[2018] FWC 1093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid
(C2017/4159)

DEPUTY PRESIDENT SAMS

SYDNEY, 14 MARCH 2018

Dispute about a matter arising under an enterprise agreement – application for the Commission to deal with the dispute – electricity supply industry – creation of new role of Safety Specialist – whether Safety Specialists entitled to certain allowances under the Agreement – no difference in the work or duties between old role and new role, save for no requirement for electrical background – electrical safety rules – interpretation of Agreement – principles of agreement interpretation – plain, ordinary meaning of words – meaning of terms unambiguous and certain – bizarre and illogical outcomes – Safety Specialists entitled to Electricity Safety Rules Allowance – evidence as to what candidates for the new role were told – respondent’s own evidence contradictory – preference for Union’s witness evidence –obiter observations – determination made.

BACKGROUND

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) in which it seeks the assistance of the Fair Work Commission (the ‘Commission’) to deal with a dispute in accordance with the Dispute Settlement Procedure (‘DSP’) in the Ausgrid Agreement 2012 (the ‘2012 Agreement’). Obviously the dispute is with Ausgrid – a major New South Wales electrical generation and supply distributor covering 1.7 million homes and businesses throughout Sydney, the Hunter and the Central Coast.

[2] In short, the dispute concerns the alleged failure of Ausgrid to pay the Electrical Safety Rules Allowance (‘ESRA’) and the Qualified Supervisor Electrical Work Allowance (QSEWA) under the 2012 Agreement to a number of employees (four) who perform the role of Safety Specialist. The employees are:

● Mr Steven Thompson;
● Ms Abby Edwards;
● Mr Anthony Reed; and
● Mr Brodie Marr.

[3] Ausgrid maintains that the newly created positions (in 2014) do not meet the criteria for the payment of the ESRA and the relevant employees were advised of this, and accepted appointment to the position of Safety Specialist in 2014 on that condition.

[4] The parties have been seeking to resolve this matter for some time before bringing it to the Commission. On 26 September 2017, I convened a conference with them in the hope of resolving the dispute. Regrettably, no resolution could be reached and on that day I issued directions for the filing and service of outlines of submissions and witness evidence in preparation for a hearing of the matter on 13 November 2017. Unfortunately, through a miscommunication in the Union office, no representative of the Union appeared that day and the matter was adjourned until 7 December 2017. At that time, Mr Buttigieg, Organiser appeared with Mr R De La Cuadra, Industrial Officer for the Union and Mr G McDonald with Ms S Irving appeared for Ausgrid. I do not understand there to be any jurisdictional issues as to the Commission dealing with the matter by arbitration. I proceed to do so on that basis.

THE EVIDENCE

[5] Reference to the two allowances is found at cl 11 of the 2012 Agreement as follows:

11.1 Qualified Supervisor Electrical Work Allowance

Only paid to employees who are appointed as trades people and who hold a current NSW Qualified Supervisor Electrical Work. The allowance is also payable to employees who were appointed certain positions prior to 10 December 1981 whether or not they hold an electrician licence. The positions eligible for this allowance as at 19 December 2012 will remain eligible for the allowance for the term of this Agreement. The Qualified Supervisor Electrical Work Allowance remains an all purpose allowance. (Appendix 1 D Allowances Item No. 28).

11.2 Electrical Safety Rules and Skills Allowance

Only paid to employees who are appointed to electrical positions who have passed the test and knowledge of the rules and who are required to work or supervise or direct work in accordance with those rules. The positions eligible for this allowance as at 19 December 2012 will remain eligible for the allowance for the term of this Agreement. The allowance is also payable to employees who were appointed to certain positions prior to 22 December 1981. Employees will be required to undergo refresher training. Effective on a nd from 19 December 2000, apprentice electricians are paid the allowance from the date they complete the Electrical Safety Rules Test. ESRA remains an all purpose allowance but is frozen at the rate paid on 16 June 2012. (Appendix 1 D, Allowances, Item No. 25).

11.2.1 Employees in trade classifications (as defined) other than electrician are entitled to 80% of the Electrical Safety Rules Allowance paid to electricians. (Appendix 1 D, Allowances, Item No. 27).

11.2.2 Pro-rata Safety Rules Allowance paid to Electricity Supply Operatives who have passed an abridged version of the Safety Rules Test. This allowance is calculated at 60% of the Electrical Safety Rules Allowance. To be known as Safety Rules Electricity Operative Allowance (Appendix 1 D, Allowances, Item No. 26).

[6] The following persons provided written and/or oral evidence in the proceeding:

● Mr Steven Thompson Safety Specialist Ausgrid;
● Ms Abby Edwards, Safety Specialist Ausgrid;
● Mr Darran Miller, Safety Specialist Ausgrid;
● Ms Trinity Pham, Human Resources Business Partner; and
● Ms Dana Cooper, Area Safety Manager, North.

For the Union

Mr Steven Thompson

[7] Mr Thompson has been employed by Ausgrid since August 2010 and began his role as a Safety Specialist on 16 March 2015. He said that part of his duties is to respond to incidents on the Network and provide advice to safety crews, including general legislative advice through to workgroup specific electrical safety advice.

[8] It was Mr Thompson’s belief that when he applied for the role, the ESRA and the Electricians Licence Allowance (ELA) applied and he was never told anything to the contrary. In fact, there was no mention of a change to allowances at the time.

