doesn’t go out and do any hands-on or supervising or any of that sort of work.  They’re more in an administrative sort of role but for some reason the company didn’t withdraw the allowance off of them, it would be bad industrial principle for us to push them.

PN358.

So what we’re talking about is someone who may have been employed pursuant to a job advertisement or a position description which said you will be paid an ELA, but then moved into a position where they didn’t need the licence because, for example, on your - - -?---A supervisory role or an administrative role, yes.

**** BRADLEY CURREY XXN MS NOMCHONG

PN359.

So that was an example of the way – so we’re talking about particular people having moved into a different position.  Thank you.  Now, at paragraph 18 of your first statement you refer to a series of disputes about allowances.  I take it that none of those disputes were in relation to the ELA, were they?---From memory, no.  The company produced an initiative that was a management of allowances that was part of that company’s criteria it wanted as an outcome out of that an enterprise agreement where any allowances that were doubled up – you know, they wanted to streamline the administrative process.  It was very incumbent, you know, as you can imagine coming from two entities into one, and they were looking to streamline the management of allowances out of that.  It wasn’t about reducing entitlements to employees.  That’s where we had a few disputes over that application of those management of allowances.

PN360.

That arose, presumably from what you’re saying, from the provision about management of allowances, which we find at the bottom of page 337?---That’s right.

PN361.

That’s right?---Yes.

PN362.

So this provision in the award was negotiated between the parties where the union was put on notice that the employers would be seeking to improvement the management of allowances and thus meet the savings objectives noted in the matter number.  Is that right?---That was the company claim or initiative.  They wanted to have the outcome in the agreement, which was eventually approved as the outcome of the agreement.

PN363.

When the negotiations for the 2012 agreement took place, the ELA was not revisited, was it, and the union didn’t put forward any different wording that it wanted?---No.

PN364.

The 2012 agreement had the same provision about the management of allowances in it?---That’s correct.

PN365.

Just before we move onto the dispute which gave raise to this, I just want to talk about the Electrical Safety Rules.  One of the things that Mr Greenhill, I suggest to you, talked about during the 2008 negotiations, was that the ELA was a rort because it was a double-dip for the ESRA – that is the Electrical Safety Rules Allowance.  That’s correct, isn’t it?---No, it’s not.  I was never a party to any of those discussions so it didn’t happen with myself.

PN366.

You would agree that the ESRA is an allowance for knowledge and proficiency in the Electrical Safety Rules?---No, not – it’s different to the Electrical Licence Allowance.

**** BRADLEY CURREY XXN MS NOMCHONG

PN367.

That’s not my question?---There is a knowledge - - -

PN368.

That’s not my question.

PN369.

THE SENIOR DEPUTY PRESIDENT:   Yes.  Mr Currey, just listen to the question again.

PN370.

MS NOMCHONG:   I’m suggesting to you that it’s an allowance for knowledge and proficiency in the Electrical Safety Rules.  I’m not asking you whether it’s different?---Yes, in the rules, yes.

PN371.

The ESRs are part of the safe work system that Endeavour applies.  That’s correct, isn’t it?  In addition, Endeavour has adopted a big safety system with risk assessments, safe work method statements, training, consultation about safety issues.  That’s all part and parcel of the Endeavour safety program or safety at work.  You would agree with that?---That’s correct.  I think it’s an industry-wide requirement that each of the distributors have that.

PN372.

You understand the ESRs are required to be adopted and implemented pursuant to a piece of legislation.  That is the Electricity Supply and Network Management Regulation.  Are you aware of that?---That’s correct.

PN373.

You say that the ESRs are an industry-based requirement focused on an employee’s knowledge of safety rules and procedures?---Correct.

PN374.

Then for that reason you then go on and you say that the ESRA and the ELA are totally different?---That’s correct.

PN375.

You would agree with me that all employees are required to work safely?---Mm.

PN376.

The requirement to work safely when Endeavour employees are working on the network or whether they’re working on customer installations, is exactly the same, isn’t it?---Yes.

PN377.

Yes?---I agree.  Everything you do.

PN378.

The predominant work done by employees at Endeavour is in fact work done on the network.  You would agree with that, wouldn’t you?---In broad terms, yes.

PN379.

The procedures and rules in the ESRA aren’t confined to working on the network.  They include procedures to be adopted if an Endeavour employee is working on a customer network, for example.  You would agree with that?---Yes, it’s to be adopted in every aspect of their job – their work.

**** BRADLEY CURREY XXN MS NOMCHONG

PN380.

So you - - -?---If it’s on the network or customer.

PN381.

So the procedures in the ESRs apply equally if someone is working on customer installations or consumer installations, as well as on the network.  You would agree with that?---Yes.

PN382.

The process of applying the ESRs occurs where the employee’s knowledge of a skill is the foundation.  Let me phrase that a little bit better for you, Mr Currey.  You can’t work safely unless you know how to work in the first place.  You would agree with that, wouldn’t you?  Going back to your analogy to drive:  unless you know how to drive, you can’t drive safely?---Right.

PN383.

So you need the foundation skills?---Yes, the basis of it.

PN384.

So the ESRA is in fact built upon the fact that the skills and knowledge of being an electrician are the foundational base.  You would agree with that?---They established a committee after a fatality - - -

PN385.

I’m not asking you when they were established?---Yes.

PN386.

I’m just - - -?---There’s a slight differentiation between qualifications and competency.  People can still have the qualifications; it doesn’t mean they work safely.

PN387.

That’s not my question, Mr Currey.  What I’m suggesting to you is that in order to apply the ESRs, you have to know how to be an electrician first.  They’re the foundation?---No, I wouldn’t agree with that because there’s other classifications that get paid an Electrical Licence Allowance – sorry, the ESRA.

PN388.

It’s not about the licence?---The ESRA, the Electrical Safety Rules Allowance, there are other classifications outside of electrically qualified people.

PN389.

THE SENIOR DEPUTY PRESIDENT:   You mean some of the people who get ESRA are not electricians?---Exactly.  That’s it, your Honour.

PN390.

MS NOMCHONG:   But I’m not - - -?---That’s why I disagree with that.

**** BRADLEY CURREY XXN MS NOMCHONG

PN391.

I’m not asking you about the allowance, Mr Currey.  If you don’t understand the question that I’m asking, please just ask me to repeat it.  I’m actually asking about the application of the rules, not of the allowance.  So we’re just talking about the application of the rules.  In order for an employee to work in accordance with the ESRs they have to be an electrician first.  They have to know what to do?
---Depending on the work they’re doing.

PN392.

They have to know what to do in order to do it safely?---It depends on the work they’re doing because any employee has to apply with the safe work method statements of their employer, and it doesn’t have to electrically-qualified type work, but each employee has a responsibility to work safely.

PN393.

I see what you’re saying.  Let me put the question to you this way.  If you’re an electrician, if you’re an electrician’s classification, in order to apply the ESRs that apply to you as working as an electrician, you have to know how to be an electrician first, don’t you?---Otherwise they wouldn’t be working in that area, so obviously yes.

PN394.

So there’s no requirement anywhere in the ESRs for an employee to hold a licence in order to work, is there?---No.

PN395.

Indeed, a person can hold a licence but will not be permitted to work unless they’ve passed the ESR test.  That’s correct, isn’t it?---It’s my understanding, yes.

PN396.

Endeavour requires every employee to be proficient in the ESRs.  That’s correct, isn’t it?---Mm.

PN397.

They have to do refresher training every year?---Yes.

PN398.

They have to sit an exam every year, both closed book and open book.  They will only pass if they either answered all the questions correctly or just got one wrong.  That’s correct, isn’t it?---I’m not aware of what the pass mark is.

PN399.

You don’t know?---But I’m aware that they have to pass it.  I don’t know what the details of what the pass mark is.

PN400.

You’re not aware that if they answer two or three questions wrong they have to re-sit the test?---As I said, I’m not aware of what the level is of what’s a pass and what’s a fail.  I know they have to pass it.  I’m not involved in that.

PN401.

I’m just going to ask you to assume that if an employee answers more than four questions in their exam incorrectly, they’re in fact suspended from work until they can re-sit the test and pass it?---I wouldn’t disagree with that.

PN402.

In contrast, if an employee doesn’t have a valid licence, they’re not suspended, are they?---As in electrical licence?

PN403.

Yes?---Well, not that I’m aware of.  I think the company has an obligation to know if they’ve got an employee who doesn’t have a licence.

**** BRADLEY CURREY XXN MS NOMCHONG

PN404.

The ESRA, the allowance that attaches to proficiency and competence in the ESRs is substantial.  It’s $120 a week.  You understand that, and it’s an all‑purpose allowance.  The ELA is currently $38.10 a week and also on an all‑purpose allowance.  That’s right, isn’t it?---Correct.

PN405.

But employees don’t have to sit a test to renew their licence, do they, their electrician’s licence?---No.

PN406.

They simply just fill the form in and they get a new licence?---In accordance with the Department of Fair Trading.

PN407.

You don’t have to go back and do any re-training?---No, not to my knowledge.

PN408.

You suggest that the holding of an electrician’s licence is some sort of margin for skill but in fact that margin for skill is already incorporated into either the base rate of pay or the ESRA, isn’t it?---If you’re comparing the two, no.

PN409.

You don’t agree.  In fact, I’m going to suggest to you that there’s no valid basis for paying such a high allowance, $38.10 per week, for a licence that doesn’t cost you anything.  The employees don’t have to pay $38.10 a week to have the licence, do they?---It came out of an industrial instrument provision which came out a long time before the Electrical Safety Rules Allowance came out in the industry.  It was an industrial provision that came out of the Electricians State Award, which was adopted into certain other industry awards, and that was years before the Electrical Safety Rules.  So the electrical licence is based on knowledge over and above the apprenticeship.  That’s what that was for.  The Electrical Safety Rule was introduced to my knowledge around the early 2000s, I think it was, which came out of a committee that was established after a couple of fatalities within the industry of New South Wales.  From that there was a monetary value attached to those Electrical Safety Rules.  I suppose you could use it as a reward or a penalty against any employee who breached those safety rules, who breached those safe work practices.  So there’s a difference between the requirement of the Electrical Licence Allowance and the Electrical Safety Rules.

PN410.

If you’ve agreed with me that the qualifications and experience to get the licence is really the sort of, kind of, base grade just to get your licence, and that that then forms the foundation of being able to work safely, then the ELA is really just a double-dip in the ESRA, isn’t it?---No, it’s not.

**** BRADLEY CURREY XXN MS NOMCHONG

PN411.

You’re just getting an extra amount for working - - -?---No, because I could have a car licence;  it doesn’t mean I drive safely.  If we’re using that analogy, you know, there’s a lot of people out there and you could be a qualified electrician with an Electrical Licence Allowance – and it doesn’t have to be an employee of this organisation.  We see it across the industry.  Employees do things, you know, in an unsafe manner, and that’s why accidents happen.  Now, out of that industry committee that was set up they set some non-negotiable rules I suppose would be one way of terminology to use.  These are the rules that must be complied with, which is the Electrical Safety Rules, and there was a monetary value attached to that.

PN412.

I’m just going to suggest to you again that, if in fact you need – just to be clear, and this is probably just a yes or no answer, Mr Currey, I’m not asking for a history of how things came about.  I’m going to suggest to you that your employees are already being paid a substantial allowance of $120 a week to work safely.  The ELA is simply to have the skills in order to work safely.  It’s really a double-dip, isn’t it?---No, again for the reasons I gave earlier.

PN413.

I want to take you back to 2013 and the practice of back-pay claims.  In July 2013 Endeavour advised that the practice of back-pay claims for an ELA would not be tolerated.  That was because what would happen is that employees would let their licences lapse - - -?---Back pay, sorry, on the Electrical Licence Allowance?

PN414.

For the ELA?---Yes.

PN415.

So employees would let their licence lapse and then what they’d do is that when they realised they weren’t being paid their ELA any more, they would go and renew their licence and then they’d made an application to Endeavour for a back-pay.  That’s correct, isn’t it?---Yes, that’s correct.

PN416.

So the claim was about the back pay for the licence, rather than any reference or needs or a requirement to have the licence to fulfil their duties.  You would agree with that?---It was for underpayment of the allowance, that’s correct.

PN417.

The dispute was ultimately referred to this commission and heard by his Honour?
---That’s correct.

PN418.

A recommendation was made in relation to who should and should not receive the allowance.  You would agree with that?---That’s correct.

PN419.

As a result of the recommendation – would you excuse me, your Honour.  Your Honour, I’m about to refer to correspondence which is attached to the employer’s reply in matter number 1089.  Employer’s responses were filed in both proceedings but in relation to matter number 1089, correspondence in relation to the consultation and exchange of views were attached and I intend to tender that.  Would it be appropriate to use the response or will I tender them separately?

PN420.

THE SENIOR DEPUTY PRESIDENT:   Sorry?

**** BRADLEY CURREY XXN MS NOMCHONG

PN421.

MS NOMCHONG:   Is it sufficient for your Honour to have that correspondence attached to the respondent’s – or will I tender it as exhibits.

PN422.

THE SENIOR DEPUTY PRESIDENT:   Sorry, it’s not in the evidence?

PN423.

MS NOMCHONG:   No, it’s not in the evidence.  It’s in the pleadings though.  It’s in the sense that it’s attached to the response.  I think it’s probably better to tender it.

PN424.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN425.

MS NOMCHONG:   Thank you.  So the first thing that happened after the recommendation by his Honour of 18 March was that a letter was sent from Endeavour Energy to you on 28 March.  Can I hand you a copy of that document and ask you to identify it.  That was a letter you received?---Yes.

PN426.

It said that the CEPU was setting out its view that the 2012 ELA provision was only applicable to employees who require a licence pursuant to the provisions of the Electricity Consumer Safety Act and the Home Building Act.  You’d agree with that?---Yes.

PN427.

I tender that letter, your Honour.

PN428.

THE SENIOR DEPUTY PRESIDENT:   Have we got a copy?  Do I have it?

PN429.

MS NOMCHONG:   I’ll tender this copy, your Honour.

PN430.

THE SENIOR DEPUTY PRESIDENT:   So that letter of 28 March – this is two thousand and?

PN431.

MS NOMCHONG:   Fourteen.

PN432.

THE SENIOR DEPUTY PRESIDENT:   Fourteen.  From Mr Howard to Mr Currey, is E4.

EXHIBIT #E4 LETTER FROM MR HOWARD TO MR CURREY DATED 28/03/2014

**** BRADLEY CURREY XXN MS NOMCHONG

PN433.

