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

[2015] FWC 1505

[2015] FWC 1505 [Note: An appeal pursuant to s.604 (C2015/659) was lodged against this decision - refer to Full Bench decision dated 29 October 2015 [[2015] FWCFB 6750] for result of appeal.]

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
(C2014/1137)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 9 MARCH 2015

Section 739 application to deal with a dispute.

The Nature of the Dispute

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has referred this dispute to the Commission for arbitration in accordance with the dispute resolution procedure in the Endeavour Energy Enterprise Agreement 2012 (the 2012 enterprise agreement).

[2] The matter was heard in Sydney on 11, 12 and 13 February 2015. The CEPU was represented by Mr I Taylor, SC with Mr O Fagir, of counsel, instructed by Mr J Kennedy. Endeavour Energy was represented by Ms K Nomchong, SC, instructed by Mr G Phillips and Ms N Petit.

[3] The dispute turns largely on the proper interpretation of a clause in the 2012 enterprise agreement contained in Appendix B - Allowances. The clause in question states:

‘Electrician’s Licence Allowance

An employee who holds a current Qualified Supervisors Certificate/Electrical Licence or its equivalent and the position requires the incumbent to hold the above qualification to fulfil their duties and the incumbent in the position has received it in accordance with past practice will be paid $31.94 per week from 25 December 2012 and $32.80 from 24 December 2013. This allowance is paid as an all purpose allowance.’

[4] The parties have agreed on the questions that the Commission has been asked to determine. These are:

‘Are employees in the following categories who hold a Qualified Supervisor’s Certificate entitled to payment of the electrician’s licence allowance provided for in the Endeavour Energy Enterprise Agreement 2012?

1. Employees who were appointed to positions which were advertised as requiring a Qualified Supervisor’s Certificate and/or whose letters of appointment and/or position description at the time of appointment nominate the possession of a Qualified Supervisor’s Certificate/Electrical Licence as a requirement of the position.

2. Employees who hold a Certificate who principally perform work on consumer installations and wiring, including but not limited to those positions specified in Annexure A.

3. Employees who are ordinarily engaged in positions with duties the adequate discharge of any portion of which requires employees to have the qualifications and experience necessary to obtain a Qualified Supervisor’s Certificate, including but not limited to those positions in Annexure B.’

[5] The two annexures contain a series of roles. The case involves a two-step process which is first to identify the correct interpretation of the relevant clause and secondly to apply - based on the evidence - how that interpretation affects various roles.

[6] The clause in the agreement can clearly be divided into three parts. In order to be paid the allowance an employee must first hold a current Qualified Supervisor’s Certificate or electrical licence or its equivalent. These are expressions derived from certain legislation to which I will return a little later. Secondly, the employee must occupy a position which requires the incumbent to hold the above qualification to fulfil their duties. Thirdly, the employee must occupy a position where the incumbent has been paid the allowance in accordance with past practice.

[7] The dispute between the parties as to the proper construction of the clause turns on the second of these elements. According to the CEPU, in order to determine whether a particular employee is entitled to receive the allowance, one must examine the duties of the position the employee occupies, and assess whether those duties require ‘the knowledge and skill recognised by the holding of the licence.’ 1 This, the CEPU contends, is consistent with the history of the allowance. Endeavour Energy agrees that one must examine the duties of the position that the employee occupies. However whether the employee is required to hold the licence to fulfil those duties is to be determined by reference to the requirements in the applicable legislative scheme. It is appropriate now to turn to that legislative scheme.

The relevant legislation

[8] The legal requirement to hold ‘an electrical licence’ is derived from Section 14 of the Home Building Act 1989, whichstipulates that:

‘An individual must not do any electrical wiring work (whether or not it is also residential building work), except:

a) As a qualified supervisor (being the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work), or

b) As the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of such a qualified supervisor.

[9] In other words, one needs what is generally known as an electrical licence to do electrical wiring work.

[10] Section 3 of the Home Building Act defines electrical wiring work as having the same meaning as it has in the Electricity (Consumer Safety) Act 2004.

[11] Section 3 of the Electricity (Consumer Safety) Act defines electrical wiring work as ‘the actual physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervising of that work.’

[12] The same section defines electrical installation as meaning:

‘... any fixed appliances, wires, fittings, apparatus or other electrical equipment used for (or for purposes incidental to) the conveyance, control and use of electricity in a particular place, but does not include any of the following:

a) Subject to any regulation made under subsection (4) -- any electrical equipment used, or intended for use, in the generation, transmission or distribution of electricity that is:

i. owned or used by an electricity supply authority, or

ii. located in a place that is owned or occupied by such an authority ...’

[13] Thus electrical wiring work (for the purposes of the regulatory scheme) does not include work on electrical equipment owned or used by an electricity supply authority, or located in a place that is owned or occupied by such an authority.

[14] Electricity supply authority is defined as:

‘... a person or body engaged in the distribution of electricity to the public or in the generation of electricity supply, directly or indirectly, to the public whether by statute, franchise agreement or otherwise...’

