1
Fair Work Act 2009
s 739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
Endeavour Energy
(C2014/1137)
DEPUTY PRESIDENT SAMS SYDNEY, 31 JANUARY 2018
Application to have the Commission deal with a dispute under a dispute settlement procedure
in an enterprise agreement – electrical generation and supply industry – long running dispute
narrowed to 26 employees – work on the customer side and Network side of the business –
entitlement to Electrician’s Licence Allowance (ELA) – statutory interpretation – meaning of
‘principally employed’ – beneficial statutory intention –words given broad beneficial
meaning – ‘principally employed’ encompasses employees who perform customer work
irrespective of the time spent in performing that work – dispute resolved and concluded.
[1] This dispute has had a lengthy history – dating back to 2013. In essence, the dispute
concerns a claim by the Communications, Electrical, Electronic, Energy, Information, Postal
Plumbing and Allied Services Union of Australia (the ‘Union’) that certain employees of
Endeavour Energy (‘Endeavour’) are entitled to be paid the Electrician’s Licence Allowance
(the ‘ELA’ or the ‘Allowance’), presently $32.80 per week for all purposes. The ELA
provision in the Endeavour Energy Enterprise Agreement 2012 (the ‘Agreement’) is found in
Appendix B and reads:
Electrician's Licence Allowance
An employee who holds a current Qualified Supervisors Certificate I 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.
[2018] FWC 440
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 440
2
[2] I note that because of the Agreement’s Dispute Settlement Procedure’s ‘status quo’
provision, all 26 employees have continued to receive the ELA. In addition, there are no
jurisdictional impediments to the Commission dealing with the dispute by arbitration.
[3] The dispute was initially determined by the Fair Work Commission (the
‘Commission’) (Hamberger SDP) on 9 March 2015; see: Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Endeavour Energy [2015] FWC 1505. By consent of the parties, His Honour was asked to
answer three questions as to whether the ELA should be paid to three groups of employees.
For present purposes, I need not venture into the details of His Honour’s decision as it was
subsequently appealed by the Union. A Full Bench of the Commission on 29 October 2015
upheld the appeal; see: Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia v Endeavour Energy [2015] FWCFB 6750
and said at paras [32] to [34]:
‘[32] It clear that persons employed principally for work on electrical equipment
owned or used by an electricity supply authority are not required to have a licence, but
there is no agreement between the parties as to the meaning of “employed principally”.
Unfortunately, this is a matter that will probably have to be determined position by
position and we have determined that this issue is best determined by a member of the
relevant panel at first instance. We are satisfied that this is a grandfathering provision
and the question of identifying to which employees that grandfathering provision
applies will also have to be determined.
[33] It is clear that the requirements of the respondent as to the licensing or otherwise
of its employees have changed. Negotiations should take place regarding the future
operation of the agreement classifications and the future needs of Endeavour Energy.
[34] We are satisfied that the conclusion of his Honour was wrong and amounted to an
appealable error regarding the construction of the clause. The appeal is allowed. The
decision of his Honour Senior Deputy President Hamberger is set aside. The industrial
situation between these parties may well be amenable to the assistance of the Fair
Work Commission in interest based bargaining. We return the application to the
relevant Panel Head.’ (footnotes omitted)
[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
[2018] FWC 440
3
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.
[5] The matter was allocated to me in late May 2017 and on 1 June 2017, I issued
directions for the filing and service of evidence and outlines of submissions. By consent, the
matter was not listed for hearing until 11 October 2017. Mr I Taylor of Senior Counsel, with
Mr O Fagir of Counsel appeared for the Union and Mr G Phillips, Solicitor with Ms E
Ferrier (of K&L Gates) appeared for Endeavour. Permission was granted for both parties to
be legally represented, pursuant to s 596 of the Act. I should add (not that it needs to be said)
that the appearance of very competent and experienced legal practitioners greatly contributed
to the efficient conduct and disposal of the proceeding; noting that the three witnesses who
provided statements on behalf of the Union, and one for Endeavour, were not required for
cross examination, as the parties agreed that the task of the Commission is strictly a matter of
the interpretation of a statutory provision, which will have consequences as to who receives
the ELA.
