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

[2020] FWC 4822

[2020] FWC 4822

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
Endeavour Energy
(C2020/605)

Electrical power industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 SEPTEMBER 2020

Application to have the Commission deal with a dispute under a dispute resolution procedure (‘DRP’) in an agreement - application seeks to review an earlier decision of the Commission - alleged dispute about the entitlement of certain employees of Endeavour Energy to be paid the Electrician’s License Allowance (‘ELA’) - jurisdictional objections - long history of litigation dating back to 2014 - whether dispute about employer/employee relationship - whether last Commission decision resolved the original dispute - whether further dispute an impermissible extra claim - whether steps in the DRP followed - last decision limited to outstanding named category of employees - new dispute not reagitated until 12 months later - relief sought an extra claim - jurisdictional objections sustained - dispute notification not jurisdictionally competent - dispute would be otherwise dismissed on merits - proceedings dismissed.

BACKGROUND

[1] On 4 February 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’ or the ‘Union’) filed an application pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) in which it seeks the Fair Work Commission (the ‘Commission’) deal with a dispute arising under the DRP in an agreement; namely, the Endeavour Energy Enterprise Agreement 2017 (the ‘2017 Agreement’). As is obvious from the title of the 2017 Agreement, the respondent is Endeavour Energy. The dispute was expressed by the Union as:

‘1. The dispute concerns the interpretation of the effect and application of the Decision of Deputy Sams in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Endeavour Energy[2018] FWC 440 in relation to the payment of an Electrical Licence Allowance (ELA).

2. At paragraph [55] of the Decision the Deputy President determined:

In my judgement, if the employer requires an employee to perform customer work within the framework of being 'principally employed' to perform a range of duties and tasks associated with both customer work and Network work, then that employee is entitled to the ELA. Put another way, I am satisfied that the term 'principally employed' encompasses employees who perform customer work, irrespective of the proportion of Ume spent in performing that work, compared to any other work. Of course, I hasten to add that this notion does not comprehend an employee who is not employed at off to perform customer work, ...... .

3. Endeavour Energy (Endeavour) claims that the Decision only applied to a select group of 26 employees.

4. The 26 employees were a sample of the roles of employees whose base qualifications are Electrical Fitter Mechanics (EFM) who hold a current Electricians licence and perform customer work. They were examples and not an exhaustive list. There was no limitation on the scope of the dispute restricting the dispute to 26 individuals.

5. The Decision does not limit the dispute to 26 employees and has broad application. Endeavour is required to pay an Electrical Licence Allowance to any employee who holds a current electrical licence and who is required to perform duties and tasks associated with customer work.

6. Following the Decision, Endeavour has failed to pay the Electrical licence Allowance to a number of employees who hold an electrical licence and are required to perform duties and tasks associated with customer work.’

[2] In accordance with my usual practice, I convened a conference between the parties on 9 March 2020. However, the dispute was unable to be resolved. The respondent, Endeavour Energy (‘Endeavour’) contended that the Commission has no jurisdiction to deal with the application on three related grounds:

‘2.1 Ground 1: there can be no dispute in the terms set out in the Application by reason of the combination of the scope of the dispute in Matter C2014/1137, the agreement reached by the parties as part of that dispute and the resolution of that dispute in the various decisions of the FWC being:

2.1.1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2015] FWC 1505 (9 March 2015) (Hamberger Decision);

2.1.2 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2015] FWCFB 6750 (29 October 2015) (Full Bench Decision);

2.1.3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2018] FWC 440 (31 January 2018) (Sams Decision)

;

2.2. Ground 2: clause 2.2 of Appendix 1 "Electricians Licence Allowance" in the Endeavour Energy Enterprise Agreement 2017 (2017 EA) and the No Extra Claims clause at clause 2.3 of the 2017 EA;

2.3 Ground 3: the Applicant has failed to comply with clause 34 of the 2017 EA.

3. The FWC should also refuse to entertain the Application on the grounds of delay.

4. The Respondent relies on the Statement of Ms Emma Murison executed on 1 May 2020.’ (footnotes omitted)

[3] Endeavour’s jurisdictional objections were listed for hearing on 26 June 2020. The hearing was conducted by video due to the limitations on ‘in person’ proceedings, given the COVID-19 pandemic. I thank the parties for their cooperation in this respect, particularly their respective decisions to not require the two persons who provided statement evidence for cross examination. At the hearing, Ms K Nomchong of Senior Counsel instructed by Mr I Bennett, Special Counsel, Sparke Helmore Lawyers, appeared for Endeavour, and Mr R Reitano of Counsel instructed by Mr A Jacka appeared for the Union, with both parties granted permission to be legally represented, pursuant to s 596 of the Act.

THE EVIDENCE

[4] Statement evidence was tendered in the proceeding from:

•  Ms E Murison – Manager, Industrial Relations of Endeavour; and

•  Mr B Currey – Union Organiser.

Ms Murison’s evidence, together with 32 annexures, included the three decisions referred to at [2] above.