[9] Mr Thompson said that his current Key Performance Indicators (‘KPIs’) require 10 safety interactions a month. While these are general in nature, eight or nine involve electrical safety. The remainder would involve general safety advice to other employees or contractors who work on, or near the Network. Mr Thompson gave two examples of this electrical safety interaction.

a) Entering a ‘live’ substation to give advice in relation to Network access procedures and isolation of the Network. This work is undertaken on, or near the Ausgrid Network.
b) Visiting an overhead line crew to advise on the number of required rubber insulation mats and ensuring the work complied with the Electrical Safety Rules (ESR). This includes things such as the Elevated Work Platform setup, correct use of Personal Protective Equipment, following and understanding safe work method statements, ensuring the Ausgrid Safety Management System (BeSafe) is followed and ensuring legislative compliance. All of this work is done in conjunction with an electrical trade crew (High voltage overhead and underground, high voltage test, protection system technicians, general maintenance electricians and electrical workshop staff) and all work is performed on, or near the Network.

[10] In oral evidence, Mr Thompson outlined his workplace health and safety qualifications. Prior to becoming a Safety Specialist he was a Field Supervisor for the risk mitigation technicians. His former role and the Safety Specialist role are very similar, except for a greater focus on looking after a team of safety people who look after contractors. Mr Thompson said his current role is to give specialist advice based on electrical safety knowledge and qualifications. However, he has no direct reports. He is not accountable for the actions of others or involved in discipline, as they have their own supervisor to report to. Nevertheless, he monitors their safety performance. Mr Thompson said he can direct employees not to undertake certain types of electrical work or modify the way they do so, according to the Electrical Safety Rules (ESR).

[11] Mr Thompson believed he is able to step in and complete work himself if the employee or contractor is doing something wrong. He would then report this to his manager and advise as to the work required to be done. Mr Thompson said he can do work on the Network, but has not been asked to do so since becoming a Safety Specialist. However, he has assisted in clean-up operations following storms.

[12] Mr Thompson described the circumstances of when he applied for the Safety Specialist role in December 2014. He had sought advice from his area Safety Manager and spoke to other Safety Specialists. He could not recall being told by Mr Robert Addy, or anyone else, that the ESRA would not apply if he was successful with his application. He recalled being told on the day he was offered the job by Mr Jason Smith, that the then Safety Manager, Mr Robert Sloan intended to remove the ESRA in the future for Safety Specialist roles, when a new agreement was negotiated. Mr Thompson believed that if this happened it would be immediately put into dispute.

[13] Mr Thompson understood that when he signed on for the new role, the ESRA would be applicable, because no proposal for changing it had been implemented and to do so would have meant Mr Sloan would be acting outside the existing 2012 Agreement. Mr Sloan’s then views were probably the reason why he no longer worked for Ausgrid. Mr Thompson stressed that Mr Sloan never spoke to him - his only contact was through Mr Smith.

[14] Mr Thompson was referred to the job advertisement for the Safety Specialist position which said ‘plus allowances as applicable’. He understood this to mean as including both the ESRA and the ELA. He based this on the fact that all the other Safety Specialists were receiving the allowances. It was Mr Thompson’s evidence that it would be extremely difficult to perform the new role, without electrical trades’ qualifications. He gave examples of other employees who he believed could not do the work, because they did not have the relevant knowledge, qualifications or background. These people might be able to do risk assessments in office situations, which he could as well.

[15] Mr Thompson remembered he was interviewed by Mr Smith, Ms Dana Cooper and Ms Trinity Pham. He strongly denied being told the ESRA would not be applicable to his role. No mention of allowances or remuneration of any kind was raised. Mr Thompson agreed he had applied for voluntary redundancy 18 months to two years ago, but had since withdrawn his expression of interest.

[16] In re-examination, Mr Thompson believed his role involved a combination of his qualifications and his practical trade experience. As a Union delegate, Mr Thompson believed that any employee who is employed in a role where the knowledge or trade qualifications are used, should receive the ESRA. The allowance should be paid to persons whose job predominantly involves work on, or near the Network.

[17] Mr Thompson said that he never received any explicit articulation of Ausgrid’s position that the allowances were not applicable. The first time he knew he was not being paid the allowances was when he received his pay slips.

Ms Abby Edwards

[18] Ms Edwards began work at Ausgrid on 4 March 2015. She holds an Electrical Licence, having completed an apprenticeship in 2011. She also holds a Diploma in Workplace Health and Safety and a Certificate IV in Occupational Health and Safety. In addition to responding to incidents and providing general and specific advice, she is also required to notify when external contractors make contact with the Network assets or impede safe working clearances. Ms Edwards gave similar evidence to Mr Thompson as to the KPI expectations of Ausgrid.

[19] Ms Edwards believed her position included the ESRA and the ELA and no mention was made to the contrary when she applied for the position. At the time, her position description listed Electricians Licence as desirable.

[20] In oral evidence, Ms Edwards said that the knowledge she gained when working in an electrical position was no different to her new role. While it is a physically different role, she is still expected to understand what should, and should not be done, on the Network. She is expected to direct people to ensure their safety and the safety of those around them. Her directions may be escalated to a supervisor, who also has responsibility for disciplinary matters, but that has never happened.

[21] Ms Edwards said that she is required to attend a site to ensure that the site is safe. Much of this work is in the field; i.e. outside the office. She also undertakes office based risk assessments. While these assessments do not require electrical knowledge, other assessments do require her knowledge of the ESR, for example, panther slings for raising and lowering overhead mains.

[22] Ms Edwards acknowledged that the Safety Specialists work with the field workers on risk assessments that are field based. Part of her work in the field does not require her to fix things, but she can barricade areas to make a site safe. As a health and safety representative, she has the power to shut an unsafe site. She also provides coaching and mentoring to employees and contractors in the field.

[23] In questions about when she applied for the role in December 2014, Ms Edwards said she never spoke to anyone about the details of the role, because at the time she was working remotely. She had never met, or had spoken to Mr Sloan. The application for the role specified that trade qualifications were desirable. She assumed all the Safety Specialists would be electricians, as it made sense. At her interview, there was no discussion of money at all. She was never told that the ESR would not apply to the role. At the time, she understood that the ESR applied to anyone who works on the Network and you are required complete ESR tests. She was under the impression that Ausgrid always paid the ELA.

