Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2024] FWC 1274
•7 JUNE 2024
| [2024] FWC 1274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2023/1313)
| DEPUTY PRESIDENT BELL | MELBOURNE, 7 JUNE 2024 |
Application by the CEPU for a majority support determination re EnergyAustralia Yallourn Pty Ltd - jurisdictional objection – whether ETU entitled to represent industrial interests of employees – objection upheld – application dismissed.
The applicant (the ETU) has applied to the Fair Work Commission (Commission) under s 236 of the Fair Work Act 2009 (Cth) (Act) for a ‘majority support determination’ on behalf of some of its members. The application, if granted, would entitle those members to commence bargaining for an enterprise agreement with the respondent, EnergyAustralia Yallourn Pty Ltd (EnergyAustralia, respondent).
For the ETU to make such an application, it needs to be a ‘bargaining representative’ of the relevant employees, each of whom are Operational Team Leaders or ‘OTLs’ and whose roles and duties are described below. Section 176(3) of the Act provides that an employee organisation (which the ETU is) cannot be a bargaining representative of an employee unless the organisation is “entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.” The respondent contends that the ETU is excluded from acting as a bargaining representative for the OTLs. This decision deals with that objection.
Upon being allocated to me, I issued directions for the filing of evidence and submissions. The ETU filed witness statements for Mr Gene Ipenburg (an OTL with EnergyAustralia) and Mr Peter Mooney (an organiser for the ETU in Gippsland and the Latrobe Valley). The respondent filed witness statements of Ms Gayle McAllister (Operations Leader with EnergyAustralia) and Mr Peter Chapple (now retired, but formerly employed by EnergyAustralia as Employee Relations Advisor from 1999 to 2017). Each witness was cross-examined.
The issue - ETU rules
In resolution of the issue raised concerning the ETU’s entitlement to represent the industrial interests of the OTLs, it was not in contention between the parties that that issue turned upon whether the relevant OTLs at the respondent were eligible to be members of the ETU under that union’s rules.
The Rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU Rules) were first registered on 24 December 1919. Those rules, as in force at the time of the application before me, contained the following eligibility clause at clause 2.1 (emphasis added):
“2.1Without limiting or in any way being limited by any of sub-rules 2.3 to 2.21 inclusive, the Union shall consist of an unlimited number of employees who have been admitted as members in accordance with the Rules of the Union and who are engaged or usually engaged as electrical fitters, armature winders, electrical mechanics, battery fitters, railway electricians, telephone fitters, radio workers, cable jointers, linesmen, arc lamp trimmers, electrical labourers, electric crane attendants, rail welders and their assistants, electric welders whose work is associated with the work of an electrician and electricians engaged or usually engaged or employed in running and maintaining electric plants, dynamo, motor and switchboard attendants, and all employees whose callings are peculiar to the electrical industry. Also all other persons whether employees in the industry or not as have been appointed officers of the Union and admitted as members thereof.”
The emphasis added to rule 2.1 above signifies the two limbs or parts of that rule relied upon by the ETU to establish coverage eligibility of the OTLs. As to which:
· (the first limb) - the respondent denies that OTLs are “electricians” as pertains to the first limb; and
· (the second limb) – the respondent denies that OTLs – which it describes as essentially a people management role – are employees whose callings are peculiar to the electrical industry.
There was no dispute by the respondent that, for the first limb, EnergyAustralia was an “electric plant” within the meaning of that clause. For the second limb, there was also no dispute by the respondent that the term “electrical industry” is likely to be broad enough to apply to its generation activities and the retailing activities of its related entities. I proceed on this basis.
Factual findings
There are seven OTLs at EnergyAustralia. There was a position description for the OTLs annexed to Mr Ipenburg’s statement, which was not in dispute. The position description ran to slightly over 5 pages. The role title is Operations Team Leader and the position reports to the Operations Leader.