[5] The ELA is found at Appendix B of the 2017 Agreement and provides as follows:

‘1. Allowances that are Paid for All Purposes

…

ALLOWANCE	15 Dec 2017	15 Dec 2018	15 Dec 2019
1.1 Electrical Safety Rules Allowance 1.1.1 100% rate (Electrical Tradesperson) 1.1.2 80% rate (Other Tradespersons) 1.1.3 60% rate (Electricity Worker or Equivalent)	$123.30 $98.64 $73.98	$126.38 $101.11 $75.83	$129.29 $103.43 $77.57
1.2 Electrician’s License Allowance 1.2.1 Electrician’s License Allowance (ELA)	$33.70	$34.54	$35.34
1.3 Switching Allowance 1.3.1 Allowance Level 1 1.3.2 Allowance Level 2 1.3.3 Allowance Level 3 1.3.4 Allowance Level 4	$20.40 $6.68 $13.63 $13.63	$20.91 $6.85 $13.98 $13.98	$21.39 $7.00 $14.30 $14.30

2. Provisions Relating to Allowances that are Paid for All Purposes

2.1 Electrical Safety Rules Allowance (ESRA)

2.1.1 The Electrical Safety Rules Allowance at 1.1 is paid to employees who have passed a test of their knowledge of the rules and who are required to work, supervise or direct work in accordance with those rules. Employees will be required to undergo and pass periodic refresher training.

2.1.2 ESRA is paid in recognition of:

(a) Drug and Alcohol testing,

(b) Tightening of responsibilities, and

(c) Signing on to worksite hazard and risk assessment form (WHRA)

2.1.3 ESRA is payable to apprentice electricians from the date they pass the Electrical Safety Rules Test.

2.1.4 The Electrical Safety Rules Allowance policy sets out the conditions and rules of payment for ESRA.

2.2 Electrician’s License Allowance

2.2.1 Consistent with the outcome of FWC matter C2014/1137 some employees are eligible to receive the Electrician’s Licence Allowances.

2.2.2 Employees that have been notified in writing that they are a Tier 1 (grandfathered employee) for the purposes of ELA, and who are not entitled to ELA pursuant to the decision of the Fair Work Commission will continue to receive the allowance at 1.2.1 whilst they remain in their current position only.

…’

[6] The DRP in the 2017 Agreement reads as follows:

‘34. Disputes

34.1 Dispute Resolution Procedure

34.1.1 The dispute resolution procedure will be used to deal with all disputes arising out of the employer-employee relationship.

34.1.2 While a dispute is being dealt with under the dispute resolution procedure the status quo is to be maintained; that is the situation that existed immediately prior to the issue that gave rise to the dispute.

34.1.3 While a dispute is being dealt with under the dispute resolution procedure work is to continue as normal. The process will not be accompanied by industrial action.

34.1.4 Disputes should, as far as possible, be resolved as quickly as possible, without unreasonable delay, at their source and at the lowest possible level.

34.1.5 Disputes should remain in the part of the organisation concerned without interference from employees not involved.

34.1.6 All those involved in dealing with a dispute should adopt an interest-based approach. They should appreciate the interests and points of view of the other parties, approach discussions in good faith, work co-operatively to try and resolve the matter, and arrange and attend meetings without unnecessary delay. Endeavour Energy will, where possible, take the needs of employees into account when making decisions.

34.2 Tier 1 Disputes

34.2.1 Tier 1 disputes will be resolved at the local level as far as practicable and in a timely manner, with the involvement of the following:

(a) the employee(s) concerned;

(b) the employee’s chosen support person (who may be a union representative or other individual) (if requested by the employee(s)); and

(c) the supervisor, and manager (if required).

34.3 Tier 2 Disputes

34.3.1 If the issue or dispute is not resolved at Tier 1 level or is a corporate wide issue, it may be referred to the Tier 2 level with involvement of the following:

(a) The employee(s) concerned;

(b) The employee’s chosen support person or union organiser (or other person designated by the union organiser);

(c) Relevant senior manager(), affected local manager(s), and Manager Industrial Relations (or other person designated by the Manager Industrial Relations).

34.3.2 An independent third party facilitator may be engaged to assist in resolving the issue or dispute, if agreed by all affected parties.

34.4. Tier 3 Disputes

34.4.1 If the issue or dispute remains unresolved, it may be referred to the Fair Work Commission for conciliation and/or arbitration, by Endeavour Energy, the union, an employee or their representative with the rights of the parties to appeal being reserved. If both parties agree, a person other than the Fair Work Commission can be asked to deal with the issue or dispute, as provided for under s. 740 of the Act.

34.5 Other agreed initiatives

34.5.1 There will be joint training of employees, union delegates and line managers in dispute resolution.’

The No Extra Claims clause also features in this case and I reproduce it below:

‘2.3 No extra claims

2.3.1 It is a term of this Agreement that the parties to this Agreement undertake that for the period of the duration of the Agreement that they will not pursue any extra claims.’

