Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services
[2015] FWCFB 3044
•11 MAY 2015
| [2015] FWCFB 3044 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Active Tree Services
(C2014/8065)
VICE PRESIDENT CATANZARITI | SYDNEY, 11 MAY 2015 |
Appeal against decision [2014] FWC 7784 of Senior Deputy President O'Callaghan at Adelaide on 14 November 2014 in matter number B2014/1333.
[1] This is an appeal by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Appellant) against a decision 1 (Decision) of the Commission made in dealing with an application filed by the Appellant on 2 September 2014 for majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to the employees of Active Tree Services (the Respondent).
[2] Prior to the hearing of the appeal, Mr White of Counsel sought permission to appear for the Appellant and Mr Dowd of Piper Alderman sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] The Respondent provides vegetation clearing services nationally to various customers and holds a contract with SA Power Networks (SAPN) which is responsible for electricity distribution in South Australia. The employees in respect of whom the application for majority support determination was made perform work under that contract.
[4] SAPN is governed by the Electricity Act 1996 (SA) and is an “electricity entity” within the meaning of s.4 of that Act. SAPN are licensed under the Electricity Act and are given powers and duties pursuant to it. Part of those duties include by s.41, appointing persons to be electricity officers for the entity. Electricity officers are defined in s.4 as meaning a person appointed under Part 4 as an electricity officer.
[5] Part 5 of the Electricity Act provides for clearance of vegetation for power lines. SAPN has a statutory duty pursuant to s.55 of the Electricity Act to take reasonable steps to keep vegetation away from power lines under its control. The contract provides that where vegetation grows close to the electricity infrastructure, the Respondent will attend the site and clear the vegetation. Section 57 of the Electricity Act empowers an electricity officer to enter and remain on the land for the purposes of maintaining and clearing vegetation.
[6] The relevant regulations are the Electricity (Principles of Vegetation Clearance) Regulations 2010 (SA). Regulation 4 provides for the duties of electricity entities in respect of vegetation and the type of clearance to be performed. The way in which the work is to be done is provided for in more detail in the Schedule to the regulations.
Legislative framework
[7] Section 236 of the Act provides:
“Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
[8] In order to be able to make such an application the applicant needs to be a bargaining representative within the terms of s.176 of the Act, which provides:
“Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation--the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and
(b) an employee organisation applied for the authorisation; and
(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;
the organisation is taken to be a bargaining representative of such an employee unless:
(d) the employee is a member of another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or
(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
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.
Employee may appoint himself or herself
(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.”
[9] Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
Decision at First Instance
[10] There was no dispute at first instance that the Respondent undertakes vegetation clearance work as a contractor for SAPN. The Appellant sought the majority support determination on the basis of its assertion that it was a bargaining representative for its members employed by the Respondent.
[11] The Respondent objected to this application on the basis that:
a. the occupation of the Appellant’s members employed by the Respondent did not fall within the eligibility rule of the Appellant;
b. the Appellant was not entitled to represent the industrial interest of these members; and
c. the Appellant could not be a bargaining representative and did not have standing to bring the application.
[12] At the heart of the matter was whether the Appellant’s eligibility rule encompassed the work performed by the employees. The eligibility rule is set out at Rule 2.1 of the CEPU rules, which states:
“Without 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.”
[13] The Senior Deputy President found that the rules of the Appellant did not entitled it to cover employees of the Respondent in South Australia who undertake vegetation clearance work in the vicinity of power lines and made the following relevant findings:
“[46] On the information before me I do not consider that ATS can be regarded as a business which is in any way peculiar to the electrical industry. The mere fact that it undertakes work in the vicinity of power lines cannot, of itself, establish it to be associated with the electrical industry. A consequence of that approach would necessarily mean that ATS would need to be regarded as undertaking work in each of the industries which requested vegetation clearance activity. There is nothing before me that establishes that, with respect to its vegetation clearance field activities, ATS even utilise electricity as distinct from plant and equipment.
[47] In contrast with the position in Newtronics, ATS in South Australia is not a business which is in the electrical industry. The fact that it has contracts with the entity responsible for electrical power distribution cannot, of itself, establish that ATS is in that industry. Clearly, it is the nature of the work which is undertaken by a contractor, rather than the parties with whom it contracts which are relevant to a consideration of how the ATS business should be described. In this respect I am satisfied that ATS must be described as a vegetation clearance operation. It’s work does not extend to electrical work and I am satisfied that the authorisations provided to it by the electricity distribution entity are for the purpose of enabling access to work areas where it undertakes that vegetation clearance activity.
[48] On the approach applied in the authorities to which I have already referred, I have then proceeded to direct primary attention to the callings of the ATS employees in South Australia. None of the employee classifications identified by Mr Hounslow in his statutory declaration can be properly described as callings which are peculiar to the electrical industry. They do not involve the application of electrical knowledge or skill or the provision of support to other persons who have and apply that electrical knowledge or skill. Consequently, in stark contrast to the position in Newtronics, the only linkage between electrical work and the work which is undertaken by ATS employees in South Australia is that the ATS work is undertaken in the vicinity of power lines. That of itself cannot then provide a basis for a conclusion that the ATS employees in South Australia are employees whose callings are peculiar to the electrical industry.
