Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd T/A Ausgrid
[2024] FWC 2905
•21 OCTOBER 2024
| [2024] FWC 2905 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid Management Pty Ltd T/A Ausgrid
(C2023/4749)
| DEPUTY PRESIDENT EASTON | SYDNEY, 21 OCTOBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – classification – Restricted Operator duties – whether employees regularly performing restricted operating work should be promoted to a higher level – employees paid for performing Restricted Operating duties – offers made during enterprise bargaining – alleged contract between bargaining representatives.
The Dispute
A dispute has arisen under clause 41 of the Ausgrid Enterprise Agreement 2021 in relation to whether employees who perform restricted operating duties from time to time must be permanently appointed to a particular wage band.
The evidence in this matter is quite extensive. The core elements of the dispute are that Ausgrid agreed in the last round of bargaining to permanently appoint a number of operators to Level Band C1 and did so. Other operators have undertaken training at Ausgrid’s expense and obtained the necessary authorisations to perform restricted operating duties. Those operators, when called upon to perform restricted operating duties, are paid at Level Band C1 for the duties performed in accordance with the higher duties provisions of the agreement.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) claims that Ausgrid has not met its obligation to permanently appoint employees who regularly perform restricted operating work to the Level Band C1 in the Ausgrid Enterprise Agreement 2021 (the 2021 Agreement).
Ausgrid contends that the restricted operating work is a task and not a role or position. Ausgrid contends that when the task of restricted operating work is performed from time to time it is only required to pay an additional allowance on a per-incident basis.
Foundational matters: Restricted Operating Duties and the ESRs
There is a dispute about the proper rate of pay or classification for workers who perform restricted operating duties. The 2021 Agreement does not include the position of “Restricted Operator”, nor does Ausgrid have a position title or position description for a “Restricted Operator”.
However these terms have meaning within Ausgrid’s Electrical Safety Rules (ESRs). The ESRs govern the way the work is performed on or near the network and apply to all persons who carry out work on or near the network in accordance with the Electrical Supply (Safety and Network Management) Regulation 2014.
The definition of “Restricted Operator” is as follows:
“3.2.4 Restricted Operating Authorities
Class 2, and Class 5 operating authorities are referred to as restricted operating authorities, and operators with these authorities are referred to as ‘restricted operators’.
Restricted operating authorities are issued for a period of 12 months.
…
Maintaining Competency
Limited and restricted operators must maintain competency by regular use of their operating authority, since there are distinct differences between tasks involving operating work and normal work.Managers of restricted operators must make sure that the restricted operators (other than a limited Class 1) use their skills at least four times a year (i.e. once per quarter) to maintain competency. Operators with a limited Class 1 operating authority must use their skills at least ten times a year to maintain competency.
Competency can be determined by one of the following two methods:
1. Using Class 1 limited, Class 2, 3, 4 or 5 operating authority to confirm competency by issuing the relevant access permit (cancelled and recovered permits are to be submitted to Operating, Installations, and Emergency Response).
2. Using a Class 1 limited, Class 2, 3, 4 or 5 operating authority to confirm competency by recording sufficient details of each operation in their log book. The log book is submitted to Operating, Installations, and Emergency Response at the operator’s annual reauthorisation.
Each authority is issued for a period of twelve months and renewal is subject to continuing demonstrated competency of the operator.”
The ESR that applied prior to the implementation of the 2022 version of the rules was published in 2020 and has been amended over time. The 2020 version included the following definition:
“[Operating work]
Work involving:
- the operation of switches, the opening or closing of links, fuses, or other connections intended for ready removal or replacement,
- providing electrical apparatus de-energised for access,
- access permit earthing and short-circuiting,
- enabling or disabling protection equipment and voltage regulation equipment,
- locking and or tagging of electrical apparatus and erection of barriers and or signs,
- issuing of access authorities / permits and operating agreements,
- high voltage phasing,
- commissioning electrical assets by switching.
[Restricted Operating Work]
“Restricted operating work is any operating work other than Class 1 and Class 6 Operator Work”
…”
The 2020 version of the ESRs also included:
“3.1.1 Restricted operating authorities
These operating authorities (including clearance to work) restrict the mains and apparatus that can be operated and are known as restricted operating authorities.
A restricted operator (within the limits of their operating authority) may isolate mains and apparatus and issue a restricted access permit or clearance to work as defined by their authority.
A restricted access permit must be issued to another member (recipient) of the same workgroup.
Note: Restricted Operators must stop and seek further information if they are uncertain how to correctly and safely carry out Operating work they are called upon to conduct.
Restricted operator limitations
The restricted operator must sign on the restricted access permit under ‘Sign On’ and remain at the worksite until the restricted access permit is cancelled by the recipient. The restricted operator may then recover the restricted access permit and return the mains and apparatus to service.A restricted operator cannot commission new high voltage (HV) equipment or HV network extensions except when carrying out repairs involving like-for-like replacements or uprating pole transformers.
A restricted access permit for work, or a clearance to work, must not be issued by a restricted operator if one of the points of isolation will form a common point of isolation with other isolated mains and apparatus, except for the following situations:
Restricted access permits for work may be issued under an isolation folder that shares a common point of isolation with other isolated mains and apparatus;
A Class 2D or 2Dh restricted operator may create a common point of isolation between a restricted access permit for work and a clearance to work, at LV distributor fuses on a pole- mounted substation, provided both the restricted access permit for work and the clearance to work are issued by that same operator. The operator must note the common point of isolation on both the restricted access Permit for work and the clearance to work.
Notifying System Control
Restricted operators must notify the System/Area Operator as follows.a) For restricted operating work under an isolation folder:
Before signing onto the isolation folder
b) For all other restricted operating work:
Prior to commencing operating work to isolate mains and apparatus;
After the issue of any access authority/permit;
Prior to commencing Operating work to energise/re-energise mains and apparatus;
After the completion of Operating work to energise/re-energise mains and apparatus.
These notifications must occur as close as reasonably practicable to the time of the commencement on completion of the operating work described above.
Maintaining competency
Limited and restricted operators must maintain competency by regular use of their operating authority. since there are distinct differences between tasks involving operating work and normal work.Managers of restricted operators must make sure that the restricted operators (other than a limited Class 1) use their skills at least four times a year (ie once per quarter) to maintain competency.
Operators with a limited Class 1 operating authority must use their skills at least ten times a year to maintain competency.
Competency can be determined by one of the following two methods:
1. Using Class 1 limited, Class 2, 3, 4 or 5 operating authority to confirm competency by issuing the relevant access permit (cancelled and recovered permits are to be submitted to Electrical Safety and Compliance).
2. Using a Class 1 limited, Class 2, 3, 4 or 5 operating authority to confirm competency by recording sufficient details of each operation in their log book. The log book is submitted to Electrical Safety and Compliance at the operators annual re-authorisation.
