Electrical Trades Union of Australia New South Wales Branch and Sydney West Area Health Service [2008] NSWIRComm 1137 (12 December 2008)

Last Updated: 16 January 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Electrical Trades Union of Australia New South Wales Branch and Sydney West Area Health Service [2008] NSWIRComm 1137



FILE NUMBER(S):
IRC 288

HEARING DATE(S):
30/07/2008, 1/08/2008, 13/08/2008

DATE OF JUDGMENT:
12 December 2008

PARTIES:
APPLICANT
Electrical Trades Union of Australia New South Wales Branch

RESPONDENT
Sydney West Area Health Service

CORAM:
Bishop C


CATCHWORDS: Award interpretation - Principles to be applied - Entitlement of electricians to an award allowance - Relevant definition clear and unambiguous - Natural and ordinary meaning of terms - Focus on examination of work carried out - Does work satisfy requirements of definition - Orders sought. HELD - Work carried out within scope of existing job description - Does not satisfy award definition - No entitlement to allowance - Application for orders declined.

LEGAL REPRESENTATIVES

APPLICANT
Mr S Robinson
Electrical Trades Union of Australia,
New South Wales Branch

RESPONDENT
Mr W McReynolds
Sydney West Area Health Service

CASES CITED:
Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigade Employees' Union [2008] NSWIRComm 158
Health Commission of New South Wales v Labor Council of New South Wales and ors, Re: Special skills & disability allowances for tradesmen employed in Public Hospitals (unreported, IRC 78/630, 22 February 1980)
Hospital Employees Engineers (State) Award Re: (unreported, IRC 81/596, 19 March 1982)
Re: Dispute Health Administration Corporation and Electrical Trades Union of Australia, New South Wales Branch, (unreported, IRC85/180, 3 April 1985)
Re: Dispute Health Administration Corporation and Electrical Trades Union of Australia, New South Wales Branch, (unreported, IRC86/598, 20 June 1986)

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

12 December 2008

Matter No IRC 288 of 2008

Electrical Trades Union of Australia New South Wales Branch and Sydney West Area Health Service (Nepean Hospital)

Notification under section 130 of a dispute between the Electrical Trades Union of Australia New South Wales Branch and Sydney West Area Health Service (Nepean Hospital) re unpaid allowance

DECISION

[2008] NSWIRComm 1137

1 This matter concerns a notification of dispute pursuant to s.130 of the Industrial Relations Act 1996, that was originally notified by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("the AMWU") with the Sydney West Area Health Service (Nepean Hospital).

2 The dispute was notified to the Industrial Registrar on the 3 March 2008 and is in the following terms:

"The question dispute or difficulty concerns the following industrial matter:

Failure to pay appropriate electrical allowance"

3 The matter was listed for compulsory conference before me on the 7 March 2008, at which time the Electrical Trades Union of Australia, New South Wales Branch ("the ETU") also appeared as an interested party. Conciliation took place and the parties were directed to confer with the matter set down for report back on the 20 March 2008.

4 At that report back the parties advised that there was no possibility of a settlement being reached. The Commission also formed the view that further conciliation would not resolve the dispute, given the respective positions of the parties. A Certificate of Attempted Conciliation pursuant to s. 135 (2) of the Act was therefore issued. On the 24 April 2008 directions were issued as to the filing and exchange of witness statements and the form of Orders sought by the AMWU. The matter was set down for site inspections and hearing on the 12 and 17 June 2008 respectively.

5 However those dates were subsequently vacated as a consequence of the filing by Sydney West Area Health Service ("SWAHS") on 21 May 2008, of a Notice of Motion challenging the constitutional coverage by the AMWU of Electrical Fitters and Electrical Mechanics employed under the Public Hospital Employees Skilled Trades (State) Award (Incorporating the Ambulance Service of NSW Skilled Trades) .

6 The Notice of Motion was listed for mention on the 29 May 2008. Conciliation took place and the parties were directed to confer with the matter set down for further mention on the 17 June 2008. Further discussions were to be held between the AMWU and the ETU and the employees concerned. However as the underlying issue leading to the dispute notification needed to be addressed, regardless of which Union ultimately was to have coverage of the employees in question, the matter was set down for site inspections and hearing on the 30 July and 1 August 2008 respectively.

7 The matter was also set down for report back on the 3 July 2007 at which time the Commission was advised that the employees had now joined the ETU and that the ETU now had carriage of the matter, the AMWU having withdrawn from proceedings. Witness statements had been filed by the AMWU and the ETU advised that they would be relying on those witness statements, no further statements would be filed, only proposed Orders as directed.