The relevant statutory provisions in the industry
[6] Section 14 of the Home Building Act 1989 (the ‘HB Act’) provides 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 in respect of 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.
[7] ‘Electrical wiring work’ is defined in schedule 1 of the HB Act by reference to the
Electricity (Consumer Safety) Act 2004 (the ‘ECS Act’) which 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.’
[2018] FWC 440
4
[8] The relevant statutory exemption is found at s 26(2) of the HB Regulations which
reads:
(2) An individual who does electrical wiring work is exempt from the requirements of
sections 12 (Unlicensed work) and 14 (Unqualified electrical wiring work) of the Act
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. (My emphasis.)
[9] Other relevant statutory provisions include s 3 of the ECS Act which defines ‘electrical
installation’ as:
any fixed appliances, wires, fittings, meters, apparatus or other electrical equipment
used for (or for purposes incidental to) the conveyance, measuring, 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 (other than a meter) 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,
(b) any electrical article connected to, and extending or situated beyond, any
electrical outlet socket,
(c) any electrical equipment in or about a mine,
(d) any electrical equipment operating at not more than 50 volts alternating
current or 120 volts ripple-free direct current,
(e) any other electrical equipment, or class of electrical equipment, prescribed
by the regulations.
THE EVIDENCE
[10] The following persons provided witness statements in the proceeding:
Mr Francis Zammit, Distribution Manager Shoalhaven, Endeavour Energy;
[2018] FWC 440
5
Mr Colin Tannock Harris, License and Training Consultant, Electrical Trades Union
of Australia, New South Wales Branch;
Mr Jareth Woolsey, Leading Hand Electrical Fitter Mechanic, Endeavour Energy;
and
Mr Nicholas Abbott, Electrical Fitter Mechanic, Endeavour Energy.
[11] As mentioned earlier, the parties agreed that the Commission should receive these
statements as background material and it was not necessary to resolve any differences in the
evidence, as between Mr Abbott and Mr Zammit in particular.
Agreed characteristics of the ‘Endeavour 26’
[12] Both parties agreed that the following features and characteristics apply to the
employees who remain in dispute:
(a) They are all licensed electricians.
(b) They are required to work both on the ‘Network side’ (that is, on Endeavour
equipment) and on the ‘customer side’ (that is, the customer switchboard and beyond).
(c) The work on the customer side is a part of their duties. That is confirmed by
the Endeavour competency requirements, which include competencies in customer side
work. It is also confirmed by the position descriptions (for those employees who have
position descriptions) which identify as ‘key responsibilities’ work on customer
installations.
(d) The skills and experience in wiring work acquired as part of the licensing
qualification are put to use in carrying out the customer side work.
(e) The proportion of work performed on one side or another varies between
electricians, and varies depending on the geographic location and at different times.
Work on the customer side may be 100% of an electrician’s work on a given day or
week.
[2018] FWC 440
6
(f) If averaged over a given period the percentage of work in that period that is
customer work may be greater than 50%. However, for most, if averaged over a
long enough period (e.g. a year), it would be less than 50%.
Mr Colin Harris
[13] Mr Harris is a qualified Electrician/Fitter Mechanic Tradesperson. He holds an
Electrician’s Licence and post trade qualifications in industrial electronics, a Diploma in
electronic communications and a Graduate Diploma in employment relations. During his
career in the industry from 1963, he has worked for the Mackellar County Council and then
Sydney County Council in various Electrical/Technical roles. He was an ETU Organiser from
1987 to 1998 and from 1998-2012 he was employed as a Field Officer/Examination Officer
and finally a Training Consultant for ‘Electro Skills’ - a training entity formed by the ETU
and its industry partners. In this role, Mr Harris conducted the testing of applicants for an
Electrician’s Licence and to assess a person’s knowledge of current wiring rules. This was the
last step before being certified as a licenced and qualified supervisor under the HB Act.