[24] Ms Edwards did not feel comfortable commenting on other employees’ skills, experience or qualifications. When pressed, she accepted that one Safety Specialist, Ms Kristy Robinson, does not have an electrical background. However, she is primarily office based. While her role is different, their position descriptions are the same. Ms Robinson works in the North, whereas she works in the South. Ms Edwards had understood another employee, Mr Oswald Debonis, declined the Safety Specialist position, but she was unsure if it was because the role did not require the ESRA, or that he took another position.

[25] In re-examination, Ms Edwards said she was aware of other office based roles who receive the ELA. They include a classification in the Sydney Central Room and Area Operators. It was Ms Edwards’ belief that it is not possible to teach and mentor people on electrical safety, without a thorough knowledge of electrical safety and of the ESR.

Mr Darran Miller

[26] Mr Millar began work for Ausgrid in 2005 as an Electrical Fitter. He later became a Safety Coach and as a result of the restructure in 2014, he was directly appointed to his current position of Safety Specialist.

[27] In addition to providing general and specific advice, Mr Miller said he is asked by field workers, supervisors, managers and contractors on a daily basis, for the interpretation and understanding of the ESR in areas where they may be unfamiliar or uncertain. This advice results in Network safety issues being resolved and controls implemented.

[28] It was Mr Miller’s evidence that Safety Supervisors must have an in depth knowledge and pass and ESR test, by at least 97 per cent. The ESR itself is a 3248 page document to be read in conjunction with Australian and Network standards. Mandatory ESR training is required, without which the employee is not allowed to work on, or near the Network.

[29] Mr Miller said that he has worked on a daily basis with all four affected employees and their position descriptions and work undertaken, are identical to his. They must all undertake annual ESR training. Accordingly, he believed they should receive the same allowances to their equivalent counterparts.

[30] In oral evidence, Mr Miller said that in his former role as a Substation Technician he was required to hold a Supervisors and ESR certificate. When he applied for the former Safety Advisor position, he was required to have an electrical background Certificate IV in WHS and/or a Certificate IV in Training and Assessment.

[31] Mr Miller understood that under Ausgrid’s job evaluation process the Safety Specialist role changed by less than 20 percent from his previous role. As a result, he was directly appointed into the Safety Specialist position. However, his role remained basically the same as before. He receives the ELA, whereas other of his Safety Specialist colleagues do not. He understood that at the time Ausgrid advertised the positions, the role was inclusive of applicable allowances, being the ESRA and ELA. Mr Sloan had not said any different at the time, either verbally or in writing.

[32] In cross examination, Mr Miller reaffirmed that he did not have to reapply for the Safety Specialist position in 2014, as he was directly appointed. Nevertheless, he was aware that electrical qualifications were desirable and that other persons without electrical qualifications, could still be appointed and some were. The PD changed from ‘essential’ to ‘desirable’.

[33] Mr Miller said that part of his role is coaching and mentoring and part of it is site inspections and safety audits. On site, he is able to stop work and explain the safety issues he has identified and obtain feedback from the workers. Sometimes a report might be necessary for the Field Supervisors or Managers. However, he has no input in disciplinary matters. Mr Miller described a situation where he may perform the work himself such as a live pole top rescue. A person without trade qualifications could not undertake this duty. Mr Miller believed that a Safety Specialist is better qualified if the person has worked on, or near the Network and has an electrical background. Nevertheless, he understood Ms Robinson does not have an electrical background. Mr Miller could not say which other classifications attract the allowances. He understands HSE Safety Investigators do not, but they do not work on the Network.

[34] In re-examination, Mr Miller said that he understood employees with qualifications which attracted an allowance, retained the allowance after any restructure, as happened in 2014.

[35] Mr Buttigieg tendered a copy of Mr Brodie Marr’s letter of appointment as a Safety Specialist, dated 21 July 2016, which includes the following:

‘The present classification for the position is safety specialist pay point 43, $102,521 per annum, plus allowances as applicable. All other terms and conditions of your employment will remain covered under the Ausgrid Agreement 2012.’ [my emphasis]

For Ausgrid

Ms Trinity Pham

[36] In her role as Human Resource Business Partner, Ms Pham was involved in 2014 with Mr Robert Sloan, Manager, Safety and Environment in the restructure of the safety functions across the entire Ausgrid business. This led to the establishment of the new HSE Division which replaced the safety roles across the various divisions. Ms Pham said that the focus of the change was to move away from attracting trade skilled employees, to professional workplace health and safety qualified employees.

[37] Ms Pham was involved in the new position description evaluation. Existing Safety Advisors were not required to reapply for the new roles of Safety Specialists as the 80/20 reappointment principle applied. Those who did so, maintained the ESRA so as they would not be financially disadvantaged.

[38] In the process, four vacant Safety Specialist roles were advertised. Ms Pham sat on the merit selection interview panel on 9 January 2015 with Ms Cooper and Mr Smith. Ms Pham confirmed that as the jobs were advertised internally, a pro forma job advertisement was posted, which had mentioned ‘plus allowances as applicable’.

[39] It was Ms Pham’s evidence that during their interviews, candidates were made aware that the ESRA would not be payable. One successful candidate later declined the offer and Mr Kelly, Ms Edwards, Mr Reed and Mr Thompson as the successful candidates, were offered and accepted the roles.

[40] Ms Pham said she was careful to ensure that the letters of offer, drafted through the Recruitment Team, did not refer to ‘plus allowances as applicable’ and all the successful candidates accepted the offer on those terms. Ms Edward’s offer was tendered to demonstrate this. She was disappointed that the employees were now agitating for something which was made clear at the time would not be applying to the new Safety Specialist roles.

