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

[2014] FWC 7784

[2014] FWC 7784 [Note: An appeal pursuant to s.604 (C2014/8065) was lodged against this decision - refer to Full Bench decision dated 11 May 2015 [[2015] FWCFB 3044] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Active Tree Services
(B2014/1333)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 14 NOVEMBER 2014

Application for a majority support determination - s.176 - entitlement of CEPU to represent employees - occupations not peculiar to electrical industry.

[1] On 2 September 2014 the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) lodged an application for a majority support determination pursuant to s.236 of the Fair Work Act (the FW Act) with respect to employees of Active Tree Services Pty Ltd (ATS).

[2] The application was the subject of a hearing on 10 September 2014 at which the CEPU confirmed that it sought an agreement to cover ATS employees engaged in vegetation clearance from the power corridor (representing the clearance areas around power lines). ATS advised that the application was opposed on the basis that it asserted that the CEPU did not have the constitutional coverage to be able to have these ATS employees as members. The parties both agreed that this issue should be determined on the basis of written submissions to be provided by both parties in accordance with an agreed timeframe.

[3] The parties provided these written materials. They included reference to the ATS website in the context of an explanation of the nature of the APS business. On 10 October 2014 I advised the parties that, in determining the matter, I intended to have regard to that website and that the matter would be listed for a hearing for that purpose. The parties advised that they did not wish to make any further submissions in that respect and accordingly, the hearing did not proceed.

[4] There is no dispute that ATS undertakes vegetation clearance work as a contractor for SA Power Networks who are responsible for the South Australian electricity distribution network. The CEPU seeks the majority support determination on the basis that it asserts that it is a bargaining representative for its members employed by ATS and that those members have indicated they wish to collectively bargain for an enterprise agreement. The CEPU has corresponded with ATS but the parties have agreed to differ on the issue now before me, namely the extent to which the CEPU is entitled to represent employees of ATS.

[5] On 22 October 2014 I issued further directions in which I referred the parties to the ATS website with particular reference to a page entitled “Opportunities at ATS”. This page referred to asserted “typical roles” undertaken by employees and made reference to “live linesworkers (authorised to work with distribution voltages of 33 kV)”. Again, the parties were invited to provide further material with respect to this issue or to request a further hearing relative to this information.

[6] On 29 October 2014, ATS provided a statutory declaration made out by Mr Hounslow, the SA General Manager of ATS.

The Submissions

[7] The ATS position is that the CEPU does not have the right to act as a bargaining representative for these employees. ATS asserts that it provides vegetation management services to local councils, water utilities, power utilities, road and rail authorities, emergency response services, community organisations and civil contractors, and that accordingly its vegetation management services are not “peculiar to the electrical industry. 1

[8] ATS referred to the decision in Newtronics Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal 2 in the following terms:

“If Newtronics is not in the electrical industry, the CEPU rules have no application to its employees. If it is found to be in the electrical industry, the Commission then needs to consider whether the employees are engaged in callings peculiar to that industry. If they are not, the CEPU rules have no application.”

[9] It also referred to MTIA v ETU and others 3 in terms of the requirement that the broad range of tasks performed by employees be considered.

[10] ATS asserts that its employees engaged in vegetation clearance tasks undertake visual assessment of vegetation and subsequent trimming of that vegetation which involves chainsaws, cherry pickers, mulchers and other similar tools. Where that work is assessed as unable to be safely performed because of its proximity to the power lines, the responsibility for vegetation clearance reverts to SA Power Networks.

[11] ATS asserts that its employees are provided with a single day of training followed by an annual three hour refresher course directed at educating its employees about maintaining a safe distance from power lines. It asserts that the training provided to its employees does not establish them as operating within the electrical industry and that a significant number of its employees are qualified, or working toward qualifications in horticulture and/or arboriculture. ATS asserts that the access pass merely provide an indication that its employees are authorised by SA Power Networks to access private property for the purpose of clearing vegetation.