[14] Mr Harris said that a Qualified Supervisor Licence’s core requirements have remained
essentially the same, as have the skills and competencies necessary to perform distributor
specific panel and control wiring work in major substations, various control room panels and
panel and control wiring in manufacturing and production industrial situations. The legislation
does not distinguish between electrical wiring in general industry and distributor owned
situations. Mr Harris’s evidence was that historically, the distributor industry has sought
employees with the skills and knowledge associated with holding a Licence. Since the early
80’s it has been a prerequisite, or a highly desirable competency for progression through the
electrical trades grades. Mr Harris had observed many position descriptions which reflected
these requirements with employees of distributors being encouraged to obtain Licences,
through time off for training, references and access to experience on the job.
Mr Jareth Woolsey
[15] Mr Woolsey commenced employment with Integral Energy (the former name of
Endeavour Energy) as an Apprentice Electrical Fitter Mechanic (EFM) in 2012. He gained his
Electrician’s Licence and trade qualifications in 2006 during which time he was required to
[2018] FWC 440
7
undertake a three month work placement with an electrical contractor in Oberon. During this
placement, he performed electrical wiring, testing and commissioning of cabling, finding and
fixing faults and installing new circuits for Department of Housing owned homes. He
believed this was an important experience in learning new skills.
[16] In 2006, Mr Woolsey was employed as an EFM at the Katoomba Depot, where his
role involved work on power lines, street light fittings and repairing faults on customer
switchboards. His current position as a Leading Hand EFM requires he hold an Electrician’s
Licence/qualified certificate. This role requires standby response work, service defects
resolution, meter and relay changes and replacement and working on customer switchboards.
Mr Woolsey said the amount of work he performs on customer installation and the wiring
side of the Network, varies between one side to the other. While he understood that a number
of EFM positions are different, they all require the same basic skills.
[17] Mr Woolsey said he was aware Endeavour is increasingly using non-licensed
linesman to do testing and fault finding on customer switchboards. However, he is regularly
asked to assist these workers, as most of them do not know what to do. In undertaking this
work, Mr Woolsey is called upon to use his skills and knowledge as a Licence holder, as this
work is a specialised skill recognised by the Electrician’s Licence. These skills are also
required for Mr Woolsey to work on installations and equipment owned by Endeavour,
including fault finding and repair of underground and overhead mains, street light controls,
and replacement and installation of high voltage switch gear. Such work involves an
understanding of electrical circuits which is part of Licence required knowledge. He is also
required to hold an Electrician’s Licence to sign off on apprentices.
[18] As part of the team who negotiated the 2012 Agreement, Mr Woolsey understood at
the time that the Company and the Union’s positions were that the eligibility for the ELA was
not to change.
Mr Nicholas Abbott
[19] Mr Abbott commenced employment as an Apprentice EFM in 2009. He holds a
Certificate III in Electrotechnology Systems Electrician, a Certificate of Proficiency, a
[2018] FWC 440
8
Certificate III ESI – Distribution (Powerline), a Statement of Attainment Level 2 service
provider cat 1, 2, 3 and 4 and an Electrician’s Licence.
[20] Mr Abbott referred to his letter of offer dated 28 January 2013, which while not
specifically mentioning the ELA, referred to his weekly rate of pay (plus appropriate
allowances). He has been paid the ELA since starting work as an EFM. Mr Abbott described
his duties as follows. He regularly performs various activities on the customer side of the
Network. These include standby response work of all nature, inspections and testing of private
solar installations, service defects resolution, which includes no supply complaints, off peak
faults requiring the replacement of relays and time clocks, shock investigations, voltage
complaints, high/low intermix investigations, meter and relays and time clocks, insulation
resistance testing of customer mains, safety inspection of electrical equipment and
installations, replacing or working on customer switch boards.
[21] Mr Abbott works from the Nowra depot and carries out duties on the customer
installation side of the Network on a daily basis on direction from his Supervisor. When
working on the standby roster or relief standby, he is the only EFM on call during these shifts.