Each authority is issued for a period of twelve months and renewal is subject to continuing demonstrated competency of the operator.”
Foundational matters: The terms of the 2021 Agreement
The CEPU argued that Ausgrid was and is required to promote more workers who perform restricted operator work to Band C1.
Appendix 4, Clause 12 of the 2021 Agreement deals with promotion to a higher band:
“12. Promotion to a higher Band
12.1. Promotion to a higher Band will occur via a selection process (as governed by Ausgrid’s policies as amended from time to time, noting that these policies are not incorporated into this Agreement). The selection will be based on:
12.1.1. merit; or
12.1.2. for eligible Roles (set out in Ausgrid’s policies as amended from time to time, noting that these policies are not incorporated into this Agreement), a streamlined selection process.
12.2. Ausgrid shall determine the number of Positions and Roles required based on Ausgrid’s assessment of its business needs. In assessing its business needs, Ausgrid will consider the capabilities required within various work groups, what skills are needed to complete required tasks, the complexity of work, future work needs, job redesign, productivity improvements and technology changes. As such, promotion to a higher Band will occur if:
12.2.1. there is a Position available at the higher Band as required by Ausgrid as result of this assessment; and
12.2.2. the employee applies for and accepts an offer of appointment to that Position.
12.3. For promotion into Band A2, Band B1, Band B2, Band C1, Band C2, Band D1 and Band D2, Ausgrid will designate which Level in the new Band an employee commences at. This will usually be Level 1 however, in exceptional circumstances, this may be a higher Level. What constitutes “exceptional circumstances” will be determined by Ausgrid on a case by case basis. To be clear, for promotion into Band D3, there is only one (1) level.
Foundational matters: communications during bargaining
Five unions were involved in bargaining for the 2021 Agreement: CEPU, Australian Municipal, Administrative, Clerical and Services Union, The Association of Professional Engineers, Scientists and Managers, Australia, the Community and Public Sector Union, and Construction, Forestry, Mining and Energy Union (collectively known as “the Bargaining Unions”). The CEPU submitted that in bargaining for the 2021 Agreement, Ausgrid gave commitments concerning how employees required to undertake restricted operating duties would be paid. In particular, the following offer was made by Ausgrid to the Bargaining Unions on 3 November 2021:
“2) Restricted Operating
Ausgrid will determine the required number of Band C1s to undertake restricted operating on a permanent basis. A person appointed at Band C1 may perform the functions of a Site Lead and/or a Restricted Operator if trained and deemed competent and suitable.
Employees paid a minimum of Band C1 Level 1, with or without issuing a permit (with the exception of 2B below). Employees will not receive additional payment if they are currently paid higher than a Band C1 Level 1.
Where an employee only holds a Class 2B Restricted Operating authority and is paid at a lower Band than C1, they will be paid at least Band C1 Level 1 for the shift they perform Class 2B Restricted Operator duties. This recognises that a number of Class 2B Restricted Operators may only use their authority during a significant storm event, or not at all in a 12-month period. It is also noted that with an increase in Class 5P Restricted Operators, these employees would also be the preferred work group operators in these situations. Notwithstanding the previous point, Ausgrid still requires some staff to hold the Class 2B authority to assist in these events and will renumerate them if and when they use it at C1.
…
6) Employees currently appointed at Band C1
…
The above offer is presented on a without prejudice basis and is conditional on all existing disputes in relation to the classification and operation of Site Lead, Restricted and Limiting operating as well as Work Level Standards being fully resolved and closed. The arrangements contained in this letter will commence from the first pay period following Fair Work Commission approve of the Enterprise Agreement 2021.”
Ausgrid followed up with a further response to the Bargaining Unions’ claims to New Classifications at a meeting on 19 October 2021 which included the following:
“• On 11 February 2021, Ausgrid provided its response in relation to the Site Leads
· Site Lead for small teams – Band B2
· Site Lead for larger teams – Band C1
· On 9 September 2021, Ausgrid presented revised position of Band C1 for all Site Leads, with no differentiation between small and large teams.
· On 11 February 2021, Ausgrid provided its response in relation to Restricted/Limited Operating
· No permit issued – Band B2
· Permit issued – Band C1”
The CEPU’s Evidence
The CEPU relied on witness statements from Mr Dominic Britt, Mr Ashley Watts and Mr Darran Miller. These statements detailed the training and assessment requirements and the additional responsibility required in performing work under a Class 5P authorisation.
Class 5P Restricted Operators are generally authorised to isolate the section of the network to be worked on, prove the mains and apparatus de-energised, apply earthing and short-circuiting equipment (or observe a lineworker applying this equipment), and issue an access permit or clearance to work.
Statement of Dominic Britt
Mr Dominic Britt is a Lineworker/5P Operator at Ausgrid based at the Potts Hill depot. Mr Britt has been employed for 16 years and is classified as a Level Band B2. His duties involve maintaining and repairing Ausgrid’s overhead network.
Mr Britt holds a Class 5P Restricted Operating authorisation and has held the 5P authorisation at the request of his supervisor for approximately three years. To get the 5P authorisation, Mr Britt said, he undertook training and assessment in stages, including training for Class 2B Restricted Operating, an oral examination on Electrical Safety Rules and a five or six day course. Mr Britt said using the Class 5P Restricted Operating authorisation puts “100% more responsibility” on him as it involves taking responsibility for a worksite being safe and workable for between two and twenty people.
Mr Britt uses his 5P skills in other contexts: to replace blown fuses, in breakdown/storm situations and when investigation low voltage parallels. He said he also uses these skills when Project Officers and new 5P operators ask him for guidance. He said that although he is not writing permits everyday, he is using his knowledge and experience everyday.
Mr Britt said that in previous years there was a lot more working live however Ausgrid put a stop to live work after the death of an employee before introducing new safety procedures for live work. Mr Britt said he believes this is why the Class 5P Restricted Operating authorisation was created – so that workers other than District Operators (DOPs) could isolate and power drop safety. He said that there were not and are not enough DOPs to cover all of the extra work caused by the change in live work procedures.
Mr Britt said that nine employees hold the 5P authorisation at the Potts Hill Depot, and that of the nine, he and four others are paid at a lower rate than Band C1. Mr Britt said all nine employees do the work regularly, however he does it more than the others. At his previous depot in Homebush there were only three employees with the 5P authorisation and it seemed to Mr Britt like they were doing restricted operating duties every other day. Since moving to the Potts Hill depot Mr Britt said he does the work a little less but still approximately two to three times a week and is also called to work for other depots, doing multiple clearance to work in a day. Mr Britt said while it is different to the type of work he does when he is not using the authorisation, it has very much become a normal and regular part of his duties.