8 An inspection of relevant sections of Nepean Hospital took place on the 30 July 2008. The hearing was conducted over the 1 and 13 August 2008.

9 Mr S Robinson appeared on behalf of the ETU and called the following witnesses who had both filed witness statements:

Steve Hollis - Maintenance Electrician Nepean Hospital (Exhibit 9),

Greg Walker - Maintenance Electrician Nepean Hospital (Exhibit 14).

10 Mr W McReynolds appeared on behalf of SWAHS and called the following witnesses who had both filed witness statements:

Ronald Dean - Assistant Engineer Maintenance, Nepean Hospital

(Exhibit 13),

Andrew Skinner - Manager, Building Service and Operations Nepean

Hospital, (Exhibit 15).

11 The ETU sought the following orders (Exhibit 1):
1. The Sydney West Area Health Service (SWAHS) recognizes the provisions in the Public Health Service Employees Skilled Trades (State) Award (incorporating the Ambulance Service of NSW Skilled Trades), "the Award".
2. The SWAHS accept the provisions within the Award specifically in this case Clause 7(x) - Additional Wage Rates - Electricians in Charge of Generating Plant 75 Kilowatts or more.
3. The Employees to whom these provisions apply are electricians as identified in Clause 2 - Definitions.
4. The Allowance payable for the performance of this kind of work is outlined in Table 2 of the said Award.
5. The SWAHS pay the above Allowance to any and all Electricians who perform this work in accordance with the Award provisions.
6. That SWAHS pay this Allowance from the first full pay period to commence on and from the date of this order.

Background and Chronology - based on the evidence filed and tendered and the

transcript.

12 Nepean Hospital employs Trades Staff, including Painters, Fitters and Machinists, Refrigeration Mechanics, Electrical Fitters and Mechanics, Plumbers, Carpentry and Ground Maintenance staff, pursuant to the provisions of the Public Health Service Employees Skilled Trades (State) Award (Incorporating the Ambulance Service of NSW Skilled Trades).

13 Clause 2, Definitions, of the Award, (Exhibit 4), provides as follows:

"Electrician in Charge of Generating Plant" means an electrician who has complete charge of the whole plant including the prime mover and generator and is required to run the plant and maintain and attend to the installation generally.

14 Clause 7 (x), Additional Wage Rates, provides as follows:

In addition to the ordinary rate paid to an Electrical Tradesperson (Electrical Fitter/Mechanic and Refrigeration and/or Air-Conditioning Mechanic or Fitter), the following types of Electrical Tradespersons (see Definitions) shall be paid the weekly amounts (or pro rata hourly for Part-time/Casual) set out at Table 2 (Schedule B) for all purposes:

Electrical Fitter & Assistant to Chief Engineer - Sydney Hospital;

Electrical Fitter & Assistant to Chief Engineer - Other Hospitals;

Electrician in Charge of Generating Plant less than 75 kilowatts;

Electrician in Charge of Generating Plant 75 kilowatts or more;

Plant Electrician.

15 Table 2, Additional and Special Rates/Allowances, 7(x), of the Award, provides for a weekly amount of $54.62 to be paid to an "Electrician in Charge of Generating Plant 75 kilowatts or more" , (as from 1/01/2008).

16 The provisions in the Award (as set out above) concerning "Electrician in Charge of Generating Plant" originated in the Electricians, &c. (State) Award (published 14 March 2008 (365 IG 181), (Exhibit 5) which contains an identical definition (Clause 2.1.9). However, rather than a weekly allowance being paid, there are two specific classifications in Part B, Table 1 - Wage Rates, covering "Electrician in charge of plant with a capacity of less than 75 kw" and "Electrician in charge of plant with a capacity of 75 kw or more".

17 Provisions for an "Electrician in Charge of Generating Plant" have been in the Electricians &c. (State) Award since at least 1919 (see Clause 7, 19 IG 72 - Exhibit 7.16).

18 The first Public Hospital Employees (Skilled Tradesmen) (State) Award (219 IG 1861) made in 1980, replicated the definitions for all classifications of tradesmen that appeared in the various individual parent craft awards (Exhibit 7.15) including "Electrician in Charge of Generating Plant".