MS NOMCHONG:   Thank you.  I’ll show you a letter dated 3 April 2014, and this was a letter from Endeavour Energy to the Union advising that as a result of the review certain staff may be found to be ineligible to receive the ELA, and that payments made in the past had been made without prejudice to Endeavour’s right to cease the payment.  That’s a letter that you received?---Well, it’s to the Secretary of the Union.

PN434.

I tender that, your Honour.

PN435.

THE SENIOR DEPUTY PRESIDENT:   The letter from Ms Sheather to Mr Butler of 3 April 2014, is E5.

EXHIBIT #E5 LETTER FROM MS SHEATHER TO MR BUTLER DATED 03/04/2014

PN436.

MS NOMCHONG:   So at that point in time, Mr Currey, you were aware that Endeavour was conducting a review of all the relevant classifications and positions, as to which positions actually required a licence under the legislation?
---I think it came out of the dispute that was raised about people not being paid for the allowance as part of the – agitation is not the right word, but it wasn’t agitated, it was just part of the process of going through the consultation on the dispute that the company - - -

PN437.

Sorry, did you want to say something?---Sorry.  That the company identified.

PN438.

On 22 April Endeavour advised the union that the review was complete and they arranged a consultation meeting on 20 May 2014.  Do you remember that?---Not particularly.

PN439.

In fact - - -?---I’m not going to argue with you because there was a lot of meetings that went on between 2013 and ’14.

PN440.

But in fact that was a meeting that you didn’t attend.  You didn’t turn up to that meeting.  Do you remember that?---No.  Sorry.

PN441.

Let me show you this letter.  It’s a letter to you from Janelle Sheather dated 20 May 2014, setting out the arrangement for the meeting, attaching the PowerPoint presentation that had been prepared for the meeting, and advising that the review had identified four job classifications that were eligible to receive the ELA, being electrical fitter mechanic metering, field officer licensed, meter technician and senior meter technician.  You received that letter?---Yes.

PN442.

You looked through that letter and you looked through the PowerPoint presentation attached to it?---Yes.

PN443.

I tender that letter, your Honour.

**** BRADLEY CURREY XXN MS NOMCHONG

PN444.

THE SENIOR DEPUTY PRESIDENT:   The letter of 20 May 2014 to Mr Currey from Ms Sheather is E6.

EXHIBIT #E6 LETTER FROM MS SHEATHER TO MR CURREY DATED 20/05/2014

PN445.

MS NOMCHONG:   A meeting actually did take place between Endeavour and the union, and the union said that all employees who did electrical wiring work from time to time, excluding cable joiners and linesmen work, must be carried out by an employee who holds a licence, but you were open to discussions in respect of office workers.  Do you remember that meeting?---Yes.

PN446.

During the course of that meeting the union identified a number of its concerns about the proposed stopping of the ELA to all employees.  That’s correct, isn’t it?
---Correct.

PN447.

On 16 June a letter was sent to you by Mr Rod Howard, answering in writing each of the concerns that had been raised by the union at that meeting.  May I show you this document, being that letter, and ask you to identify it.  Did you receive that letter, Mr Currey?---Yes, I’ve seen it.

PN448.

You’ve read through it?---Mm.

PN449.

I tender that letter, your Honour.

PN450.

THE SENIOR DEPUTY PRESIDENT:   The letter of 16 June 2014 to Mr Currey from Mr Howard is exhibit E7.

EXHIBIT #E7 LETTER FROM MR HOWARD TO MR CURREY DATED 16/06/2014

PN451.

MS NOMCHONG:   It would be fair to say, Mr Currey, the reason we’re all here today is that the union didn’t agree to the review and didn’t accept the responses that had been put forward by Endeavour.  That’s correct, isn’t it?---Correct.

PN452.

The union still agrees that the allowance should be paid to a much larger number of employee classifications than Endeavour does?---That’s correct.

PN453.

Can I take you to paragraphs 22 and 23 of your first statement?  In particular, paragraph 23, where you say:

PN454.

         In addition to those classifications –

**** BRADLEY CURREY XXN MS NOMCHONG

PN455.

that is the four referred to above –

PN456.

         employees in each of the following positions principally perform work on consumer installations and wiring as part of their regular duties.

PN457.

Do you see that?---Yes.

PN458.

Do you remember earlier in my questioning I took you to regulation 22 of the Electricity Consumer Safety Regulation, and talked about this notion of principally performing work and whether you were familiar with that concept?  Do you remember that?---Yes.

PN459.

You said you weren’t familiar with it at all?---I have a broad understanding but – yes.

PN460.

What you’re saying here in paragraph 23 is that the reason that these people should have it is because they principally perform work on consumer installations.  It’s a reference, isn’t it, to clause 22 of the regulation?---To the best of my knowledge is that these classifications from time to time work on the consumer side of the point of attachment.  So that’s the reference to the requirement to have the licence allowance.

PN461.

Working from time to time is very different from working principally performing work.  You would agree with that?---Well, it’s part of their role, these employees’ classification, from time to time.

PN462.

No, that’s not right, Mr - - -?---They could be principally because if they’ve got to be the first point of call or a response to go out to a fault on the network, they have to trouble-shoot it and they have to identify whether it’s the consumer’s side, the network’s side.  So, you know, whether it’s opening the meter box and laying one screw-driver or spanner in the meter box, they’re working in there on the consumer side.

PN463.

Have you finished, Mr Currey?  I’m sorry, I don’t mean to cut you off?---I’m just trying to explain so that you understand my answer.

PN464.

It’s not right, Mr Currey.  What you’ve said in your statement is that the following positions principally perform work.  That’s what you’re asserting is that the principal duties that they do is on consumer installations and doing wiring work on consumer installations.  That’s what you’re trying to say here, isn’t it?---That’s right, and that’s the customer safety officer, that’s the principal work they do.

PN465.

That’s been conceded now, hasn’t it, customer safety officer?---Sorry?

**** BRADLEY CURREY XXN MS NOMCHONG

PN466.

That has been conceded now?---Yes.

PN467.

Yes?---Installation inspectors.  You look at the emergency services officers which are the first point of response.  They could go to no hot water.  They could go to no supply, all sorts of things.  They could go directly to consumer side.  That’s where I’m getting at.  These are the classifications that go to the consumer side, as in principally is their role.

PN468.

But I take you to EFM inspections.  EFM inspections doesn’t require any work at all on customer installation electrical wiring, does it?---I wouldn’t agree with that.

PN469.

I’m putting to you they don’t, do you?---Well, they could do.

PN470.

They could do but they don’t.  It’s not their principal duties, is it?---Well, I can’t say they don’t because they do.  As again, remember I referenced certain parts of the franchise where people in the outer regions can do two roles.  An EFM inspector could be called out during the night to attend an outage.  So this is where it depends.  It’s case by case and it’s not one size fits all.  This is the problem that this organisation has by merging two entities.

PN471.

I’m not asking you about the problems of the organisation.  I know you want to say a lot, Mr Currey?---Well, you’ve got to understand the background of it, and this is where the problem lies.

PN472.

I know you want to say a lot but I’m just asking you this question.  I’m putting to you that it’s wrong, for you to say in paragraph 23 that EFM inspections principally perform work on customer installations and wiring as part of their regular duties.  There might be the one-offs in the country but - - -?---Well, I stand by - - -

PN473.

- - - EFM inspections don’t do it, do they?---I stand by what I say.  To the best of my knowledge and understanding that’s what it is.

PN474.

Mr Currey, you’re on oath in the witness box and a moment ago you said to his Honour they could do it, they might do it.  I’m putting to you a proposition that you need to think about carefully.  It is wrong for you to say in paragraph 23 that the - - -?---Okay, you - - -

**** BRADLEY CURREY XXN MS NOMCHONG

PN475.

Just let me finish the question.  EFM inspections principally perform work on consumer installations as part of their regular duties.  That’s not correct, is it?
---Well, define what you mean by “principally” and “from time to time” or “could”.  Define that because there is no set.  It’s not planned.  As his Honour would know, in this industry there is a lot of times there is unplanned work and these employees could carry out that sort of work twice in one week.  They may carry it out three times in one week.  They may not carry it out for a month, depending on what the circumstance is that arises within the industry in the area that they service.

PN476.

If they’re carrying it out once or twice a week and perhaps not for a whole month, they’re not doing it principally.  You and I seem to be at some sort of discord.  Principally means the predominant duties, the majority of their duties, most of their duties.  That’s what principally means?---Well, I mean principally by the requirement of the work that they do for the consumer.

PN477.

Let’s go to - - -?---Not so much for Endeavour’s network itself.  It’s those roles predominantly or principally directed in supporting the consumer - - -

PN478.

Let’s go now to - - -?--- - - - to the best of my knowledge.

PN479.

Mr Currey, you and I, every time I start to say a question you’ve got to finish your answer.  So I’ll just give you a little bit of time.  We’ll go onto the next one.  Have you quite finished what you want to say about EFM inspections?  Yes?---Yes.

PN480.

I want to go now to EFM service lines, and I’m going to suggest to you that employees only work on the network and only occasionally work on customer switchboards.  You’d agree with that, wouldn’t you?---Well, again, it comes down to where the point of attachment is in this scenario.  Service lines come from the network to the consumers.  They’re the service lines.  Then somewhere, depending on the construction, whether it’s overhead, underground, depending on the situation, whether it’s a street-front – you know, it might be on a ride-away, that they would predominantly be working with the consumer side of the point of attachment.

PN481.

Okay?---Then up to the meter box.

PN482.

I’m assuming that you’re going to give me the same answer here, Mr Currey, but correct me if I’m wrong.  You’re going to say that you and I disagree about what principally means.  Principally to you can be once a week, twice a week but not for the next month, but a part of their regular duties.  I’m going to say principally means the majority of your duties or the predominant or the most number of duties you do.  Okay?---Agree to disagree there.

**** BRADLEY CURREY XXN MS NOMCHONG

PN483.

So on the basis that yours is once or twice a week but maybe not for a month, that’s what you’re saying about EFM service lines.  That’s correct, isn’t it?
---Well, my reference to principally work and perform the work, is to the type of work they do is to service the consumer side, the customer side.  To rectify problems, to identify problems on a customer side.  Not so much the network.  This is where the differentiation is between what’s on the network and what’s on the consumer side.  These employees principally work on the consumer side, not the network.  Not the poles and wires.

PN484.

When you’re using the word “principally” you’re using it according to your definition?

PN485.

THE SENIOR DEPUTY PRESIDENT:   Can I just be clear, when you say “principally” are you saying that the majority of their time they’re working on the consumers’ equipment?---Most of the time.

PN486.

As opposed to the company’s?---There’s no – that’s my knowledge, your Honour, that there’s no hard and fast line between when they work network and when they work consumer side.  It’s part of the role.  That’s what I’m saying - - -

PN487.

But you can tell, can’t you, there is in fact a clear distinction between one or the other, isn’t there?  There’s a clear distinction when – you know when you’re working on the part of the consumers’ equipment and when you’re working on ‑ ‑ ‑?---Are you referring to the frequency that they’re specifically working on?

PN488.

I’m saying physically there is a point at which your – there is an actual physical point.  You could say on this side it’s the consumers’, on that side it’s the company’s?---Yes.

PN489.

Are you saying that, okay, it might vary day to day but they’re actually spending most of their time on the consumers’ equipment, as opposed to the company’s?
---What I’m saying is the job isn’t defined by a fence between the people.

PN490.

I understand that.  I understand your point?---That’s what I’m trying to say.  To understand - - -

PN491.

No, I understand the point.  As a matter of practicality, as a matter of fact – I understand your point, which is it’s all to do with the consumer or a lot of it is to do with the consumer?---Yes.

PN492.

In fact, which side of the line are they working on for the majority of their time?
---It would depend on the fault, it would depend on the situation, it would depend on where it is.  It’s too hard to define because there’s that many different variations across the job.

PN493.

So are you saying you don’t know?---Sorry?

**** BRADLEY CURREY XXN MS NOMCHONG

PN494.

So you’re saying you don’t know?---As I said, to the best of my knowledge this is what the work that they do.  It would depend on the situation.  I am not aware of every single situation and every single fault between - - -

PN495.

Of course not?--- - - - a central business like Hoxton Park, and down to Ulladulla.  They’re very different organisations.  Very different work that happens.

PN496.

Sure?---So what I’m saying is in the broad sense when I say principally, it’s the word that they do is leaning to looking after the customer’s side of things.  Not so much the network poles and wires side of things.

PN497.

Okay?---But in the role of their duty it does encompass both because they have to go out and trouble-shoot.

PN498.

Yes?---They have to identify where the fault is.

PN499.

Okay?---So that’s what I mean.  Not so much on a frequency basis or how often they do it.  It’s where the role is.

PN500.

MS NOMCHONG:   Just to be clear, because I’m going to be saying something about this later on, Mr Currey, I’m going to suggest to you that it’s wrong in paragraph 23 for you to say that EFM service lines principally perform work on consumer installations as wiring is part of their regular duties.  Do you agree or disagree?---I would agree to disagree on the principally - - -

PN501.

No.  Do you agree or disagree?  I’m putting to you that you’re wrong here.  Do you agree that you’re wrong or do you say that you’re right?---Not from the way I understand it.  That’s what I’m saying.

PN502.

Then lastly let me take you to 23(e), electrical safety inspector.  I’m going to suggest to you that that’s a classification that doesn’t exist anymore.  Do you know that?---It might have been renamed as part of – so the installation inspector or something like that, I think.  It might have been renamed.

PN503.

So is the answer that you don’t know?---I would have to say you’re probably right on that.  There was a number of classifications out of that list that we were given, that weren’t actually correct because the company had renamed some of them or ‑ ‑ ‑

**** BRADLEY CURREY XXN MS NOMCHONG

PN504.

I’m just going to move onto the last topic area now, Mr Currey.  You had agreed earlier in my questions that prior to 2013 it was common practice for employees to let the renewal of their electricians licence lapse, and if that happened payroll would cease the payment of the ELA.  That’s correct, isn’t it?---I disagree that it was common practice.

PN505.

Well, there was - - -?---The common practice was, which was what – his Honour would know - - -

PN506.