The position description has a section titled “Purpose of Role”. The description of the role purpose that followed was:
“The Power Station Operations Team Leader is responsible for continuous operation of production equipment at the Energy Australia Yallourn Power Station in a manner which:
· Meets health and safety, environmental requirements and statutory requirements.
· Achieves production and financial objectives
· Protects the integrity of plant and equipment
This role is occupied by a number of individuals who each provide leadership of one of the five teams of operations staff on shift. The role may also include some Day Work.
Team leaders will play a key managerial role in the business as part of a team of Team Leaders. All team leaders are expected to display exceptional commitment to building and maintaining high performance teams.
Team leaders are expected to understand the station’s business objectives, to initiate strategies and activities to achieve them. They are required to be active in identifying and overcoming obstacles to the achievement of those objectives.”
The next part of the position description is headed “Values – Ways of working and behaviour expectations”. I do not consider it is materially influential to the dispute before me.
The next part of the position description is titled “Key Activities, deliverables and metrics”. In the table below that heading were two columns, one with “Key Activities and Deliverables” and the other “Metrics”. Five activities and deliverables were set out. They are:
| Development and implementation of business plans which are consistent with the company’s business plan and which lead to continuous improvement in operations performance. Manage Plant integrity | • Understand company business plans. • Develop strategies for contributing to those plans. • Implement activities to achieve required outcomes defined in the strategy. • Monitor progress toward team targets and budgets and to take corrective action where required. • Effectively communicate strategies, activities and targets to team members. • Liaise with maintenance and marketing personnel to ensure operations plans are consistent with production goals. •Manage plant integrity through until end of life understanding obligations, conditions and capabilities |
| Managing teams to achieve power station operating targets | • Co-ordinate the operation of generating and auxiliary plant to optimise performance (output, risk, plant integrity, statutory regulations and SHE requirements) of Yallourn W Power Station (Top of Raw Coal Bunker to Power Station). • Liaise effectively with other teams such as Physical Markets, Maintenance and Asset Management to continually maintain an understanding of current operating and business parameters and priorities. • Ensure priorities of individual plant items is co-ordinated into a station wide priority • Monitor and evaluate plant performance trends and ensure effective reporting and follow up. • Monitor performance against environment targets and to take effective action to prevent breaches of environmental requirements. |
| Development and maintenance of highly effective shift operations teams and the promotion of respectful engagement in a performance based culture. | • Devolve tasks and accountabilities to appropriately qualified team members. • Communicate operational and business requirements to team members. • Monitor the performance of individual team members and provide regular performance feedback. • Address any performance issues in a timely manner. • Mentor and coach team members and providing training or development activities as required. • Ensure each team member is provided with a formal performance review and development plan annually, with regular formal and informal feedback. • Engage teams by promoting ownership and ‘buy in’ of our future |
| Implementation and maintenance of a process of continuous improvement with regard to safety of Yallourn Power Station Personnel. | • Set appropriate safety targets for the team. • Develop and maintain a safety culture within the team. • Work effectively with Health and Safety representatives to ensure that unsafe conditions or unsafe behaviour and practices are dealt with. • Monitor trends in near misses, accidents and illness. • Work effectively with SHE professional staff to develop strategies for addressing problem areas. • Ensure that shift staff are fit for duty. • Oversee, monitor and make input into the safety rules. |
| Health and Safety – adherence to ‘Home Safe’ as it refers to our Galvanising framework including Process Safety and Personal Safety. | • Job Safety Observation Interactions • Ensure that all safety and health hazards and environmental risks are identified and effectively managed to ensure a safe and healthy workplace is maintained, and to minimise the environmental impact of the operations; • Completion of incident reports (after consultation with HSE representatives and other relevant personnel), investigation of the root causes and initiation and follow through to completion of any corrective action. • Report safety, health and environmental incidents and near misses via incident reporting processes; • Attend training sessions as required, to ensure safety health and environmental skills and competencies are established and maintained • Comply with the emergency response requirements. • Assist with the investigation of accidents, incidents and occurrences. • Abide by EnergyAustralia compliance systems and audit schedules • Identify and make recommendations for improvement to policy, standards and procedures • Identification and documentation of hazards, adverse environmental effects and associated risks • Ensuring the implementation of control measures to minimise such risks and environmental effects • Personal ownership and leadership commitment to value feedback and respond to ensure all go home safely. |
The position description identified “Key interactions” with other personnel within the organisation. The four groups identified were Operations Personnel (on a daily basis) and Maintenance Team Leaders, Estate Services, and Energy Markets (each as required).
