1
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:
[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.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6750.htm
[2015] FWC 1505
2
‘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, which stipulates that:
‘An individual must not do any electrical wiring work (whether or not it is also
residential building work), except:
[2015] FWC 1505
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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
[2015] FWC 1505
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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
[2015] FWC 1505
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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
[2015] FWC 1505
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[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 advertisements7. 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
[2015] FWC 1505
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[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.
WORK COMMISSION J. M OF FA AUS THE SEAL
[2015] FWC 1505
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Hearing details:
2015.
Sydney:
February, 11, 12 13.
Printed by authority of the Commonwealth Government Printer
Price code C, PR561627
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