It was a practice.  People did it, didn’t they?--- - - - which made up the basis of the original dispute about the back pay, was the process.  The employees, when they got their licence – yes, I’ll say that some may have failed to identify to the company that had renewed it.  There was a large number that had and for some reason the paperwork either got mislaid, didn’t get processed, right, which was all they had to do was show a copy of their renewed licence to their supervisor, who photocopied it and faxed a copy of that through to payroll.  Somewhere in that process there was a number of people that that didn’t happen, so their licence ended up – the payment was withheld because the company changed their process and how it was done.  They did it through their IT system, that when the expiry date noted on the licence ticked over, it automatically stopped that payment, with  no notification to the employer or the employee, which was all the basis of the original discussions about the back pay of the – or the non-back pay of the electrical licence allowance.

PN507.

Have you finished your answer, Mr Currey?---If that answers your question.

PN508.

What would happen is that when employees renewed their licence and made an application for back pay in respect of the period where the ELA had not be paid.  That’s correct, isn’t it?---Yes.

PN509.

That’s correct?---Yes.

PN510.

During the time that the employees had not renewed their licence, they weren’t prevented from working in any way, were they?---No.

PN511.

Their skill level hadn’t been assessed as being insufficient to carry out their duties because they didn’t have a licence.  That didn’t happen.  Endeavour didn’t come along and say, well, you don’t have a licence at the moment, therefore, your skill levels are not up to scratch?---That problem was identified through the consultation because the system that Endeavour had introduced didn’t even notify the company if someone had lost their licence.

PN512.

They weren’t still - - -?---But to my knowledge, no one actually lost their licence.  The paperwork was either late getting through or it was lost or mislaid.  For the whole time, I don’t think there’s any argument anywhere you’ll find in front of his Honour that we say that no one should be paid for something – that if they don’t have a licence, they’re not entitled to it.

**** BRADLEY CURREY XXN MS NOMCHONG

PN513.

The question I’m putting to you, Mr Currey is that during the time when the employee didn’t have a licence, Endeavour didn’t say to them, “You don’t have the necessary skill level to do your job.”  That didn’t happen, did it?---Well, the question is how do we know they didn’t have a licence?  That’s the problem.  Nobody knew.  You’re saying - - -

PN514.

You the - - -?---You’re saying – you’re asking me the questions, to answer for you if an employee didn’t have his licence, right - - -

PN515.

Well, let’s take this - - -?--- - - - and we’re saying is they’re not away if anyone didn’t have their licence.

PN516.

THE SENIOR DEPUTY PRESIDENT:   Well, hang on a second.  We know there was some people who didn’t renew their licence, don’t we?

PN517.

MS NOMCHONG:   Exactly.

PN518.

THE SENIOR DEPUTY PRESIDENT:   It’s not in doubt there were some people who, for whatever reason, forgot to renew their licence?---They might have been late.

PN519.

There was a period when they didn’t have their licence.  I mean, I don’t think that’s in doubt, is it?  There was a period - - -?---No, there was - - -

PN520.

- - - where some people didn’t have their licence up to date.  They hadn’t renewed it?---In accordance with the required time.

PN521.

Yes?---But that did not mean they were not licensed under the Department of Fair Trading because their licence is still valid for three months, I’ve been informed from the Department of Fair Trading, after the expiry date.  So it still doesn’t mean they’re without a licence; it’s just that they haven’t renewed it by the date.

PN522.

MS NOMCHONG:   You’ve accepted from his Honour that there were employees – you would accept that there were employees who hadn’t renewed their licence by the correct date?---Yes, I accept there could be a few of them.

PN523.

They hadn’t identified to Endeavour that they had a licence during this period, had they?  They didn’t meet the timeframe.  They didn’t come up and say, “Here’s my current valid licence”?---I accept there’d be a few of them.

PN524.

That’s right?---There was a few of those.

**** BRADLEY CURREY XXN MS NOMCHONG

PN525.

During that time when they didn’t have a licence, Endeavour didn’t say to them, “Because you don’t have a licence you haven’t got the requisite skills so we’re going to suspend you and we’re going to stand you down.”

PN526.

MR TAYLOR:   Objection.  There’s a presumption in that question that it’s true that Endeavour knew that.  I think the witness has already said that twice that the system wasn’t notifying Endeavour itself.

PN527.

THE SENIOR DEPUTY PRESIDENT:   That’s true.  You can’t make that presumption.

PN528.

MS NOMCHONG:   Thank you.  There was – on the assumption that the ELA wasn’t being paid, all right, because obviously what happened, the ELA stopped being paid because the licence hadn’t been renewed.  The employee hadn’t brought the valid licence to Endeavour.  That’s right, isn’t it?---Yes, the Endeavour system, yes, stopped paying.

PN529.

So you can draw from that that Endeavour knew that there was no valid licence because they weren’t paying the ELA?---No, because that was the basis of the dispute.

PN530.

All right?---The system didn’t notify the employer or the employee.  The only time it was raised was when the employee found out that their hourly rate had dropped by a dollar whatever it was per hour, and then they raised it to the union’s attention and it was in exploring the dispute is where that – we found that anomaly in the system.

PN531.

Let me put it to you this way, Mr Currey.  After it was discovered that the employee hadn’t had a licence for a certain period of time and that’s why their pay rate had dropped, was there an inquiry about whether the employee had the sufficient skill level to carry out his or her job during the period where they had no licence?---No, because the employee was able to demonstrate from the record he could get from the Department of Fair Trading that their licence had not expired, that it was still current.  And throughout that period they were still qualified as licensed electricians.

PN532.

Your suggestion, is it across the board on a blanket view, is that every time someone made a back pay claim it was for a period where they still had a valid licence.  That’s your claim, is it?---Yes, to my knowledge and because that was part of the discussions that you had to justify your evidence to the company to show that your licence had not expired in accordance with the Department of Fair Trading.  Which, as a licensed electrician you can get that information out of the Department of Fair Trading.

**** BRADLEY CURREY XXN MS NOMCHONG

PN533.

So that’s your blanket view?  If we come up with some evidence to show that people in fact had let their licences expire, then they renewed them and then they made a back claim, then the argument that you’ve just put holds no water, does it?---Well, that’s new to me and I wouldn’t argue against that.  I’m just telling you what I believe and what I know, as of the time of when all this dispute kicked off.

PN534.

Thank you?---I’m just telling you what I know.

PN535.

Excuse me if I may for a moment, your Honour.  Just this last question is because of the difficulties that you have with me about the definition of the word “principal”.  Can I ask you to go to paragraph 24 of your first statement, and you talk about district operators there.  You say:

PN536.

         In some cases, district operators for example, employees will regularly work on customer installations although that is not their principal form of work.

PN537.

So is what you’re saying there is that they might do it from time to time but it’s not the majority of their duties?---I would have to say, yes, because you’ve got to understand the type of work that these guys are doing – that classification, are doing.  An example would be over the Christmas period because of the lack of resources with people being away on leave, they picked up – they had the qualification and skills that they picked up the work of what are classed as the EMSOs.  Emergency services officers who are like the first point of call over the Christmas break. 

PN538.

The question I’m asking you is just simply what you mean by the word “principal”.  It’s not the majority of their duties, is it?  Yes or no?---In that scenario I would agree.

PN539.

No further questions, your Honour.

PN540.

THE SENIOR DEPUTY PRESIDENT:   Mr Taylor, how long do you think you’re going to be in re-examination?  I’m just wondering if we break now but if you want to carry on then - - -

PN541.

MR TAYLOR:   I think we can complete this by 1 o’clock, if I - - -

PN542.

THE SENIOR DEPUTY PRESIDENT:   Okay.  Let’s proceed now.

<RE-EXAMINATION BY MR TAYLOR                                         [12.48 PM]

PN543.

MR TAYLOR:   You were asked a number of questions about the Electrical Safety Rules and allowances attached to complying with those rules.  In particular you were asked whether there is a necessity to be an electrician to be able to comply with those rules, which you didn’t accept.  What was the reason you didn’t accept that proposition?

**** BRADLEY CURREY      REXN MR TAYLOR

PN544.

MS NOMCHONG:   Well, I object, your Honour.  I qualified that question and I thought it was made clear that other classifications actually got the ESRs, and the question was put that if you were working in an electrical capacity you need to be qualified as an electrician to comply with the ESRs.

PN545.

THE SENIOR DEPUTY PRESIDENT:   I think in the end Ms Nomchong did actually change her question.

PN546.

MR TAYLOR:   Yes, she did but I think – I don’t think I was suggesting anything other than that questions were asked about the subject of the Electricity Safety Rules, and I wanted to in re-examination have the witness identify such other classifications that are entitled to the amounts, and have to comply with the rules.  Is that the case?  There were others beyond electricians that have to comply with safety rules?---That’s correct.  There’s a criteria that identifies whether they get 100 per cent of the safety rules, 80 per cent of the safety rules or 60 per cent safety rules.  For 100 per cent they have to be electrically qualified, working in that, to get 100 per cent.  For 80 per cent of that they have to be a trade – it doesn’t specify electrical trade, it’s just a trade, i.e. someone in the – a mechanic working for the organisation, would have to comply, even though it’s not an electrician they are trade, with those rules, specifically if they go to work anywhere in close proximity or near the network.  So they get payment for complying with that.  The third one, the 60 per cent, is electricity workers, trade assistants.  So there’s a clear differentiation between the three types to get that payment.

PN547.

You were asked some questions about one of the positions that you identified in paragraph 23 of your first statement, the position of EFM service lines, and you gave some evidence about the extent to which they work on the consumer or network side of the point of supply or I think it’s referred to as the point of attachment.  Do you recall that?---Yes.

PN548.

In light of some material that has been provided to me, are you aware of any difference in that regard, depending on the age of the suburb in question or that they’re working in?---It would, as I said earlier, depend because there’s that many different variations across the franchise of Endeavour services.  There’s the age, the density, the different constructions, and I think a lot of it is identified in the Electrical Safety Rules or the Supply Rules, which identifies where the point of attachments are.  But I can go through the different types of construction, whether they’re an overhead to the house or the residence or premises; or whether it’s underground;  or whether it’s an extended right of way;  or there’s a property within another property.  There’s that many different variations because just of the geographical nature and the different age and the different counties that constructed things differently over the years, that Endeavour have to deal with.  So it really has to be dealt with on a case by case basis.

PN549.

Just remind us, the service line is a line between where and where?---Between the break-off off the network, the line, to either a domestic, commercial or industrial premises.

**** BRADLEY CURREY      REXN MR TAYLOR

PN550.

Is the point of attachment, is that something that can vary in different areas?---It does depending on the installation, construction itself, and where it’s servicing.  It could be a service line going into an industrial estate, you know, which services a number of premises within that industrial estate.  Now, that would differ greatly to the average house that’s on an overhead line system which goes to the board point of attachment, or an underground service which the point of attachment could be in the consumer’s meter box.  So it varies dramatically across the whole franchise.  It’s my understanding that over the years standards have changed.  The requirements on the network operator, their standards changed and the way they installed things.  Council requirements, there’s vast variance, I suppose, is to how to describe it.

PN551.

Mr Currey, at the beginning of the cross-examination you were asked about the requirements to obtain a licence, and you identified that one of the requirements involved in some way the passing of a test.  I think you referred to it as the Capstone test.  What is that test?---To my knowledge it’s a test that an individual can do after completing – getting their trade craftsman certificate and completing their apprentice.  It’s basically an understanding of the Australian standard of wiring rules these days.  It has obviously changed over the years but currently it’s passing the test or exam of the knowledge, and that’s of the Australian Standard, AS3000 or whatever it is.  It’s the basis of it.  They must pass that to get their licence and produce that to the Department of Fair Trading.

PN552.

Are you familiar as to who or what person is the person who sets and in effect runs those tests and determines whether people have passed them?---They’re done by registered training organisations.  So it could be TAFE.  It could be a company RTO or a third party RTO, registered training organisation but they must be a registered training organisation.

PN553.

Thank you.

PN554.

THE SENIOR DEPUTY PRESIDENT:   Thank you very much, Mr Currey.  You may step down.  We will adjourn until 2 o’clock.

**** BRADLEY CURREY      REXN MR TAYLOR

<THE WITNESS WITHDREW                                                          [12.56 PM]

LUNCHEON ADJOURNMENT                                                         [12.56 PM]

RESUMED                                                                                               [2.03 PM]

PN555.

THE SENIOR DEPUTY PRESIDENT:   If it pleases your Honour, our next witness is Mr Colin Egan.  We have four more witnesses.  One of them is Mr Pollack.  Mr Pollack was only available until 2.30, and while my friend indicated she didn’t think there would be a difficulty completing him, in light of the circumstance that he had which required him to leave at 2.30, which was entirely inflexible, he was concerned that there was nevertheless a risk.

PN556.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN557.

MR TAYLOR:   So the difficulty we have is we will not be able to call Mr Pollack until tomorrow.

PN558.

THE SENIOR DEPUTY PRESIDENT:   We can deal with him first thing tomorrow morning.

PN559.

MR TAYLOR:   Yes.  He will be available first thing tomorrow morning.

PN560.

THE SENIOR DEPUTY PRESIDENT:   Okay. 

PN561.

MR TAYLOR:   Our next witness is Mr Egan.  Your Honour, Mr Egan has two statements. 

<COLIN EGAN, SWORN                                                                      [2.04 PM]

<EXAMINATION-IN-CHIEF BY MR TAYLOR                              [2.04 PM]

PN562.

MR TAYLOR:   Your Honour, I was saying that – while Mr Egan takes his seat – there are two statements from Mr Egan.  The first was signed by him on 17 September 2014.  Does your Honour need another copy?

PN563.

THE SENIOR DEPUTY PRESIDENT:   Yes, I don’t have it.  Yes, please.

PN564.

MR TAYLOR:   The second was signed on 21 November 2014.  I think Mr Kennedy is finding that too. 

PN565.

Is your name Colin Egan?---That’s correct.

PN566.

Is your address (address supplied)?---That’s correct.

PN567.

Are you employed full-time in the role of a senior system operator by Endeavour Energy?---That’s correct.

PN568.

What is your work location?---Huntingwood.

PN569.

How many senior system operators does Endeavour have?---Six.

**** COLIN EGAN                      XN MR TAYLOR

PN570.

In broad terms, what is the nature of the role of a senior system operator?---The senior system operator is responsible for the supervision of all operations that occur on the network, and the tasks of that supervision is quite varied.  Coming from the direct supervision of the staff and the control room, right down through to the operations being carried out by the field operators in the field.  It’s program work, emergency response, and in light of program work we’re also responsible for the checking of all switching that it’s correct before it enters into the field.  In the case of emergency work, we’re overseeing what’s going on in the control room via our system operators, both in our Huntingwood control room and also now in our new Spring Hill control room which was previous at Coniston.