[12] ATS asserts that it is not involved in operations which meet the definition of an electricity entity for the purposes of the relevant legislation and is simply undertaking work as a contractor to SA Power Networks. ATS asserts that the provisions of the awards referred to by the CEPU cannot be taken to determine the constitutional coverage of the CEPU and, in any event, did not establish that its employees are covered by those definitions. ATS further assert that the fact that it has negotiated agreements with the CEPU in other states cannot be determinative of its current objection to the CEPU’s capacity to cover these particular employees.

[13] I note that ATS also relied on a legal opinion which asserted that the employees in question are not engaged, nor usually engaged in any of the callings referred to in Rule 2.1 of the CEPU Rules, that ATS is not an employer in the “Electrical industry” and that the calling of the employees of ATS is not one which is found only in the electrical industry. 4

[14] Mr Hounslow’s statutory declaration was to the effect that the information set out in the ATS website originated from its head office and that none of the four linesmen engaged by ATS were employed in South Australia. This declaration confirmed that ATS is not authorised or endorsed to perform any work on power lines in South Australia but has approximately 650 employees directly engaged in vegetation clearance work nationally.

[15] Mr Hounslow asserted that the position of Supervisor involved planning, organising and controlling vegetation management work and supervision of crews to this effect. Further, that in the position he described as EWP operator/tree cutter, involved operation of an elevated work platform for the trimming, pruning and removing of trees to specified clearances whilst maintaining minimum safe working distances around power lines. Persons engaged in that classification were required to have the following qualifications:

• Elevated Work Platform license,



• A chainsaw Operators Certificates I and II, and



• Current unrestricted drivers license.

[16] In addition, desirable qualifications for those functions included:

• Certificate II or Certificate III in Horticulture (Arboriculture) or equivalent,



• Class MR or HR drivers license,



• Occupational Health and Safety Induction Certificate for Construction Work, and



• First Aid qualifications.

[17] Mr Hounslow's declaration advises that Groundspersons or Observers, support Tree Cutters. The Groundspersons role involves:

• Establishing and implementing an agreed vegetation drop zone,



• Ensuring public safety while cutting is occurring,



• Stacking cut vegetation,



• Clearing ground level vegetation,



• Assisting to clear debris and site clean up.

[18] The Groundspersons experience and qualifications are:

• Experience in basic arboriculture and plant operation,



• Certificate II or Certificate III in Horticulture (Arboriculture) or equivalent,



• Class MR or HR drivers licence,



• Occupational Health and Safety Induction Certificate for Construction work,



• Apply First Aid,



• Chainsaw Operators Certificates I and II.

[19] Mr Hounslow's declaration advised that a Chipper Operator was required to operate chipper machinery. This function involved the erection of safety signage and establishing a clear work area. It involved stacking vegetation, feeding it into the Chipper and clearing and tidying the site. A Chipper Operator was required to have a current drivers licence and desirable qualifications included:

• Experience in basic Arboriculture and plant operation



• Certificate II or III in Horticulture (Arboriculture) or equivalent



• Class MR or HR drivers license,



• Occupational Health and Safety Induction Certificate for construction work,



• Apply first aid,



• Chainsaw Operators Certificates I and II.

[20] Mr Hounslow described the objective of a Climber as ensuring efficient and effective safe trimming or dismantling of trees. That function involves:

• Establishing and maintaining clear lines of communication with ground crew personnel,



• The assessment, establishment and maintenance of safe work areas,



• Tree climbing and operation of chainsaws and plant,



• The removal of debris.

[21] The qualifications and experience necessary for the "Climber" role was described in the following terms:

• Experience I basic Arboriculture and plant operation,



• Undertake Standard Climbing Techniques (RTF2027A),



• Undertake Arial Rescue (RTF3702A)- covering Tree Hazard and Risk Assessment, Rope and Harness Climbing Techniques, Use of Spurs, Aerial Tree Rescue,



• Apply chemicals and the supervision (RTC2706A),



• Perform Dogging (BCGD0 3001B),



• Chainsaw Operators Certificates I and II,



• Apply First Aid, current drivers licence.