19 The Job Description for the position of Electrician at Nepean Hospital provides for the following :

Summary of Duties

To undertake required corrective and preventative maintenance to Electrical services, Plant and equipment and other general electrical appliances and systems, to ensure that all such equipment and systems are kept in optimum operational condition.

Undertake necessary works associated with new electrical installations and extensions to existing services.

Statement of Duties (listing some 14 items)

1.1 Undertake necessary corrective maintenance of electrical services, plant and equipment within the scope of the trade as required.

1.2 Undertake preventative maintenance tasks on the electrical services, Plant and equipment and provide relevant feedback information for entry into the maintenance and management information system.

20 The Award Classification is noted as "Electrical Fitter Mechanic" and is responsible to the Leading Hand Electrician.

21 The Generation Plant at Nepean Hospital has two generators each with a capacity of more than 75 Kilowatts. The generating plant is used for emergency generation only and is not in continual use. The machinery is extremely important to the Hospital to ensure that services are not compromised from the loss of electrical power, whatever the cause might be of such loss.

22 The emergency power generation is automatic. A Programmable Logic Controller (PLC) controls the system. The generator starts automatically once a grids mains failure or a local system failure is detected. Both generators will start and the load will be automatically distributed across both generators. If the demand does not require both generators, the system will reduce one generator to idle mode. Once the power has been restored the emergency generator will automatically shutdown. If any problems associated with the PLC arise the Contractor is called.

23 An important component of the Hospital's Preventative Maintenance Programme is the emergency generation. This programme produces work tasks in accordance with the approved programme by a computer-generated system Logicam.

24 The Programme provides for daily maintenance (a visual inspection on a walk around), weekly testing of the equipment, more sophisticated monthly testing and quarterly inspection and major servicing of the entire plant. The latter being carried out by the specified Contractor.

25 Advance Power Pty Ltd is the specified Contractor which attends Nepean Hospital 4 times per year, carrying out 3, three monthly services and 1 major annual service. These services are carried out during normal working hours. Matters attended to in both the minor and major services are listed in Exhibit 15 - Annexure 1.

26 It is part of the Preventative Maintenance Programme to ensure that a test to all areas of the emergency power system is carried out at least once a year. A schedule has been developed for departments to be tested and dates for testing. This involves testing of a different department/area each week. The weekly test involves the simulation of a particular area losing power. This occurs as a result of an Electrician going to a distribution board and pulling a fuse. This sends a signal to the emergency generator to start. A second Electrician in the generation plant observes the start-up process ensuring that the emergency power is being generated within the correct parameters. When power is restored (by replacement of the fuse), the shutdown of the generator is observed and monitored by the Electrician. The operation of the system is automatic. The role of the Electricians is to simulate a power failure and observe the operation of the emergency generating plant and associated switchgear. The tests are conducted early in the morning (7.15 a.m.) and appropriate supervising, administration and security personnel are advised of the testing.

27 A monthly load test is also conducted on the emergency generators. An Electrician will conduct the test by introducing "dummy" loads onto the system and observing the system in the management of the introduced loads. Part of the Planned Preventative Maintenance system is to also check the calibration of the fuel tank level gauge on a quarterly basis. However it is the Contractor's responsibility to check and replace oil and coolant, change filters, split hosts etc., and carry out any major repairs or overhauls of the generators, prime movers or major control of the equipment.

28 In December 2007, the Electricians at Nepean Hospital wrote to Andrew Skinner, Chief Engineer, as follows:

We are writing to inform you we are requesting to be paid "electrician in charge of generator plant allowance, in accordance with the "Hospitals Skill Trades Award" [section 2 definitions, table 2 subclause 7x].

The Licensed Electricians in the workshop are required and complete the following duties on the Hospitals Diesel Generator Plant on regular basis in accordance with AS3009:1998 Electrical installations - Emergency power supplies in hospitals.

· Weekly Load and switch/sensor Testing of Scheduled Areas for response to power failure
· Maintenance of batteries and battery booster charger systems for diesel generator
· Maintenance and repair electrical switchgear associated in operation of diesel generator Electrical Supply
· Dummy Load Bank Testing on generator

29 The letter followed an informal meeting between the parties on the issues raised, on 6 December 2007.

30 SWAHS rejected the claim for the allowance as sought by the Electricians, resulting in the dispute notification as filed and the conciliation proceedings referred to above.