[41] In further oral evidence, Ms Pham explained the 80/20 rule. This meant that in any restructure, if a role or job changed less than 20 per cent, then existing occupants would be directly appointed to the new role, without having to apply, or be interviewed for the position. However, that did not mean there could not be changes to the role’s essential criteria. She further explained the differences in the ‘essential’ criterion between the old and new roles as now moving away from electrical qualifications, with these qualifications being ‘desirable’.

[42] It was Ms Pham’s evidence that the deletion of the words ‘plus allowances as applicable’ was deliberate because a lot of questions had arisen as to whether allowances in the new role would be maintained. This was done to avoid doubt and make it very explicit that the allowances did not apply. Employees who were directly appointed had letters of offer which referred to existing allowances being applicable (confirmed in Mr Miller’s letter of offer of 19 August 2014).

[43] It was Ms Pham’s understanding that all employees in the Safety Specialist role are required to undertake the ESR test, but that does not necessarily mean the role attracts the ESRA. It was her contention that the role does not require an electrical background knowledge of the ESR. This is reflected in the position description downgrade of a trade background being ‘desirable’, rather than ‘essential’.

[44] Ms Pham said that she was unaware of the day to day work of the Safety Specialists. However, as a HR specialist, Ms Pham understood her role is to interpret all of the 2012 Agreement and to determine whether a certain role requires a qualification and whether the role attracts an allowance. She was not aware of the specific details of the different roles.

[45] As to the letters of offer, Ms Pham said her role was to ensure the paperwork was correct and the General Manager would then sign the offer. Ms Pham did not know what was meant by ‘not being able to contract out of the 2012 Agreement’ (as put to her by Mr Buttigieg).

[46] Ms Pham accepted it was strange that some Safety Specialists receive the ESRA, but others, doing exactly the same work, do not. This arose simply because employees who moved over under the 80/20 rule should not be disadvantaged by losing the allowance. She agreed that technically the ESRA should not apply to any of the Safety Specialists.

[47] Ms Pham was called upon to explain why Mr Marr’s letter of offer in 2016 included the words ‘plus allowances as applicable’. She said Mr Marr was in a later round of appointments in 2016 and she had not checked the standard letter of offer to remove these words. She accepted that Mr Marr had signed the offer letter, but she understood he would have been advised by Ms Cooper that the role did not attract the ESRA. There was nothing put in writing later to advise him the ESRA did not apply.

[48] Ms Pham further detailed the reasons for the 2014 restructure which was designed to bring all Ausgrid safety functions together, to ensure cohesion and alignment across the divisions under a General Manager. Nevertheless, Ms Pham believed the essential functions of the new role changed by having a more professional approach to safety across the organisation. That does not mean the employees skills are no longer relevant. The change was not large enough (less than 20 percent) to require all internal employees to reapply for the role. The intention was to have a balance of skills and knowledge in the safety field overall. It was Ms Pham’s understanding, from what the Managers had told her, that the Safety Specialists do not perform work on, or near the Network.

[49] Ms Pham claimed that during interviews, all candidates were asked if they knew the ESRA did not apply, through a script of questions. Some said ‘yes’, and others who said ‘no’, agreed it did not matter, because their base pay was to be increased. However, Ms Pham could not produce any document which demonstrated the question was asked. She agreed that in hindsight, it would have been preferable to have this in writing. It was Ms Pham’s understanding that the one employee who declined the offer, Mr Debonis, did so because he was going to take a pay cut. She was not aware if he had applied for, and secured an alternative position. She had assumed it was because of the ESRA not being payable.

Ms Dana Cooper

[50] Ms Cooper has been a Safety Advisor and has been employed by Ausgrid for nine and a half years.

[51] Ms Cooper set out the reasons for the 2014 restructure and her understanding of the 80/20 rule as it applied to then Safety Advisors being directly appointed to Safety Specialist roles and retaining the ESRA.

[52] Ms Cooper was a member of the interview panel in 2015 with Ms Pham and Mr Smith. She included in her evidence the Position Descriptions for the old role (Safety Advisor) and the new role. The difference between the two was a move from ‘essential’ to ‘desirable’ in respect to electrical qualifications.

[53] Ms Cooper had been involved at the time with Mr Robert Sloan, Manager Safety Environment Services and General Manager, Peter York in developing the requirements for the new role and drafting the PD. The focus was to shift from specific electrical trades qualifications to a broader focus on overall safety requirements. I annexe to this decision the two PDs as Annexures 1 and 2.

[54] It was Ms Cooper’s evidence that she was informed that Mr Debonis declined the Safety Specialist offer as the ESRA was not being offered to others. As he retained the allowance, he did not want to cause division in the group. The other successful candidates (Mr Kelly, Ms Edwards, Mr Reed and Mr Thompson) all had either a health and safety or HR qualification. Electrical trade qualifications were not essential for selection. Ms Cooper was not aware if Mr Debonis rejected the Safety Specialist offer because he had secured a higher paid role.

[55] Ms Cooper claimed she had contacted one employee (Mr Kelly) in the North Region (for which she had responsibility) and Mr Smith spoke to Ms Edwards, Mr Reed and Mr Thompson to advise them that ESRA did not apply to the new role. When she spoke to Mr Kelly he was upset about the ESRA not applying and asked it to be confirmed in writing, which she did on 30 January 2015. Nevertheless, he accepted the offer.

[56] Ms Cooper understood that none of the letter of offers mentioned the ESRA. When Mr Kelly left Ausgrid, and Mr Marr was offered a Safety Specialist role, she had told him the role did not include allowances.

[57] Ms Cooper described the Safety Specialist role as follows:

‘Safety Specialists are required to undertake safety interactions with employees undertaking electrical work and to coach and mentor them on safe work methods or rules.

The focus of the restructure in 2015 was to move away from direction or advice and to provide coaching and mentoring to employees in relation to safer ways to undertake work rather than telling them what to do.

The Safety Specialists also provide safety mentoring and coaching in office based environments and can be involved in office based risk assessments.