Mr Britt provided a step-by-step description of his day when performing 5P authorisation work. He said it begins with getting and checking the paperwork (“NAR”, Network Authorisation Request) which includes details to complete the job. He said he does not get the opportunity to pre-scope the work so he “go[es] in blind” and that any issues that arise will have to be rectified on site on the day with a project officer/supervisor to ensure that the job “get[s] over the line” and is not cancelled. Mr Britt said the first thing he does when he arrives on-site is check all points of isolation that are going to be de-energised, places danger tags on the power poles and checks all labelling by reference to the paperwork. The danger tags act as a warning to stop someone from coming along and closing the isolation points which could affect the isolation by changing the path the current is flowing on the network. In the event that any customers are going to be disconnected, he ensures that is completed by a RF11 technician. He said he also checks the National Energy Customer Framework to ensure that all affected customers have been notified before calling the control room to make sure the job is to go ahead.
Mr Britt said he then goes to the relevant substation and completes the tests required to make sure everything is correct and is safe to proceed. He then pulls the fuses to de-energise the mains and apparatus before applying danger tags or locks to reduce the possibility of someone inadvertently putting the fuses back in. Mr Britt said he then returns to site (sometimes multiple sites) to lamp the mains to prove they are dead and have low voltage shorts attached. A low voltage short is a cable that goes across four cables on overhead lines and prevent back-feeding onto the line by providing an earth. Back-feeding can occur for example, from a house with solar panels.
Once everything is de-energised, isolated and shorted, Mr Britt writes a clearance to work/permit for the work group (usually jointers or lineworkers). Mr Britt said after the work is completed he does the steps above in reverse and calls the desk to make sure that the power can be put back on.
Mr Britt said he understands that in the last agreement, Ausgrid stated that all 5P operators would be appointed a C1 role. He said he took the time and effort to study and pass the difficult tasks to become a 5P operator and does not feel appreciated for all his hard work and efforts.
Statement of Ashley Watts
Mr Ashley Watts is employed as a Lineworker 5P and 5A Operator and has been employed by Ausgrid for 14.5 years. He is employed at the Level Band B2 and is based at the Homebush depot. His duties primarily involve construction, repair and maintenance to ensure the safety, reliability, sustainability and affordability for customers of Ausgrid’s overhead network assets.
Mr Watts has held a Class 5P restricted operating authority since mid-2022 and started using it on or about 19 July 2022. He said his supervisor had requested that he get the 5P authority and had to do a series of different training and assessments to obtain the 5P authority, similar to what Mr Britt described in his statement. Mr Watts said to maintain the 5P authority he has to use it a minimum of four times a year and believes there is also some retraining and potentially auditing.
A Class 2B ticket authorises workers to replace fuses in a substation whereas a Class 5P ticket involves more complicated work with a much higher degree of responsibility as it involves isolating a section of the Low Voltage distributor, the mains and issuing a clearance of work so that it can be conducted in a de-energised environment.
Mr Watts said that they did not use Class 5P authorities before the death of a former employee because work was generally conducted on live lines so that customers were not interrupted. Mr Watts said that Ausgrid implemented a changed process and Class 5P authorities are an important part of that change. He said that work performed by people holding a Class 5P restricted operator authority could also be performed by DOPs who are Class 1 unregistered operators who can do a wider range of work. He said that there are not enough DOPs to do the work and “that is why Class 5P came to fruition.”
Mr Watts said he does Class 5P work regularly, in fact more than 70 jobs per year. He said that on occasions he did more than one Class 5P job in one day, and other times two to three jobs a week. Mr Watts said he feels like this type of work is increasing. Mr Watts is paid an additional amount when he performs Class 5P work.
Mr Watts said every depot needs access to employees who are able to do the Class 5P work because workers in every depot do cross arm replacements, work removing overhead street light conductors and breakdowns (situations such as when wires are down, large tree branches or trees on powerlines, cars hitting poles, failed crossarms or poles). Mr Watts said there are only two employees with a Class 5P authorisation at the Homebush depot including himself.
In his statement Mr Watts described a similar step-by-step process for using his Class 5P authority. He said that in emergency situations he must identify for himself the LV distributors, streetlight circuits and all the isolation points and notify the on-call Project Officer so they can notify all the affected life support customers. Mr Watts said he also has to call and receive permission from the Area Operators desk to isolate and once satisfied it is safe, he will write an issue a Clearance To Work permit to the workgroup and sign on as a member of the workgroup. Once the work is completed and the workgroup signs and returns the permit, Mr Watts cancels the permit and instructs all the shorts be removed, contacts the control room to confirm the permit is cancelled and gets permission to re-energise the distributor. He then does the lamp testing, closes each fuse then confirms with the test lamps again and checks the voltage and current that is being pulled. Sometimes he is required to close switches to liven parts of the distributor in order for some live bonding to complete the work.
Mr Watts said that there is a lot more pressure and responsibility performing the restricted operating tasks as he is solely responsible for the safety of an entire workgroup and there is pressure to complete the operating tasks, issuing a Clearance To Work from Leading Hands and workgroups before they can start their work. He said that there is a very high risk of injury or death or major damage to the network if he makes a mistake and this would be followed by intense investigation procedures from Ausgrid which can affect his career and may even end up in his dismissal.
Mr Watts said that from his undertaking, 5P operators were appointed into a leading hand role in order to be paid at the C1 pay band. He said that he does not understand why one work area – Homebush and Potts Hill – operates differently to the other parts of the business.
Statement of Darran Miller
Mr Darran Miller is the Divisional Branch Organiser of the CEPU and has been an organiser and/or recruitment officer with the Union since April 2019. Prior to working with the Union, he worked with Ausgrid for 14 years and was employed as a Safety Specialist. His duties included all facets of safety including risk assessments, Safe Work Method Statements, updates and reviews, site visits, Safety Advisory in Electrical Safety, industry standards and practices, Work Health and Safety Legislation.
Mr Miller said that restricted operating for trade qualified field staff has occurred for many years under various classifications of authorisation. Restricted operating requires stringent training, competency and assessment. Mr Miller said that in April 2019 there was a fatality on the Ausgrid overhead network that resulted in a Lineworker coming into contact with the live overhead mains.
Mr Miller said that in response to the incident there was an immediate suspension of all live work on the Ausgrid network and extensive review of all live work practices, with many tasks no longer performed on an energised network.
In August 2020 there was a new classification of 5P restricted operating introduced in Ausgrid’s ESRs. The 5P authorisation requires completion of a complex two-week training course with an assessment. The 5P authorisation is only issued after a stringent evaluation of knowledge and a practical competency assessment.
Mr Miller said the hierarchy of controls of any risk assessment is to identify the hazards and how to eliminate the hazard where possible. Ausgrid’s risk assessment after the fatality incident was to de-energise the network where practicably possible prior to any work being performed on or near the network. Mr Miller said that prior to the incident complex isolations on the network were the responsibility and substantive role of the DOPs. DOPs are electrically qualified employees with extensive knowledge of the network who have taken a three-year traineeship with stringent knowledge and assessment of both practical and theory assessments to attain their Class 1 operating authority before being allowed to switch and operate on the network without supervision.