PN571.

How are the senior system operators rostered?---Our rostering is on a 24 hour a day basis, seven days a week.  Our roster is a six-week roster and rotating on the six weeks.

PN572.

How many are rostered on at any given time?---There’s only one rostered on per shift, per eight-hour shift.

PN573.

Did I capture your evidence earlier correctly, that person is responsible for the network during their rostered period?---That’s correct.  For the eight-hour, the normal rostered shift, they’re responsible for all operations on the network.

PN574.

How long have you been employed by Endeavour?---I’m currently in my 43rd year.

PN575.

You’ve previously had a role, you tell us in your statement, as system operator?
---I was a system operator for 20 years before applying successfully in my current role as senior system operator since 2007.

PN576.

You know Mr Langdon?---Yes, I know Peter Langdon.

PN577.

In broad terms, what is the role of the system operator?---The system operator is running a designated area looking after the program switching and also emergency response.  So he’s directing staff, as in district operators, emergency service dispatch work as well.  So he’s directing both again the program work and also the emergency response work in his designated area on the desk that he’s running on the day.

PN578.

What is the relationship between - - -

**** COLIN EGAN                      XN MR TAYLOR

PN579.

MS NOMCHONG:   Your Honour, I wonder if I might just make this objection, if I could.  We put the union on notice that we would be seeking to lead some additional evidence from Mr Langdon and Mr Greenhill, and we wrote a letter to my friend’s instructing solicitors what we expected that additional evidence to be.  We haven’t been given the courtesy of any advice from the union’s solicitors that additional evidence was going to be led.  It places us in a difficult position because I don’t have anyone who can instruct me here about whether this new evidence is correct or incorrect.  So I’m in a difficult position to then go on and cross-examine.  Up until now I’ve been able to deal with it because it’s just been, “How long have you been in the job?”  But I do think that it places the employer in a difficult position if we’re going to be talking about, you know, percentages of time doing what job and how.  I mean, unless of course that’s going to be something that I can then additionally ask Mr Langdon tomorrow, but I won’t have the opportunity then to Browne v Dunn Mr Egan.

PN580.

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

PN581.

MR TAYLOR:   Thank you, your Honour.  Yes, my friend is quite right.  Yesterday we received a letter which identified a range of additional information that would be led.  I indicated that we of course would need to then get instructions on what would be in some cases additional material-in-chief, and in some cases is additional prime material, and we would need some time to do that.  At this stage all I am doing with this witness – the question that has been objected to, all I’m doing is just identifying in broad terms where all the positions sit.  So far I’m not asking anything that is going to be, I would have thought, in any way controversial but in light of the fact that we’ve received additional information, there is some additional information that then has come forward in a sense in response to that.  We only got it yesterday, so we’re doing the best we can on the material.  I’ve only been able to see the people today.  So that’s where we’re up to.

PN582.

THE SENIOR DEPUTY PRESIDENT:   I must say I don’t think there’s a problem with the questioning.

PN583.

MR TAYLOR:   If there’s a particular question that comes up that is said to be – I think the words my friend said – contentious, then I will – I mean, we’ll deal with that as best we can.  I don’t think that’s coming up with this witness, that is, anything that falls into that category.  It’s more a matter of this witness simply identifying – expanding on what he has already said.  He has already deal with the subject-matter I’ve been asking him about in his statement.  It’s just really putting the various bits in the statement into an overall context of where it fits in.

PN584.

THE SENIOR DEPUTY PRESIDENT:   Yes.

PN585.

MR TAYLOR:   But at a certain point, if there’s a particular question that goes beyond that, then we can deal with that particular question.

PN586.

MS NOMCHONG:   Perhaps if my friend can assure me that nothing will be put against me for not cross-examining him on material that I haven’t yet got instructions on.

**** COLIN EGAN                      XN MR TAYLOR

PN587.

THE SENIOR DEPUTY PRESIDENT:   Right.

PN588.

MS NOMCHONG:   So it won’t be put against us that you didn’t challenge Mr Egan on this or that, or something else.

PN589.

THE SENIOR DEPUTY PRESIDENT:   I won’t accept it if he does.

PN590.

MR TAYLOR:   I can say that I will not be doing that.

PN591.

THE SENIOR DEPUTY PRESIDENT:   Okay. 

PN592.

MR TAYLOR:   The control room system operators, what’s the relationship between them and district operators?---The system operators are directing the district operators in the field for the switching on the network for both program work, as I’ve stated, and emergency response work.  So their role is that they’re either communicating via telephone or via a GRN radio network, giving the instructions on switching to be carried out, and receiving information back on switching that has been carried out, or receiving information back on, as I say, emergency situations when then the system operator will have to go into his knowledge of what they’re going to do with the problem they currently have.

PN593.

The same question but in respect of EMSOs, how do system operators react with EMSOs?---The EMSOs, the emergency service officers, during a day and afternoon shift have a dispatch officer who also works in the control room directing them.  They’re doing primarily customer calls to customers’ premises.  Occasionally the problem might evolve past the customer and come back into the network, either low or high voltage, and that job will be passed from the dispatch officer across to the system operator, and that emergency service operator will carry on that job under the direction of the system operator.  Consequently then on night shift there is no dispatch officer and all staff working, whether they be district operators, emergency service operators, or called out staff from districts, are all under the control of the system operator.

PN594.

You understand that these proceedings are about whether various positions are ones which require the holding of what’s called the electrical licence.  I’m not asking you whether they are or aren’t entitled to it but to what – do you have a knowledge of whether the six system operators do or don’t have an electrical licence?---The six senior system operators all have the electricians licence.

PN595.

There’s a couple of matters in your reply statement which we anticipate, from what we’ve been told, Mr Langdon is going to say something further about.  Can I ask you to open your reply statement?  Before I do, I’ve overlooked a matter of formality but one that we need to deal with.  Can I start with your first statement and just say, do you have that with you in the witness box?---Yes.

PN596.

That’s the statement signed on 17 September 2014.  Do you say the contents of that statement are true and correct to the best of your knowledge and belief?
---Yes, I do.

PN597.

I tender that.

PN598.

THE SENIOR DEPUTY PRESIDENT:   That’s CEPU10.

EXHIBIT #CEPU10 STATEMENT OF COLIN EGAN DATED 17/09/2014

PN599.

MR TAYLOR:   Now the second statement which I’m about to ask you a couple of questions about.  That’s the reply statement dated 21 November 2014.  Do you have a copy of that with you in the witness box?---Yes, I do.

PN600.

MS NOMCHONG:   I have an objection to this statement.  That is an objection to paragraph 5.  Not only is it hearsay but it’s irrelevant to any of the matters in issue in these proceedings.

PN601.

THE SENIOR DEPUTY PRESIDENT:   Do we know if it’s hearsay?  We don’t know how he knows it.  I mean - - -

PN602.

MS NOMCHONG:   Whether it was re-written by someone who had those characteristics is irrelevant, one would think.

PN603.

THE SENIOR DEPUTY PRESIDENT:   Probably, but seeing it was authorised by the organisation they can presumably appoint who they like but - - -

PN604.

MS NOMCHONG:   The probative value of it is nil, in our submission, your Honour.

PN605.

THE SENIOR DEPUTY PRESIDENT:   That’s probably right but I suppose - - -

PN606.

MS NOMCHONG:   It is rather scandalous in that technical legal sense, so I don’t think that it’s quite fair to leave it on the record.

PN607.

MR TAYLOR:   Your Honour, this witness identifies the control room manager at the time being young and inexperienced.  That appears to be the focus of my friend’s concern.  The fact that the position description has been re-written is clearly a matter of great relevance to this case and I’m going to ask some questions.  Mr Langdon has said things about the fact that it has been rewritten.  How it’s been re-written and what the consequences of that are is something that is relevant to the case.  The fact that it was re-written without any consultation with stakeholders is not irrelevant. 

**** COLIN EGAN                      XN MR TAYLOR

PN608.

That is, if your Honour has to determine whether this position which is not the position of a senior system operator but that of a system operator, is one which as a matter of practice continues to require knowledge that is said to be knowledge that’s signified by the holding of the licence, then that is something that is relevant.  Now, what I was about to do with this witness is identify the position description that existed up until 2010 which he attaches to his statement, and the position description that Mr Langdon is referring to in his paragraph, and identify the differences between them.

PN609.

THE SENIOR DEPUTY PRESIDENT:   I suppose, yes, I mean, there’s this business about who it was re-written by and how he did it.  I suppose there’s an issue of how does Mr Egan know that.  No, no, you can ask questions.  I don’t know that it’s hearsay.  He might have very good knowledge of it.

PN610.

MR TAYLOR:   He might.

PN611.

THE SENIOR DEPUTY PRESIDENT:   Or he might not.  I don’t know.

PN612.

MR TAYLOR:   I’m happy to qualify his knowledge as to who did it in what circumstances and how he came to know that.

PN613.

THE SENIOR DEPUTY PRESIDENT:   Yes.  I’ll allow the paragraph in as it is.

PN614.

MR TAYLOR:   Mr Langdon, just dealing with this issue, you identify that there was a particular control room manager who was responsible for re-writing the position description.  How is it that you know that?---The – do you want me to name the person or?

PN615.

Yes.

PN616.

THE SENIOR DEPUTY PRESIDENT:   Yes, please?---Well, the PD was re‑written by a newly appointed control room manager, his name was Stuart Watts, not long out of his time as a graduate engineer.  As I state, there was no consultation with any of the people in that position.

PN617.

So in the position for which the position description related?---Yes.  In all past re‑writes or updates of position descriptions that I had been involved with for quite a number of years, the author of the rewrite would always have a consultation with all of the stakeholders in setting the new PD up and in its format.

PN618.

MR TAYLOR:   Can you just turn to the annexure CE4 to your first statement.

**** COLIN EGAN                      XN MR TAYLOR

PN619.

THE SENIOR DEPUTY PRESIDENT:   We never actually did tender that.

PN620.

MR TAYLOR:   I’m sorry, your Honour.

PN621.

THE SENIOR DEPUTY PRESIDENT:   So that’s CEPU11.

PN622.

MR TAYLOR:   Maybe I’ll just ask the witness.  Mr Egan, do you say the contents of your reply statement are true and correct to the best of your knowledge and belief?---Yes, I do.

PN623.

I tender that.

PN624.

THE SENIOR DEPUTY PRESIDENT:   That’s CEPU11.

EXHIBIT #CEPU11 STATEMENT OF COLIN EGAN DATED 21/11/2014

PN625.

MR TAYLOR:   Turning back to the first statement, annexure CE4 which bears the words at the top, “Position vacant system operator” and bears a date of 10 July 2010 - - -

PN626.

MS NOMCHONG:   Sorry, what are you looking at?

PN627.

MR TAYLOR:   I’m looking at CE4 to the first - - -

PN628.

MS NOMCHONG:   CE4.  Sorry.

PN629.

MR TAYLOR:   To the first statement.  You describe this as the relevant job advertisement for a position of system operator, and it bears a date of July 2010.  That advertisement, are you able to identify where in that advertisement it says anything about a requirement or otherwise to hold the licence?---It comes under key requirements.

PN630.

Is that page 1?---Page 1.

PN631.

Is it the last dot point?---It’s the last dot point, correct.

PN632.

If you turn to the next annexure CE5, was this a job – sorry – a position description that existed at the time of that job advertisement?---We’re talking about CE5?

PN633.

Yes?---The vacancy for system operator.  Yes, that’s correct.

**** COLIN EGAN                      XN MR TAYLOR

PN634.

You have seen Mr Langdon’s statement in which he says that there is a new position description in which case the issue of a licence is no longer a requirement.  Have you seen the actual position description he’s talking about?
---The position description that I believe he’s referring to moved the essential requirement of an unrestricted licence to a desirable requirement.

PN635.

Your Honour, the respondent’s tender bundle I’m told includes a position description.  It’s the respondent’s tender bundle at tab F.  I’m just going to hand the witness a document which is that document.  Mr Langdon says something about this in his statement.  Do you recognise this document?---Yes.  Yes, this is the – what I believe would be the current document, I think it is.

PN636.

That’s for the position senior system operator.  Is that right?---That’s correct.

PN637.

You can hand that – if I could have that document back.  Excuse me, your Honour. 

PN638.

Just while people are looking for those documents, can I just move on to ask you about paragraph 6 of your reply statement?  You express an opinion there about it being impossible to carry out duties properly if you didn’t have skills represented by the electrician’s licence and wasn’t conversant with the current wiring laws.  Why do you say that that’s the case?---If you didn’t have the knowledge required to obtain the licence in the first place you wouldn’t be able to direct and supervise staff doing the work correctly when they come back with questions which they quite often do to you, to be able to get direction in how to carry on with the task that they’re undertaking.  This work is obviously on customers’ premises and it can vary between both low voltage and high voltage work and investigation type work.

PN639.

Can I hand you a document.  It’s a position description for a system operator.  Earlier you will recall I was asking you about the requirements for the system operator, and I asked those questions by reference to annexures CE4 and CE5 to your first statement which listed as a requirement the holding of an electrician’s licence.  I’ve now handed you a document.  Do you recognise that as a position description for the position of system operator, which is dated a date in 2011?
---Yes, that’s correct.

PN640.

Do you understand that to be the current PD?---My understanding is that it is the current PD.

PN641.

How in that PD is the subject of the need for an electrician’s licence dealt with?
---It’s listed as a desirable.  It’s been moved from a qualification to a desirable.

PN642.

It’s moved from what?---A qualification required, to a desirable requirement.

**** COLIN EGAN                      XN MR TAYLOR

PN643.

Your Honour, I tender that document.  At this stage I think we’re still searching for extra copies on this side but I think my friend has a copy.

PN644.

THE SENIOR DEPUTY PRESIDENT:   So this is a position description for system operator updated on July 2011, and it’s CEPU12.

EXHIBIT #CEPU12 POSITION DESCRIPTION FOR SYSTEM OPERATOR DATED JULY 2011

PN645.

MR TAYLOR:  Mr Egan, you identified the nature of the issue of an electrician moving from a requirement to desirable.  To what extent has the nature of the role of what the duties of a system operator changed in the relevant period?‑‑‑There’s  been no change in the duties.  The duties are the same.

PN646.