He said the amount of time he spends on customer connection points can vary based on the
job, weather events, standby requirements or the direction of his Supervisor. In some weeks,
customer work will be all the work he will do. He gave an example of working a month
straight on customer side work only. In other weeks, he may only have a small job on the
customer side. However, he believed that the duties involved in the customer side form a part
of his core duties and required competencies.
Mr Francis Zammit
[22] Mr Zammit has been in his role of Distribution Manager Shoalhaven since October
2009. Mr Zammit’s statement addressed the evidence of Mr Abbott as follows.
[23] Mr Zammit was aware of the nature of the work performed by Mr Abbott. Mr Abbott
is employed in a four man crew, which includes a Leading Hand. He claimed Mr Abbott’s
work on the customer side, was intermittent. This is because he is not in a crew that is
regularly assigned to respond to such jobs. He may do this work, if the dedicated crews are
[2018] FWC 440
9
busy, or when he is on the standby roster or relief work. Mr Zammit believed Mr Abbott
would perform this work on every fifth or sixth week.
[24] Mr Zammit described Mr Abbott’s work on customer switchboards involves:
‘[P]olarity testing, and neutral integrity testing, both of which are intended to test back
through Endeavour’s network to identify any issues with the way the network is
connected to the customer’s premises. This testing requires testing of the positive,
neutral and earth wires in a customer’s switchboard to be tested prior to switching the
network back on after Mr Abbott has performed his work on the Endeavour Energy
network.’
[25] Mr Zammit estimated Mr Abbott would spend a portion of time on this work each
week, with his main role involving work on the Endeavour side of the Network. Mr Zammit
understood Mr Abbott’s work on customer solar installations was some years ago and he is
currently not required to work on solar installation. His reference to work on a neutral
integrity installation project, was not part of his usual work. He had volunteered for this
project, which was undertaken over a few weeks in March, April and May 2017 and is now
completed. He was paid the ELA during this time.
SUBMISSIONS
For the Union
[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
[2018] FWC 440
10
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.
[27] Mr Taylor identified the two NSW statutes which regulate the performance of
‘electrical wiring work’ in homes and commercial premises in the State. These are the HB Act
and the ECS Act. He said that ‘Electrical wiring work’ is defined as all work associated with
electrical installation in homes, offices and other premises, other than wiring that is part of the
poles and wires used by electrical supply authorities. ‘Electrical wiring work’ has historically
required the issuance of a Qualified Supervisor’s Certificate (in effect, the Electrician’s
Licence) by the Department of Finance and Services to persons who:
(a) have completed an Electrical Apprenticeship;
(b) hold a certificate of proficiency as an Electrician;
(c) have at least 12 months’ relevant ‘electrical wiring work experience’ and
(d) have a demonstrated understanding of the Australian and New Zealand Wiring Rules
(the ‘Wiring Rules’).
[28] Mr Taylor put that it is relevant and important when considering legislation to look at
its purpose. The purpose of the above licensing regime is obviously, the promotion of safety.
When you look at exemptions, one should do so narrowly when the broad application of the
legislation is related to the critical issue of safety. Mr Taylor said that this exemption has
existed for the entire period of the licensing scheme (at least 70 years) and has only become
an issue now that Endeavour does not require the Licence for the positions in dispute.