Mr Miller said after privatisation of the electricity sector there was a considerable reduction of skilled labour in the work force through voluntary and forced redundancies, meaning that there were reduced DOPs resources available to perform switching tasks on the network.
Mr Miller said after the incident in 2019 it was evident that the business did not have enough DOPs to de-energise the network for all planned/programmed and breakdown work. As such Ausgrid developed the 5P authorisation to allow more complex operating on the network by field workers who have been trained, authorised, and assessed to be competent to perform the task.
Mr Miller said that while the term “Restricted Operator” is used in the ESRs, there are no positions within Ausgrid called “Restricted Operator” attached to pay points or bands and no specific position description for the role of a Restricted Operator. It is currently a task and is a skill that an authorised employee may be directed to do in some instances.
Employees can acquire a restricted operating authority through an expression of interest process based on business needs. Mr Miller said that the ESRs are very clear as to switching capabilities for each level of authorisation.
Mr Miller was closely involved in bargaining for the 2021 Agreement. Bargaining took place from October 2020 to November 2021 and Mr Miller was involved in at least 54 bargaining meetings. He said that the bargaining was heavily contested, with CEPU members taking more than 24 weeks of protected industrial action.
One of the concerns raised during bargaining was the classification of Restricted Operating. The claim arose in the environment of the changes in business. Mr Miller said that Ausgrid approached the CEPU to address the proposal of a new classification of Site Lead who would be responsible for the worksite when undertaking live LV tasks on the network and the role and added responsibilities and remuneration of the proposed new 5P restricted authorisation. Ausgrid proposed pay band B2 for both roles whereas the Union proposed pay band level C1 for both roles. Mr Miller said that during the negotiations, both parties agreed that the Site Lead role and Restricted Operators would be progressed to the permanent C1 band in recognition of the additional training required and the added responsibilities of the role which was a key factor in closing out the negotiations after lengthy negotiations and industrial action.
The CEPU’s members and employees wanted recognition and remuneration for the additional responsibilities and accountability of limited operating as training and the complexity of the switching was greater than previous classifications of authority.
Ausgrid began to move on a number of the Union’s claims towards the end of bargaining in 2021, one of the important movements concerned the Union’s claims around Restricted Operating.
On or around 3 November 2021 Ausgrid sent a letter to the CEPU and offered commitments around Restricted Operating. The letter was accepted by the Union and key to the parties being able to close the claim. Mr Miller said that if the offer had not been made or had the CEPU thought it was not an offer that could be relied on, it would have continued to agitate that issue in the industrial campaign. The CEPU communicated the proposed outcomes from the negotiations by way of an approved paid webinar to its members on 9 November 2021. Voting commenced 18 November 2021 and closed 22 November 2021.
Mr Miller said from the CEPU’s perspective and its members’ perspective, Ausgrid have not followed through with its commitment regarding Restricted Operating. He said he is aware that there are significant numbers of CEPU members who hold restricted operating authorisations and use those authorisations in the work who are not appointed to the Band C1 level. This includes some members who are being directed to perform Class 5P operating work on a weekly basis, sometimes even several times a week and are paid under the Band C1 level. Mr Miller said he has endeavoured to obtain accurate numbers from Ausgrid however the numbers provided are not aligned with the number of switching operations that the CEPU’s members have indicated.
In Mr Miller’s view with the limited resources of trained authorised Class 1 Operators, Ausgrid would not be able to complete the scheduled, planned and programmed work without utilising restricted operators to isolate the network to minimise the hazards and risks to workers. Mr Miller said this was a key fundamental driver for development and implementation of the 5P Operating authorisation as they are also fundamental in undertaking unplanned breakdown and emergency work. Mr Miller (essentially by way of submission) said that taking into consideration the responsibility and accountability of the 5P operator, it is clear that there is a provision within the CCR for promotion to the C1 band level for those regularly performing 5P operating on the network and that there is a business need for people to perform and maintain their authority in every day operational requirements including for Ausgrid to maintain a safe and reliable network.
In response to Mr Giltinan’s evidence (see below) Mr Millar said that Mr Giltinan was not present for any of the bargaining meetings, that he does not remember communicating with Mr Giltinan about the bargaining at any time and was not aware that he was involved at all.
Under cross-examination Mr Millar agreed that:
(a)the Role Statement for Line Workers in Band B1 and B2 include references to RO responsibilities: “Safely apply restricted or limited operating authorities for which the employee is deemed competent”;
(b)RO authorities are a voluntary or additional skill rather than a necessary or skill for any particular position within Ausgrid’s organisation;
(c)in the bargaining process Ausgrid and the Bargaining Unions agreed that Ausgrid will determine the number of Band C1s to undertake Site Lead functions on a permanent basis;
(d)during bargaining Ausgrid estimated that it would permanently appoint an additional 78 employees and Band C1;
(e)after the 2021 Agreement was made 220 employees were appointed permanently at Band C1 and most of those appointments were merit appointments even though not all appointments were progressed through the streamlined process; and
(f)although the Bargaining Unions initially claimed that all employees performing the Restricted Operating work should be permanently appointed to Band C1, the compromise agreement reached was that Site Leads and those performing Restricted Operating functions would be paid a minimum of Band C1 when performing the function.
Ausgrid’s Evidence
Statement of Owen Giltanan
Mr Giltinan is employed by Ausgrid as the Head of Southern Region and has held this current role since May 2022. Mr Giltinan has been employed with Ausgrid since January 1988 and has held various management positions including Portfolio Manager (2009-2013), Area Manager (2013-2014), Distribution Manager (2014-2017), Senior Portfolio Manager (2017-2019), Region Manager (2019-2020), General Manager of Field Services (2020) and Executive General Manager (2022-2023). Mr Giltinan has also held other positions within Ausgrid such as Apprentice, Technician, Field Coordinator and Superintendent.
Mr Giltinan is a member of Ausgrid’s Senior Leadership Management Team and reports to Mr Sofi who is the Group Executive of Safety, Delivery & Operations. Mr Giltinan manages approximately 400 Ausgrid staff with eight direct reports and is responsible for:
(a)the delivery of internal Capital, Maintenance and Replacement works on the electrical network within a Sydney geographical area, ensuring continued distribution of electricity to Ausgrid’s customers;
(b)leadership of teams of field workers to ensure the safe delivery of work aligned to operation and strategic priorities and the efficient use of resources across the Region; and
(c)coordination of organisation’s response to emergency events and the restoration of electrical supply to customers in adverse conditions.
Mr Giltinan said he is familiar with the work completed by Ausgrid employees in the field, the systems in which they work, and the skills and qualifications that are required. He said he is familiar with the nature of work performed by Lineworkers including Mr Britt and Mr Watts.