[22] Mr Hounslow identified desirable qualifications for this function as:

• Certificate II or III in Horticulture (Aboriculture) or equivalent,



• Class MR or HR drivers licence,



• Occupational Health and Safety Induction Certificate for Construction Work,



• Experience in Spikeless Tree Climbing,



• Perform Rigging -Basic (BCGR13002),



• Industrial Rope Access Level 2 (Twin Rope Level 2),



• Elevated Work Platform licence.

[23] Mr Hounslow confirmed that:

“None of the roles covered by the proposed enterprise agreement or the Application for Majority Support Determination are permitted to come into contact with powerlines at any time.” 5

[24] The CEPU position is that its eligibility rules entitle it to have, as members, the ATS employees engaged as Electrical workers who are employed to clear vegetation from power lines. The CEPU argue that the proper approach to the interpretation of Union Rules requires a broad, non-restrictive and generous approach. 6 The CEPU refers to various established authorities in this respect.7 In particular, the CEPU refers to the Full Bench decision of the Australian Industrial Relations Commission in MTIA v ETU and others8 in the following terms:

“The fact that the expression ‘electrical industry’ is the singular does not assist greatly in construing that part of the rule. To identify various industries that might be employer industries comprehended by the expression ‘electrical industry’ is simply to disaggregate that which is described by the one expression. There is no reason, in our view, why the expression should not be treated as having a broad meaning ...”

....

The eligibility rules of the ETU were formulated over half a century ago. The union represents employees in areas of industry where technological developments have, in that period, been profound.”

[25] The CEPU asserts that the term “Electrical labourers” as it applies in Rule 2.1 should not be construed as requiring a high level of technical knowledge. Further that the phrase “all employees whose callings are peculiar to the electrical industry” should be applied, consistent with the position adopted in MTIA v ETU in a broad sense and requires consideration of the range of tasks undertaken. 9

[26] The CEPU asserts that SA Power Network has the responsibility to take reasonable steps to keep vegetation clear of power lines and has contracted with ATS to undertake this function. The CEPU asserts that the Electrical, Electronic and Communications Contracting Award 2010 covers any employer which supplies labour with respect to classifications covered by that award and refers to electrical services which include the maintenance of power distribution lines and all associated work. 10 The CEPU asserts that the classification definition for an Electrical Work Grade 2 specifically refers to an employee who is engaged in the clearance of vegetation in the vicinity of overhead power distribution lines.11

[27] In terms of the history of these functions, the CEPU referred to previous award arrangements applicable to the former Electricity Trust of South Australia and assert that the proper application of its rules incorporates these functions. In support of its position, the CEPU referred to current enterprise agreements operating in various other states with ATS. The CEPU refer to the ATS website which explains this particular service provided by ATS in the following terms:

“Vegetation growing near transmission and distribution lines must be managed on a regular basis to ensure that vital infrastructure is not damaged and power supplies are not interrupted.

We specialise in carrying out cyclic and reactive vegetation programs to reduce the risk of discontinuity of supply, personal injury and bushfires. Our services include inspections, cutting and reporting. We can also assist in developing a vegetation management strategy.”

[28] The CEPU asserts that the employees undertaking this work are required to undergo training provided by SA Power Networks and are issued with an access pass accrediting them as an Electricity Officer.

[29] Accordingly, the CEPU asserts that ATS should be regarded as an electrical contractor and that the employees performing vegetation clearance work undertake work peculiar to the electrical industry such that they are covered by its rules.

[30] The CEPU declined the opportunity to comment further on Mr Hounslow's statutory declaration.

Findings

[31] Section 236 provides that a bargaining representative employee who will be covered by a proposed enterprise agreement can make an application for a majority support determination. This section continues to set out the requirements for such an application.

[32] Section 176 defines bargaining representatives for this purpose in the following relevant terms:

“176 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

....

(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.”

[33] In this matter the parties agree that there is no low-paid authorisation in operation and hence the only impediment to the making of a majority support determination is the question of whether the CEPU is entitled to represent the industrial interests of these ATS employees.