[29] Mr Taylor argued that it would be wrong to engage in a purely mathematical exercise,
based on time spent being a majority of the time working on the Network side meaning the
employee is ‘principally employed’ for the performance of work, other than electrical wiring
work. The better view would be that an employee is not exempt, if work on customer
installation is a principal or essential part of the employee’s duties because:
(a) as a matter of textual analysis a worker may be ‘principally employed’ to carry out a
variety of tasks. The expression is directed to the reasons why the employee is
employed, not the amount of time spent on a particular task. It encompasses any
employee who performs customer work, no matter what the proportion of that work is
[2018] FWC 440
11
performed compared to other work. This may arise from the position description itself
or the actual evidence of the day to day delegation of customer work. This is to be
distinguished to an employee who is not employed to do that work, but may do so
when directed (say in an emergency). It follows that the exemption does not operate
where the tasks for which a worker is ‘principally employed’, includes electrical
wiring work. Each of the 26 employees fit this definition;
(b) given the purpose of the statutory scheme is to promote and ensure the safety of the
community by establishing preconditions and a strict licensing regime for performing
inherently dangerous work by skills electricians in a standardised way, it is necessary
to adopt a conservative or narrow approach to any exemptions; see: Waugh v Kippen
[1986] HCA 12; 160 CLR 156; and
(c) where a statutory provision has penal consequences for breach, the principles of
construction require certainty. In addition, it is essential that the need, or otherwise for
a Licence be determined in advance. This is contrary to Endeavour’s approach which
has relied on an analysis of job number records and the average percentages of each
employees’ work on the ‘customer side’ and the Network side.
[30] Mr Taylor criticised Endeavour’s approach because although it is said 50% of
customer service is a generous percentage, Endeavour cannot say what percentage of
customer side work would require a Licence, or over what period the percentage is calculated.
As is evident, customer side work fluctuates, meaning a position might require a Licence one
month, but not the next. Obviously, this creates uncertainty and such variables are an
unacceptable consequence of interpreting a safety exemption, in the manner contended for by
Endeavour. For example, Mr Taylor said Mr Abbott had worked a month on the customer
side. If he was to do that again in the future, he would be paid the ELA for the month and then
stop receiving it for the next month.
[31] Mr Taylor responded to Endeavour’s reply submission, that there is no value for
Endeavour having people paid the allowance when they can recruit people to do this work,
without a Licence. This is contrary to the notion that people are paid an allowance in
recognition of the particular skills they have; in this case they all have the Electrician’s
Licence and the employer does require those skills for the performance of customer work.
For Endeavour
[2018] FWC 440
12
[32] Mr Phillips set out the history of these proceedings and the background to the dispute;
neither of which are in contest, save for the crux of the dispute being whether the 26
employees are ‘principally employed’ to perform work which would require them to hold an
Electrician’s Licence. The group are not subject to ‘grandfathering’ provisions and although
each one of them has the Licence, Endeavour has not required them to do so.
[33] Mr Phillips relied on SDP Hamberger’s decision, as to the meaning of ‘principally
employed’ in the current context. At paras [18] and [19] His Honour said:
‘[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’.’
[34] Endeavour considered the approach of the Senior Deputy President to be correct. It is
consistent with an analysis of the legislative framework. By interaction of the definition of
‘electrical installation’ in the ECS Act, the exclusion of Endeavour as a Network operator,
and s 14 of the HB Act, a person:
‘… must not do any electrical wiring work (whether or not it is also residential
building work), except:
(a) as a qualified supervisor in respect of 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.’
[35] Therefore, a person who is performing the work of ‘installing, repairing, altering
removing or adding to an electrical installation’ would not be doing ‘electrical wiring work’
if the work is taking place on an ‘electrical installation’ that is owned, used, intended for use,
or located in a place owned or used by an ‘electricity supply authority’; in this case,
Endeavour Energy. The result is that employees doing work that may otherwise be
categorised as ‘electrical wiring work’ are not required to have an Electrician’s Licence when
they are working on electrical installations owned, operated, or used by Endeavour.
[2018] FWC 440
13
[36] A further exemption is found in cl 26(2) of the HB Regulation:
(2) An individual who does electrical wiring work is exempt from the requirements of
sections 12 (Unlicensed work) and 14 (Unqualified electrical wiring work) of the Act
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. (My emphasis.)
[37] It follows that if the employee is ‘principally employed’ for the performance of
electrical wiring work, it will require an Electrician’s Licence, but where the employee’s
predominant or preeminent work is on electrical installations, located on a place owned or
used by Endeavour and a minor part of that work is ‘electrical wiring’ on consumer
installation, the exemption in cl 26(2) of the HB Regulations applies.