[7] At this juncture I also set out the provisions of ss 738 and 739 of the Act which read:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

Ms Emma Murison

[8] Ms Murison traced the history of the Union’s pursuit of a dispute in relation to the eligibility of certain employees to receive the ELA which commenced with a dispute notification in 2014 (C2014/1137). This dispute was determined by Senior Deputy President Hamberger in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2015] FWC 1505, with an unsuccessful appeal in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2015] FWCFB 6750. This resulted in a further dispute in relation to the eligibility of 26 employees (colloquially known as the ‘Endeavour 26’) who had been the subject of an extensive triage process in 2016 and early 2017 to determine eligibility for the ELA. This triaging involved identifying employees in three categories. No agreement could be reached on this cohort of employees in Category Three. Ms Murison provided a chronology of events, meetings and correspondence relating to this triaging process. It is unnecessary to set out this comprehensive detail.

[9] On 21 April 2017, Ms Murison advised Senior Deputy President Hamberger as follows:

‘Dear Senior Deputy President Hamberger,

The parties to matter C2015/659 last met with you in November 2016 to discuss and identify how we would proceed in relation to the categorisation of employees for the purposes of the Electrician’s Licence Allowance moving forward.

The parties have made significant headway with this matter and have agreed on the categorisation of all employees except approximately 30 employees. In relation to this remaining group of employees the issue in dispute remains the definition and application of the term “principally employed.”

Endeavour Energy has sought to apply the definition in paragraphs [17] to [19] of your decision in matter C2014/1137 and has sought to do that by looking at a typical week and looking at the percentage of time spent undertaking electrical wiring work. It is our view that where an employee is not spending the majority of their time doing electrical wiring work they are not required to have an electrician’s licence, and therefore, they are not entitled to the electrician’s licence allowance. The ETU disagree with this method of assessment.

At our meeting with Mr Currey yesterday we discussed a way forward and agreed that we would seek your assistance to resolve this final issue in the dispute. We would therefore like to request your assistance with resolving this final issue around “principally employed”.

Regards
Emma’

[10] The 30 employees referred to above was refined further to 26 and the remaining issues were reallocated to me for hearing. This resulted in my decision of 31 January 2018 in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy[2018] FWC 440 which the parties kindly refer to as the ‘Sams Decision’.

[11] Ms Murison said that throughout the dispute, Endeavour had continued to pay the ELA to all employees in Categories One and Two, and the Endeavour 26 in Category Three, consistent with the status quo in Cl 29 (DRP) of the 2012 Agreement. Ms Murison said that Endeavour is of the view that the ELA dispute has been resolved as a result of the:

(a) agreed outcomes in the triaging process; and

(b) the three decisions of the Commission.

[12] Ms Murison observed that at the time of my decision, a new Enterprise Agreement was being negotiated. It was therefore necessary to reflect the decision, and this was discussed with the Union and reflected in Cl 2.2 Appendix B of the 2017 Agreement; see: [5] above.

[13] It was Ms Murison’s belief that it was the shared intention of all the bargaining representatives that the new 2017 Agreement (approved on 6 June 2018) would confirm the outcome of the ELA dispute and would be limited to:

(a) those employees who were previously agreed as entitled to the ELA due to defined grandfathering arrangements (Category One);

(b) employees in the eight defined roles determined by Senior Deputy President Hamberger as requiring electrical licenses (Category Two); and

(c) the Endeavour 26.

[14] Further, Cl 2.3 of the 2017 Agreement provided for a no extra claims provision. Ms Murison said that following my decision, the Union sought to assert the eligibility of other employees to the ELA. On 10 August 2018, the Union sought to reopen the dispute. However, on 15 August 2018 I advised as follows:

‘The Deputy President has considered your email requesting matter C2014/1147 be relisted. His Honour wishes to advise you that the matter was remitted to him by Senior Deputy President Hamberger to conclude, which was the result of the Commission’s decision in January. This means that the Commission is functus officio and no reconsideration of His Honour’s decision is permitted. If there are any further disputed issues, the Union would need to file a fresh application under the relevant section of the Act after having exhausted all of the preliminary steps under the Agreement’s DSP.’

[15] Ms Murison said that 11 District Operators in Training conveyed their view that they were entitled to the ELA as a result of my decision. Endeavour did not agree. In early 2019, the Union continued to suggest that my decision had a broader application beyond the Endeavour 26. Ms Murison responded to the effect that:

‘(a) the Sams Decision had no wider application than the Endeavour 26;

(b) the combination of the agreed Triaging Process and the Sams Decision had finalised and resolved the ELA Dispute;

(c) under the 2017 EA, there was no requirement to pay the ELA beyond the ELA Categories agreed and determined as part of the Triaging Process and the Sams Decision; and

(d) as such, the issue of who is eligible to receive the ELA had been resolved and was concluded.’

[16] On 7 February 2019, the Union disagreed and foreshadowed escalating the issue through the disputes process. Ms Murison said that for the next 12 months she was unaware of any escalation of the dispute. It was not until this application was filed on 4 February 2020, that Endeavour was aware the issues was being pressed. Endeavour formally set out its jurisdictional objections on 4 March and 6 March 2020.

Mr Bradley Currey

[17] Mr Currey has been the Union’s Organiser responsible for Endeavour employees for over 12 years. He has been involved in all negotiations for the three enterprise agreements over this period and in discussions and FWC proceedings in relation to the ELA dispute.