[49] In reaching this conclusion I have had particular regard to the largely unchanged rules of the CEPU. It may be the case in some circumstances that technological or other changes mean that a broader approach to the concept of “employees whose callings are peculiar to the electrical industry” is required so as to properly recognise functions which may not have been countenanced when that rule was initially adopted. In this situation however, the employee functions are so unrelated to electrical work that I simply cannot extend the concept of “the electrical industry” to vegetation clearance work.
[50] I have also considered the extent to which that vegetation clearance work was most likely undertaken by the predecessors to the current Power Distribution authority. Evidence about the way in which that work was then structured is not clear to me. It may have been the case that this work was then capable of being described as undertaken by “employees whose callings are peculiar to the electrical industry”. However, that uncertain historical position cannot then be extended so as to describe either ATS or its employees in South Australia in that manner.
[51] I have considered the history of award regulation which has included, in the awards which applied to power distribution authorities, classifications which appear similar to those at issue here. In this regard it is necessary to distinguish classifications which applied to employers that were clearly operating in the electrical industry from classifications which have been adopted by employers which do not operate in that electrical industry. Additionally, I do not consider that a historically founded award classification can then be used as the basis for extending union coverage outside of the clear specifications set out in that union’s rules.
[52] I have also considered the extent to which the CEPU has represented employees of ATS in the development and operation of agreements in other states. Absent information about the constitution of the ATS workforce in those states and about its operations in those states I am unable to rely on those situations so as to read into the CEPU rules coverage which is simply not there.
Conclusion
[53] Notwithstanding that I have endeavoured to apply a broad rather than a narrow approach to the interpretation of the CEPU rules, I am not satisfied that the CEPU rules enable that union to cover employees of ATS in South Australia who undertake vegetation clearance work in the vicinity of power lines. As a consequence, I do not consider that the CEPU can be regarded as an employee organisation for the purposes of s.176(3) of the FW Act and as such, is not entitled to seek a majority support determination pursuant to s.236 of the FW Act. The application must be dismissed accordingly.”
The Appeal
[14] The Appellant submitted that the learned Senior Deputy President erred in fact and in law. The error of fact related to the characterisation of the work performed by the employer and the relevant employees. The error of law involved a misapplication of the proper test to be applied to the interpretation of eligibility rules.
[15] In particular, the Appellant submitted that the Deputy President erred by making the finding at paragraphs [46]-[47] of the Decision that the Respondent’s relevant business was not work peculiar to the electrical industry. The Appellant submitted that the Senior Deputy President erred in concluding that the mere fact that the employees undertook work in the vicinity of power lines was a determinative factor. These findings at paragraphs [46]-[47], underpinned the Decision and, in the Appellant’s submission, it misdirected the Senior Deputy President as to the proper test. The Appellant submitted the proper test required consideration of matters much broader than the “vicinity” in which employees perform work. In the Appellant’s submission, whilst, of itself, work in the vicinity of power lines may not render employees eligible for membership of the Appellant, there are broader and other considerations including the consideration of whether or not the work was incidental to the electrical industry.
[16] Moreover, the Appellant submitted that to the extent that the Senior Deputy President relied on the mere fact that the Respondent had contracts with SAPN as being determinative, he once again fell into error. The Appellant submitted that the real question was whether the work performed was peculiar to the electrical industry and questions regarding the identity of contracting parties or the ‘nature of business’ directed attention away from the application of the proper test. In any event, the Appellant submitted that the work performed by the employees is incidental to the work which itself is peculiar to the electrical industry and governed by statute (Electricity Act) and is to be performed subject to the specification set out in the relevant regulations. 2
[17] The Appellant further submitted that in making the finding in paragraphs [48]-[49] that the Respondent’s employees’ work did not involve electrical knowledge or skill and that their functions were so unrelated to electrical work so as not to render them eligible for membership of the Appellant, the Senior Deputy President mistook the facts.
[18] Finally, the Appellant submitted that Senior Deputy President failed to consider whether the relevant employees were eligible for membership of the Appellant by reason of their occupations as electrical labourers or linesmen. The Appellant noted that the work performed by the relevant employees was work historically performed by the linesmen and electrical labourers of the Electricity Trust of South Australia. In the Appellant’s submission, a broad approach to the interpretation of the Appellant’s rules leads to the conclusion that the maintenance of the power assets was part of and remains part of the maintenance of the power lines and as such employees undertaking that work are properly, within the meaning of the words in the rules, to be defined as linesmen. In any event, the Appellant submitted that the employees could at least be properly characterised as electrical labourers within the meaning of the Appellant’s rules. In the Appellant’s submission, these matters were not considered by the Senior Deputy President.