The majority of Ausgrid’s employees are currently covered by the 2021 Agreement. Mr Giltinan said he was not directly involved in the bargaining for the 2021 Agreement but that he supported those directly involved and is familiar with the 2021 Agreement’s terms.
The work done by Ausgrid’s employees is heavily regulated due to its safety critical nature. Ausgrid has various classes of operating authorities which are set out in detail in the ESRs. An Ausgrid operator must have completed the requisite training and assessments for a class and category of authority before they are able to carry out work within the scope of that authority.
Ausgrid has two classes of operating authorities that are referred to as “restricted operating authorities” (ROAs):
(a)Class 2: ROAs that allow an operator to operate switches in certain specified categories and issue restricted access permits to other members of the same workgroup; and
(b)Class 5: ROAs that allow an operator to issue a clearance to work in relation to certain operational activities, for example, de-energising and energising low voltage mains and working on metering equipment.
Operators who hold a ROA are known as “restricted operators”, Mr Giltinan said that “restricted operator” is not a role or position at Ausgrid but is a group of functions or tasks that an employee who holds a ROA. These functions or tasks are covered by several classification bands under the 2021 Agreement.
ROAs are not a new aspect of Ausgrid’s operations and have been part of its methods of work delivery and included in the ESRs for a long time. Mr Giltinan said he knew people who held a ROA when he was a technician at Ausgrid around 30 years ago. He said ROAs have been adapted and changed to meet business needs and operations as Ausgrid has evolved over time.
Livework is carried out on or near exposed mains and apparatus as well as apparatus that are live or energised and have not been de-energised or isolated. After one of Ausgrid’s employees passed away in 2019 Ausgrid underwent a complete pause on live work across its operations – referred to as “Live Work Pause for Safety” (Safety Reset). As part of this Safety Reset, Ausgrid suspended all live work tasks and comprehensively reviewed the risks associated with every live work task that was performed by field staff.
Prior to the incident in 2019 there were approximately 200 live work tasks that Ausgrid field staff may have performed. The Safety Reset identified inconsistencies in the application of controls to perform these live work tasks and it seemed like no two live tasks were completed in the same way across the organisation. This was recognised as a significant safety issue for both the low voltage and high voltage work that Ausgrid undertook to address.
Mr Giltinan said in or around May 2020, the Safety Reset was completed and stage 1 of the return to live work occurred and a new category “P” to Class 5 operating authorities was introduced, known informally as “5P.” Ausgrid generally used an expression of interest approach to invite appropriate staff to obtain ROAs, particularly 5P ROAs. Restricted operators with a 5P ROA are allowed to carry out operating work on low voltage network distributors and to issue and recover a clearance to work to another member of the same workgroup. Previously, the network could be de-energised or isolated by a Lineworker without a ROA and without a permit or clearance to work, the only limitation being that the Lineworker cannot remove fuses. Mr Giltinan said that staff who obtained a 5P ROA at this time were covered by a range of classifications under the 2021 Agreement that enabled Ausgrid to integrate a 5P resource into all workgroups.
In response to Mr Britt and Mr Miller’s evidence regarding a shortage of DOPs, Mr Giltinan said:
(a)5P ROA was a transformation initiative to deliver its work programs more efficiently and safely. His recollection of the discussions at the time is that 5P ROA was the evolution of an existing 5H ROA that had been in place for some time. While the 5P ROA was introduced after the Safety Reset, the business had intended to implement it prior to the incident in 2019. The Safety Reset essentially prevented the roll out of this initiative until a complete review of all live work had been completed;
(b)Ausgrid approached individuals who could elect to obtain a 5P ROA in order to more efficiently deliver programs of work and develop the skills of its future workforce;
(c)Ausgrid did not have staff obtain a 5P ROA due to a reduction in the number of DOPs; and
(d)He could not recall a reduction in the number of DOPs and that the minimum manning level of DOPs in the rosters have been in place for a long time and remained unaltered.
Mr Giltinan said Ausgrid does not undertake a selection process to determine which employees will obtain a ROA because it is not a position of employment but rather, obtaining a ROA is promoted as an additional employment opportunity for professional development. Not every employee who puts themselves forward to obtain a ROA completes the required training and assessment.
In response to Mr Watts’ statement regarding a supervisor requesting that he obtain a ROA, Mr Giltinan said that it is outside of Ausgrid’s usual practice and not something he has ever witnessed while working with Ausgrid. Mr Giltinan clarified that employees such as Mr Watts are scheduled to use the ROA as part of their programmed work tasks on a particular day rather than “directed” to use the ROA.
Bargaining for the 2021 Agreement commenced in October 2019. Mr Giltinan said he was not directly involved in bargaining for the 2021 Agreement but was a management representative in an advisory sense to the bargaining team. Mr Giltinan said that bargaining was a complex process given the number of parties and contested claims and that there was a total of 48 claims that were negotiated by the parties throughout the course of bargaining.
Mr Giltinan said that one of the Bargaining Unions’ claims sought the inclusion of new classifications in the 2021 Agreement in relation to Site Lead and Restricted Operating roles. This claim involved permanently appointing employees who performed restricted operating tasks to the Band C1 classification under the agreement (RO Claim) and was first made by the Bargaining Unions on or around November 2020 and discussed by the parties at numerous bargaining meetings.
Mr Giltinan said that Ausgrid’s position on the RO Claim changed throughout the course of the negotiations and as part of the negotiations in relation to the RO Claim, it provided the Bargaining Unions with an estimated total number of Band C1 appointments it considered may be required to fill the business need for Site Lead function. A table outlining this estimate was included as part of Ausgrid’s PowerPoint presentation for bargaining meeting #48 on 19 October 2021 including Lineworkers without a ROA. Mr Giltanan and Mr Graham Francis (Head of Northern Region/Field Operations) had input into this estimate.
Ausgrid’s final offer in relation to the RO Claim was made on 3 November 2021 and Mr Miller on the CEPU’s behalf accepted this offer on 3 November 2021.
Mr Giltinan described the classification bands as follows:
(a)Band A1 and A2 classifications: employees in this band perform routine or standardised tasks under the direction or supervision of others. Employees in these classifications do not hold ROAs as they are newer employees who do not have the required capabilities.
(b)Band B1 classification: employees in this band perform standardised tasks that require greater functional and technical specialist skills than those tasks performed by Band A1 and A2 employees. Band B1 employees are typically able to perform work unsupervised and provide general supervision, instruction or guidance to others in their workgroup. Employees in this band may hold a ROA although they are not a requirement to do so. The Role Statement for this classification provides an accountability which Ausgrid considers a “plus” but it is not essential – “[s]afely apply[ing] restricted or limited operating authorities for which the employee is deemed competent”.