The “Required Capabilities and Qualifications” for the role were:
“• Proven ability to lead a team to build respectful engagement and encourage high performance.
· Sound understanding of the production processes used in a coal fired thermal power station
· Ability to work in a shift role such as 2 x 12hr shifts
· Sound understanding of the interaction between production and financial outcomes in a market portfolio context, and the ability to manage the plant in a manner which optimises overall business outcomes
· Ability to work closely within the team of team leaders at Yallourn to promote close alignment of goals and achievement of Operations and station objectives
· Personal commitment to continuous improvement in the achievement of Health and Safety and Environmental outcomes
· Good interpersonal and communication skills
· Competent in the use of Microsoft Office Suite
· Ability to interact with all stakeholders
· Demonstrated ability to work effectively in a team.”
Organisationally, the seven OTLs reported to the Operations Leader (Ms McAllister). Prior to becoming Operations Leader in 2020, Ms McAllister was an OTL herself, a role she held from 2017. Ms McAllister in turn reports to the position ‘Head of Yallourn’. In an organisation chart that was in evidence, the Head of Yallourn has around 8-10 direct and indirect reports, including the Mine Leader, Asset Leader, Maintenance Leader, and Project Outage Leader (among others).
Ms McAllister’s role is primarily performed during ordinary weekday hours. I infer the same is for the Head of Yallourn. In broad terms, Ms McAllister’s daily activities involve working with the OTLs and other persons of similar seniority to support and guide the operations shift teams. Mr Ipenburg describes her role as a “purely management one”.
Mr Ipenburg’s evidence, in particular, included reference to various matters about what he contends his role includes in addition to those described in the position description for the role. Much of Mr Ipenburg’s evidence was, in substance, directed at showing that the line between operations team members and the OTLs is not clearly demarcated and there is overlap.
For example, Mr Ipenburg points out that where an OTL is away and that shift is unable to be filled by another OTL (i.e. via overtime), then a sufficiently competent person from the ranks of the Unit Controllers will be asked to perform higher duties to perform the OTL role.
Mr Ipenburg (and other OTLs) receive the same training as the members of the operations shift team he leads. OTLs are ‘permit trained’ and oversee all aspects of the permit system. He receives annual refresher training to maintain ‘CPR Blue Book’ requirements, as defined in the Code of Practice on electrical safety for work on or near high voltage electrical apparatus. OTLs undertake further high voltage training every three years.
Another example given was Mr Ipenburg’s work with the ‘permit’ system. The ‘permit’ system is, broadly, a process to ensure that plant and equipment can be safely shut down and isolated to allow maintenance staff to undertake work. The permit issuer authorises the relevant maintenance personnel to perform the maintenance work. Issuing the permit requires understanding of the isolations required and granting the authorisation. It is a primary duty of the operations shift team, although Mr Ipenburg states he is not precluded from performing the role.[1] The Operations Leader, Ms McAllister, is also trained in the permit to work system and holds the role of Operating Authority and is authorised to operate all aspects of the permit system.
Some aspects of Mr Ipenburg’s evidence are overly broad and conclusionary, and I did not find them persuasive. For example, Mr Ipenburg makes an unqualified assertion that the “OTL and operations shift team run the [Yallourn Power Station].” While it is no doubt the case that, without unit operators and similar roles within the operations team that the power station would not run, the same is almost certainly true of many other aspects of the integrated whole.