[34] The parties have identified the most common references to the steps to be taken in considering and applying union eligibility rules. Those approaches are long established and remain relevant to this day. The recent decision in Walker, in the matter of an election for an office in the Victorian Branch of the Australian Rail, Tram and Bus Industry Union 12 confirms the continued application of a broad approach to the interpretation of union rules.

[35] However, notwithstanding that broad approach, it is necessary that those rules be properly applied in order to preserve the integrity of the provisions of s.176.

[36] Rule 2.1 of the CEPU rules 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.”

[37] As Watson SDP observed in Newtronics 13 the CEPU rules in this respect have been unchanged since 1934. In MTIA v ETU the Full Bench stated:

“The last issue concerns the eligibility rules of ETU.

Before considering the submissions of the parties we wish to make the following observations. They concern a matter we did not raise with the parties. The eligibility rules of the ETU were formulated over half a century ago. The union represents employees in areas of industry where technological developments have, in that period, been profound. The rule is, at best, difficult to construe and, as we will shortly discuss, its meaning has been considered by a number of lawyers whose advice and opinions were in evidence before Palmer C and who, at the time of giving the advice, were highly regarded in the field of industrial law. They expressed differing views as to its meaning. Our decision on its meaning will not be authoritative in that it is not a decision of a body exercising judicial power.”

[38] I note that decision was made in the context of disputed award coverage. In that matter the Full Bench considered the extent to which the phrase “peculiar to the electrical industry” should be considered in the context of employee callings or a consideration of the employers industry. Whilst it adopted the general approach 14 that the union “had the right to represent me in “doing electrical work” whatever the industry of the employer, it also observed that consideration of the concept of “Electrical industry” from the perspective of the employer’s industry arguably involved greater clarity.15 The Full Bench emphasised the significance of the word “peculiar” which related to a calling that is to be found only in the electrical industry and requires determination by the examination of the work performed by employees in that calling.

[39] In Newtronics 16 a Full Bench addressed an appeal against a decision issued by Watson SDP17 in the following terms:

We now examine the question of whether the employees concerned are “employees whose callings are peculiar the electrical industry”. We commence by noting that unlike the position before Watson SDP it was not contested before this Full Bench that Newtronics is properly to be regarded as being in the electrical industry in the sense that that expression is used in the CEPU rules. Accordingly, the question before us is simply whether the employees of Newtronics are to be regarded as persons whose callings are peculiar to the electrical industry. That question is to be addressed on the basis that it is conceded that Newtronics is an employer in the electrical industry.

The proper approach to be taken to the construction of the rules of the CEPU was considered in Metal Trades industry Association of Australia v. Electrical Trades Union of Australia and Ors (the MTIA Case) [(1991-92) 44 IR 341] by a Full Bench of the Commission and it is appropriate that we set out a number of passages from this decision.

“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.

...

It is unnecessary, for present purposes, for us to deal exhaustively with the submission of ETU that the expression ‘electrical industry’ should be treated as incorporating each of the elements of the definition of ‘industry’ contained in the IR Act. However we doubt that it has such a meaning, as the scope of the rule as it might apply in a given situation could alter depending upon which element of the definition is adopted. In our view the expression ‘electrical industry’ is more likely a reference to the employers’ industry principally for the reasons we earlier discussed concerning circularity of language and the structure of the expression we are considering. We accept, however, that the question is not free from doubt.

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 store man 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.”

[40] The Full Bench concluded:

“In the MTIA Case the Full Bench concluded a store man working for an electrical contractor could be regarding as having a calling peculiar to the electrical industry because although he was a store man the work involved handling electrical equipment required some understanding of the substantial element of its work. Accordingly, the question of knowledge in that case was an essential characteristic in making the calling peculiar to the electrical industry.

However, knowledge would not be the only test. For example, as was pointed out in the MTIA Case to determine the question of whether work of a peculiar calling is comprehended in the eligibility rules it is necessary to consider the range of tasks performed by employees in the calling.

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 with 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.”

[41] I have adopted this approach.

[42] Before considering the limited information provided to me about the range of tasks performed by the employees, I have considered the nature of the ATS business. In this respect I have relied on the ATS website and the statutory declaration made out by Mr Hounslow.