[15] It is not in dispute that Endeavour Energy is an electricity supply authority. It follows therefore that work on electrical equipment owned or used by Endeavour Energy, or located in a place that is owned or occupied by Endeavour Energy, is not electrical wiring work for the purposes of the Electricity (Consumer Safety) Act. There is therefore no need, under the regulatory scheme, for employees doing such work to have an electrical licence.

[16] Endeavour Energy employees may, in some circumstances, be required to undertake work on an electrical installation that is not owned or used by Endeavour Energy or located in a place that is owned or occupied by Endeavour Energy (typically a customer’s premises). This work may come within the definition of electrical wiring work. However s.22 of the Home Building Regulation 2004 provides that the requirement that individuals performing such work hold a licence does not apply if:

a) The individual is employed by an electricity supply authority principally for the performance of work other than electrical wiring work, and

b) The electrical wiring work concerned is done in the ordinary course of the employee’s duties.

[17] Thus if an Endeavour Energy employee is principally employed for the performance of work other than electrical wiring work (e.g. if they are employed principally to work on equipment owned or used by Endeavour Energy or that is located at a place that is owned or occupied by Endeavour Energy) and the electrical wiring work is done in the ordinary course of their duties, they are not required by the regulatory scheme to have a licence.

[18] In a practical sense, the only Endeavour Energy employees who are required to hold a licence under the regulatory scheme are those employees who are principally employed to work on electrical installations that are not owned or used by Endeavour Energy or located in a place that is owned or occupied by Endeavour Energy.

[19] The word ‘principally’ is relevantly defined by the Shorter Oxford English Dictionary as ‘above all’, pre-eminently’ or ‘for the most part’.

The History of the Allowance

[20] Endeavour Energy is the product of the consolidation of two former electricity supply authorities: Prospect County Council and Illawarra County Council.

[21] In 1982, the following provision was inserted into the Prospect County Council (Wages and Salaried Employees) Consolidated Award:

‘Electrician’s Licence allowance - Employees who possess a New South Wales Electricians Licence and who in the course of their duties are required to work in situations involving electrical functions or the control or supervision of electrical functions shall be paid an allowance equivalent to the amount of the allowance prescribed from time to time for the holder of such a licence by the Electricians, etc. (State) Award. Employees who hold a Contractor’s Licence engaged in the aforementioned work are also eligible for this payment provided the Contractor’s Licence is one applying to an employee and is suitably endorsed to indicate the appropriate qualifications are held. This allowance shall be paid for all purposes of the award.’

[22] This provision remained in the Prospect County Council award until 1987. In that year the clause was slightly reworded to refer to an A Grade or B Grade Electrical Mechanic’s Licence. This clause (with only a very slight amendment in 1991) remained in the award until Prospect County Council was merged with Illawarra County Council to create Integral Energy in 1997.

[23] By contrast, the industrial instrument governing employees at Illawarra County Council did not contain a provision for the allowance. When that council and Prospect County Council merged, the industrial instrument for the newly merged authority, the Integral Energy Conditions of Employment Award did not contain any provision for the allowance. 2

[24] Mr Mark Greenhill (formerly Endeavour Energy’s Manager, Employee Relations) gave evidence about the history of the allowance. 3 Mr Greenhill commenced work with Integral Energy, in October 2008, at the time the negotiations for the Integral Energy Award 2008 were being held. Even though the previous Integral Energy award had made no provision for the allowance, it appears that it had been paid as a matter of practice ‘for years’.4 Mr Greenhill’s evidence is that the Electrical Trades Union (ETU)approached him just prior to the employee vote on the award seeking the insertion of a provision concerning the allowance into the award. While no such provision was inserted into the award, Mr Greenhill sent the ETU a letter on 15 July 2009 indicating that ‘the Electrician’s Licence Allowance’ will be paid in accordance with past practice.... The letter made clear that if an employee was the holder of ‘a current electricians’ qualified supervisors certificate (or equivalent), as issued by the relevant authority, the employee must be paid an all purpose allowance of $28.75 per week.’5

[25] By contrast, the 2010 enterprise agreement included a specific provision about the allowance, in similar terms to the 2012 enterprise agreement. In particular it specified that employees would be paid the allowance if they held a current Qualified Supervisors Certificate/Electrical Licence or its equivalent, the positions they occupied required the incumbent to hold the qualification, and the incumbent in the position had received it in accordance with past practice. This provision was essentially rolled over into the current enterprise agreement.

[26] In summary, the industrial instrument governing terms and conditions of employment at one of the predecessor authorities to Endeavour Energy contained a provision for an allowance to be paid to holders of an electrical licence (however described), while the industrial instrument at the other authority did not. The industrial instruments governing terms and conditions at the immediate predecessor to Endeavour Energy did not contain such a provision; however it appears there was a practice of paying an allowance to employees who possessed the licence.

[27] This situation changed with the introduction of a specific provision into the 2010 Endeavour Energy enterprise agreement. That provision introduced the current requirements that must be met before an employee is eligible to be paid the allowance. Importantly, it introduced the concept that the allowance is only payable to an employee where the employee’s position requires the incumbent to hold the licence to fulfil their duties. This is a significant difference both in relation to the Prospect County Council award and what appears to have been the past practice at Integral. No longer did the mere possession of the licence entitle to an employee to the payment of the allowance.