Nonetheless, Mr Ipenburg’s evidence, which I accept on this point, is that there are various ‘operational’ matters – as distinct from managerial matters - that OTLs do perform. An example was ‘audits’ of equipment such as high and low-voltage racking sheets. There was some dispute as to the frequency of this task but I accept Mr Ipenburg’s evidence was that it was more or less daily. This particular task was not explained in detail but the ‘audit’ is a review of information in a document – the ‘sheet’ – prepared by others for the OTL, which the OTL is (I infer) required to sign off. Mr Ipenburg described the purpose of the audit was to ensure compliance with the company’s procedures.
To Mr Ipenburg’s credit, he is probably more involved as an OTL with the work of the team members he supervises. This is, in part, a reflection that Mr Ipenburg expects that OTLs should help out and, given his extensive experience in operations roles before being promoted to OTL, he is well placed to do so. But he accepted it was not a requirement of the role and the extent of OTL involvement with their team’s work would differ.[2]
Ms McAllister’s evidence was to the effect that an OTL’s role is focused on ‘management’. She states that the ‘key deliverables’ cover matters such as developing and managing business plans, the management/development of the operations shift teams, continuous improvement and health and safety adherence.
Ms McAllister states, and I accept, that there are no technical or trade electrical qualifications required to be appointed to or to perform the OTL role. She identifies the qualifications and backgrounds for the seven OTLs who report to her and only three have the knowledge and experience to physically operate the controls (normally operated by the operations shift teams) to produce power at the power station. Ms McAllister’s evidence was that four of the seven current OTLs have operating experience at other sites and one is from a maintenance leadership background. Ms McAllister acknowledges that it will obviously assist for an OTL to have operational experience by rising through the ranks of the operations shift teams, but it is not essential. I accept this evidence.
Mr Ipenburg gave evidence that, whilst employed as an OTL, he in fact had been asked (and he did) undertake purely operational work of the operations shift team. While that evidence is accepted, the context is significant. Those events occurred in about 2013, during a period of protected industrial action being lawfully initiated by the Construction, Forestry, Mining and Energy Union (whose relevant division is now constituted as the Mining and Energy Union or MEU). With the operations shift team (or a number of them) taking protected industrial action, Ms McAllister says this has not occurred since to her knowledge and states it would, in her view, be “industrially explosive if this were to occur and no doubt lead to demarcation disputes with the MEU…”. Whether or not OTLs being asked or directed to perform the work of the operations shifts teams would be “industrially explosive” is not a matter I need decide but I accept Ms McAllister’s view that she considers it would be and, for that reason, the prospect of such events occurring would appear to be remote and rare.
While I have described various parts of the work of OTLs with reference to ‘operational’ or ‘management’ descriptors, I have not approached the assessment of the OTLs’ work on a binary basis that it is either operational or management (or for that matter that a finding of either end of the spectrum dictates a particular outcome for the rule coverage question). There is clearly a spectrum of work and, while neither party suggested otherwise, each placed their respective emphasis on the competing ends of that spectrum.
Even though the two principle witnesses gave evidence with differing emphasis, I consider that both Mr Ipenburg and Ms McAllister were witnesses doing their best to give their evidence truthfully.
I conclude, however, that the factual position is best reflected by the position advance by the respondent and Ms MsAllister. It was put to Mr Ipenburg that “primarily your role is one where you are managing the operations team, managing the people and the operations work that they're performing, rather than doing, operating the power station yourself”. Mr Ipenburg agreed with that proposition[3] and, having regard to the other evidence before me, I consider the proposition put to Mr Ipenburg accurately summarises the nature of the role. There is no doubt that the OTLs have, to varying degrees, a considerable knowledge about the work of the operations shift teams and that there is some (limited) overlap of tasks between the two, but I find that the OTL’s role in relation to those teams is primarily that of a managerial role.