[43] That ATS website describes what ATS does in the following terms:

“Active Tree Services is Australia’s largest vegetation management company. We have more than 700 staff, offices in every state, a substantial fleet of specialist equipment and annual revenue of more than $100 million.

The full range of services we offer includes:

• arboriculture



• power line vegetation management



• vegetation recycling



• emergency response.

With more than 30 years’ experience, Active Tree Services is able to use its scale, expertise, technological capability and management systems to provide safe, reliable and efficient solutions.

Customers engage Active Tree Services with the assurance and certainty provided by a long standing, well managed, financially strong business that meets the prudential rigours required of all large reporting entities.

While our size and financial strength offers clients continuity and reliability, Active Tree Services' experienced management team is well aware of the importance of relationships.

We have long-standing relationships with an impressive customer base — which includes local councils, energy utilities in every state, plus state and federal governments, and leading players in the construction industry.

Through its use of technology and the latest arboriculture practices, Active Tree Services is able to provide the most efficient, quality-focused vegetation management service in the industry.

We pride ourselves as an industry innovator, and are constantly looking for how we can improve the way we do things.

Active Tree Services is part of the Active Group of Companies.”

[44] The website continues, to explain the ATS involvement with powerline vegetation management in the following terms:

“Power Utilities

Active Tree Services manages vegetation near power lines in all six states of Australia. It is Australia’s largest provider of arboriculture services for energy authorities.

Vegetation growing near transmission and distribution lines must be managed on a regular basis to ensure that vital infrastructure is not damaged and power supplies are not interrupted.

We specialise in carrying out cyclic and reactive vegetation programs to reduce the risk of discontinuity of supply, personal injury and bushfires. Our services include inspections, cutting and reporting. We can also assist in developing a vegetation management strategy.

Our expertise and business systems allow us to offer a significant cost advantage over our competitors. This means customers gain better outcomes and better value for spend.

As a national business, Active Tree Services can apply the benefits of its experiences elsewhere to any environment in the country.

Finally, the ATS website refers to typical job roles in the following terms:

Operations

The vast majority of our team enjoy the benefits of working outdoors, typically in small crews of two to four people.

Most of our business involves clearing vegetation around power lines, although our commercial arm performs a wider variety of contracted jobs. Active Tree Services’ employees use the latest plant and equipment to ensure their tasks are performed efficiently and safely. Typical roles include:

• ground crew engaged in chipper operation, observation of climbers and elevated work platform operators, removal or trimming of lower level vegetation, and traffic control



• climbers



• elevated work platform operators/cutters



• vegetation inspectors



• supervisors (of two or more crews)



• notifiers and auditors



• live linesworkers (authorised to work with distribution voltages of 33 kV)”

[45] I have accepted that the information provided by Mr Hounslow establishes that there are no live-lines workers engaged by ATS in South Australia. The application refers to employees of ATS in South Australia and, as a consequence, I have considered the ATS operations in South Australia as a discrete function.

[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.

SENIOR DEPUTY PRESIDENT

Appearances:

J Adley appearing for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

V Hinton agent for Active Tree Services.

Hearing details:

2014.

Adelaide:

September 10.

 1   ATS submissions of 24 September 2014, para 8

 2 Print Q9063 [1998] AIRC 1240

 3 [1991] 44 IR 141

 4   Opinion of Mr Dowd 9 September 2014.

 5   Statutory Declaration of Mr Hounslow, para 11

 6   CEPU submission of 17 September 2014, para 6

 7   R v Aird Ex parte Australian Workers Union (1973) 129 CLR 654 and R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577

 8 [1991] 44 IR 141

 9   see also Newtronics Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal [1998] AIRC 1240.

 10   Electrical, Electronic and Communications Contracting Award 2010, clause 4

 11   Schedule B, Classification Definitions

 12 [2014] FCA 1109, 9 October 2014

 13 Print Q9063 [1998] AIRC 1240, para 42

 14 [1991] 44 IR 141, page 146

 15 [1991] 44 IR 141, page 147

 16 Print Q9063 [1998] AIRC 1240

 17   Print Q5822

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