[38] Mr Phillips described a typical Endeavour crew as spending virtually all its time
working on the Network. Occasionally, for example during or following storms or outages
these crews may attend a customer’s property. The general approach is to render the situation
safe and then the customer will engage their own electrician. It is to be noted that such an
event may not occur for many months and not all members of the crew will perform work at
the attended property.
[39] Mr Phillips relied on the meaning of the word ‘principally’ in the Macquarie
Dictionary:
‘first or highest in rank, importance, value etc.’
He said the background facts do not assist defining ‘principally employed’ and nor does the
competency system relied on by the Union.
[40] Mr Phillips submitted that the words in cl 26(2) of the HB Regulations are clear and
unambiguous and should be given their ordinary meaning. He relied on the principles of the
Commission that regard must be had to whether an employee is required to use qualifications
[2018] FWC 440
14
or skills or in this case, a Licence, when determining an employee’s classification; see: Dajee
v Regional Express Holdings t/a Regional Express Airlines [2016] FWC 7388; Southern
Cross Care (Broken Hill) Ltd v The Broken Hill Town Employees' Union [2015] FWC 803
and Paulin v Gymsports [2015] FWC 2604.
[41] Mr Phillips said that although Endeavour had applied a generous 50% component to
whether the employee, in a typical week, is working on customer installations, it is beyond
what the term ‘principally employed’ would capture by its definition. However, no regard
should be had to this percentage, because it was simply an attempt to narrow the scope of the
dispute with the Union.
[42] Mr Phillips did not cavil with the principles of statutory interpretation set out in
Waugh v Kippen; but the High Court was concerned with certainty arising from penal
sanctions under the Act there being considered. The approach here should be not unlike the
principles of construing an enterprise agreement; see: Australian Meat Industry Employees’
Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 (‘Golden Cockerel’) and Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian
Manufacturing Workers Union v Berri Pty Ltd (AMWU) [2017] FWCFB 3005 (‘Berri’).
Unless the disputed words are ambiguous or unclear (which is not the case here), it is not
permissible to consider ‘surrounding circumstances’.
[43] Mr Phillips wished to stress that any Endeavour employee who is ‘principally
employed’ in the customer side, will be licensed and will be paid the ELA. Of the 450
relevant employees, all bar these 26 have been able to be resolved. For these 26, there is no
benefit to the business, as the employees do not need the Electrician’s Licence to perform
their duties. It follows that if they do not need a Licence, they are not entitled to receive the
ELA.
[44] In reply to the Union’s submissions, Mr Phillips identified the three categories of
employees agreed by the parties. He submitted it was irrelevant that the 26 employees
perform the same work as Category One employees, as the ELA is ‘grandfathered’ for this
group. It is also irrelevant that an employee holds a particular licence or qualification, if the
employer does not require them to use it.
[2018] FWC 440
15
[45] Mr Phillips disputed the evidence that the employees ‘routinely’ perform customer
work. The work on the customer side is incidental to the employees’ duties. The competency
requirements are of little relevance because the employee may not be required by the
employer to perform all the competencies. Mr Phillips added that the Union misconstrues cl
26(2) of the HB Regulations, as if it is employment legislation. The HB Regulation is not
concerned with what an employee’s position description or competency might be. Moreover,
if the Union’s submission was accepted, it would mean the exemption would have no work to
do.
[46] Mr Phillips emphasised that consideration of ‘surrounding circumstances’, to assist in
construing statutory provisions, is not permitted if the words have a clear and unambiguous
meaning, as is the case here. Further, the interpretive task is not about employees without the
Licence being a safety risk. Employees are required to be trained and to be competent to
safely perform the work; training and competency are not derived from holding the Licence.
[47] Finally, Mr Phillips said that cl 26(2) of the HB Regulations means an employee who
‘pre-eminently’ or ‘for the most part’, performs work, other than electrical wiring work, is not
required to hold an Electrician’s Licence.