[18] Mr Currey referred to the origins of the dispute in 2013 concerning the way the ELA was paid and identified on an employee’s payslip. The matter was the subject of a recommendation of Senior Deputy President Hamberger on 18 March 2014 in which the Senior Deputy President said:

‘The Commission recommends that, in future, the Electrical Licence Allowance (ELA) should be separately identified on employee pay slips. It should be noted however that it is the responsibility of employees to renew their own licence.

The ELA should be paid to all employees who need the licence to fulfil their duties, on receipt by Payroll Services of satisfactory evidence that the employee has renewed the licence. It is the employee’s responsibility to obtain this evidence and forward it to Payroll Services.

Under the terms of the Enterprise Agreement, the ELA is only payable to employees who need the licence to fulfil their duties. Employees who allow their licence to lapse may therefore be unable to fulfil their duties and should certainly not expect to receive the ELA for any period they did not possess the licence.

The Commission recommends that Endeavour Energy, in consultation with the CEPU, check which employees are no longer eligible to receive the ELA because they have moved into a position where the fulfilment of the duties does not require an electrical licence.’

[19] Mr Currey said the dispute did not resolve because the parties had a different interpretation of Appendix B in the 2017 Agreement. Mr Currey said the Union initiated the 2015 proceedings before the Senior Deputy President. Endeavour initiated an appeal and the unsuccessful application to the Federal Court to have the Full Bench decision set aside.

[20] Mr Currey agreed the parties met on many occasions in 2016 to undertake the triage process resulting in the three categories Ms Murison referred to. He described Category Three as ‘[n]on-agreed job positions identified (between Endeavour and the CEPU that did not fall into Category One or Two)’.

[21] Mr Currey stated that Endeavour adopted an interpretation of the words ‘principally employed’ used by the Full Bench and in relevant legislation, but the Union did not agree at any time with its interpretation. Mr Currey believed that the dispute determined by me, involved the interpretation of these words relevant to holding an electrical licence. The decision was not appealed. Mr Currey said that I was not asked or decided whether any particular position or employee was entitled to the ELA.

[22] Mr Currey said that in April 2018, Endeavour wrote to the regulatory agency in New South Wales (Department of Finance, Services and Innovation) in which it was said:

‘The ETU argued that if an employee’s duties required them to undertake any work that could require an electrical licence, regardless of the time spent or frequency of the task, then the exemption did not apply and the employee was required to hold an electrician’s licence and would therefore be entitled to the allowance.

In his decision which was handed down on 31 January 2018 (full decision attached), DP Sams said

“In my judgement, if the employer requires an employee to perform customer work within the framework of being ‘principally employed’ to perform a range of duties and tasks associated with both customer work and Network work, then that employee is entitled to the ELA. Put another way, I am satisfied that the term ‘principally employed’ encompasses employees who perform customer work, irrespective of the proportion of time spent in performing that work, compared to any other work. Of course, I hasten to add that this notion does not comprehend an employee who is not employed at all to perform customer work, or who may (assuming he/she is appropriately trained and qualified) perform such work in an emergency.”

It is our view that the Deputy President’s view of the meaning of principally employed may in fact be different to the Department’s understanding of the scope of the exemption under s26(2) of the Home Building Regulations as it differs to our long held understanding of the intention and scope of the exemption and appears to be inconsistent with not only our understanding of the exemption, but also that of Ausgrid and Essential Energy.

We have not progressed with this issue any further at this time and are seeking the assistance of Fair Trading to clarify the meaning of the exemption in the Home Building Regulations from their perspective before considering and finalising our position.’

[23] Mr Currey claimed that in 2018 and 2019 in numerous discussions and emails, Endeavour claimed for the first time that there was an issue about the meaning of ‘customer work’ arising from my decision. He believed it dropped this argument and then claimed the decision only concerned the Endeavour 26 and had no wider application. The Union had maintained that my decision meant employees required to carry out customer work were entitled to the ELA. Mr Currey claimed that between February 2019 to February 2020, he had several conversations with Ms Murison about his intention to refer the matter to the Commission under the DRP of the 2017 Agreement.

[24] Mr Currey disagreed with Ms Murison’s statements concerning the intention of Cl 2.2 of Appendix B of the 2017 Agreement being limited in the manner contended for by Endeavour.

[25] In a reply statement, Ms Murison disagreed with Mr Currey’s origin of the ELA dispute. At the time (2012/2013), Endeavour was seeking to improve the management of allowances, the eligibility assessments of certain allowances and rationalising the application of historical allowances with applicable eligibility criteria. At the time, Endeavour’s approach was to grandfather the ELA benefits and not have them maintained or expanded to other employees, not previously eligible. Ms Murison relied on a statement of Mr Mark Greenhill (Group Industrial Relations Associate) in proceedings in matter C2014/1137.

[26] Ms Murison did not agree with Mr Currey’s characterisation of the categories identified in the triage process; in particular, in advice to the Commission at the time (17 October 2016) and with agreement from the Union, Category Three was ‘[a]ll other employees who received the allowance but who do not fall in Category One or Two’ (i.e. 118 employees in Category Three out of 466 who received the ELA).