[19] On the issue of public interest, the Appellant submitted that by failing to consider whether the relevant employees were eligible for membership by reason of their occupations as electrical labourers or linesmen, the Senior Deputy President committed jurisdictional error. The Appellant submitted that it is in the public interest that jurisdictional error be corrected, that the eligibility rules of registered organisations are construed properly and that the jurisdictional error arising from the mistaken facts should be corrected. In oral submissions the Appellant added that the public interest was further enlivened given that the Appellant and Respondent have agreements in other states and there could be a potential impact on employees through a range of states if these agreements were called into question based on the outcome of this appeal.
[20] The Respondent submitted that the Senior Deputy President correctly found that the Respondent’s business was not a business in the electrical industry. In the Respondent’s submission, the correct approach (proper test) to determining the question of the scope of the Appellant’s rules is a two-step approach primarily found in Metal Trades Industry Association of Australia v Electrical Trades Union of Australia (MTIA) 3 and Newtronics Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Newtronics).4 The first step is to ask whether the ATS is a business in the electrical industry. If it is not, the Appellant’s Rules have no application to its employees.5 If the Respondent is a business within the electrical industry, the next step is to ask whether the calling of the employees is a calling peculiar to the electrical industry. The Respondent submitted that the eligibility provisions constitute the reference points for ascertaining an organisation’s proper coverage and they must be construed objectively6, not narrowly7 and determined by legal considerations.8 In the Respondent’s submission, the Senior Deputy President acknowledged this approach and correctly adopted it.9
Consideration
[21] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. 10 The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement.11 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,12 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[22] Otherwise, the grounds for granting permission to appeal include that the decisions is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 13
[23] We are not minded to grant permission to appeal on the basis of any of the grounds raised by the Appellant for the reasons set out below.
[24] It is not contested by the parties that the proper approach to the interpretation of union rules as set out in Newtronics requires giving the rules a wide meaning and applying an interpretation according to the ordinary or popular denotation rather than by reference to some narrow or formal construction. 14
[25] With this in mind, the Senior Deputy President considered the Respondent’s business and noted their involvement with vegetation management. 15 It was open to the Senior Deputy President to conclude, as he did, that the mere fact that the Respondent undertook work near the power lines did not associate it with the electrical industry to the extent that the business could be considered peculiar to, or in the electrical industry.16 If it were otherwise, as he observed, the Respondent, would need to be considered likewise as working in each of the industries in which its customers were engaged.17
[26] Having reached this conclusion, the Senior Deputy President correctly decided against making a majority support determination in favour of the Appellant because the Appellant failed to satisfy him that the scope of its rules extended to embrace the employees the subject of its application. This was a finding open to him on the evidence and the Decision could have been concluded on this basis alone.
[27] In abundant caution, the Senior Deputy President went further and also considered the interpretation of the phrase “employees whose callings are peculiar to the electrical industry”. On the evidence before him, the Senior Deputy President correctly found that the callings of the employees were not in any way peculiar to the electrical industry. It is clear that the eligibility for membership of the Appellant is not simply based on any calling in the electrical industry but on those callings which are peculiar, in the sense of exclusive, applicable only, to the electrical industry. 18
[28] Regarding the Appellant’s contention that the Senior Deputy President did not consider the historical award information relevant to concluding that the Respondent’s employees were electrical labourers or linesmen, we find that this evidence was considered and expressly rejected. 19 The Senior Deputy President found that the historical position was uncertain and the classifications referred to were distinguishable on the basis that they applied to employers unarguably operating with the electrical industry.20 The Senior Deputy President correctly confined the coverage of the Appellant’s rules to the specifications set out in those rules and this was open to him on the evidence before the Commission.21
Conclusion
[29] We find that the Senior Deputy President’s Decision was not affected by error and was open to him on the evidence.
[30] We do not consider that the Appellant has demonstrated it is in the public interest to grant it permission to appeal the Decision.
[31] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
E White of Counsel and M Wright for the Appellant.
S Dowd and V Hinton for the Respondent.
Hearing details:
Melbourne
30 March
2015.
1 Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services[2014] FWC 7784.
2 Electricity (Principles of Vegetation Clearance) Regulations 2010 (SA).
3 (1992) 44 IR 141.
4 [1998] AIRC 1240. The Approach was adopted at [41] of the Decision.
5 Newtronics, per Watson SDP at first instance [45]; on appeal, a Full Bench of the AIRC noted this approach without criticism; Newtronics v CEPU [1998] AIRC 1240, 1.8.
6 Federal Tobacco Worker’s Union of Australia v Amalgamated metal Workers Union (1988) 29 IR 263, 265-266.
7 ETU v WWF(No 2) (1982) 42 ALR 587, 596.
8 R v Aird; Ex Parte AWU (1973) 129 CLR 654, 659.
9 Decision, [37]-[41].
10 Fair Work Act 2009, s.604(2).
11 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [6].
12 [2010] FWAFB 5343 at [27].
13 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [7].
14 [1988] AIRC 1242 per SDP Watson at [79] and following.
15 Decision, [44].
16 Decision, [44].
17 Decision, [46].
18 MTIA v ETU (1991) 44 IR 141, 147.7.
19 Decision, [50]-[51].
20 Ibid.
21 Decision [51-[52].
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