[48] In reply, Mr Taylor raised three matters. When one looks to define ‘principally’, it
begs the question ‘How are you determining ‘pre-eminently’ or ‘for the most part?’ It might
vary from week to week. The test must be ‘what were they employed to do?’ The employees
were employed to do work on the Network side and the customer side. Creating certainty will
apply to those whose principal duties include customer work. There are employees who only
perform customer work and others who are required to do both without knowing what they
may be doing on any given day. It cannot be correct that a Licence is required or not
depending on how much of the work is customer work. Mr Taylor rejected the submission
that these employees were not engaged on the basis that they were required to have the
Licence. This is irrelevant to the statutory interpretation exercise. From an industrial
viewpoint, if these employees are using the skills recognised by the Licence and they are
required to do these duties, then it makes no sense why they should not be receiving the ELA.
CONSIDERATION
[2018] FWC 440
16
Nature of these proceedings
[49] The task of the Commission in this matter is not a reconsideration of what SDP
Hamberger said about the term ‘principally employed’ in his decision of 9 March 2015 at
paras [18] and [19]; see: para [33] above. His Honour was asked to answer three questions
posed by the parties. I agree with Senior Counsel’s submission that His Honour’s decision
was ‘quashed in toto’ by the Full Bench and it follows that the question remitted by the Full
Bench to be considered afresh, was the disagreement between the parties as to the meaning of
‘principally employed’. It seems to me, plainly obvious, that if the Full Bench accepted a
meaning of the expression, as set out by His Honour at para [18] and [19] of his decision, the
Full Bench, would have hardly made the observations it did in its conclusion at para [32]; see:
para [3] above. In any event, it is also clear His Honour was not asked to undertake the
statutory construction exercise now before me.
Principles of statutory construction
[50] In JJ Richards and Sons Pty Ltd v TWU [2012] FCAFC 53, the Full Court of the
Federal Court of Australia, Flick J (with whom Jessup and Tracey JJ agreed) was required to
construe s 443 of the Fair Work Act concerning the question of when Fair Work Australia (as
the Commission was then styled) must make a protected action ballot order. Under the
heading ‘Accepted Principles of Statutory Construction’, His Honour said at paras [50] to
[53]:
First, the so-called “golden rule” of the common law as to statutory construction is that
“the grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnance or inconsistency with the rest of
the instrument, in which case the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v
Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See
also: Australian Boot Trade Employees’ Federation v Whybrow & Co [1910] HCA
53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined
to circumstances where a “mistake” has been made in the wording of an Act; the rule
is also applied to avoid construing legislation so as to produce patently unintended or
absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR
498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).
Second, the common law also recognised that “[i]t is a strong thing to read into an Act
of Parliament words which are not there, and in the absence of clear necessity it is a
wrong thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey.
[2018] FWC 440
17
See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at
103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v
Hart [2009] FCAFC 112at [6] per Spender J.
Third, a construction of a statutory provision is to be preferred “that would best
achieve the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth) s
15AA. The requirement to look to the purpose or object of an Act is more than an
instruction to adopt the traditional mischief or purpose rule in preference to the literal
rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory
provision before a court is not only permitted, but required to have regard to
purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there
went on to observe that the provision there in question, being a provision comparable
to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its
purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at
162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation
nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”.
See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v
Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at
85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA
512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end
the task of the court is to ascertain and to enforce the actual commands of the
legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per
Bowen CJ.
[51] In the present case, Mr Taylor also relied on a judgement of the High Court of
Australia in Waugh v Kippen. As I consider that Senior Counsel’s reliance on that case does
have some resonance and application to the statutory provisions here being considered, I set
out the relevant passages from Waugh v Kippen as follows:
A construction of the rule that would require an employer to have regard to the risk of
injury to a particular worker finds support in the character of the Act as legislation
concerned with furthering industrial safety. In that character it should be construed "so
as to give the fullest relief which the fair meaning of its language will allow", to use
the words of Isaacs J. in Bull v. Attorney-General for New South Wales (1913) 17
CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia, 2nd ed.