[27] Ms Murison said that in practical terms, this meant that Category Three employees:

(a) would be reassessed and determined to fall into Category One;

(b) agreed to be ineligible for the ELA; or;

(c) subject to dispute about their eligibility for the ELA.

Ms Murison accepted my decision considered and interpreted the notion of ‘principally employed’, but this was in the context of the Endeavour 26.

[28] Ms Murison agreed that Endeavour had written to the regulatory agency in 2018. The purpose was unrelated to the ELA eligibility, but to separate regulatory considerations in light of certain comments in my decision. Ms Murison maintained that there was some ambiguity in relation to ‘customer work’ relevant to operational requirements and regulatory exemptions.

[29] Ms Murison stated that Endeavour’s intention at the time of negotiating the 2017 Agreement was to limit the scope for new roles to receive the ELA. This had been the intention in 2013. This was why Cl 2.2 of Appendix B was intended to lock in the agreed outcome achieved in the lengthy consultative process.

SUBMISSIONS

For the objector

[30] Ms Nomchong referred to the Union’s application as to what this dispute is about; namely, ‘the interpretation of the effect and application of the Sams decision’. Ms Nomchong submitted that given what the Union claims as to what the dispute is about, there is no power of the Commission to interpret its own decision. By reference to s 739 of the Act and Cl 34.1.1 which provides that ‘the dispute resolution procedure will be used to deal with all disputes arising out of the employer/employee relationship’, this is not a dispute about the employer/employee relationship, indeed it is not a dispute at all. What is sought is for me to revisit my own decision and tell the parties what it means.

[31] Ms Nomchong added that moreover, the application is entirely misconceived, in that the Union contends it was not limited only to the Endeavour 26. It is perfectly clear from the history of the dispute as set out in the decision, that it was in relation to the remaining 26 employees. I said at [4]:

‘[4] It is not entirely clear why it has taken over 18 months since the appeal decision for the parties to seek the Commission’s assistance to resolve any outstanding issues in the dispute; although it may be assumed that there has been extended (and exhaustive) negotiations between the parties to resolve any residual claims of the Union in respect to particular identified groups of employees. That this is so is reflected in the fact that of the current 476 employees impacted by the original claim, only 26 remain, which the respondent described as being ‘uncategorised’ and as the Union’s Counsel, Mr Fagir quaintly tagged as the ‘Endeavour 26’. It is to the claims of those 26 employees which this decision will finally resolve.’

This was reinforced by the Union’s own Senior Counsel recorded at [26]:

‘[26] Mr Taylor put that the task of the Commission is to determine the meaning of the words ‘employed principally’ found in Reg 26(2) of the HB Regulations see: para [8] above. Mr Taylor submitted that while it is accepted that the 26 positions require work on the customer side and the Network side, Endeavour contends that the ELA is not payable by the position, or by statute, because the employees are not required to be licensed. Endeavour says that the effect of the exemption under the Regulation is that an Electrician’s Licence is not required where the employee spends less than 50% of the time (without defining the amount) on the customer side. The Union argued that the exemption does not apply where the employee is ‘principally employed’ to do customer work along with other work. The question here is whether the 26 employees, who are all Licensed Electricians, are required by statute, to hold that Licence to undertake their duties. Mr Taylor noted that the employer has adopted the approach that the 26 employees and all future employees will not be required to have the Licence and this will be made clear in their letters of appointment.’

Paragraph [53] also reaffirms the limitations of the decision.

[32] Ms Nomchong put that an arbitration contemplated by s 739 is restricted to the question which was asked, and the Commission has no jurisdiction to make determinations about what might have gone before or after. It is a private arbitration of a specified question.

[33] Further support for this proposition is found in the written submissions of the Union which relevantly state at [4]:

‘The remaining part of the dispute involves 26 employees. The Endeavour 26 do the same work as those who are entitled to the allowance. Endeavour draws a distinction between the 26 and the balance of the workforce on the basis that the 26 were employed pursuant to letters of offer and position descriptions that do not include, in terms, a requirement that they be licensed (primarily because they moved into their current positions after the commencement of this dispute). As a matter of fact they are all licensed electricians.’

References to the Endeavour 26 are again made at [5], [8], [21], [23], [29] and [42] of my decision.

[34] Ms Nomchong submitted it could not be clearer what the dispute was not about – it was not about any broader group, than the Endeavour 26. Mr Taylor reinforced the Union’s position in oral submissions. At PN16 and 17 Senior Counsel said:

‘There is no dispute between the parties that the first category gets the allowance and they are getting it now. There is no dispute about that. There is no dispute between the parties either as to what I'm calling the third and four categories. The hundred per cent network people do not get the allowance unless they are employed on that basis and your Honour will have seen the Full Bench decision to that effect. If the employer required them to have the licence, then they get it, but if the employer's letter of offer, duty statement, doesn't, then they don't.

As to the fourth category, again we say that they can be treated as the third category - which is perhaps why Mr Phillips wouldn't differentiate them and say there are only three categories - because they are not people whose ordinary duties require them to do customer work. The group that is left, the Endeavour 26, are the second category. These are people - like Mr Abbott, as you will have seen from his statement - whose ordinary duties require them to do network work.’

Further references are made at PN22, 28, 70 and 90.