In addition to the evidence described above, the parties led other evidence about various historical and industrial practices. For example, the ETU led evidence demonstrating uncontroversial bargaining between the ETU and the respondent in recent years specifically concerning the cohort of OTLs. The respondent led evidence of earlier practices regarding the OTL role, earlier industrial instruments for the same, and that the ETU has never represented those types of employees before. The respondent stated that, historically, any industrial representation of persons holding roles such as OTLs was by “white collar” unions.
With no disrespect to the parties about the latter categories of evidence, while I have considered that material I have not set it out here because I did not consider that material sufficiently persuasive so as to inform the primary consideration of applying the current OTL’s role to the coverage rules of the ETU.
Applicable principles
The general principles concerning the interpretation of the eligibility provisions of registered organisation of employees are well known. Full Bench summaries of the applicable principles were provided in Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [26][4] and Appeal by CFMEU v Advanced Civil Group Pty Ltd and AWU[2024] FWCFB 246 at [15] – [17].
Relevantly, those principles include that the rules must be construed objectively[5], the rules should be construed liberally rather than narrowly or technically,[6] words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended[7], and the ‘industry rule’ (where it exists) may be considered in resolving any ambiguity in the relevant part of the occupational rule.
Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules.[8]
The words of an eligibility clause which is intended to operate in relation to the conditions of a particular industry may have the meaning which those words bear in industrial usage, even though that is not their ordinary meaning.[9] The latter proposition recognises that evidence about industrial usage may be relevant to the interpretation of a particular rule.
It is not relevant to the construction of an eligibility rule that there may be another industrial organisation that might be a more natural representative of a given employee[10].
The task of determining whether an employee is covered by a particular rule, a qualitative assessment is made by reference to the “principal purpose or primary function” of that employee. As stated by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd (2022) 293 FCR 1 by Lee J (Collier and Bromwich JJ agreeing) at [27](3) (citations omitted):
“in determining whether an employee is engaged in a particular calling or occupation, the relevant task involves a qualitative assessment of the primary purpose of the position. Put another way, the proper approach requires an assessment of the principal purpose or primary function for which the employee was employed: …”.
In addition to the general principles of interpretation just described, the ETU referred to three specific decisions where the ‘second limb’ (as described above) of the ETU’s eligibility rules had been considered.
In the first decision, being Electrical Trades Union of Australia & anor v Metal Trades Industry Association of Australia & ors (1970) 132 CAR 735 (ETU v MTIAA), Williams J of the Commonwealth Conciliation and Arbitration Commission considered a coverage dispute concerning the employment of marine radio officers. At that time, the marine officers were supplied under contract by a third party to sea going vessels. The following summary by Williams J is sufficient to indicate the nature of their work (at 739, emphasis added):
“As I have already pointed out, a portion of the work of marine radio officers is concerned with the care and maintenance of the radio and other equipment. In my opinion such work is within that contemplated by the constitution of the E.T.U. and if a person were engaged on it full-time he would be eligible for membership of that union. The amount of time spent on care and maintenance of equipment varies according to the age and complexity of the equipment, and an estimate of the average amount of time spent on those duties was not given to me. However, it is clear from the evidence that the larger amount of a marine radio officers’ working time is spent in the sending and receiving of messages, keeping of logs and other work incidental to the operation of the radio. The care and maintenance work, although important, is, I feel, not the major part of his work and much of it is performed so that the officer can satisfactorily operate the equipment. In this respect I consider that the position of radio officers is rather different from that of technicians under the Television Industry Award and the Space Tracking Industry Award most of whom would seem to be principally concerned with the technical functioning of the equipment. In considering whether a particular class of persons comes within the constitution of an organization I consider that their functions must be looked at as a whole. I do not consider that the fact that a minor portion of their work might come within the constitution would be sufficient, of itself, to make them eligible for membership of it.”