We will either, with my friend’s assistance, get another copy of that document or, alternatively, ask your associate to have access to it to make a photocopy at a suitable time, but we don’t need it immediately, if it’s convenient.  They're the questions for this witness

<CROSS-EXAMINATION BY MS NOMCHONG                             [2.31 PM]

PN647.

MS NOMCHONG:  Mr Egan, at paragraph 2(f) of your first statement, you say that you were appointed to the position of senior system operator in 2007.  Is that the position that you held on 25 December 2012?‑‑‑Correct.

PN648.

You have an electrical licence?‑‑‑Yes, I do.

PN649.

You obtained that licence through a trades course plus 12 months’ work experience thereafter?‑‑‑Yes, back in my day it was six months.

PN650.

Then in order to get the licence you made an application to Fair Trading?‑‑‑You're correct.

PN651.

You obtained the licence, and you would agree with me that the licence is an indication of you having completed your trade qualifications and having done that six months’ work experience?‑‑‑Having done all the correct requirements.  Yes.

PN652.

You didn't have to sit any test with Fair Trading to get your licence, did you?‑‑‑No.  It was at the end of my apprenticeship and the test wasn't required because you'd just completed all the requirements.

**** COLIN EGAN            XXN MS NOMCHONG

PN653.

THE SENIOR DEPUTY PRESIDENT:  So just to be clear, you get your licence renewed because you had a licence before.  They don’t go back and make you do extra?‑‑‑No.  If you keep it, yes, up to date and renewed – if you let it lapse, you'll have to go back and be test.

PN654.

But as long as you renew it, you don’t have to go back and do any extra qualifications?‑‑‑Yes.

PN655.

Is that correct?‑‑‑That's correct.

PN656.

MS NOMCHONG:  My next question, your Honour.

PN657.

THE SENIOR DEPUTY PRESIDENT:  I'm sorry.

PN658.

MS NOMCHONG:  Mr Taylor took you to a document which was tab F in the respondent’s bundle and was the position description of a senior systems operator dated October 2013.  Do you still have that with you in the witness box?‑‑‑No, I don’t.

PN659.

May Ms Petit approach the witness, your Honour?  Thank you.  If I could take you over to the second page – your Honour, do you have this, the respondent’s bundle, tab F?  Your Honour?

PN660.

THE SENIOR DEPUTY PRESIDENT:  Yes, I do.  Yes, sorry.

PN661.

MS NOMCHONG:  Yes, thank you.

PN662.

May I take you, Mr Egan, to page 169 and then the position purpose and it says:

PN663.

The senior system operator is responsible for daily management and operation of the control rooms, oversees the effective use of resources in maintaining and controlling a safe environment and ensuring quality reliability and security of the transmission and distribution network.

PN664.

Would you agree with that, that’s the overall general purpose of the position?
‑‑‑As an overall statement, yes.

PN665.

Then on the key accountabilities, can you just take a moment to read through those dot points, and I won’t read them to you aloud, and then just tell his Honour whether you agree or disagree that they are the key accountabilities of the senior system operator?‑‑‑Yes, I’d agree.

**** COLIN EGAN            XXN MS NOMCHONG

PN666.

In terms of over the page at 171 – I won’t ask you about challenges because I'm sure there’s more than that in your job, but the key relationships, that is the internal and external relationships.  Just read that to yourself and tell his Honour whether you agree or disagree with that?‑‑‑I may have added more things internally to that statement.

PN667.

But broadly you would agree with them?‑‑‑Broadly, yes.

PN668.

Then just over the page to leadership competencies and do the same exercise for me, if you would, Mr Egan?‑‑‑Yes, I would agree to that.

PN669.

Mr Taylor asked you some questions just a moment ago and you told his Honour that the role that you do was that you were responsible for all operations and you referred to dispatching workers and liaising, I think by way of a radio, with field operations and emergency response teams.  Is that right?‑‑‑That's correct; radio and phone.

PN670.

But it would be fair to say that you personally don’t do any electrical wiring working yourself on customer installations?‑‑‑Not hands on, no, only the supervision at the end of the phone or radio.

PN671.

That the person actually, if they're doing an emergency response job on a customer installation, they would be required to have a licence themselves or being supervised on the ground by someone who has a licence.  Isn’t that correct?‑‑‑The guy that had the licence to do the job in the customer’s premises.

PN672.

Then similarly for a system operator, it’s the case that they would not personally do any electrical wiring work on consumer installations.  That's correct, isn't it?‑‑‑Not hands on.  That's correct.

PN673.

Similarly, if they were communicating, as you told Mr Taylor, getting information and helping them out with systems, that would also be the person on the ground would have to have to have the licence if they were working on consumer installations?‑‑‑The person on the ground needs a licence and the person, as far as I'm concerned, directing them needs a licence to give them the correct information.

PN674.

But in the sense that it’s not – it’s a matter for the statute – but in the sense that the person on the ground must have the licence because they're physically doing the work.  That's your understanding?‑‑‑That's correct.

PN675.

You then answered some questions – just before I ask you that, have you ever let your licence lapse?‑‑‑No.

**** COLIN EGAN            XXN MS NOMCHONG

PN676.

Do you know any other workers who have let their licences lapse?‑‑‑I personally – I have heard of it happening, but I personally don't know anyone.

PN677.

You're familiar with the ESRs?‑‑‑Correct.

PN678.

You have to do training each year?‑‑‑Yes.

PN679.

You have to pass a test each year?‑‑‑Yes.

PN680.

Are you aware that if you don’t answer all of the questions or, in fact, I think just get one question wrong, you still get to pass?‑‑‑Correct.

PN681.

But if you answer more than four questions incorrectly, you're suspended from work until you can pass the test properly?‑‑‑Correct.

PN682.

The last question I want to ask you, Mr Egan, was that you were making some comments to his Honour that in relation to the position description for a system operator, they had moved the requirement for an electrical licence from a mandatory requirement to something that was simply desirable?‑‑‑That's correct.

PN683.

You would agree that Endeavour, as the manager, has the right to determine what qualifications and experiences it wants each of the persons who holds the job to do?‑‑‑Providing it’s the correct requirement.

PN684.

But they're the boss, aren’t they?‑‑‑But if they make the incorrect decision, it doesn't make it correct.

PN685.

In the sense it might not be correct, but it’s their managerial prerogative to determine what qualifications should be held by people doing what positions in their organisations?‑‑‑Well, they should ‑ ‑ ‑

PN686.

Subject to statutory requirements, of course?‑‑‑Well, that's what I'm saying it’s subject to statutory requirements.

PN687.

Yes?‑‑‑I don't believe they should put a person in a position where they require it and they don’t have it.

PN688.

Certainly.  Let’s say under the statute – you're familiar with all of the statutes, are you, that regulate the work?‑‑‑If you're talking about the requirement of an electrician’s licence to either the Home Building Code or Fair Work Australia, yes.

**** COLIN EGAN            XXN MS NOMCHONG

PN689.

Fair Work Australia?‑‑‑That's not the right word.

PN690.

THE SENIOR DEPUTY PRESIDENT:  Fair Trades, I think, to ‑ ‑ ‑

PN691.

MS NOMCHONG:  Fair Trading, maybe?‑‑‑Fair Trading.

PN692.

That's all right.  You got it confused because you're in the wrong building.

PN693.

THE SENIOR DEPUTY PRESIDENT:  It’s fair enough to get confused, but also fair, theoretically.

PN694.

MS NOMCHONG:  Putting aside those people ‑ ‑ ‑?‑‑‑Yes.

PN695.

‑ ‑ ‑ who are required under the statutes to have a licence in order to do the work, it really is the position of Endeavour to determine what qualifications they want people to have to do what jobs?‑‑‑Providing they are giving the correct qualification to the job.

PN696.

Yes, thank you.  No further questions, your Honour.

<RE-EXAMINATION BY MR TAYLOR                                           [2.41 PM]

PN697.

MR TAYLOR:  Mr Egan, in respect of system operators, you were asked whether they do any hands on work and you said something to this effect, “The person who directs the work needs to have a licence to give the correct information.”  What do you mean by that?‑‑‑If they're being queried by the field staff as the correct procedure they should be using, they require the knowledge to pass that down the line to get them to carry out the correct procedure.

PN698.

THE SENIOR DEPUTY PRESIDENT:  Can I just interrupt?

PN699.

When you say “they need to have the knowledge” and presumably what you mean by that is they need to be a properly qualified electrician?‑‑‑As in all aspects of life, some people get caught up in a problem and they look for guidance.

PN700.

Yes?‑‑‑And the guidance that they're looking for has to come from a person with the correct knowledge.

PN701.

Yes?‑‑‑And that knowledge in this case comes from a person with a licence to be able to tell them ‑ ‑ ‑

**** COLIN EGAN                 REXN MR TAYLOR

PN702.

But having a licence doesn't give you any knowledge, does it, or does it?‑‑‑Well, to gain the licence, you have to have performed all the requirements to get the licence in the first place.

PN703.

But all you had to do – and I'm not criticising you in ‑ ‑ ‑?‑‑‑Yes.

PN704.

‑ ‑ ‑ any way when I say this, but the fact is that from what you said before, you had to be a trade qualified electrician and have six months’ experience.  That's all in fact?‑‑‑Okay.

PN705.

Apart from sending the money in and ‑ ‑ ‑?‑‑‑Can I just make a qualification on that?

PN706.

Yes?‑‑‑If I don’t keep myself abreast of what all the current requirements and rules are, it would be the same as me getting my driver's licence when I was 17, never worrying about updating myself what the current rules are again in my life and still driving when I was 60 years’ old.

PN707.

But isn't that the point, that in fact you don’t have to – the fact that you've got the driver's licence doesn't mean you know what the current road rules are?  You might be a lousy driver and having a licence ‑ ‑ ‑?‑‑‑Well, you ‑ ‑ ‑

PN708.

I'm putting to you having the licence ‑ ‑ ‑?‑‑‑Yes.

PN709.

‑ ‑ ‑ when you say you need to have the licence, you need to know what you're talking about.  You need to be up to date with all the rules and, you know, modern technology and so on?‑‑‑Yes, and that’s correct.

PN710.

That's not the same, though, as having a licence, is it, because you can have the licence – you could have got the licence 30 years ago or more and not kept yourself up to date at all?  I mean that would be a problem, but it wouldn't stop you having a licence, would it?  I mean ‑ ‑ ‑?‑‑‑Well, you're correct, it wouldn't stop you from having a licence, but you would find it very difficult to do your job if you weren't abreast of the rules.

PN711.

Yes?‑‑‑Yes.  The system may be the problem here that they're not doing an ongoing test.

PN712.

But we’re not here to decide whether it’s consistent or not, just trying to understand what it is.  Sorry.

**** COLIN EGAN                 REXN MR TAYLOR

PN713.

MR TAYLOR:  Mr Egan, just arising out of the questions and answers that were just given, you spoke about a 17‑year‑old and someone who’s 60 and needing to be up to date with the rules of the road.  In respect of the areas of knowledge that you need to know in order to get a licence, have they changed in the 42 years since you finished your apprenticeship?‑‑‑Well, as I alluded to before from the questioning, the current requirement is the completion of the apprenticeship and it’s now 12 months’ experience requiring – is my understanding of what the current requirement is.

PN714.

I was talking about the rules themselves though?‑‑‑The current?  Well, the rules are – the current rules under wiring is AS3000, which has been updated, so once again, you know, if you don’t keep yourself abreast of what all the current rules are, you'll find it difficult to carry out your job.

PN715.

have those rules changed over those years?‑‑‑Yes, quite a deal – quite a deal.

PN716.

Can you identify any particular areas of importance where the rules have changed?‑‑‑Technological changes typically with insulation, for example, on cabling has changed dramatically in the last 40 years.  So you have a whole bunch of new tables now that evolve from current carrying capacity, voltage drop and all sorts of things which come out of that and that’s a typical example.

PN717.

How is it that someone stays up to date with those things?  What do they do?‑‑‑Well, as has been alluded to, it does become a personal issue, but all these things nowadays are, of course, online.  You can view them online and you can obviously have hard copies of that information as well.

PN718.

Thank you, your Honour.

PN719.

THE SENIOR DEPUTY PRESIDENT:  Thanks very much, Mr Egan.  You're excused.  Thank you for your help?‑‑‑Thank you.

**** COLIN EGAN                 REXN MR TAYLOR

<THE WITNESS WITHDREW                                                            [2.46 PM]

PN720.

MR TAYLOR:  The next witness, your Honour, is Richard Matuelwicz.  I hope I’ve got the pronunciation correct.  There are two statements and I think when Mr Kennedy comes back, we'll provide you with the signed copies of those statements.  In fact, I don't have a signed copy of the first ones.

<RICHARD MATUELWICZ, SWORN                                               [2.47 PM]

<EXAMINATION-IN-CHIEF BY MR TAYLOR                              [2.47 PM]

PN721.

MR TAYLOR:  Your Honour, I have those signed copies of Mr Matuelwicz’ statements.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN722.

Have I pronounced that correctly?‑‑‑Matuelwicz.

PN723.

Matuelwicz?  Thank you.

PN724.

Is your name Richard Matuelwicz?‑‑‑Yes.

PN725.

Do you live at (address supplied)?‑‑‑Correct.

PN726.

Are you employed as a district operator by Endeavour Energy?‑‑‑Correct.

PN727.

Have you been employed by Endeavour Energy or its predecessors since 1981?‑‑‑Correct.

PN728.

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

PN729.

Do you have them with you in the witness box?‑‑‑Yes, I do.

PN730.

I'll start with the first statement.  That's the one that’s titled "Statement" and for the original type dated 22 September 2014, do you say the contents of that statement are true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.

PN731.

THE SENIOR DEPUTY PRESIDENT:  That's CEPU 13.

EXHIBIT #CEPU13 STATEMENT OF RICHARD MATUELWICZ DATED 22/09/2014

PN732.

MR TAYLOR:  In respect of the second statement, reply statement, a two‑page statement, hand dated 25 November 2014, do you say that that is true and correct to the best of your knowledge and belief?‑‑‑Yes, I do.

PN733.

THE SENIOR DEPUTY PRESIDENT:  That's CEPU 14.

EXHIBIT #CEPU14 TWO-PAGE REPLY STATEMENT DATED 25/11/2014

PN734.

MR TAYLOR:  What is your work location?‑‑‑Kings Park.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN735.

Some of the evidence that’s been said in response to you has dealt with another position with a similar name, district operator in training, DOIT, but what’s the relationship between that position and your position of district operator?‑‑‑Just as it says, an incumbent, preparing to become a district operator.  It’s another apprenticeship, if you like.