The meaning of: ‘requires the incumbent to hold the licence to fulfil their duties’

[28] There is nothing complicated about the meaning of the phrase ‘requires the incumbent to hold the licence to fulfil their duties’. It means in simple English, you need the licence to be able to do your job. I see no reason to add a gloss along the lines proposed by Mr Taylor which is to the effect that the licence is payable if the duties of the position ‘require the knowledge and skill recognised by the holding of the licence.’ 6

[29] Mr Taylor submitted that his preferred interpretation is consistent with the history of the allowance. There is very little evidence as to why the allowance was paid historically. It might indeed have been paid in recognition of particular knowledge and skill. However even if that were true, it is rendered irrelevant by the introduction of the clause inserted into the 2010 enterprise agreement. That changed the basis on which the allowance was payable. It is possible that Endeavour Energy did not in practice change the way the allowance was paid - at least until the events that led to the current dispute. However I do not consider that that by itself can override the plain meaning of the words.

[30] Why might possession of the licence be necessary to fulfil the duties of a particular position? The most obvious reason would be that one could not perform those duties legally without the licence. How this requirement might apply in relation to particular job classifications is considered below.

[31] However it is likely that in at least in some cases Endeavour Energy has required employees to possess the licence even where this may not have been necessary to meet the requirements of the regulatory scheme. The requirement to hold the licence was often contained in documents such as position descriptions and job advertisements 7. Why Endeavour Energy may have imposed such a requirement is immaterial. If Endeavour Energy stipulates that an employee needs the licence to do their job they are clearly entitled to the allowance (assuming the other criteria in the clause are met). However, the allowance is only payable for as long as the requirement applies. The issue is not whether the requirement applied at the time of appointment If Endeavour Energy decides that the duties of the job no longer require the holding of the licence then there is no longer an entitlement to the allowance.

Employees who are required by the regulatory regime to have the licence (and therefore are entitled to the allowance)

[32] As noted earlier, the only Endeavour Energy employees who are required to hold a licence under the regulatory scheme are those employees who are pre-eminently or for the most part employed to work on electrical installations that are not owned or used by Endeavour Energy or located in a place that is owned or occupied by Endeavour Energy. An employee who is principally employed to work on Endeavour Energy’s electrical installations but who sometimes (even if on a regular basis) performs work on customer installations does not need the licence to do that work.

[33] Mr Langdon (Manager - Electrical Safety and Authorisations) gave evidence that he and Mr Bill Watts (Regional Manager South) undertook a review in 2014 of eligibility for all persons currently receiving the allowance. 8 I am satisfied that the methodology they adopted was appropriate to determine which roles required the employees to hold the licence (and were therefore eligible for the allowance.) In particular they examined the duties of the relevant positions and filtered out roles that either did not undertake electrical wiring work as defined in the relevant regulations, or were not principally employed to perform electrical wiring work.

[34] The review identified four roles which required a licence: Electrical Fitter Mechanic (Metering), Field Officer - Licensed; Meter Technician and Senior Technician. Mr Langdon subsequently agreed that the roles of Installation Inspector, Emergency Service Officer, Customer Safety Officer and EFM Customer Installations also require a licence. 9

[35] I have considered the evidence presented by the CEPU’s witnesses; however I am not persuade that any other Endeavour Energy roles are required by the regulatory regime to have a licence to fulfil their duties.

Conclusion

[36] The answers to the three questions posed by the parties are as follows:

1. If Endeavour Energy currently requires the holder of a position to have a Qualified Supervisor’s Certificate/Electrical Licence (for example, by means of a current position description) then the employee is entitled to payment of the allowance (assuming they have a current licence and the person in that position has received the allowance in accordance with past practice). However, previous advertisements, letters of appointment and superseded position descriptions are not relevant for the purpose of determining whether the employee is currently entitled to the allowance.

2. Employees who hold a licence, are required to do so by the regulatory regime, and who occupy positions in which the incumbent has received the allowance in accordance with past practice, are entitled to be paid the allowance. Based on the evidence presented during the proceedings, only employees who perform one of the following eight roles fit within this category:

● Customer Safety Officer;

● EFM Customer Installations;

● Electrical Fitter Mechanic (Metering);

● Emergency Services Officer;

● Field Officer - Licensed;

● Installation Inspector;

● Meter Technician; and

● Senior Meter Technician.

3. The only employees who are entitled to the allowance are those set out in response to questions 1 and 2 above.

SENIOR DEPUTY PRESIDENT

Appearances:

I. Taylor, SC for the appellant.

K. Nomchong SC for the respondent.

Hearing details:

2015.

Sydney:

February, 11, 12 13.

 1   PN26-27

 2   Exhibit E3

 3   Exhibit E10

 4   Ibid. paragraphs 12-14

 5   Attachment M-G2 to Exhibit E10

 6   PN27

 7   See for examples Exhibit CEPU 26

 8   Exhibit E12 paragraphs 47 - 19

 9   Exhibit E12, paragraphs 109-115

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