In addressing a submission that the marine radio officers were “employees whose callings are peculiar to the Electrical Industry”, his Honour’s conclusion was as follows (at 741, emphasis added):
“In my opinion it is stretching the ordinary meaning of that expression too far to suggest that it extends to marine radio officers, merely on the ground that electricity was necessary for the functioning of the apparatus which they used. Nor do I agree with the submission that the training, qualifications and duties of marine radio officers are such that their work is peculiar to the electrical industry. In my opinion the training required to obtain the necessary certificate is mainly directed towards the correct use of the equipment, the sending and receiving of messages, a knowledge of the regulations relating to radiocommunications and the like. Although training in electronics and radio circuitry is a necessary part of the course, I consider that it is mainly a foundational and preliminary part of it. Taken as a whole, the course is essentially a training in radio-operating as distinct from the electrical industry. As to the duties of radio officers, I have already expressed the view that despite the fact that they are required to care for and maintain radio and other electronic equipment when at sea, they are substantially engaged in the radio-operating industry. Particularly as I have reached the conclusion that the other words used in the constitution do not extend to radio operators, I do not consider that the words ‘all employees whose callings are peculiar to the Electrical Industry’ can be construed to so extend. They are words of a general nature which were obviously designed to cover persons employed in the electrical industry who were not otherwise specifically mentioned. In my opinion, the radio-operating industry is separate and distinct from the electrical industry and not part of it, even on the basis that radios are necessarily dependent on electricity for their functioning.”
The second decision involved the same principal parties, albeit in a different dispute some 22 years later. In Metal Trades Industry Association of Australia v Electrical Trades Union of Australia & ors (1992) 44 IR 141 (MTIAA v ETU), a Full Bench (Moore and Williams DPP, Cox C) of the Australian Industrial Relations Commission, a dispute arose regarding the ‘second limb’ of the Rules in the context of a proposed new award.
The Full Bench was initially required to consider the structure of the ETU’s eligibility rule 2.1 and whether the ‘second limb’ was a rule focussed on employee callings or employer industries or a “hybrid” of both. I concur with the following observations of the Full Bench at 147:
“We accept that the earlier part of the rule generally identifies a basis of association based on a common characteristic. However this approach is maintained in the latter part of the rule by the use of the word "peculiar" in the expression we are now considering. Eligibility is not based on any callings in the electrical industry but only those peculiar to it. We should add the use of the word "peculiar" appears to us to signify a calling that is to be found only in the electrical industry and that is to be determined by an examination of the work performed by employees in that calling.”
The brief part of MTIAA v ETU in which consideration was given as to whether certain classifications were callings within the second limb was relevantly as follows:
“This conclusion requires us to consider whether the classifications sought to be covered by the proposed 1991 award are "peculiar" to the electrical industry viewed as the employers' industry. This is not an easy task as, in the main, we were only referred to definitions or classifications in the proposed 1991 award which provide a limited guide to the nature of the work. A storeman working for an electrical contractor for example, we assume would be engaged in the receipt, storage and dispatch of electrical equipment and components as well as other items of a more general kind. This work, as we assume it might be performed, involves the handling of electrical equipment and some understanding of it as a substantial element of the work. It could therefore be said that such a job was a calling peculiar to the electrical industry. A person involved in fabricating and/or installing ducting for air conditioning may be performing work that is performed in a range of industries, not the least being the metal industry. However, this does not exclude from the scope of the rule employees who perform work of this nature when it is being carried out incidentally to work which itself is peculiar to the electrical industry. To determine whether work of a particular calling is comprehended by the eligibility rules, it will be necessary to consider the range of tasks performed by employees in that calling. On the material that was drawn to our attention during the appeal we are not able to conclude that the callings intended to be included in the proposed 1991 award are not comprehended by the eligibility rules of ETU.”