PN736.

The district operators at Kings Park, how are they rostered?‑‑‑24 hours, seven days.

PN737.

How many shifts are there per day?‑‑‑We have a 6.00 to 2.00, a 10 to 6.00 and a 2.00 to 10, sorry.  Yes.

PN738.

So three shifts per day?‑‑‑We only do a 10 to 6.00 at that particular depot.

PN739.

Sorry, I should say per 24 hours.  How many shifts are there per 24 hours?
‑‑‑Three.

PN740.

One of those shifts is a night shift?‑‑‑That's correct.

PN741.

Are there MSOs rostered out of the Kings Park depot?‑‑‑Yes, there are.

PN742.

What shifts do they work?‑‑‑They would do a day and an afternoon.  What those hours are, I couldn't tell you.

PN743.

Is there MSO work that arises during night shifts?‑‑‑Absolutely.

PN744.

Who does that?‑‑‑The DO/DOIT.

PN745.

Who is rostered?‑‑‑That were rostered on.

PN746.

Are there other occasions when district operators or DOITs do work that would otherwise be done by MSOs?‑‑‑Yes, there is.  It would cover weekends, public holidays, due to illness or the MSOs being on annual leave, to cover their shifts.

PN747.

In respect of your first statement, you attached some position descriptions for district operators and district operators in training.  Did you do something in the last 24 hours to check what the status of the current position description is for district operators?‑‑‑I did.  I made an inquiry with a few of  my colleagues to chase up if there was any paperwork there and there are current job applications for DOs ‑ ‑ ‑

PN748.

THE SENIOR DEPUTY PRESIDENT:  Sorry.  Can you just be a bit more specific when you say “you chased up with some of your colleagues”?  Who are we talking about?‑‑‑The DOs in training.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN749.

So you were asking the people who were in the jobs about their current position descriptions.  Is that what you mean?‑‑‑I was just ‑ ‑ ‑

PN750.

Sorry, I sort of jumped in?‑‑‑ ‑ ‑ ‑ chasing relevant paperwork, if anybody had acquired some more paperwork that was pertinent to today and the last few weeks there has been applications – job applications for district operators.

PN751.

Okay?‑‑‑So I was asking if they had those current bits and pieces of paper on them which ‑ ‑ ‑

PN752.

Thanks.

PN753.

MR TAYLOR:  I'm going to hand you a document and it’s something that has only just come to my attention.  I acknowledge that my friend won’t have seen this before.  What is this document that I’ve handed you?‑‑‑That would be a position description or a job application.

PN754.

It appears to come from a particular web site.  Is this something that you've seen before?‑‑‑Yes.  This is the Endeavour Energy intranet web site.

PN755.

What is recorded on this document?‑‑‑That would be the requirements to fulfil a district operator’s job and ‑ ‑ ‑

PN756.

Is this something that is to your knowledge current or old?‑‑‑This looks to be current.

PN757.

But is there anything ‑ ‑ ‑

PN758.

THE SENIOR DEPUTY PRESIDENT:  There’s no dates?‑‑‑No.

PN759.

I can't see any.

PN760.

MS NOMCHONG:  Is there a date on it?

PN761.

MR TAYLOR:  I was told something about it.  It starts with the words, “As a district operator you'll be responsible for the operation of electrical apparatus ‑ ‑ ‑”

PN762.

MS NOMCHONG:  I object, your Honour.  Before we get to that part ‑ ‑ ‑

PN763.

THE SENIOR DEPUTY PRESIDENT:  We want to know what it is.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN764.

MS NOMCHONG:  ‑ ‑ ‑ we've got some unnamed colleagues who accessed the web site, we don't know when.

PN765.

THE SENIOR DEPUTY PRESIDENT:  Yes.

PN766.

MS NOMCHONG:  This document doesn't have a date on it.  I don't know whether it ‑ ‑ ‑

PN767.

THE SENIOR DEPUTY PRESIDENT:  Can you at least ask some questions about exactly what the provenance of this is because it’s just a thing at the moment.

PN768.

MR TAYLOR:  Yes.  I’ve been told what the provenance is.

PN769.

THE SENIOR DEPUTY PRESIDENT:  No, I want the witness to tell.

PN770.

MR TAYLOR:  Yes.

PN771.

THE SENIOR DEPUTY PRESIDENT:  Is this a document that you're familiar with or not?‑‑‑I’ve read this a few times, I guess.

PN772.

When you say you've read it a few times - sorry, I'm not sure.  Have you seen this document on the website or is this just something you've been handed now?  I'm just trying to work out whether you know where this comes from?‑‑‑I hadn’t looked at it on the website.  It’s a printed copy that someone has provided me that they’ve seen on the website from our branch, a district operator in training perhaps.

PN773.

MR TAYLOR:  Who was the person who first gave you this document?‑‑‑Who was the first person?  I can't recall that, sorry.

PN774.

MS NOMCHONG:  I object to this document going in.

PN775.

THE SENIOR DEPUTY PRESIDENT:  It’s going to be difficult, really.

PN776.

MR TAYLOR:  All right.

PN777.

THE SENIOR DEPUTY PRESIDENT:  I just don't know what to make.  I can’t make anything of it.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN778.

MR TAYLOR:  Sure.  We can deal with it on this basis:  we have asked my friend’s client to produce all job advertisements for current positions.  This has not been produced, but was provided to us – that is those at the Bar table – just an hour or so ago on the instructions that this is the job advertisement for jobs which are currently in the process of selection, that is, it is a current job ad.

PN779.

THE SENIOR DEPUTY PRESIDENT:  Yes.

PN780.

MR TAYLOR:  If my friend can get instructions as to whether that is the case because it falls within the category of material that we've asked for.

PN781.

THE SENIOR DEPUTY PRESIDENT:  There was an order to produce.

PN782.

MR TAYLOR:  Yes.

PN783.

THE SENIOR DEPUTY PRESIDENT:  Documents were produced.

PN784.

MR TAYLOR:  Some were.

PN785.

THE SENIOR DEPUTY PRESIDENT:  You're saying this wasn't produced.

PN786.

MR TAYLOR:  Wasn’t in there.

PN787.

THE SENIOR DEPUTY PRESIDENT:  You think it should have been.

PN788.

MR TAYLOR:  That is correct.  And we were told – and it may well be because on my instructions, this is a document that was on the intranet in January of this year and is in respect of jobs which are currently being filled.

PN789.

THE SENIOR DEPUTY PRESIDENT:  So when was the order to produce?  You mean before that?

PN790.

MR TAYLOR:  It was to ‑ ‑ ‑

PN791.

THE SENIOR DEPUTY PRESIDENT:  January.  It was January.

PN792.

MR TAYLOR:  It was to 31 December.  So this order might have fallen ‑ ‑ ‑

PN793.

THE SENIOR DEPUTY PRESIDENT:  Subsequent.

PN794.

MR TAYLOR:  ‑ ‑ ‑ just on the wrong side of that.  Yes.  But presumably, there’s no difficulty with it at an appropriate time being identified.

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN795.

THE SENIOR DEPUTY PRESIDENT:  It’s just that you're asking questions of the witness and he’s having to guess what it is, it sounds like.  He doesn't really know.  He’s just ‑ ‑ ‑

PN796.

MR TAYLOR:  That wasn't ‑ ‑ ‑

PN797.

THE SENIOR DEPUTY PRESIDENT:  No, I'm not criticising you.  I mean, he’s being honest.

PN798.

MR TAYLOR:  No, no that wasn't my understanding.  My understanding – and obviously I'm wrong – was this witness was the person who obtained the document and provided it.

PN799.

THE SENIOR DEPUTY PRESIDENT:  Yes, but it doesn't seem that’s the case?‑‑‑Can I say something regarding that?

PN800.

Yes, yes?‑‑‑I’d have no need to be searching for this on the intranet at work because I have the job.

PN801.

Yes, exactly.  That's okay?‑‑‑Yes.

PN802.

No one is criticising you.  It’s just that you did not produce this document.  I mean, when I say “produce” – exactly, you didn't find this on the website and then print it off?‑‑‑I didn't find it, no.

PN803.

So I don't think he can really help us.

PN804.

MR TAYLOR:  That's fine.

PN805.

THE SENIOR DEPUTY PRESIDENT:  So we might put this to one side.  Okay.

PN806.

MR TAYLOR:  You can't recall where you first saw this document?‑‑‑No.  No, I can’t.  No.

PN807.

Can I hand you a document which was in the materials produced by those instructing my friend?  It’s titled "Position description of a district operator," date updated April 2012.  Do you have copies of this?

PN808.

MS NOMCHONG:  Do you know what page it’s on?

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN809.

MR TAYLOR:  Behind tab 1.

PN810.

THE SENIOR DEPUTY PRESIDENT:  So which job is this?

PN811.

MR TAYLOR:  The position of district operator.  At this stage, again, I think we’re in a position where we have one more - we don’t have sufficient copies, but I’ll hand you the copy that I have, your Honour, so your Honour has a copy in front of you at the time. 

PN812.

THE SENIOR DEPUTY PRESIDENT:  I actually think I’ve got it.  This was produced in the order to produce, was it?

PN813.

MR TAYLOR:  It was, yes. 

PN814.

THE SENIOR DEPUTY PRESIDENT:  Yes, I think I’ve actually got a copy here.  Well, I assume it’s the same.  Date created, September 1994, updated April 2012?

PN815.

MR TAYLOR:  Yes.  For position number 100495.

PN816.

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

PN817.

MR TAYLOR:  Mr Matuelwicz, is this a document that you’ve seen before?
---Yes, I have. 

PN818.

Did you take any steps in the last 24 hours to attempt to find the current position description?---I made inquiries to anybody that - if I could, we have one computer in our shift room and we have very limited access to it and being 24-hour workers, I rely heavily on other people to do a bit of research and then use me as the contact point to forward on all the information on to these fellows.  Now, whether they get sent to me and I scan, have a quick look at them and forwarded them on if they’re relevant, and that’s probably what I’ve been doing.   Whether I’ve gotten them off the intranet myself or - I just wouldn’t be confident in doing it - saying that. 

PN819.

Do you know anything about whether this is the current position description for this position?---I believe it to be the current one. 

PN820.

I tender that document. 

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN821.

THE SENIOR DEPUTY PRESIDENT:  So the position description, position number 100495, is CEPU15.

EXHIBIT #CEPU15 POSITION DESCRIPTION FOR POSITION NUMBER 100495

PN822.

MR TAYLOR:  Your Honour will note there are qualifications listed on the third page which include the qualified supervision certificate, also referred to as the electrical licence. 

PN823.

Finally, in response to having been told things about what Mr Langdon had said in respect of your evidence, did you also, as a result of making some inquiries, obtain this document, which whilst it appeared to us to fall within the category of documents to be produced, didn’t on our reading - didn’t seem to be included.  Can I hand you a copy of this document, and a copy for his Honour.  Mr Matuelwicz, can you just tell the Commission what this document is that I’ve handed you?---This was a letter of offer for the position of district operator in training to one of the last intake of district operators in training. 

PN824.

When you say “one of the last intake”, have there been district operators in training appointed since that time?---Since 2011, I cannot say 100 per cent, but the person that handed the document over to me, he was in the last group. 

PN825.

Did that person indicate whether this letter was something that was something to do with them personally?---Yes.

PN826.

What did they say?---It was their letter.

PN827.

Is there any difficulty with identifying who that person was?  Did that person indicate a desire not to be identified?---We didn’t discuss that, but I can’t say whether he wanted to or not. 

PN828.

I tender the letter.

PN829.

MS NOMCHONG:  Well, I object, your Honour, in the sense that it’s a document given to this witness by someone else.  We don’t know who that person is. 

PN830.

THE SENIOR DEPUTY PRESIDENT:  It’s a letter from the deputy CEO to ‑ ‑ ‑

PN831.

MS NOMCHONG:  Well, apparently, but I mean, it makes it a bit difficult for us to double-check because Mr Taylor says it’s a document that should have been produced under the order to produce, so we need to double-check if that’s something that we should have produced, and if so, then having the name of the person would allow us to do that quite ‑ ‑ ‑

PN832.

THE SENIOR DEPUTY PRESIDENT:  You said it was dated 27 June 2011?

PN833.

MS NOMCHONG:  Yes. 

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN834.

THE SENIOR DEPUTY PRESIDENT:  I can’t remember what the order said.

PN835.

MS NOMCHONG:  Let me just look again.  Excuse me for a moment, your Honour. 

PN836.

THE SENIOR DEPUTY PRESIDENT:  Letter of offer - yes, between 1 January 2010 and - yes, it would have been.  Yes.  What do you say, Mr Taylor?

PN837.

MR TAYLOR:  I think there’s a basis upon which your Honour can accept it.  I accept what my friend says, that the difficulty they have - there is a difficulty in checking whether this particular letter has been produced.  There wouldn’t be any difficulty checking whether letters offering positions of district operator training dated 27 June 2011 have been produced or not, but I think at this stage, we think it can be tendered on a basis that the individual is not identified.  Not all individuals are comfortable with being identified in proceedings like this, and at this stage, the witness doesn’t, in a sense, have that person’s permission ‑ ‑ ‑

PN838.

THE SENIOR DEPUTY PRESIDENT:  No.

PN839.

MR TAYLOR:  - - - to identify the name, but we don’t think that should stop your Honour being able to receive a document which we will rely upon to identify that at least as at June 2011, at about the time when the last district operators in training were being appointed, letters were being written dealing with electricians’ licence saying that they were eligible to receive it, something which is perhaps unsurprising, given the district operator position description requires the holding of such a licence. 

PN840.

THE SENIOR DEPUTY PRESIDENT:  Look, I’m going to allow it in.  So it’s CEPU16. 

EXHIBIT #CEPU16 LETTER OF OFFER FOR DISTRICT OPERATOR IN TRAINING

PN841.

MR TAYLOR:  Your Honour, as for the intranet job advertisement that this witness was unable to give evidence as to where and when he got it, we would ask for whether there’s any difficulty in providing - either confirming this is the latest ad, or otherwise, providing copies of recent ads for the position of district operator that have been generated by Endeavour Energy by way of its intranet, and by recent ads that have been in effect since December of last year through to today. 

PN842.

THE SENIOR DEPUTY PRESIDENT:  There wouldn’t be a problem doing that overnight?

**** RICHARD MATUELWICZ   XN MR TAYLOR

PN843.