In my experience an electrical worker may take that coaching in terms of working safely or may ignore that coaching. When an employee does not follow that coaching the Safety Specialist raises it with the employees’ supervisor.

Safety Specialists do not undertake electrical work themselves or direct or supervise electrical work that is being undertaken.’

[58] In further oral evidence, Ms Cooper referred to the appointment of Ms Robinson, who did not have an electrical or trade background, as it is not essential for the role. She rated her as a ‘very good’ Safety Specialist. She can perform any duty within the position description. In cross examination, Ms Cooper said that although Ms Robinson does not have a trade background, she is still required to undertake ESR training.

[59] Ms Cooper said that no notes were taken during the 2014 interviews for the four new Safety Specialist roles. She recalled the panel had an interview guide (not a script) and Mr Smith asked most of the questions, with an opportunity at the end for the candidate to ask questions. Ms Cooper reaffirmed that after the interviews she had spoken to Mr Kelly about the ESRA.

[60] In cross examination, Ms Cooper said that at the time of the interviews, the issue of whether the ESRA applied was still under discussion and had not been resolved and finalised.

[61] Ms Cooper could not recall if Mr Thompson and Ms Edwards had been told in the interview that the ESRA would not apply. Nevertheless, management was open and honest with the information which was known at that point.

[62] When Ms Cooper was questioned as to the proportion of time Ms Robinson would be engaged in field based work, as opposed to office/depot based work, she described it as possibly 50/50. Ms Cooper believed that even in the ‘field’ Ms Robinson might not be accompanied by another Safety Specialist. However, if her coaching and mentoring involved knowledge of ‘poles and wires’ she would need to be assisted by someone with knowledge of the ESR.

[63] Ms Cooper conceded that Safety Specialists directly appointed and those who were not, perform the same role, but the latter do not receive the ESRA. Ms Cooper could not say why the ESRA was not paid. Her boss had made the decision in an environment where there was a lot of discussion about the eligibility of persons across the organisation to be paid the ESRA. She assumed it may have had something to do with cost savings across Ausgrid.

[64] Ms Cooper confirmed that Safety Specialists are required to undertake ESR training and pass an annual test on ESR. This is to ensure an understanding of the Network and the ESR. Ms Cooper agreed that the overwhelming risk to Ausgrid employees, is working on, or near the Network.

[65] Ms Cooper believed that in the safety team there would be a high proportion (probably over 90 percent) who hold electrical trade qualifications. She was unaware of any other roles where the ESRA does not apply to roles which may not be strictly electrical trades roles. From her experience, Ms Cooper agreed that the Safety Specialists could coach and mentor employees with electrical trade backgrounds. To retain credibility it is critical to have knowledge of the ESR.

[66] Ms Cooper had no evidence that any of the Safety Specialists appointed in 2015, (other than Mr Kelly), had received written advice that the ESRA did not apply to the role, nor had Mr Marr in 2016.

[67] Ms Cooper outlined some of the major hazards in Ausgrid. They include vehicle accidents, manual handling, slips, trips and falls and working with chemicals. She agreed that all these hazards are dealt with by the Safety Specialists.

SUBMISSIONS

For the Union

[68] Mr Buttigieg put that the dispute concerns the failure of Ausgrid to pay two sets of allowances in accordance with clause 11 of the 2012 Agreement. Specifically these are:

a. Clause 11.1 - in the case of three employees who were appointed as trades people by Ausgrid prior to 19 December 2012 and are classified as Safety Specialists, but who have not been granted payment of the Qualified Supervisor Electrical Work Allowance.

b. Clause 11.2 - in the case of four employees who are classified as Safety Specialists, but who have not been granted payment of the Electrical Safety Rules Allowance.

[69] Mr Buttigieg described the PDs of the former Safety Advisor role and the new Safety Specialist role respectively as follows:

‘Prior to June 2014 Ausgrid employed several “Safety Advisors” (see attached position description) (CEPU-2) whose role was to:

To support the Manager, Safety Services in developing, implementing and maintaining policies, procedures and processes necessary to achieve the organisation's objectives regarding:

● Reduction of personal injuries

● Minimisation of losses due to accidents

● Ensuring legislative compliance

● Continuous improvement of safety standards throughout the organisation

● Achieve agreed Key Result Area performance target standards

The Safety Advisor Grade 2 is a team player who gets results by influencing staff, contractors and management at all levels in safe working procedures, loss control strategies and compliance with safety legislation. The role is crucial to Ausgrid's ability to retain its Self-Insurer’s Licence -and to DOR's ability to retain accreditation to AS: 4801 and thus conduct business in the energy industry.

After June 2014 Ausgrid undertook a restructure which saw the Safety Advisor roles altered to “Safety Specialists” (see attached position description) (CEPU-3) whose role it was to:

To support the Area Safety Manager in developing, implementing and maintaining policies, procedures and processes necessary to achieve the organisation's objectives by:

● Working with line management to develop a culture which is safety focused.

● Assisting with the integration of the Safety management system to the business

● Assist with continuous improvement of safety performance throughout the organisation

● Achieve agreed performance targets

The Safety Specialist is a team player who achieves the above objectives by influencing workers, including field and office staff, contractors and management at all levels.’ [My emphasis]

[70] Mr Buttigieg submitted that the duties are the same and require the same electrical knowledge and safety functions under the ESR. He said that ‘it stretches credulity’ that the reference above to ‘influencing workers, including field and office staff and contractors’ could occur without knowledge of the ESR. Moreover, the employees are still required to pass an annual ESR exam.

[71] Mr Buttigieg submitted that Ausgrid’s position as to the ‘desirability’ of an electrical background, incorrectly limits the application of an electrical position and is inconsistent with the fact that there are numerous employees who meet the second criteria in clause 11.2 and are not required to have an Electrical Licence, but are paid the ESRA, such as Engineering Officers. The meaning of an ‘electrical’ position is not limited to tradespersons and applies to those employees who have a working knowledge of Ausgrid’s electrical transmission and distribution Network.