(c)Band B2 classification: employees in this band perform non-routine and more complex variable tasks for which increasing technical or functional speciality is required. Band B2 employees only receive broad supervision or guidance from frontline leaders and provide coaching, mentoring and technical or functional support to others in their workgroup. Similar to Band B1, employees in this band may hold a ROA although it is not a requirement to do so. The Role Statement for this classification provides an accountability which Ausgrid considers a Band B2 employee may be expected to perform if they have the required ROA and competency – “[s]afely apply[ing] restricted or limited operating authorities for which the employee is deemed competent”.
(d)Band C1 classification: employees in this band perform novel tasks with elements of technical or functional complexity and only receive periodic supervision and guidance from frontline leaders. Band C1 employees begin to take on a greater level of leadership and management responsibility such as managing, preparing and resourcing large jobs, providing feedback on the performance of a range of tasks, including restricted operating tasks. An employee under this band does not need to hold a ROA and having a ROA does not automatically qualify an employee to become classified under this band.
In the first half of 2022 Ausgrid conducted an analysis of how many Band C1 “Site Lead” staff were required in each area to meet its business need for Site Lead duties. A total of 220 Band C1 Site Leads was determined to be appropriate across both the Northern and Southern Regions in order to fulfil business needs.
As of November 2021 only 129 Band C1 positions had been filled across both the Northern and Southern regions. In accordance with Ausgrid’s Streamlined Selection Policy an internal, streamlined selection recruitment process for the addition Band C1 Site Lead positions was conducted. As a result of this process, all 220 Band C1 Site Lead positions were filed – 91 positions more than the estimate Ausgrid gave the Bargaining Unions during bargaining. Some of the employees appointed to this position held ROAs and some did not.
Mr Giltinan said Mr Watt’s understanding of the appointment process is inaccurate and that employees were appointed to Band C1 to perform the function of Site Lead via the streamlined selection process and that 5P ROA were not appointed in the Band C1 Leading Hand role in order to get a Band C1 rate of pay.
Employees at Bands B1 and B2 who hold ROAs and perform restricted operating tasks on a particular shift are paid at Band C1 for that shift. If a Band C1 employee who holds a ROA performs restricted operating tasks and is the nominated Site Lead, they are paid for that shift at the Band C2 rate of pay. Mr Giltinan said that in essence, whether an employee is Band B1 or B2, if they perform a restricted operating task on a shift, then this triggers a higher rate of pay. This was an industrial compromise that was reached in bargaining for the 2021 Agreement.
Similarly, if a Band B1 or B2 employee is called to act as a Site Lead for a shift, they will also be paid at the C1 rate of pay.
Mr Giltinan clarified that Band C1 High Voltage Live Lineworkers (which he believes Mr Watts is referring to in his statement) have their own Role Statement under which live linework is a required capability. In contrast, employees who perform restricted operating tasks may do so under a Band B1, B2 or C1.
Under cross-examination Mr Giltinan agreed that:
(a)he has never been on an enterprise bargaining team and has no direct experience of enterprise bargaining;
(b)not all leading hands have 5P authorisation;
(c)operators can opt in or opt out of restricted operator work; and
(d)once an operator is scheduled to perform 5P work the expectation is that they will in fact do the work.
The CEPU’s Submissions
The CEPU’s primary argument is that Ausgrid has not met its “obligations” with respect to employees regularly performing restricted operating work but have not been appointed to a Band C1 position.
Crucially the CEPU does not argue that Ausgrid has failed to meet any particular obligation under the 2021 Agreement, although it does faintly rely on an obligation in the 2021 Agreement that Ausgrid must “determine the number of Positions and Roles based upon its business needs” in clause 12 of Appendix 4 (see [11] above) in a particular way.
The CEPU relied on the background and context of what was an expanding use of restricted operating authorities dating back to 2019. Ausgrid had suspended live work following the death of an employee and subsequent safety procedures have utilised restricted operating authorisations to isolate sections of the network so that the amount of live work undertaking by employees have been significantly reduced.
The revised application of restricted operating authorisations was a material item in the bargaining process. The CEPU said that Ausgrid made certain commitments to the CEPU and its members in the course of bargaining and that the CEPU relied on those representations to provide its support for the proposed agreement.
The CEPU claims that Ausgrid committed to permanently promoting employees who “regularly” perform restricted operating to at least Level Band C1 and that Ausgrid has not met the commitments it made.
The CEPU relies primarily on the proposal sent by Ausgrid on 3 November 2021 (see [12] above) including the words:
“… Ausgrid will determine the required number of Band C1s to undertake restricted operating on a permanent basis. A person appointed at Band C1 may perform the functions of a Site Lead and/or a Restricted Operator if trained and deemed competent and suitable...”
The CEPU submitted that Ausgrid incorrectly took the words of the first sentence in isolation to incorrectly suggest that the commitment offered by Ausgrid was in effect no more than to exercise its managerial prerogative.
It submitted that the sentences following in the 3 November 2021 correspondence drew a distinction between those employees using a Class 2B licence on an occasional basis who are paid per shift and those using a Class 5P licence. It was said that the exception for people who are only paid at Band C1 on a shift by shift basis are the exceptions that prove the rule.
The difference between operators who “regularly” perform 5P work and operators who “occasionally” perform 5P work can be understood by reference to the ESRs. The ESRs say that operators can maintain competency by “regular use of their operating authority” and require managers to “make sure that restricted operators … use their skills at least four times a year (ie once per quarter) to maintain competency.” When pressed on this submission the CEPU said that “anyone who maintains their competency is therefore assumed to have regular use of their operating authority, otherwise they’d lose their competency.” In other words, anyone who maintains their competency by performing 5P work at least once per quarter therefore regularly performs the work and is entitled to be permanently appointed at Band C1.
The CEPU did suggest that in this dispute “we are interested in people like Mr Britton and Mr Watts who are using it two to three times or actually much higher per week.” In this regard Mr Watts said that he had used 5P authorisations 70 times in 10 months, which equates to roughly two times per week. If the Commission determines that the line of distinction to be drawn is between those who regularly or only periodically perform 5P functions, then “if it’s a matter that that that needs to have further discussions between the parties and we end up back before the Commission, then that’s where we would end up.”
The CEPU said that the terms of this proposal were accepted and were of themselves “in the nature of a binding collective agreement or arrangement made as part of the bargaining for the 2021 Agreement” and therefore binding at common law upon Ausgrid. The CEPU said that the language used by Ausgrid (particularly the terms offer, without prejudice, conditional, existing disputes, resolved, written acceptance and will commence) are all demonstrative of an intent to make a binding commitment regarding a key claim in order to resolve that claim. Therefore, the CEPU said, there was an intention by the parties that the commitment be legally binding, and consideration passed to Ausgrid by way of the Union’s bargaining claims being settled. In this regard, whilst there is some ambiguity in the terms used by Ausgrid, the words used were not so obscure or incapable of any definite or precise meaning that the contract were not sufficiently certain.