MS NOMCHONG:  I can make some inquiries.

PN844.

THE SENIOR DEPUTY PRESIDENT:  Yes.

PN845.

MS NOMCHONG:  We do have - things will become clearer in just a moment. 

PN846.

THE SENIOR DEPUTY PRESIDENT:  Okay, but if you could please, overnight.

PN847.

MS NOMCHONG:  Certainly. 

PN848.

THE SENIOR DEPUTY PRESIDENT:  I don’t expect a response until tomorrow morning, at the earliest.

PN849.

MR TAYLOR:  We will stand over the request to tender that document until that time, but we’re content, your Honour, to hold onto the document for now.  My friend suggests I MFI it.  That seems a sensible course.  Could your Honour give it a marking?

PN850.

THE SENIOR DEPUTY PRESIDENT:  We’ll call it CEPU17, but recognise it’s not been accepted in evidence, not at this stage anyway. 

EXHIBIT #CEPU17 INTRANET JOB ADVERTISEMENT

PN851.

MR TAYLOR:  Thank you, your Honour.  They’re my questions in-chief.

PN852.

THE SENIOR DEPUTY PRESIDENT:  Thanks.  Yes.

<CROSS-EXAMINATION BY MS NOMCHONG                             [3.09 PM]

PN853.

MS NOMCHONG:  You were asked some questions just a moment ago, Mr Matuelwicz, about whether or not the document which has become CEPU15 was the most recent, and I think your evidence was that you got someone else in the control room to have a look at the computer and see what was available and they reported back to you, correct me if any of this is wrong, and that they reported that that PD was the current one; is that right?---Yes, and the shift room, not the control room, if that matters to you. 

PN854.

Sorry, the shift room?---Yes.

PN855.

So you didn’t check yourself?---Not at that point of time, no.  As I said, I was relying on other people to find things and forward them on to me. 

**** RICHARD MATUELWICZ XXN MS NOMCHONG

PN856.

Can I hand you this document headed “Position Description of District Operator” dated February 2014.  What I’d like you to do is turn over the page to the second page and read the position purpose.  Just read that to yourself, and after you’ve read that, can you indicate to his Honour whether you would agree that, overall, that would be the purpose of the district operator?---Seems to be the reasonable description.

PN857.

Then could you read through the “key accountabilities” underneath there, those dot points, and see if you agree with those as being the key references or the key accountabilities in your role as a district operator?---Seems reasonable as well.

PN858.

Then if you could turn over the page and see where the heading is, “Key relationships”, I’m not going to take you to the “Challenges”, but I’ll take you key relationships.  Would you agree with those?---Also seems reasonable. 

PN859.

Then over the page underneath “Skills and Experience”?---I’m not so sure about the first statement, what that even means.

PN860.

Which one is that?---“Specialised professional experience in a similar professional role in the energy electrical industry”, I don’t know what they mean by that. 

PN861.

Well, how long have you been a district operator?---Over 25 years.

PN862.

So that if they were advertising this position, that they would want someone as a district operator who had specialised skills, for example, as an energy supplier for a significant period of time in order to carry out - it’s a more senior position, isn’t it?---Yes, you’d think, yes.

PN863.

Yes?---Yes.

PN864.

So if I ask you to assume that that’s what it means, to have some experience in any energy or electrical industry, then would you agree that that would be something that would be needed before you could have the role of the district operator?---Or something you’d grow into, during the role of the DO, yes.  You’d acquire those skills.

PN865.

You’d acquire them while you were DOIT, presumably, and then grow into it when you ‑ ‑ ‑ ?---Yes, I would say that.

PN866.

- - - got promoted into a district operator role?---Yes, probably.

**** RICHARD MATUELWICZ XXN MS NOMCHONG

PN867.

I wonder if you could just hand that back?  Your Honour, we’re in an invidious position of having one copy only of this document.  I need to show it to my friend before I tender it. 

PN868.

Just while Mr Taylor is reading that, it’s obvious from the date, but the one that you said you thought was the current one was dated April 2012, but this one is dated February 2014?---Mm hm.

PN869.

So you would accept that this is the more recent one that is ‑ ‑ ‑ ?---For a position description ‑ ‑ ‑

PN870.

Correct?--- ‑ ‑ ‑ or a job advertisement?

PN871.

It’s a position description?---I would say that’s the most recent one.

PN872.

Thank you.  I tender that document, your Honour, and I wonder if we could either have it back or get photocopies of same.

PN873.

THE SENIOR DEPUTY PRESIDENT:  Yes.  So the position description for district operator, position number 200507, created date February 2014, is E8.

EXHIBIT #E8 POSITION DESCRIPTION FOR DISTRICT OPERATOR, POSITION NUMBER 200507, CREATED DATE FEBRUARY 2014

PN874.

MS NOMCHONG:  I wonder if I could just hand that document back to you.  I’m so sorry about this.  When we look at the key accountabilities, Mr Matuelwicz, it’s really the case that the only part of the work done by the district officer on customer installations is in relation to repairing problems on low voltage switchboards and customer equipment and making safe customer installations; that’s right, isn’t it?---That’s part of it. 

PN875.

What other part of the key accountabilities there do you say involve doing electrical wiring work on customer installations?---Well, we do - apart from making safe, like I said, we do carry out shock investigations.  We would have to go further than the customer switchboard to ascertain where maybe the shock was received.  We might have to recreate that situation and then - well, just trying to think through it.  We’d just have to analyse, diagnose what was going on and possibly, as I said, recreate the situation and work out what’s gone wrong in the customer’s installation.

PN876.

You told Mr Taylor earlier that because of the rostering systems there are occasions either during the night-shift or where someone or something, an emergency, happens on a weekend, public holiday, where an MSO might be absent on illness or annual leave, where the district officer is required to attend an emergency call, is that right?---Yes, that’s correct.

**** RICHARD MATUELWICZ XXN MS NOMCHONG

PN877.

Putting together that sort of emergency call, that wouldn’t happen that often, would it?---It could happen any time of the day.

PN878.

I know it could happen any time, but in terms of it wouldn’t happen that often that someone was away on - well, public holidays don’t happen that often, do they?
---Well, I see what you’re saying, but if we are the closest person to an emergency, we’d be directed there, whether there’s MSOs on or not.

PN879.

I understand that.  Putting together the work where you actually go out and do electrical wiring work on customer installation, I’m going to suggest to you that that would represent about 10 to 20 per cent of the overall duties that you do as a district officer.  Would you agree with that?

PN880.

MR TAYLOR:  Just so it can be properly understood.  There’s two issues here.  There’s quantification of time and quantification of duties.  The question simply said “duties”, but you have a list of duties.  It might be one or two out of 10 and it’s 10 to 20 per cent.

PN881.

THE SENIOR DEPUTY PRESIDENT:  No, I understand.

PN882.

MR TAYLOR:  If it’s something that takes 10 to 20 per cent of the time, it’s a different question.  I think it would assist everyone if that could be clarified.

PN883.

THE SENIOR DEPUTY PRESIDENT:  Yes.  So presumably you want to know about how much time is spent on each, or do you? 

PN884.

MS NOMCHONG:   Yes.  That is, that it is in relation to time.  Looking at the time that you spend actually physically doing electrical wiring work on a customer installation, I’m suggesting would represent probably 10 to 20 per cent of the overall time that you spend at work?---I wouldn’t be comfortable putting a figure on it.

PN885.

It would be less than 50 per cent, though, wouldn’t it?---I once again wouldn’t be comfortable putting a figure on it.  I could do it all day one day.

PN886.

And then not do it for a month?---Might not - that could be the case.

PN887.

Yes?---We could do it all day for a week. 

PN888.

But then not do it for a month?---That could be the case.

**** RICHARD MATUELWICZ XXN MS NOMCHONG

PN889.

Yes.  So what I’m suggesting to you, doing the best you can - I mean, I know it’s hard because some days it’s all on and some days it’s all off, but averaging it out, let’s say over a year, you’d agree with me that these aren’t your principal duties, are they?---It’s one of the key accountabilities that we do this work, and we can be - like I said, again, I’ve got to attend at any time. 

PN890.

I understand that.  Mr Matuelwicz, I’m trying to put this question, it’s not a trick question at all, it’s really about trying to average out the amount of time that you actually spend physically doing electrical wiring work on customer installations.  No one is going to hold you to it, but it is a rough estimate, it’s about 10 to 20 per cent of the time that you actually spend at work?---If that’s what you’re saying.  You’ve got some figures, obviously, but I’m not comfortable answering that question.

PN891.

Let me put it to you this way; Mr Langdon - you know Mr Langdon, don’t you?
---Yes, I do. 

PN892.

Mr Langdon, you’d agree, has a great familiarity with the work done by district operators?---So he claims, yes.

PN893.

THE SENIOR DEPUTY PRESIDENT:  I actually missed that, but maybe it’s best I missed it, I don’t know.

PN894.

MS NOMCHONG:  Yes.  What answer did I expect?

PN895.

Mr Langdon suggests that from his observations and knowledge of the work of district operators, that the time the district operators physically spend on electrical wiring work for customer installations is in the order of 10 to 20 per cent.  Would you agree or disagree with that?---As I said, I’m not comfortable with agreeing or disagreeing with that.  I wouldn’t know.

PN896.

Okay?---I wouldn’t know. 

PN897.

That’s all right.  Thank you very much.  Would you excuse me for a moment, Mr Matuelwicz ?---Yes, sure.

PN898.

No further questions, your Honour.

<RE-EXAMINATION BY MR TAYLOR                                           [3.23 PM]

PN899.

MR TAYLOR:  Mr Matuelwicz, just to go back a step, when I was asking you questions, you saw a position description for the position of district operator that was last updated in 2012.  You might still have a copy of that in the witness box with you.  It was CEPU15.  Do you recall you looked at that position description?---Yes. 

**** RICHARD MATUELWICZ REXN MR TAYLOR

PN900.

Then you recall when Ms Nomchong was asking you questions, that you were then shown a position description for district operator that bore a date of 2014; do you recall that?---Yes.

PN901.

Can you say to the Senior Deputy President, has the role, the actual job that you do as a district operator, changed in those years?---No, it has not. 

PN902.

So the position description has changed but the duties, have they altered in any way?---No. 

PN903.

Thank you, your Honour.  That’s the questions.

PN904.

THE SENIOR DEPUTY PRESIDENT:  Yes.  Thanks very much.  You’re excused, thank you.

**** RICHARD MATUELWICZ     REXN MR TAYLOR

<THE WITNESS WITHDREW                                                            [3.24 PM]

PN905.

MR TAYLOR:  The next witness is Mr Jareth Woolsey, W-o-o-l-s-e-y.  We will provide you with copies of his two statements, a statement in-chief dated 22 September 2014, and a reply statement dated November 2014. 

<JARETH WOOLSEY, AFFIRMED                                                   [3.26 PM]

<EXAMINATION-IN-CHIEF BY MR TAYLOR                              [3.26 PM]

PN906.

MR TAYLOR:  Is your name Jareth Woolsey?---Yes.

PN907.

Is your address (address supplied) New South Wales?---Yes.

PN908.

Are you employed by Endeavour Energy in the position of leading hand EFM?
---Yes. 

PN909.

What is the depot, or where is the depot that you are located?---At Bowenfels near Lithgow. 

PN910.

Do you have with you two statements that you prepared for these proceedings?---I do.

PN911.

The first of those two statements was signed on 22 September 2014.  Do you say that the contents of that statement are true and correct to the best of your knowledge and belief?---Yes.

PN912.

I tender that. 

**** JARETH WOOLSEY                   XN MR TAYLOR

PN913.

THE SENIOR DEPUTY PRESIDENT:  That’s CEPU18.

EXHIBIT #CEPU18 STATEMENT OF MR WOOLSEY SIGNED 22/09/2014

PN914.

MR TAYLOR:  Now the second statement titled “Reply statement” that’s three pages and signed on the third page on 21 November 2014, do you say that is true and correct to the best of your knowledge and belief?---Yes. 

PN915.

I tender that.

PN916.

THE SENIOR DEPUTY PRESIDENT:  That’s CEPU19.

EXHIBIT #CEPU19 REPLY STATEMENT OF MR WOOLSEY SIGNED 21/11/2014

PN917.

MR TAYLOR:  Just so his Honour understands, it might emerge from the statement in any event, is the staffing of EFMs and their role different in Bowenfels than it would be in depots in the city?---Yes, it is.  We run on the base level of staff.  We couldn’t really do the job with any less staff there.

PN918.

How does that impact on the range of work that EFMs do in the area around Lithgow as against to what they might do in the city?---We can be asked to do any work that - a whole range of EFMs would do at different depots.  We basically will be the only EFMs in the area and we’re all considered the same.

PN919.

How many MSOs are rostered out of your depot?---We’ve got one.

PN920.

What happens where emergency work arises and that person is not available?---It can be given to any other EFM at the depot. 

PN921.

Does that EFM then take on whatever duties the MSO would otherwise be doing?
---Yes, that’s correct.

PN922.

Thank you, your Honour.  That’s the questions in-chief. 

<CROSS-EXAMINATION BY MS NOMCHONG                             [3.29 PM]

PN923.

MS NOMCHONG:  Mr Woolsey, you have an electrical licence, is that right?
---That’s correct.

PN924.

You describe at paragraphs 2 to 5 your apprenticeship and work experience that you underwent?---Yes.

**** JARETH WOOLSEY        XXN MS NOMCHONG

PN925.

It was the apprenticeship and the work experience which gave you the knowledge and skill on how to be an electrician; you’d agree with that?---Yes.

PN926.

You got your licence in 2006, is that right?---That’s right.

PN927.

To do that, you made an application to Fair Trading?---Yes.

PN928.

You provided them with a certificate showing your trade qualifications?---Yes.

PN929.

You provided them with a reference that you had completed your 12 months’ work experience?---Yes.  That plus I had to get extra things signed by the electrician that I did my time with, as well as the statement that I got in here from Rod Gunton.

PN930.

I see?---Yes.

PN931.

Then you paid your fee?---That’s right, yes.

PN932.

And you got your licence?---Yes.

PN933.

Have you renewed your licence since 2006?---Yes.

PN934.

Since renewing your licence, you didn’t have to provide any further evidence of qualifications or training or sit any test, did you?---No.

PN935.

Now, you’re a leading hand EFM?---Yes.

PN936.

Do you have any area of speciality in terms of your EFM within ‑ ‑ ‑ ?---Not really.  I do everything.

PN937.