[35] Ms Nomchong acknowledged this reference at PN92:

‘They have been employed more recently after what appears to be a change in employment approach by the employer to no longer include those standard words in the letter of employment. The impact of this decision should not be understood to only apply to this 26, because it has clearly got a future capacity to apply to more and more people as new employees are employed and Endeavour continues to take an approach of not stating in their letter of employment that they need to hold the licence.’

[36] However, Ms Nomchong noted that I granted liberty to apply, but the Union never took up that opportunity for six months. It was crystal clear that the entire ELA dispute was finalised by the last link in the chain – the remaining 26 employees. Rather than taking up the Commission’s offer to file a fresh application, the Union did nothing for almost 18 months, including during a relevant period of negotiations for the 2017 Agreement and the finalisation of Cl 2.2 in Appendix B, after a number of drafting exchanges. The final wording was clear and related to the Commission’s decision; see: [5] above.

There is no ambiguity about who is entitled to the ELA and there is no right to revisit the decision to get a judicial advice.

[37] Endeavour’s second submission related to the Commission’s powers to deal with a dispute only when all the relevant steps in the DRP have been complied with; see: University of New South Wales v National Tertiary Education Industry Union [2009] AIRCFB 571 (‘UNSW v NTEU’).

[38] Ms Nomchong submitted that the Union’s application fails on the basis that it seeks to revisit the ELA under the 2012 Agreement and there is no specificity of who the employees are who claim to be in dispute and no evidence of what steps were taken by unknown employees to proceed through the DRP. Ms Nomchong referred to [6] of the application:

‘Endeavour has failed to pay the electrical licence for a number of employees who hold an electrical licence and are required to perform duties and tasks associated with customer work.’

Senior Counsel said that these words exist nowhere in Cl 2.2.1 or 2.2.2 which only requires Endeavour to pay the ELA to the named categories of employees in these classes.

[39] Ms Nomchong put that this discloses the application does not relate to the current agreement, but an old and replaced agreement; see: Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) PR952743. Ms Nomchong said this claim by the Union is blatantly a wrong attempt to renege on the parties’ previous agreements in which they had agreed the ELA did not apply to employees beyond the Endeavour 26 and this had been decided.

[40] As to the submission concerning the no extra claims clause in the 2017 Agreement, Ms Nomchong put that this dispute is exactly about creating a new entitlement for a whole group of other employees, beyond the Endeavour 26. Section 739 of the Act does not permit relief sought which is inconsistent with the Fair Work instrument that applies to the parties. As this is an extra claim inconsistent with the 2017 Agreement, there is no jurisdiction.

[41] Lastly, Ms Nomchong submitted that the steps of the DRP had not been followed. There was no evidence of any employees going to their supervisor. This meant Tier 1 was not complied with. Nor had the Tier 2 step been complied with. Ms Nomchong noted the time between when the Union last agreed to disagree (7 February 2019) and Cl 34.1.4 about disputes being resolved as quickly as possible. Here the Union sat on its hands for 12 months and did nothing to have its ‘disagreement’ resolved.

For the Union

[42] Mr Reitano challenged Endeavour’s jurisdictional arguments as not jurisdictional arguments at all. There was sufficient evidence to make a finding of the existence of a dispute within the meaning of s 739 of the Act and Cl 34 of the 2017 Agreement. Once that is established the various submissions of Endeavour have nothing to do with the powers of the Commission to arbitrate, but are related to the merits of the arbitration.

[43] Mr Reitano sought to make good this submission by reference to the F10 application and its identification of a dispute under Cl 2.2 of Appendix B of the 2017 Agreement. This provision did not even exist in the agreement that the Commission dealt with in the decision of January 2018. It was a different agreement and therefore a different dispute.

[44] Counsel referred to [55] of the decision which reads:

‘[55] In my judgement, if the employer requires an employee to perform customer work within the framework of being ‘principally employed’ to perform a range of duties and tasks associated with both customer work and Network work, then that employee is entitled to the ELA. Put another way, I am satisfied that the term ‘principally employed’ encompasses employees who perform customer work, irrespective of the proportion of time spent in performing that work, compared to any other work. Of course, I hasten to add that this notion does not comprehend an employee who is not employed at all to perform customer work, or who may (assuming he/she is appropriately trained and qualified) perform such work in an emergency.’

and what was said at [6] of the application:

‘Following the decision Endeavour has failed to pay the licence to a number of employees who hold an electrical licence and who are required to perform duties and tasks associated with customer work.’

[45] Mr Reitano said that this makes it very clear that the dispute is about the ELA and that it should be paid to employees who it is not being paid to.

[46] Mr Reitano added that the words in Cl 2.2.1 which refer to ‘[c]onsistent with the outcome’ can only be the outcome at [55] of the decision. Further, it is plain from the submissions of Mr Phillips (Endeavour’s advocate at the time) and Mr Taylor that the issue to be determined was the words ‘principally employed’. The decision was not deciding whether any of the Endeavour 26 should receive the ELA. The decision could not have determined anything about Cl 2.2.1 and that is ‘the end of the matter’.