[72] Mr Buttigieg pointed out that the ESR require employees who work on, or near the Network to have passed the ESR exam. In addition, the Safety Specialists are required to advise and report on people performing this work and who receive the ESRA.

[73] Mr Buttigieg said three of the four employees hold a NSW Qualified Supervisor Electrical Work Certificate and were appointed as Safety Advisors prior to December 2012. A name change, while performing the same work, should not disentitle the employees to the ESRA.

[74] In further oral submissions, Mr Buttigieg detailed the numerous people who do not have the Electrical Licence but who work in, and around the Network, and receive the ESRA. The Safety Specialist position is no different. The role is fundamentally electrical in nature, because the predominant safety risk to staff is electrical safety. The Safety Specialists are doing the same work as they were performing before as Safety Advisors. He accepted that a purely office based position would not attract the ESRA, but that is not the case here.

[75] Mr Buttigieg criticised Ausgrid for not only changing the PD for the same work, but for failing to fully explain their intent in writing. This was unfair. The same applies to the QSEWA. Mr Buttigieg also explained that the planned changes in the new EBA to roll up the ESRA in a career progression scheme, will mean the Safety Specialists will continue to be fundamentally disadvantaged.

For Ausgrid

[76] Mr McDonald firstly put that the Union had not clearly articulated what remedy it was seeking in this dispute. Ausgrid believed that the issue to be determined is the appropriate interpretation of clauses 11.1 and 11.2 of the 2012 Agreement in respect to the four Safety Specialists in dispute. In light of this, Mr McDonald put that the principles to be applied by the Commission in interpreting an enterprise agreement are:

● construction begins with a consideration of the ordinary meaning of the words used;
● regard should be had to the industrial purpose sought to be achieved; and
● to determine context and general purpose, it is appropriate to have regard to the history of the relevant provisions and by examining its antecedents.

See: The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447; Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths [2013] FWCFB 2814; and Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137.

[77] Mr McDonald submitted that the fundamental principle is that the context of the construction of a provision may appear from the text of the instrument taken as a whole, its arrangement and place in it. By applying this principle to clauses 11.1 and 11.2 the Safety Specialists are not eligible for the QSEWA or the ESRA.

[78] Mr McDonald further submitted that under the requirements of clause 11.1, a Safety Specialist is not a position where employees are appointed as ‘trades people’ and under clause 11.2 the Safety Specialist roles are not ‘electrical positions’. It was not enough that an employee holds an electrical qualification or undertake ESR training. Safety Specialists are not required to work, supervise or direct work in accordance with the ESR if they were not appointed to an ‘electrical position’. He added that the date ‘cut offs’ of 22 December 1981 and 19 December 2012 cannot apply because the new positions were established in June 2014.

[79] Mr McDonald put that the change in focus of the new positions was far more than simply a name change of a position. The fact that directly appointed Safety Specialists is inconsequential to this case, as there was an agreed transitional arrangement in which pre-existing conditions were preserved.

[80] Mr McDonald noted that neither of the terms ‘tradesperson’ or ‘electrical position’ were defined in the Agreement. However, the ordinary meaning of those terms would be respectively an employee who has completed an apprenticeship and an ‘electrical position’ refers to an electrician or other non-electrician (Line Workers or Cable Jointers) who undertake electrical work as a fundamental part of their position. Safety Specialist roles fit neither definition.

[81] Mr McDonald also relied on the context of other clauses to assist in understanding the meaning of the disputed clauses. Clause 11.2.1 refers to trade classifications, other than electricians being paid 80 percent of the ESRA and cl 11.2.2 provides for 60 percent of the ESRA for Electricity Supply Operatives (ESOs) who are not trades qualified.

[82] Mr McDonald contended that because the 2012 Agreement differed to the 2010 Agreement which removed the definition of ‘electrical position’ as agreed by the Secretary of the State Branch of the Union, supported the proposition that Ausgrid could apply a broader scope to define a tradesperson position and an ‘electrical position’.

[83] Mr McDonald rejected the Union’s submission that because three of the employees were appointed to their positions as at 19 December 2012 they were entitled to the QSEWA. Clause 11.1 requires the position to have existed before 19 December 2012, not the employee. As the position of Safety Specialist was created in 2014, the new position does not attract the ESRA.

[84] Finally, Mr McDonald referred to the evidence that the candidates for the positions were verbally advised that the ESRA would not apply when the offers were made. Their letters of offer did not refer to applicable allowances. The affected employees accepted the role on that basis.

[85] In oral submissions, Mr McDonald rejected the Union’s approach to this case based on fairness or equity, as the focus must be on the language used in the 2012 Agreement. Mr Buttigieg’s submission is essentially that if someone has an electrical qualification and has some understanding of the Network and the ESR, then that qualified them for the ESRA. He conceded that while those skills are useful, they are not essential to the role.

[86] In an exchange with me, Mr McDonald did not accept that stopping unsafe work was ‘directing work’ (not to proceed). This was a reference to those who have passed the test, have knowledge of the rules and who are required to work or supervise or direct work in accordance with these rules (in the Safety Specialist PD).

[87] Mr McDonald further explained why the ESRA was paid to non-electrical trades persons at 80 percent and non-trades ESOs at 60 per cent. He described it as a type of salary maintenance arrangement during restructures, although the arrangement is in the context of job redundancies.

[88] In the alternative, Mr McDonald proposed that if the Union’s position is accepted, its lack of diligence in not pursuing the matter for three years, tells against any retrospectivity.

[89] In reply, Mr Buttigieg put that the remedy sought by the Union is a determination that Safety Specialists are entitled to the allowances in clauses 11.1 and 11.2 of the 2012 Agreement. Mr Buttigieg rejected any suggestion the Union had been less than diligent in pursuing this dispute. There had been numerous representations and discussions and an escalation of the dispute through the Agreement’s DSP.