(1981), pars. 187-191, pp. 137-141. On the other hand, there is the consideration, to
which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction.
The modern approach in construing penal statutes was stated by Gibbs J. (as he then
was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows:
“The rule formerly accepted, that statutes creating offences are to be strictly
construed, has lost much of its importance in modern times. In determining the
meaning of a penal statute the ordinary rules of construction must be applied,
but if the language of the statute remains ambiguous or doubtful the ambiguity
or doubt may be resolved in favour of the subject by refusing to extend the
category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-
[2018] FWC 440
18
568; Craies on Statute Law, 7th ed. (1971), pp 529-534. The rule is perhaps
one of last resort.”
In the course of argument, the question arose whether the two principles of
interpretation to which we have referred come into conflict in the present case and if
so, how the conflict is to be resolved. If such a conflict was to arise, the Court must
proceed with its primary task of extracting the intention of the legislature from the fair
meaning of words by which it has expressed that intention, remembering that it is a
remedial measure passed for the protection of the worker. It should not be construed
so strictly as to deprive the worker of the protection which Parliament intended that he
should have: Harrison v. National Coal Board (1951) AC 639, per Lord Porter at
p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at
p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227-
1228. In such a context the strict construction rule is indeed one of last resort.
[52] There is no doubt that the HB Act and the EC Act are beneficial statutes, directed to
ensuring not only the safety of employees involved in electrical wiring work, but also to
ensure the safety of the wider community in what is an inherently dangerous industry. Indeed,
it is difficult to imagine an industry which requires such comprehensive detailed knowledge,
experience and qualifications consistent with the paramount statutory purpose of ensuring the
safety of the community. When viewed in this light, there is considerable force to the
proposition that the disputed words in this case should not be read so narrowly, such as to lead
to an outcome incompatible with, or at least doubtful, with the statutory purpose.
[53] It seems to me that consistent with this purpose and giving contextual framework to
the words ‘principally employed’ that an employee can be ‘principally employed’ to perform
a variety of tasks or duties, which may be undertaken for various durations of time (as was the
evidence here) without one, or a cluster of duties being ‘predominant’ in a given day, week or
month. In my view, it is to erect artificial and unrealistic parameters and restrictions to the full
range of duties expected of the ‘Endeavour 26’, by relying on averages or proportions of
typical weeks to conclude that they are not entitled to the ELA.
[54] From the uncontested evidence, the common features of the ‘Endeavour 26’
employees are that they hold an Electrician’s Licence and are required from time to time to
apply their skills, experience and training to customer work. In my opinion, it is unhelpful,
unrealistic and creates uncertainty to set specific proportional targets of time spent on
customer work during a typical week when that concept is ill-defined and non specific,
notwithstanding I accept that the 50% figure from Endeavour’s perspective, was said to be
[2018] FWC 440
19
overly generous. Moreover, while I appreciate that the 50% target was designed for a
particular industrial purpose, it does not sit comfortably, in my opinion, with Endeavour’s
primary argument that ‘principally employed’ in this context, means ‘predominant’, ‘for the
most part’ etc. Adopting a figure of 50% when that ratio must mean equal proportions (which
is clearly not the case) merely demonstrates the unreality and uncertainty of setting non-
specific targets. In addition, I apprehend because of this uncertainty there may be arguments
about the cut off of 50% itself, which may lead to discontent and further disputation.
[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.
[56] I determine this dispute accordingly. Should there be any residual issues about the
effect and application of this determination, I grant liberty to apply to have the matter relisted.
DEPUTY PRESIDENT
Appearances:
Mr I Taylor of Senior Counsel, with Mr O Fagir of Counsel for the Union.
Mr G Phillips with Ms E Ferrier, Solicitors (of K&L Gates) for Endeavour Energy
Hearing
ORK WORK COMMISSION FAIR THE SEAL OF
[2018] FWC 440
20
2017.
Sydney:
October 11.
Printed by authority of the Commonwealth Government Printer
Price code C PR599716