[47] Counsel addressed Endeavour’s submissions concerning Cl 34 (the DRP) in the 2017 Agreement, by noting that there was no proscription of particular disputes and the reference to dealing with disputes quickly was an aspirational statement, not a disengagement provision. This did not prevent old unresolved disputes from being resolved. Mr Reitano noted that two kinds of disputes are identified in the Tier 1 and Tier 2 processes. He sought to dispel the notion that the DRP had not been complied with by reference to the email exchanges between eight named employees who had raised an ELA grievance with Ms Murison in 2018 with Mr Currey saying that ‘we’ll have to agree to disagree and we’ll take this up the disputes process’. Mr Reitano put that these exchanges engage Cl 34 and s 739 of the Act.

[48] Mr Reitano turned to the decision in UNSW v NTEU and submitted that the grounding of jurisdiction is not limited by the precise words used in the application, and no other matter can be taken into account in characterising the dispute. Such an approach is wrong and should be rejected. The dispute is straightforward – the Union continues to claim that under Cl 2.2.1 of Appendix B that other employees are entitled to the ELA and Endeavour continues to maintain they are not.

[49] Mr Reitano also submitted that Ms Murison’s analysis of a so-called triaging process ignored the morphing of what Category Three originally was said to be (those who currently received the allowance, but to not fall into Categories One or Two) to ending up including people who had the ELA removed. Ultimately, the dispute was not only about resolving the Endeavour 26, but was really about the term ‘principally employed’. Mr Reitano relied on Mr Taylor’s use of the words at [8]:

‘Three brief observations should be made about this course. First, an answer favourable to the CEPU will end the dispute, at least in respect of the Endeavour 26, but the obverse is not true.’

[50] Mr Reitano submitted that the Sams Decision resolved the ‘big ticket’ item of the meaning of ‘principally employed’ and the exchanges between Mr Currey and Ms Murison indicated an ongoing dispute about the meaning of customer work. Ms Murison had proposed a process to reassess employees on customer work who believe they are entitled to the ELA and the Union disagreed. Counsel queried that if the decision was only about the Endeavour 26, why would Ms Murison be proposing reassessing everyone else? Mr Reitano noted that Ms Murison’s position suddenly changed in February 2019 and all the things that were said about reassessing others were dropped and the new position was that the Sams Decision had no wider application to the Endeavour 26. Then on 7 February 2020, there was a clear acknowledgement that the parties had agreed to disagree. This was a dispute.

[51] Mr Reitano rejected the no extra claims submission. He said this was not a claim for an additional entitlement. It is a ‘common garden variety’ resolution of a dispute about a an existing right under Cl 2.2.1 of Appendix B of the 2017 Agreement.

[52] In reply, Ms Nomchong rejected the submission that this was a different matter and is not about the Sams Decision. This is exactly what the Union had put in the current application. It was not open for the Union to ‘cherry pick’ the decision (see: [55]) without regard for the whole of the decision and how the Union itself ran the case, as being only referable to the Endeavour 26. Senior Counsel noted that none of the emails between the parties mention the ‘outcome’ being in [55] of the decision.

[53] Ms Nomchong rejected the submission that the DRP provision at Cl 34.1.4 was ‘aspirational’. This subclause had real work to do and was an identified intention of the parties. What is being asked is that the Union can sit on its hands for a year and then seek to reagitate all the previous correspondence to claim that s 739 and Cl 34 are engaged.

[54] Senior Counsel submitted that Mr Reitano was wrong to submit that it is abundantly clear that this dispute is about the ELA. It is not abundantly clear at all when the Union waits 12 months, doing nothing, and Endeavour believed the dispute had been resolved. Ms Nomchong observed that the list of names relied on by the Union was just ‘grabbing at straws’ because none of those were even caught by the so-called ‘outcome’ as they were in Category One and not Category Three. They were not part of the dispute.

[55] Senior Counsel rejected the Union’s attempt to make a ‘big deal’ about the 13 June 2017 emails between Mr Currey and Ms Murison; see: [50] above. This was not even referred to in the earlier proceedings; yet, it is plucked out to support some mutual understanding. In any event, the emails were absolutely overtaken by events. They mean nothing. Ms Nomchong put that there was no ‘change of heart’ between May 2018 and February 2019 as to Endeavour’s intentions. The real matter of substance which overrode everything else was the new 2017 Agreement’s terms at Cl 2.2.1 in Appendix B.

CONSIDERATION

[56] Both parties relied of the decision of UNSW v NTEU, in particular [30] which I reproduce below:

‘[30] We turn now to the University’s second principal contention that the matters in dispute did not arise under the agreements. The University’s submissions rely on the wording of the NTEU’s application to the Commission, and involve acceptance of the proposition that the precise words used in the application define the matter in dispute and that no other material can be taken into account in characterising the dispute or in identifying the parties to the dispute. This approach should be rejected. The Constitutional requirement for an industrial dispute, now gone, has at times in the past required a close analysis of the terms of documents said to evidence the existence of such a dispute. It would be misguided to apply such textual rigour to applications relating to dispute settlement procedures. The Commission does not and has never required formal pleadings. Even courts, however, usually provide for amendment of initiating process and other documents to enable the real issues to be determined. Whether the Commission has jurisdiction pursuant to dispute settlement procedures in a workplace agreement is to be decided having regard to all of the material before the Commission. Reliance on the terms of the application cannot be conclusive one way or the other on the question of jurisdiction.’ (my emphasis)

[57] While I accept unreservedly the Full Bench’s conclusions and rejection of the exclusive reliance on the application simplicitas, it must be surely said that the words in the application and the relief sought could not be open to any doubt or confusion. Moreover, the gravamen of the above paragraph is that in deciding jurisdiction, the Commission is to have regard to all of the material before the Commission.