The third decision is Newtronics Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Union [1998] AIRC 1240 (Polites SDP, Duncan DP, Foggo C) (Newtronics). Newtronics concerned an appeal from Watson SDP, who concluded that certain employees whose role included the assembly of printed circuit boards were engaged in callings “peculiar” to the electrical industry. Based on the Full Bench decision, the determination of that issue appeared to turn upon whether the work of those employees were properly characterised as being (no more than) “process work” and, if that characterisation advanced by the employer was correct, the employees were not covered by the second limb of the ETU’s coverage rule. Watson SDP, and the Full Bench, held that the employees were not merely “process workers”. The Full Bench stated:
“Here, the evidence is that the employees are assembling printed circuit boards. This is the function which they undertake and it is conceded that the manufacturing of printed circuit boards is in the electrical industry. In his witness statement Mr Holmes indicated that ''printed circuit board assemblies are the current technology for managing electricity in anything from handheld electronic equipment to mains connected electrical systems, and their use and application is extremely widespread". If printed circuit boards are the current technology for managing electricity then it is hard to comprehend that an employee whose task it is to assemble such a board is not to be characterised as an employee whose calling is peculiar to the electrical industry. Put another way, we do not think it matters that the work of an employee in assembling a printed circuit board can be characterised as process work (in the sense that it is repetitive and done without knowledge) where the task undertaken is the assembling of a component which is in itself peculiar to the electrical industry. Thus we consider that the employees of Newtronics are employees engaged in a calling which is peculiar to the electrical industry.”
Consideration
The first limb
In relation to the ‘first limb’ issue, the ETU’s submissions make reference to various historical matters concerning the meaning of an “electrician” at or around the year that the ETU rules were first registered. I accept that, at that time, there was no licensing or registration scheme for electricians.
The ETU submitted that the term “electrician” in its rules is anchored by reference to the ordinarily understood meaning of that term from around the time the ETU’s rules commenced. The ETU submitted “electrician” in this context extends to employees who work “in connection with electricity”.
The respondent produced an extract of the Chambers dictionary from 1908, which contained a brief definition of “electrician” to mean “one who studies, or is versed in, the science of electricity”.
The ETU’s proffered interpretation of electrician to include anyone working “in connection with” electricity is impermissibly broad. It is not warranted upon a reading of the eligibility rule as a whole (giving due regard to the now-archaic nomenclature of many of the terms therein and avoiding any narrow or technical reading). It is not supported by the ordinary definition of electrician at around the time the eligibility rule was made, given that OTLs are not required to study in, or be versed in, the science of electricity to be appointed. Further, as I have found, the principle or primary purpose of OTLs is managerial – and in this sense, OTLs could not be meaningfully described as “running” electrical plant given that primary purpose of the OTL role.
The OTLs are not, nor are required to be, licensed electricians. If the ETU’s submission that OTLs were “electricians” was to be accepted, it would have to be on the basis that they are operating as some form of ill-defined unlicensed electrician. It is well established that eligibility rules are not viewed statically.[11] The ETU’s eligibility rule contemplates that the categories of callings were intended to be affected over time by changes in the meaning of those words or the regulatory environment in which such callings operate. OTLs are not electricians.
The second limb
The ETU relies on the observation of Williams J in ETU v MTIAA that the words in the second limb “are words of a general nature which were obviously designed to cover persons employed in the electrical industry who were not otherwise specifically mentioned”. I respectfully agree with Williams J. However, it does not follow that the OTLs are covered by the second limb. As Williams J observed, it is the functions of the employees in question as a whole that must be considered.
While not using the specific language of the “principal purpose or primary function” analysis used in later cases,[12] this is clearly how Williams J approached the matter before him given his Honour’s analysis of the “training, qualifications and duties” of marine radio officers and the finding that the employees were “substantially engaged” in the radio industry.
I have considered the ETU’s submissions concerning MTIAA v ETU and Newtronics. Concerning MTIAA v ETU, the ETU submits, based on the example of “storeperson working for an electrical contractor”, that the storeperson came within the second limb because:
· First, it “involves the handling of electrical equipment”; and
· Second, there is “some understanding of it as a substantial element of the work” (ETU’s emphasis).
