s.99 notification of industrial dispute

Communications, Electrical, Electronic, Energy, Information, Postal,

Communications, Electrical, Electronic, Energy, Information, Postal,

Appeal re refusal to make an order terminating bargaining period.

This is an appeal by Newtronics Pty Ltd (Newtronics) against a decision of Watson SDP given on 4 September 1998 refusing to make an order terminating a bargaining period in C No. 35461 of 1998. The basis on which the termination of the bargaining period was sought is that employees of Newtronics are not eligible to become members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

It was common ground before Watson SDP that the relevant proportion of the rules of the CEPU was as follows:

". . . the Union shall consist of an unlimited number of employees who have been admitted under the Rules of the Union and who are engaged as or usually engaged as . . . electrical labourers . . ., and all employees whose callings are peculiar to the electrical industry_."_ [Print Q5822 p.3, paragraph 13]

We note although omitted from the extract of the rules in Watson SDP's decision the question of whether the employees were radio workers (within the meaning of the rules) was also argued before him.

Watson SDP undertook inspections and heard a considerable amount of evidence in relation to this matter which is summarised in his decision. We do not propose to reiterate that material here. It is sufficient to indicate that Watson SDP concluded that employees of Newtronics were eligible to be members of the CEPU "as radio workers or employees whose callings are peculiar to the electrical industry" [Print Q5822 p.20] (emphasis added). Mr McDonald of Counsel who appeared for Newtronics, attacked the correctness of both aspects of Watson SDP's conclusion, namely that the employees of Newtronics were "radio workers" and also that the employees were "employees whose callings are peculiar to the electrical industry". Because of the decision we have come to in relation to the question of whether Newtronics' employees are employees whose callings are peculiar to the electrical industry it is not necessary to deal with Watson SDP's conclusion that the employees are "radio workers".

The appeal raises a serious question of jurisdictional fact and for that reason we grant leave to appeal. We turn then to consider the matter on its merits.

We now examine the question of whether the employees concerned are "employees whose callings are peculiar to the electrical industry". We commence by noting that unlike the position before Watson SDP it was not contested before this Full Bench that Newtronics is properly to be regarded as being in the electrical industry in the sense that that expression is used in the CEPU rules. Accordingly, the question before us is simply whether the employees of Newtronics are to be regarded as persons whose callings are peculiar to the electrical industry. That question is to be addressed on the basis that it is conceded that Newtronics is an employer in the electrical industry.

The proper approach to be taken to the construction of the rules of the CEPU was considered in Metal Trades Industry Association of Australia v. Electrical Trades Union of Australia and Ors (the MTIA Case) [(1991-92) 44 IR 341] by a Full Bench of the Commission and it is appropriate that we set out a number of passages from this decision.

"We accept that the earlier part of the rule generally identifies a basis of association based on a common characteristic. However this approach is maintained in the latter part of the rule by the use of the word `peculiar' in the expression we are now considering. Eligibility is not based on any callings in the electrical industry but only those peculiar to it. We should add the use of the word `peculiar' appears to us to signify a calling that is to be found only in the electrical industry and that is to be determined by an examination of the work performed by employees in that calling.

It is unnecessary, for present purposes, for us to deal exhaustively with the submission of ETU that the expression `electrical industry' should be treated as incorporating each of the elements of the definition of `industry' contained in the IR Act. However we doubt that it has such a meaning, as the scope of the rule as it might apply in a given situation could alter depending upon which element of the definition is adopted. In our view the expression `electrical industry' is more likely a reference to the employers' industry principally for the reasons we earlier discussed concerning circularity of language and the structure of the expression we are considering. We accept, however, that the question is not free from doubt.

This conclusion requires us to consider whether the classifications sought to be covered by the proposed 1991 award are `peculiar' to the electrical industry viewed as the employers' industry. This is not an easy task as, in the main, we were only referred to definitions or classifications in the proposed 1991 award which provide a limited guide to the nature of the work. A storeman working for an electrical contractor for example, we assume would be engaged in the receipt, storage and dispatch of electrical equipment and components as well as other items of a more general kind. This work, as we assume it might be performed, involves the handling of electrical equipment and some understanding of it as a substantial element of the work. It could therefore be said that such a job was a calling peculiar to the electrical industry. A person involved in fabricating and/or installing ducting for air conditioning may be performing work that is performed in a range of industries, not the least being the metal industry. However, this does not exclude from the scope of the rule employees who perform work of this nature when it is being carried out incidentally to work which itself is peculiar to the electrical industry. To determine whether work of a particular calling is comprehended by the eligibility rules, it will be necessary to consider the range of tasks performed by employees in that calling. On the material that was drawn to our attention during the appeal we are not able to conclude that the callings intended to be included in the proposed 1991 award are not comprehended by the eligibility rules of ETU. [ibid., pp. 147-148]