[58] Similarly, given two single member and one Full Bench decisions of the Commission and the abundance of historic background material, with no stone left unturned and no argument missed – no matter how remotely relevant, I consider I am more than well placed to determine the question of jurisdiction based on this wealth of material.

[59] In my view, the Union faces an insurmountable hurdle to the relief it seeks in this matter, by the very barrier it has itself created. What it now seeks is entirely inconsistent with its approach and conduct of its case before me in 2017. So much so is obvious from its written submissions and the oral submissions of its Senior Counsel at the time; see: [34] above. To be clear, after a lengthy and comprehensive exercise of triaging some 466 employees over a long period of time, who were being paid the ELA, agreement was reached on three categories; see: [8] above. It was abundantly plain by the conduct of the parties and their express intentions and written communications at the time, that from the initial dispute there remained 26 employees in Category Three who remained in dispute and for whom I was asked to resolve. No dispute was filed for some two years after my decision, nor was my invitation in the decision for ‘liberty to apply’ ever accepted. In my view, given the litigation and the point which was reached that Endeavour was entitled to reasonably believe the dispute about eligibility of the original 466 employees had been finalised by my decision.

[60] That said, there is some potency in the argument of Senior Counsel that the present dispute is not a dispute at all, let alone permitted by the DRP related to a ‘dispute arising out of the employer/employee relationship’.

[61] At best, what the Union seeks in asking me to interpret my own decision is novel and extraordinary; in one sense, inviting me to give evidence of what I intended by my own decision. More probably, such a request is contrary to s 739 of the Act and an impermissible exercise of judicial power, not open to the Commission, or alternatively, as just mentioned, not a matter arising from the express terms of the DRP in the 2017 Agreement, being a dispute arising out of the employer/employee relationship.

[62] At the risk of straying into a jurisdictional minefield, I can at least say that my words speak for themselves and reflect entirely what the Union understood their case was about, how it conducted its case and what I understand was the position of both parties at the time. I do not accept that [55] was a complete picture of the outcome of the case, absent consideration of the decision when read as a whole.

[63] The Union relied on the email exchange between Mr Currey and Ms Murison on 13 June 2017; see: [50] above. Four things may be said about this. Firstly, Mr Currey’s qualification is not about the ELA applying to others beyond the Endeavour 26, but refers to it also being about the meaning of the term ‘principally employed’. Ms Murison agreed with this in the present case.

[64] Secondly, this conversation is totally inconsistent with the Union’s submissions in the case and how it ran the argument. Indeed, this email exchange was not even tendered in the case.

[65] Thirdly, this conversation appears from Ms Murison’s response, to be about the names of the affected people in Category Three and not much more.

[66] Fourthly, it is plain that this email exchange was overtaken by subsequent events which ultimately shaped the question the Union put before me at the time.

[67] While I accept Mr Reitano did not have much to work with, if this was the best evidence of the Union in light of the case it ran four months later, it is little more than stretching an insignificant, innocuous inquiry to something way beyond its importance and relevance. In relation to the Union’s arguments as to the ‘outcome’ in Cl 2.2.1, this must be read in conjunction with the identified employees in Cl 2.2.2. It is difficult to reconcile the limitations set out in Cl 2.2.2, with the Union’s argument that Cl 2.2 provides an open-ended gateway to other unidentified employees to claim eligibility for the ELA. In my view, the Union’s reliance on Cl 2.2 extends its scope by straining the plain ordinary meaning of the words beyond what is bearable.

[68] In my opinion, this dispute is not jurisdictionally competent and I would otherwise dismiss it as to its merits. While I find it unnecessary to determine the two other legs of Endeavour’s submissions, namely whether it is in breach of the no extra claims clause and the steps of the DRP had not been followed, it must in my view be a dispute which, at its heart, is seeking a new entitlement to employees who would not otherwise be entitled to it under the 2017 Agreement. To suggest otherwise is incorrect. Further s 739(5) of the Act empowers the Commission to conduct a private arbitration, but the Commission cannot grant any relief which is inconsistent with any Fair Work instrument which applies to the parties. Given the relief sought here is to extend the ELA to employees who currently do not receive it, there can be little doubt it is an extra claim, inconsistent with Cl 2.3 of the 2017 Agreement. I would also dismiss this application on this basis.

[69] Application C2020/605 is dismissed. These proceedings are concluded.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano of Counsel, and Mr A Jacka for the Union

Ms K Nomchong of Senior Counsel, and Mr I Bennett, Special Counsel, Sparke Helmore Lawyers, for Endeavour Energy.

Hearing details:

2020.

Sydney (via Microsoft Teams):

26 June.

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