In MTIAA v ETU, the Full Bench did not fully determine the question of storemen in the matter before it. The bench was at pains to observe it only had “a limited guide to the nature of the work” being performed and it had to “assume” various matters of generality that indicated such work “could” therefore be a calling peculiar to the electrical industry.
But as the Full Bench explained (and with which I agree), to “determine whether work of a particular calling is comprehended by the eligibility rules, it will be necessary to consider the range of tasks performed by employees in that calling.” That is a task not performed at a level of abstract generality but by reference to the specific role in question. I do not consider that the Full Bench definitely concluded that storemen were covered by the rule but equally they could not conclude they were not. The Full Bench stated: “On the material that was drawn to our attention during the appeal we are not able to conclude that the callings intended to be included in the proposed 1991 award are not comprehended by the eligibility rules of ETU.” It was evidently for that reason that the Full Bench resolved the prospect of an award being beyond jurisdiction by specifically “including in it a provision to the effect that the employees covered by it are only those who are members or eligible to be members of ETU.”
The syllogism that appears to be implied in the ETU’s submission is that if OTL work “involves” the handling of electrical equipment and there is “some” understanding of it as a substantial element of the work, then they are covered by the second limb.
It is at this point that recourse needs to be made to the trite observation that considerable caution needs to be taken in applying observations made about the factual circumstances specific to particular case to cases involving very different qualification, classifications and roles.
So in the Newtronics case, the outcome of that case appears to be no more than an orthodox application of the “primary purpose or primary function” test (although that language was not used), albeit with reference to the characterisation of the employees assembling circuit boards. The Full Bench in that matter observed that, at first instance, Watson SDP “undertook inspections and heard a considerable amount of evidence” that the Full Bench did not propose to reiterate but plainly had regard to. The appeal was evidently advanced on the binary question (no doubt relevant to the case at hand) as to whether the employees were best characterised as performing “process work” or not. Watson SDP did not accept the employer’s characterisation and the Full Bench did not discern error and the appeal was dismissed.
In the matter before me, I have concluded that the OTL role is primarily that of a managerial role. I do not consider the OTL role in this capacity is a calling “peculiar” to the electrical industry. To the contrary, a role that is primarily managerial is found across nearly all, if not all, industries.
Disposition
As I have found that the OTLs are not employees covered by any clause of rule 2.1 of the ETU’s rules, the ETU cannot be a bargaining representative of the OTLs because it is not “entitled to represent the industrial interests of the [OTLs] in relation to work that will be performed under the agreement.”
Accordingly, the ETU’s application for a majority support determination must be dismissed. An order[13] giving effect to these reasons will be issued.
DEPUTY PRESIDENT
Appearances:
K Reidy of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
W Spargo of Lander & Rogers for EnergyAustralia Yallourn Pty Ltd
Jurisdiction Hearing details:
2024.
Melbourne:
February 27.
[1] Transcript PN82.
[2] Transcript PN77-80.
[3] Transcript PN76.
[4] In the official version of this decision as first published, there was a formatting error in which the paragraph numbering recommenced after paragraph [8]. In other published versions of this decision, where the numbering was corrected, the paragraph reference is [34], not [26].
[5] R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408.
[6] R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587.
[7] R v Gough; Ex parte Municipal Officers’ Association of Australia (1975) 133 CLR 59 at 69.
[8] Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 363-4
[9] The Queen v McKenzie; Ex parte the Actors & Announcers Equity Association of Australia (1982) 148 CLR 573 at 576; O’Connor v Setka [2020] FCAFC 195 at [76].
[10] Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [48]; Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No 2) (1982) 1 IR 349 at 353.
[11] Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 363-4.
[12] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd (2022) 293 FCR 1 at [27].
[13] PR775777.
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