CONSIDERATION

Relevant Principles

[90] As I apprehend Mr Buttigieg’s submissions, the Union seeks an outcome in these proceedings to the effect of a determination of the Commission that the four Safety Specialists named in this dispute are entitled to the allowances set out in clauses 11.1 and 11.2 of the 2012 Agreement. Nevertheless, I would observe that the Union’s primary focus appeared to be on the ESRA, rather than the QSEWA. That said, I agree with Mr McDonald that the determination of this matter requires the Commission to apply the principles of agreement interpretation to clauses 11.1 and 11.2 of the 2012 Agreement.

[91] Accordingly, I intend to apply the principles set out by the more recent Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as theAustralian Manufacturing Workers Union v Berri Pty Ltd (AMWU)[2017] FWCFB 3005 (‘Berri’), which modified the principles of enterprise agreement interpretation which had hitherto been applied on the basis of the principles set out in Australian Meat Industry Employees’ Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 (‘Golden Cockerel’).

[92] The ‘Berri Principles’ are as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which

it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[93] The ‘Berri Principles’ have as their foundation the long line of historic authority as to the approach to be applied by Courts, Commissions and Tribunals when called upon to interpret the words in an industrial instrument. Prior to the preponderance of agreements and enterprise agreements, this was invariably applied to Awards. Recent iterations of the legislative framework, necessitated a refinement of these principles; but some of the basic fundamentals remain. I refer to some of these cases to make good this proposition.

[94] I harken back to some of the early well-known cases which dealt with the construction of Awards. In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 (‘City of Wanneroo’), French J said at 53:

‘53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).’

Then at paragraph 57, His Honour observed:

‘57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’’

[95] Madgwick J in Kucks v CSR Ltd [1996] IRCA 166 (‘Kucks’); (1996) 66 IR 182 opined that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“... [T]he task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[96] As the legislative focus shifted towards agreement making, the same principles were recognised to apply to the interpretation of certified/enterprise agreements. In Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (‘Amcor’), the High Court Gummow, Hayne and Heydon JJ:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[97] In Amcor, His Honour Kirby J said:

“However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

. . .

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’ [references omitted]”

[98] Again in Amcor, His Honour Callinan J said there was substance in the observations of Madgwick J in Kucks. His Honour then said:

“An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.”

[99] In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 (‘Codelfa’) Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) said:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”

[100] The nature of the present task was emphasised by the Full Bench of the Commission in DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 in the following terms:

‘[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

[101] All of the above observations are concordant with the approach set out in Golden Cockerel and Berri. In short, the Commission’s task here is to ascertain the objective intention of the contested words, based upon the language and terms of the 2012 Agreement, when read as a whole, having regard to their context and purpose.

[102] To be eligible for the ESRA under cl 11.2, an employee must meet two preconditions (putting aside those who have been ‘grandfathered’):

1. The employee must be appointed to an ‘electrical position’, have passed the ESR test and have knowledge of the ESR; and
2. are required to work or supervise or direct work in accordance with those rules (ESR).

[103] Mr McDonald accepted that Safety Specialists must have ESR knowledge and pass the ESR exam, but that this was not relevant, because the Safety Specialists were not appointed to an ‘electrical position’. He also submitted that Safety Specialists are not required to work, or supervise or direct work, so the second precondition is not satisfied. I disagree on both counts.

[104] It is common ground that Safety Specialists, whether they have an electrical background or not (Ms Robinson, for example) are required by Ausgrid to undertake regular ESR training and must sit for, and pass an annual test of the ESR. In my view, where an Ausgrid employee’s role requires ESR knowledge, regular ESR training and annual testing on the ESR, there is not a skerrick of doubt that such a role is an ‘electrical position’. To submit otherwise is illogical and flies in the face of commonsense. More particularly, my conclusion is consistent with the Berri Principles (Principle 1) and in accord with what the objective bystander would understand to be the plain, ordinary meaning of the term ‘electrical position’. Accordingly, the first precondition is satisfied.

[105] As to the second precondition, the uncontested evidence was that the Safety Specialists may from time to time mentor and coach other employees who work on, or near the Network, that is, in the field, and can direct them (and contractors) to stop work if it is being conducted unsafely. A direction to stop work, is a direction for the purposes of clause 11.2. An important rider is the ability ‘to work or supervise or direct work in accordance with these (ESR) rules’. It is difficult to imagine how it would be possible to work, supervise, or direct others if the Safety Specialists did not have the requisite and up to date knowledge of the ESR.

[106] Moreover, it is more than ‘passing strange’ that a Safety Specialist performing a mentoring or coaching role with electrical trades persons, including being able to monitor for safety breaches, would not be required to have the skills or knowledge to be able to do so, in order to maintain credibility and respect; yet the persons they are coaching and mentoring receive the ESRA and they do not. This is the kind of absurd or illogical result which the rules of agreement interpretation say should be eschewed.

[107] Mr McDonald’s submission as to the definition of ‘electrical positions’ actually tells against his own argument. He submitted that the ordinary reading of that term refers to an electrician or other non electricians (such as Line Workers or Cable Jointers) who undertake electrical work as a fundamental part of their position.

[108] This submission is consistent with the broad interpretation contended for by the Union that an ‘electrical position’ is one which involves ‘work on or near the Network’ (although I note that phrase is similarly not defined in the 2012 Agreement). It is accepted that Safety Specialists do work, or work with others who work ‘on or near the Network’, although the proposition of time so spent, may vary from time to time. However, that is not the point. As I said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy [2018] FWC 570, ‘working on, or near the Network’ is not measured by some arbitrary percentage of time spent in performing part of the role. It may vary from week to week, or day to day. It merely needs to be part of the role to attract the ESRA. It is the nature of the work and/or the conditions under which it is performed which attracts the allowance, not some quirk of appointment to a role which management unilaterally decides no longer requires a particular qualification which the employee has previously been required to have for essentially the same role.