Mr McDonald accepted the approach in the MTIA Case. However, he characterised the test in the MTIA Case as follows:

"It is submitted that on the basis of that reasoning the proper test for determining whether or not the process and production workers of Newtronics are peculiar to the electrical industry is whether, as a substantial element of their work, they are required to have electrical knowledge." [transcript p.6]

He sought to persuade us by reference to the evidence that the work of the employees concerned was not peculiar to the electrical industry but was process work. In particular, he relied on the evidence of Dr D.G. Holmes, Senior Lecturer in the Department of Electrical and Computer Systems Engineering, Monash University, that employees involved at Newtronics could not be regarded as being in the electrical industry because they required no electrical knowledge to perform their tasks. Moreover, he argued the evidence of Mr Laurita, Factory Manager at Newtronics who indicated that it might take only 30 minutes to show a person how to do a specific task. Mr McDonald concluded that in the face of this evidence Watson SDP was in error in concluding as he did at paragraph 99 of his decision:

"99. Nor am I satisfied that the absence of particular electrical skills of employees at Newtronics places them apart from the electrical industry, insofar as it incorporates the electronics industry. The employees do acquire, over time, skills associated with their work in the electronics industry. Production operators and testers are required to meet duties and responsibilities associated with their work in the electronics industry. Surface Mount Technology and Auto-insertion personnel are required to have at least three months previous experience in assembly and testing." [Print Q5822 p.18]

Rather, Mr McDonald argued that Watson SDP ought to have concluded that the work involved should be in fact characterised as process workers' work which required no electrical knowledge. Accordingly, it was submitted the employees' calling could not be regarded as peculiar to the electrical industry.

We do not think in the context of the present case that the characterisation by Mr McDonald of the test in the MTIA Case accurately states the position.

In the MTIA Case the Full Bench concluded a storeman working for an electrical contractor could be regarded as having a calling peculiar to the electrical industry because although he was a storeman the work involved handling electrical equipment required some understanding of the substantial element of its work. Accordingly, the question of knowledge in that case was an essential characteristic in making the calling peculiar to the electrical industry.

However, knowledge would not be the only test. For example, as was pointed out in the MTIA Case to determine the question of whether work of a peculiar calling is comprehended in the eligibility rules it is necessary to consider the range of tasks performed by employees in the calling.

Here, the evidence is that the employees are assembling printed circuit boards. This is the function which they undertake and it is conceded that the manufacturing of printed circuit boards is in the electrical industry. In his witness statement Mr Holmes indicated that "printed circuit board assemblies are the current technology for managing electricity in anything from handheld electronic equipment to mains connected electrical systems, and their use and application is extremely widespread". If printed circuit boards are the current technology for managing electricity then it is hard to comprehend that an employee whose task it is to assemble such a board is not to be characterised as an employee whose calling is peculiar to the electrical industry. Put another way, we do not think it matters that the work of an employee in assembling a printed circuit board can be characterised as process work (in the sense that it is repetitive and done without knowledge) where the task undertaken is the assembling of a component which is in itself peculiar to the electrical industry. Thus we consider that the employees of Newtronics are employees engaged in a calling which is peculiar to the electrical industry.

M. McDonald of Counsel on behalf of Newtronics Pty Ltd.

J. Bornstein of Counsel with J. Rainsford and W. Hayes on behalf of Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union

Enterprise bargaining - termination of bargaining period - appeal - full bench - appeal against decision refusing to terminate bargaining period - claimed employees not eligible to be members of union - whether employees in calling peculiar to the electrical industry - found employees engaged in assembling printed circuit boards - does not matter that the work in assembling circuit board can be characterised as process work - component is peculiar to the electrical industry - appeal dismissed.

Appeal by Newtronics Pty Ltd against a decision of Watson SDP [Print Q9063] on 4 September 1998.

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