Do a bit of everything?---Cable joining, line work, to all EFM work. 

PN938.

So looking at it, you do some line work; what else do you do?---Cable joining, service work, on occasion we do switchboard replacements.  Yes, a whole range of things.

PN939.

Just looking at that, line work, cable joining and service work are all work that’s carried out on the network, that is, the poles and wires that are owned by Endeavour?---Partly.  With the service work, it requires testing on the customer’s meter board. 

**** JARETH WOOLSEY        XXN MS NOMCHONG

PN940.

That’s the neutral link testing sometimes?---Yes.

PN941.

So that occasionally if you’re doing some service line work, you’ll have to check that there’s a quality of electricity that’s coming to the consumer’s switchboard and do the safety test?---Every time you do a test, it has to be a clarity test to confirm that the work you’ve done is correct.

PN942.

At paragraph 8, you say that your work on customer switchboards, whilst it’s part of your duties, it’s not your principal role, is it?  You’ve made a correct statement when you put that there?---Yes.

PN943.

At paragraph 9, you refer to the standby work that you do.  You’re not required to go on standby, that’s something you volunteer for, isn’t it?---Yes, that’s right, but there’s nobody else at our depot to do the work.  If EFM - there’s only two EFMs at our depot that aren’t on standby.

PN944.

But those EFMs choose not to volunteer, is that right?---Yes, that’s right.

PN945.

Just bear with me one second, Mr Woolsey.  In relation to your standby work, you say that you do that one week out of every four, is that right?---Yes, that’s right.

PN946.

But the standby work, not all of it involves work on customer installations, does it?---No, not all of it, no. 

PN947.

Some of it is on the network?---Yes, a lot of the time it is because the customers call in the problems, unless it’s something larger that’s affected the whole network.

PN948.

But putting together all of the time that you do electrical wiring work - you know what that term means, don’t you?---Yes.

PN949.

Putting together the time that you do electrical wiring work on customer installations, it would certainly be less than 50 per cent of the work you do overall, wouldn’t it?---I’m not sure that that’s true.  It really - it varies a lot.  Like, service work, it’s one of our bread and butter jobs and that involves wiring on the - in the board and testing.

PN950.

Is that because you say that you’re at a regional area, that wouldn’t be the same for EFMs working in, say, a suburban area?---Some EFMs in a suburban area, that would be their whole job, just doing the service work.

PN951.

**** JARETH WOOLSEY        XXN MS NOMCHONG

But they would have a special classification for that, or are you familiar with this, or am I asking you things outside your knowledge?---I - that is - part of that is outside my knowledge.  I’ve not - I’ve heard of the different classifications, but basically to me an EFM is an EFM. 

PN952.

I see?---Yes.

PN953.

What we’re trying to figure out here, Mr Woolsey, and it’s not a trick question, is really just the amount of time you spend doing electrical wiring work on customer installations, and I’m going to suggest to you - do you know Mr Langdon?---No, I don’t.

PN954.

You don’t; do you know who he is?---I do.

PN955.

Mr Langdon is going to give some evidence in these proceedings, where he’s going to say that putting together all of the work that you do, both on standby and in your normal duties, the amount of time that you spend doing electrical wiring work on customer installations would be less than 50 per cent.  Would you agree with that?  I mean, on average, taking it over, like say, a year or something?---No, I don’t think I would agree with that.

PN956.

Okay?---Yes.

PN957.

Well, what do you say it is?---It’s hard to put a percentage on it.  It does vary a lot.  It depends on the weather; it depends on what jobs are programmed.

PN958.

Okay?---Yes.

PN959.

Thank you very much.  Just bear with me for one moment, Mr Woolsey?---Yes.

PN960.

THE SENIOR DEPUTY PRESIDENT:  I might just ask a question, if that’s okay.

PN961.

MS NOMCHONG:  No further questions, your Honour.

PN962.

THE SENIOR DEPUTY PRESIDENT:  Yes.  I’ve just got - you may or may not want to ask any questions after I’ve asked mine.  I’m not saying you will.

PN963.

In paragraphs 11 and 12, you talk about some work that’s being done by non‑licensed linesmen?---Yes.

**** JARETH WOOLSEY        XXN MS NOMCHONG

PN964.

What qualifications do they have?  Have they got electrical trades qualifications?
---It’s a distribution power-line worker qualification, which is classified as an electrical trade, but is not an electrician.

PN965.

So you’re saying they’re not an electrician, because when you sort of say skills and knowledge that only a licence-holder would hold, and is required to hold, where do you get those skills and that knowledge from?---They don’t do any time with an electrician wiring houses and they’ve got a basic understanding of a switchboard and are trained on brand new switchboards, basically, and they have a lot of trouble when there’s something different in there, like an old standard, they have troubles understanding what actually happens in there.  They can do the basic tests, but that’s about it.

PN966.

I’m just trying to understand how it is that you have skills and knowledge that they don’t have?---There’s extra training at TAFE around the ‑ ‑ ‑

PN967.

You mean as part of your apprenticeship?---As a part of the apprenticeship.

PN968.

Yes?---Yes, as well as the experience with doing electrical wiring work in houses.

PN969.

So how did you get that?---I got seconded to an electrician.

PN970.

This is your first year after you’d qualified, is it, or ‑ ‑ ‑ ?---No, no, during the apprenticeship.

PN971.

I see, okay?---Yes.

PN972.

So it was the work you did during your apprenticeship that gave you the skills and the knowledge that they don’t have?---Yes, that’s right.

PN973.

Yes, thanks.

PN974.

MS NOMCHONG:  Nothing arising, your Honour. 

<RE-EXAMINATION BY MR TAYLOR                                           [3.37 PM]

PN975.

MR TAYLOR:  Some things arise, both out of what Ms Nomchong asked and the Senior Deputy President asked.  The last subject matter was during your apprenticeship you were seconded?---Yes.

**** JARETH WOOLSEY       REXN MR TAYLOR

PN976.

Who were you seconded to and what were you seconded to?---I was seconded to Kevin Hanson who’s an electrical contractor out at Oberon, and he had some work in Lithgow and we - we were working a lot on the Department of Housing and we were going through and rewiring houses and fixing up any faults they had on those houses, installing new power points and wiring new houses as well, but - in Oberon. 

PN977.

Did anyone from Endeavour, or whatever the organisation was called then, explain to you why you would be seconded to Mr Hanson for six months?---It was a requirement to obtain the licence. 

PN978.

Was that something that you had a choice about?---Well, no.  No, I didn’t have any choice, it was part of the apprenticeship and that was stated from when I started there, that I would have to go - be seconded to an electrician to be able to get the licence. 

PN979.

You mentioned in answer to one of the questions Ms Nomchong asked, she was asking about what were the things you had to show the department in order to get your licence?---Yes.

PN980.

At one point you said that you had to show something signed by the electrician I did my time with, in addition to that which Mr Rod Gunton had signed?---Yes, that’s correct. 

PN981.

Just firstly, when you were referring to something Mr Rod Gunton signed, were you referring to the document JW1 which is attached to your statement?---Yes, that’s correct.

PN982.

But what were you referring to when you said something was signed by an electrician I did my time with?---I can’t remember what the document was called, but I was a - to show experience in wiring houses and that - I got some of them signed by him and then did extra work after I finished my apprenticeship to obtain the licence.  

PN983.

Do you recall who is the electrician that was signing this ‑ ‑ ‑ ?---Kevin Hanson signed it. 

PN984.

The person you were referring to earlier ‑ ‑ ‑ ?---Yes.

PN985.

- -- that you spent the six months with?---Yes.

PN986.

You were asked whether you know Mr Langdon and you said you don’t know him.  To the best of your knowledge, does he have any role by which he would understand what you do, day to day?---I don’t think so.  No, I’ve never met him, I’d never heard him before - heard of him before we started the dispute with the electricians’ licence allowance. 

**** JARETH WOOLSEY       REXN MR TAYLOR

PN987.

He is not, as far as you’re aware, within the hierarchy who you report to and so forth?---No, I don’t report to him at all. 

PN988.

You were asked some questions and in response you said that part of your role was switchboard replacement.  Is there any documentation that goes with that, that has to be completed?---We don’t normally do any documentation around that.

PN989.

Thank you.  No further questions.

PN990.

THE SENIOR DEPUTY PRESIDENT:  Thank you.  Thanks very much.

**** JARETH WOOLSEY       REXN MR TAYLOR

<THE WITNESS WITHDREW                                                            [3.41 PM]

PN991.

THE SENIOR DEPUTY PRESIDENT:  So finished for the day?

PN992.

MR TAYLOR:  Our last witness, Mr Pollock, is unavailable.

PN993.

THE SENIOR DEPUTY PRESIDENT:  Yes, yes.

PN994.

MR TAYLOR:  I’m sorry that we’ve run out of witnesses.  Could we ‑ ‑ ‑

PN995.

THE SENIOR DEPUTY PRESIDENT:  We could finish early.

PN996.

MR TAYLOR:  Finish a little earlier and ‑ ‑ ‑

PN997.

THE SENIOR DEPUTY PRESIDENT:  And start at 10 tomorrow.  We should get through all the witnesses tomorrow, I take it? 

PN998.

MR TAYLOR:  We can complete the evidence tomorrow, that’s right.

PN999.

THE SENIOR DEPUTY PRESIDENT:  We’ll adjourn until 10 o’clock tomorrow.

ADJOURNED UNTIL THURSDAY, 12 FEBRUARY 2014             [3.41 PM]

BRADLEY JOHN CURREY, SWORN [11.10 AM]............................................ PN125

EXAMINATION-IN-CHIEF BY MR TAYLOR [11.10 AM].............................. PN125

CROSS-EXAMINATION BY MS NOMCHONG [11.14 AM]........................... PN140

RE-EXAMINATION BY MR TAYLOR [12.48 PM]........................................... PN542

THE WITNESS WITHDREW [12.56 PM]............................................................ PN554

COLIN EGAN, SWORN [2.04 PM]...................................................................... PN561

EXAMINATION-IN-CHIEF BY MR TAYLOR [2.04 PM]................................ PN561

CROSS-EXAMINATION BY MS NOMCHONG [2.31 PM].............................. PN646

RE-EXAMINATION BY MR TAYLOR [2.41 PM]........................................... 7PN696

THE WITNESS WITHDREW [2.46 PM].............................................................. PN719

RICHARD MATUELWICZ, SWORN [2.47 PM]................................................ PN720

EXAMINATION-IN-CHIEF BY MR TAYLOR [2.47 PM]................................ PN720

CROSS-EXAMINATION BY MS NOMCHONG [3.09 PM].............................. PN852

RE-EXAMINATION BY MR TAYLOR [3.23 PM]............................................. PN898

THE WITNESS WITHDREW [3.24 PM].............................................................. PN904

JARETH WOOLSEY, AFFIRMED [3.26 PM]..................................................... PN905

EXAMINATION-IN-CHIEF BY MR TAYLOR [3.26 PM]................................ PN905

CROSS-EXAMINATION BY MS NOMCHONG [3.29 PM].............................. PN922

RE-EXAMINATION BY MR TAYLOR [3.37 PM]............................................. PN974

THE WITNESS WITHDREW [3.41 PM].............................................................. PN990

EXHIBIT CEPU1 WIRING RULES AS/NZS 3000:2007...................................... PN76

EXHIBIT CEPU2 STATEMENT OF COLIN TANNOCK HARRIS DATED 29/09/2014           PN115

EXHIBIT CEPU3 STATEMENT OF CHRISTOPHER PHILLIP WEBB DATED 22/09/2014   PN118

EXHIBIT CEPU4 STATEMENT OF ANDREW PHILLIP GIBSON DATED 22/09/2014          PN121

EXHIBIT CEPU5 REPLY STATEMENT OF ANDREW PHILLIP GIBSON DATED 20/11/2014        PN121

EXHIBIT CEPU6 STATEMENT OF ALLAN KEITH DALE DATED 22/09/2014 PN123

EXHIBIT CEPU7 REPLY STATEMENT OF ALLAN KEITH DALE DATED 24/11/2014       PN123

EXHIBIT CEPU8 STATEMENT OF BRADLEY JOHN CURREY DATED 24/09/2014            PN133

EXHIBIT CEPU9 REPLY STATEMENT OF BRADLEY JOHN CURREY DATED 03/11/2014          PN136

EXHIBIT E1 EXTRACT FROM NEW SOUTH WALES FAIR TRADING WEBSITE  PN192

EXHIBIT E2 EXTRACT FROM THE NEW SOUTH WALES INDUSTRIAL GAZETTE DATED 09/06/1988............................................................................................................................. PN249

EXHIBIT E3 CHRONOLOGY............................................................................. PN259

EXHIBIT E4 LETTER FROM MR HOWARD TO MR CURREY DATED 28/03/2014  PN432

EXHIBIT E5 LETTER FROM MS SHEATHER TO MR BUTLER DATED 03/04/2014 PN435

EXHIBIT E6 LETTER FROM MS SHEATHER TO MR CURREY DATED 20/05/2014            PN444

EXHIBIT E7 LETTER FROM MR HOWARD TO MR CURREY DATED 16/06/2014  PN450

EXHIBIT CEPU10 STATEMENT OF COLIN EGAN DATED 17/09/2014....... PN598

EXHIBIT CEPU11 STATEMENT OF COLIN EGAN DATED 21/11/2014....... PN624

EXHIBIT CEPU12 POSITION DESCRIPTION FOR SYSTEM OPERATOR
DATED JULY 2011............................................................................................ PN644

EXHIBIT CEPU13 STATEMENT OF RICHARD MATUELWICZ DATED 22/09/2014            PN731

EXHIBIT CEPU14 TWO-PAGE REPLY STATEMENT DATED 25/11/2014... PN733

EXHIBIT CEPU15 POSITION DESCRIPTION FOR POSITION NUMBER 100495 PN821

EXHIBIT CEPU16 LETTER OF OFFER FOR DISTRICT OPERATOR IN TRAINING           PN840

EXHIBIT CEPU17 INTRANET JOB ADVERTISEMENT................................. PN850

EXHIBIT E8 POSITION DESCRIPTION FOR DISTRICT OPERATOR, POSITION NUMBER 200507, CREATED DATE FEBRUARY 2014............................................................... PN873

EXHIBIT CEPU18 STATEMENT OF MR WOOLSEY SIGNED 22/09/2014... PN913

EXHIBIT CEPU19 REPLY STATEMENT OF MR WOOLSEY SIGNED 21/11/2014 PN915