The CEPU submitted that the commitment made by Ausgrid must affect how Ausgrid determines its business needs:
“… the Ausgrid EA 2021 in Appendix 4 at clause 12 requires Ausgrid to determine the number of Positions and Roles based upon its business needs. The CEPU submits that Ausgrid’s business needs should be found to include implementing the above commitment made as part of bargaining for the Ausgrid EA 2021 and in the context of the business’s need to have employees perform restricted operating work.”
[Footnotes omitted]
The CEPU submitted that the words in clause 12 of Appendix 4 should not be dismissed as being akin to some kind of meaningless puffery. After the 2021 Agreement was made and approved Ausgrid did undertake a review process and promoted 91 operators to Band C1. The CEPU disputes that all 91 promotions were because the operators had 5P authorisation, The CEPU properly conceded that the words of Ausgrid’s offer/commitment did not refer to any ongoing obligation to determine the number of Band C1s or, in effect, any ongoing obligation to promote operators to Band C1 as soon as they “regularly” perform restricted operator duties.
Ausgrid’s Submissions
By reference to the Mr Giltinan’s statement Ausgrid submitted that:
(a)restricted operating work is one of the operating task performed by Ausgrid employees who hold the requisite restricted operating authority;
(b)restricted operating tasks are not indicative of a role or position at Ausgrid;
(c)restricted operating tasks can be, and are, performed by Ausgrid employees who are covered by a number of classification Bands under the 2021 Agreement, including Bands B1, B2 and C1;
(d)holding a restricted operating authority is not determinative of the classification band that is applicable to an employee;
(e)some, but not all employees who are classified as a Band C1 under the 2021 Agreement hold a restricted operating authority;
(f)employees volunteer to obtain the required ROAs in order to perform restricted operating tasks; and
(g)notwithstanding an employee’s underlying classification, the performance of a restricted operating task on a shift triggers a right to receive the Band C1 rate of pay for that shift.
Ausgrid submitted that the CEPU’s case failed to appreciate that restricted operating work is a task, not a role or position; and the relief sought does not accurately represent the outcomes of bargaining as agreed by parties and evidenced in the terms of the 2021 Agreement.
Ausgrid argued that the 2021 Agreement is not ambiguous in relation to promotion to higher bands and therefore evidence of the surrounding circumstances in which the 2021 Agreement was made, including the offer sent by Ausgrid on 3 November 2021, is not relevant to interpreting the terms of the 2021 Agreement.
In any event Ausgrid did honour the terms of the offer it made on 3 November 2021 and did conduct an assessment of its operational needs in the context of expanding restricted operations and permanently appointing more operators with 5P authority. Ausgrid acknowledged that when it did conduct its streamlined selection process to fill the additional permanent Band C1 positions that it was not a requirement that every new appointee to hold a restricted operating authority.
Ausgrid said that the CEPU’s interpretation of the 3 November 2021 letter was a “blatant mischaracterisation” of the compromise reached in the bargaining process. In Ausgrid’s view the material terms of the offer made and accepted were (1) that Ausgrid will determine the required number of Band C1 positions to undertake restricted operating work on a permanent basis; and (2) that employees who performed restricted operating work would be paid a minimum of Band C1 Level 1 on shifts where they performed restricted operating tasks. The letter of 3 November 2021 does not say that all operators who hold a restricted operating authority or perform restricted operating tasks will be appointed to Band C1.
Ausgrid relied on the evidence that after the 2021 Agreement was made and approved it undertook an assessment of its business needs, determined the number of Band C1 positions that it required and appointed 91 employees to those Band C1 positions in accordance with clause 12.2 of Appendix 4 to the 2021 Agreement.
Ausgrid denies that it made a contractually enforceable “commitment” as alleged and said:
“… If such a “commitment” from Ausgrid was in fact made, it is odd that the CEPU did not press for its inclusion in the Agreement in clear and unambiguous terms.”
Ausgrid also said of the distinction between regular and occasional 5P work, and of the CEPU’s submission that any operator with 5P currency (because they have performed the relevant work at least once per quarter) must be promoted to Band C1:
“If it was simply a case of every single employee who performs restricted operating work either at all or regularly, or in one of the sort of slightly different ways that [the CEPU] has sought to articulate it, why on earth would Ausgrid need to make any determination at all? All of the required number of such persons that would be an entirely superfluous and wasteful exercise for it to undertake. All that [Ausgrid] would need to do is to identify people who do the type of work and then automatically they go to band C1 and it’s done and dusted.”
Ausgrid submitted that the offer made on 3 November 2021 was not enforceable as a contract because Ausgrid did not intend to create legal relations between it and its employees in the letter, the terms of the commitment are not sufficiently certain and “questions of privity of contract arise as it is unclear where employees stand in relation to this ‘commitment’, given it is the rights of employees that are in question in this dispute.”
Ausgrid said that the CEPU’s claim is inconsistent with clause 42 of the 2021 Agreement that prevents further claims during the life of the 2021 Agreement and submitted that the Commission is not able to grant the relief sought by the CEPU because:
(a)Ausgrid’s business needs do not include implementing bargaining commitments, as asserted by the CEPU;
(b)it is not the Commission’s role to interfere with the right of Ausgrid to manage its own operations (referring to Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 (XPT Case). The terms of the 2021 Agreement clearly provide that it is for Ausgrid to assess its business needs and for Ausgrid to make a determination on the number of positions required based on that assessment. Ausgrid has done so accordingly in relation to the number of Band C1 positions it requires to perform restricted operating tasks; and
(c)the determination sought by the CEPU is inconsistent with Appendix 4 to the 2021 Agreement and therefore the Commission cannot make such a determination, pursuant to section 739(5) of the FW Act.
Ausgrid submitted that the notion of regular 5P work and occasional 5P work is a “complete red herring.” During bargaining the CEPU advanced a claim that all employees doing 5P authorisation work should be classified at Band C1. That claim was unambiguously rejected and a compromise agreement was reached whereby a significant number of operators would be permanently appointed to Band C1 and then others who performed 5P work, be it regularly or irregularly, would be paid at Band C1 (or at C2 as the case may be) only for the time spent performing the work. Ausgrid said “that was the industrial deal that the parties did in late 2021.”
Consideration
There is absolutely no disagreement between the parties that the work of 5P operators in restricted operations is very important. I have described the evidence in this matter in some detail to show how significant the responsibilities assumed by these operators are in a safety critical environment.
Those who are authorised to perform restricted operator work receive extensive training, at Ausgrid’s expense, because of the importance of the work. There is also no disagreement that operators who assume this responsibility should receive additional remuneration in recognition of the additional responsibilities of that work.
After the 2021 Agreement was made Ausgrid promoted a large number of operators to the higher classification of Band C1. Many of these operators were promoted because they performed the 5P restricted operator duties. Other operators who were not permanently promoted to Band C1 have been paid at Band C1 rates or higher when performing 5P restricted operator duties from time to time as required.