[109] In another bizarre outcome of Ausgrid’s approach, clause 11.2 provides for the ESR to be paid proportionately to trade classifications, other than electricians and to other non trades employees, such as Electricity Supply Operatives, who pass an abridged ESR test. In other words, Ausgrid recognises and pays the ESRA to employees who are not electrically qualified, or even trade qualified, but have decided not to pay it to the actual employees who are required to have a far greater working knowledge of the ESR and understanding of the Network.

The Evidence

[110] Before dealing with the determination I intend to make in this case, it is necessary in deference to the emphasis of both parties on the witness evidence, to say something about the credit of witnesses. I found Ms Edwards, Mr Thompson and Mr Miller to be impressive witnesses whose evidence was both compelling and credible. They gave their evidence without rhetorical flourish or exaggeration. Their evidence was clear, consistent and absent of waffle.

[111] Regrettably, I do not have the same view of Ausgrid’s evidentiary case. While I am not critical of the agreed facts as attested to by Ms Pham, in that she does not have an electrical background, she was unaware of the day to day work of the Safety Specialists, and was unaware of the specific details of the Agreement as it applied to different classifications, I am more troubled by her dogged insistence that all of the candidates for the Safety Specialist roles in 2014, were informed, during their interviews, that the ESRA did not apply to the role. Ms Edwards and Mr Thompson were adamant that they were never so advised. Ms Cooper’s evidence is illuminating in this respect and emphatically resolves this evidentiary conflict. I prefer the Union’s evidence on this issue.

[112] Firstly, neither Ms Pham nor Ms Cooper could produce any evidence, such as diary notes, or a script of the interview format, to demonstrate the issue had been raised at the interviews. Given the importance of the ESRA to the Safety Specialists, it is extraordinary that no document was produced to corroborate Ausgrid’s claim as attested to by Ms Pham.

[113] More significantly, and what was utterly surprising (not to mention embarrassing for Ausgrid) was Ms Cooper’s honest evidence that at the time of the interviews (9 January 2015), no decision had been made by Management as to whether the ESRA would apply to the Safety Specialists, as the matter was still under discussion. It is clear that a decision was made some time between 9 January 2015 and on or around 24 February 2015 when the firm offers of the role were made to the successful candidates. In other words, Ms Pham’s evidence was either wrong or neither she, nor anyone else in management, had authority to tell any candidate on 9 January 2015, that ESRA did not apply, because the decision had not even been made.

[114] I believe that the candidates applied for the role and attended the interview with every expectation the role included applicable allowances. Indeed, the advertisement for the position expressly said so. Thus, Ms Cooper having effectively and truthfully undermined a central tenet in Ausgrid’s own case, I am left with little confidence that the evidence of Ms Pham was reliable where it conflicts with the evidence of the Union’s witnesses. On one view, it may have been wise for Mr McDonald to have sought an adjournment at that point to obtain further instructions, given Ausgrid’s evidentiary case had been effectively scuttled by its own witness.

Obiter observations

[115] I accept unreservedly that the task of the Commission in interpreting an enterprise agreement is not to rewrite the agreement to achieve what might be regarded as a fair or unjust outcome; see: Berri principle 2 and Kucks. I have not, and will not do so in this case. My earlier conclusions as to the meaning of the disputed words resolves the dispute. However, it would be remiss of me, sitting as a member of an industrial tribunal, not to make the following obiter observations.

[116] An outcome in which the Safety Specialists are all performing the same role and duties, but some of them receive the ESRA and others do not, is most unsatisfactory and industrially unsound. Ms Pham described such an outcome as ‘strange’. While I acknowledge the well meaning distinction between those Safety Specialists directly appointed and those who were required to apply and be interviewed, to my mind, this is an artificial and illogical outcome. It is susceptible to ongoing discontent in the workplace.

[117] More importantly, as just mentioned, I am comfortably satisfied from the evidence of the Union’s witnesses that the candidates for selection in 2014 were not told at their interviews that the ESRA did not apply. That evidence is entirely inconsistent with Ms Cooper’s evidence. It is not the point that they were subsequently verbally informed before accepting the offer. A matter of such import should have been committed to writing. Except for Mr Kelly, no one else had such confirmation.

[118] In any event, it would have been misleading at best and dishonest at worst, to have told the candidates at interview that the ESRA did not apply when no decision had been made one way or the other. This is another reason why I believe they were not told in the interviews.

[119] Further, in my opinion, the candidates were perfectly entitled to hold a reasonable expectation from their previous roles, that ESRA would be paid to all of them, in circumstances where they are performing exactly the same role and some would receive the ESRA by virtue of the 80/20 direct appointment criteria. I do not understand the logic or sense of someone who is directly appointed, based on having 80 per cent of the required skills and qualifications being eligible for the full ESRA, but another person having the same 80% of the requirements for the role being denied the ESRA. All things being equal, if it’s fair for one, it’s fair for all.

CONCLUSIONS

[120] For the aforementioned reasons, the Commission determines, in accordance with the principles of agreement interpretation, that the four Safety Specialists identified in this dispute:

● Mr Steven Thompson;
● Ms Abby Edwards;
● Mr Anthony Reed; and
● Mr Brodie Marr;

are entitled to the payment of the allowance set out in clause 11.2 of the Ausgrid Agreement 2012.

[121] In light of my conclusions in this decision and the determination above, I encourage the parties to revisit the question of whether the QSEWA applies to Safety Specialists, who hold an Electrician’s Licence.

DEPUTY PRESIDENT

Appearances:

Mr M Buttigieg and Mr R De La Cuadra for the Union.

Mr G McDonald for Ausgrid.

Hearing details:

2017.

Sydney.

December 7.

Printed by authority of the Commonwealth Government Printer

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