The CEPU’s central complaint is that Ausgrid has not permanently appointed more operators to Band C1. The CEPU claims that the agreement reached in the course of bargaining for the 2021 Agreement requires Ausgrid to permanently promote more operators than it in fact has done. The difficulty for the CEPU in making good its case is that it has not, and cannot, be specific about how many more operators should be permanently promoted to Band C1 because it cannot definitively describe Ausgrid’s alleged obligation. This shortfall in the CEPU’s case is not merely numerical: the CEPU could not say with any precision what criteria Ausgrid was required to apply when deciding which operators must be permanently promoted to Band C1.
The terms of the 2021 Agreement itself do not require Ausgrid to permanently appoint any particular operator to the Band C1 level. The CEPU said that the statement in the “Promotion to a Higher Band” provision in clause 12 of Appendix 4 that “Ausgrid shall determine the number of Positions and Roles required based on Ausgrid’s assessment of its business needs” imposes an obligation on Ausgrid to “honour” the commitment it gave during the bargaining process when it makes its assessments about its business needs. I don’t accept this argument.
Clause 12.2 in Appendix 4 gives Ausgrid the fettered right to determine the number of positions and roles that it requires from time to time. Ausgrid is fettered insofar as it is required to consider certain nominated factors when assessing its business needs (the capabilities required within various work groups, what skills are needed to complete required tasks and so on), but the 2021 Agreement ultimately reserves for Ausgrid the right to determine its own business needs and promote operators (or not) accordingly.
After the 2021 Agreement was made and approved Ausgrid embarked upon a streamlined selection process to permanently promote more operators to the Band C1 level. This is what Ausgrid committed to do. After doing so, Ausgrid has also scheduled other trained and qualified operators to perform restricted operator duties from time to time and has paid those operators a higher rate when they perform those higher duties.
I do not accept the CEPU’s argument that the words of clause 12.2 in Appendix 4 import or impose any other limitation on how Ausgrid must determine its own business needs. The ordinary meaning of the words used, considered in the context in which they appear, do not carry the meaning urged by the CEPU. In my view, the words used in fact confirm that Ausgrid is free to decide and determine its own business needs, so long as it considers the criteria identified in clause 12.2. The criteria/considerations identified in clause 12.2 do not, on any objective interpretation, compel any particular outcome. For example, Ausgrid is entitled to determine for itself the “future work needs” but must consider those future work needs when determining the number of positions and roles it requires.
The proposal made by Ausgrid on 3 November 2021 understandably drew a distinction between employees who were permanently appointed to Band C1 and those who were not permanently appointed but who would receive higher duties payments when they performed the restricted operator duties. This distinction needs to be understood in the context of the bargaining that took place prior to this proposal being put.
For some time the Bargaining Unions campaigned for Ausgrid to agree that all operators who performed restricted operator duties would be permanently promoted to Band C1. This proposal was consistently rejected by Ausgrid. The compromise proposal made by Ausgrid on 3 November 2021 was that a significant number of operators would be permanently promoted to Band C1. In context, the proposal made by Ausgrid was that some but not all operators who held 5P authorisations would be permanently promoted. As we know, this compromise position was accepted by the Bargaining Unions.
The terms of the letter of 3 November 2021 unambiguously allowed Ausgrid to decide precisely how many operators would be permanently promoted. Importantly, this compromise position was also accepted by the Bargaining Unions. One additional matter of context should be noted about this part of Ausgrid’s proposal: during bargaining Ausgrid provided estimates of the number of operators that Ausgrid expected to permanently promote. After the 2021 Agreement was made and approved the number of operators actually promoted by Ausgrid was substantially more than the estimates given to the CEPU and the voting employees during bargaining.
The proposal made on 3 November 2021 specified how those who were not permanently appointed to Band C1 would be paid when they performed restricted operator duties. After some refinement this compromise position was also accepted by the Bargaining Unions. These terms are not akin to some kind of meaningless puffery, as the CEPU suggested. Rather, these terms place a clear fence around matters that are left to management prerogative.
It is important to note that the offer made on 3 November 2021 did not refer at all to any ongoing process whereby other operators (who were not permanently promoted under the initial round of promotions) would be permanently promoted or even considered for permanent promotion.
I do not agree that any legally enforceable contract was made from this offer (see below) however, if there was a contract made then I am satisfied that Ausgrid has met its contractual obligations.
The distinction drawn by the CEPU between operators who “regularly” perform 5P work and operators who “occasionally” perform 5P work is somewhat nebulous. Neither the 2021 Agreement nor the offer of 3 November 2021 refer to regular or occasional 5P work in those terms. I suspect that the CEPU drew this regularly/occasionally distinction in the hope that an argument could be found that operators who in fact regularly work a substantial amount of time on 5P duties should, as a matter of industrial fairness, be permanently appointed. The invocation of terms such as “honouring” alleged “commitments” made during the bargaining “in good faith” play to notions of industrial fairness.
As all the authorities clearly state, the role of the Commission is not to interpret, vary or rework collective agreements to make them fairer for one or more parties. The weakness of the CEPU’s argument was laid bare when the CEPU suggested that an operator who performed restricted operator duties only once per quarter (in order to maintain currency) must be permanently promoted to Band C1. This construction is the inescapable extension of the CEPU’s primary argument and would see any and every operator with up-to-date 5P authorisation being permanently promoted to Band C1 – which is the bargaining proposal rejected by Ausgrid and eventually abandoned/compromised by the Bargaining Unions.
In the context of the bargaining I am not satisfied that there was any intention to make a binding contract between the CEPU and Ausgrid in the course of bargaining for what became the 2021 Agreement. No evidence was provided by the CEPU upon which it could be objectively found that Ausgrid, and the CEPU for that matter, intended that their correspondence during bargaining could be separately enforced in contract in a common law court.
The CEPU relied on an alleged ongoing contractual obligation to permanently promote employees who regularly perform 5P Restricted Operators duties. There is no evidence of Ausgrid agreeing to any such obligation, let alone any evidence of Ausgrid or the CEPU subjecting their agreement to the adjudication of course (see Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 at 106, [2002] HCA 8 at [24]).
Even if the necessary intention to make a contract could be established, I accept Ausgrid’s argument in part that the terms of the alleged contract are so imprecise that they would not be enforceable for any individual employee.
There are several other ways in which the CEPU’s contractual argument fails at law, but it is not necessary to explore all of them in this decision -particularly in light of my findings above about the terms of any contract that could have been made.
For these reasons I find that Ausgrid is not required, either by the terms of the 2021 Agreement or otherwise, to permanently promote any and every operator who regularly performs Restricted Operator duties.
DEPUTY PRESIDENT
Appearances:
A Kentish, for the Applicant
D Perry and F Booth for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
December 11.
Printed by authority of the Commonwealth Government Printer
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