31 SWAHS essentially maintained that the overall responsibility for the maintenance of the generating plant was with the Contractor. Electricians were only responsible for preventative maintenance components of the generator and any such work was within the their normal duties in maintaining electrical plant services and equipment. They had no responsibility in the allocation of work tasks or repair work in relation to the generator and no responsibility over the prime mover. The lines of reporting and responsibility flowed upward from the Electricians, to the Leading Hand Electrician, to the Assistant Engineer, to the Engineer and then to the Manager, Building Service and Operations.

32 Steve Hollis, Maintenance Electrician, has been with SWAHS (in its various forms) and located at Nepean Hospital for approximately 10 years. He is paid as a Level 2 Electrical Tradesperson pursuant to the Award. He was formerly a member of the AMWU and is now a member of the ETU. For the duration of his employment he has been the Site Delegate for all Trades at the Hospital.

33 Greg Walker, Maintenance Electrician, was also formerly a member of the AMWU and is now a member of the ETU. He commenced employment with SWAHS at the Nepean Hospital in November 2007. Prior to this he was employed by the Sydney South West Area Health Service (SSWAHS) at Liverpool Hospital as a Level 1 Electrical Tradesperson. He had also worked at the Springwood Hospital.

34 Ronald Dean, Assistant Engineer Maintenance, has been employed with the SWAHS for 18 years. He is also a licensed Electrician. He has some 20 Trades Staff under his direct responsibility.

35 Andrew Skinner, has been Manager Building Service and Operations at Nepean Hospital since 2001. He has tertiary qualifications in Facilities Management. He also has an engineering and trades background (with various relevant qualifications) and was Hospital Engineer at Fairfield Hospital before commencing his current position.

The Site Inspection

36 An inspection of the generator plant and other relevant areas at Nepean Hospital was conducted on 30 July 2008. A standard weekly area generator test for essential supply (in the kitchen area) was also observed in all of its various stages. Some 8 photographs of relevant plant and equipment that were viewed on the Inspection were also subsequently tendered (Exhibits 8a to 8j).

37 Both the ETU and the SWAHS described the various locations and explained the procedures being undertaken and had the opportunity to draw the Commission's attention to any aspects of particular relevance to their respective cases. The four witnesses were also present.

Evidence - ETU

38 Mr Hollis deposed that the issue of the allowance in dispute first came to his attention after Greg Walker commenced at Nepean Hospital and asked why they didn't get the allowance as he had received it when he worked at Liverpool Hospital. Mr Walker showed him the particular Award provision and after reading it Mr Hollis was satisfied that that the work he did satisfied the relevant definition and on that basis he was entitled to the allowance.

39 He also consulted the Leading Hand, Alan Grice, who agreed that their work satisfied the definition. The three men then jointly drew the matter to the attention of Mr Skinner, their direct supervisor by way of the letter referred to above.

40 Mr Hollis deposed that it was not in dispute that they were in charge of the electrical generator whilst they were employed on site, only whether or not they were in charge of the prime mover and thus could be said to be in charge of the generator plant.

41 He further deposed that as a Maintenance Electrician he was required to service and maintain the electrical generator and all ancillary machinery attached to it. He also maintained the control systems of the generator so as to control the automatic starts on the battery start systems. He went on to describe a routine maintenance task with respect to the whole generating plant, including the prime mover, which involved the following:
a. We first start up the prime mover,
b. We then run the prime mover up to speed,
c. We then put the load on (resistive load bank);
d. We introduce the entire load in three stages until we have 60-80% load on the prime mover.

42 Mr Hollis deposed that this task was designed to warm the machine up, introduce load and see if the prime mover was able to accept the load and was working correctly. On this basis he said that clearly they were responsible for, or in charge of, the prime mover to ensure that it was capable of withstanding the necessary load, were an emergency to arise and the generating plant be required for use.

43 Mr Hollis went on to describe the weekly area test and the involvement of the Electricians in that test including the requirement to go back to the diesel plant room to check the prime mover and ensure that everything was okay. This included checking oil pressure, ensuring that the prime mover had actually run when the fuse was applied and they also did a visual of the batteries to ensure that everything was back on line.

44 Mr Hollis also maintained that another example of his responsibility for the generating plant was his responsibility for after hours breakdown where he might be called outside of hours because the prime mover had started for no apparent reason. There was an alarm system installed at the generating plant which let the Engineer know when the diesel was running.

45 He maintained that whilst it was true that Advance Power was responsible for the major maintenance of the prime mover, it could not be said that they were in charge of the prime mover on a day-to-day basis. The fact remained that Electrical Maintenance employees were responsible for the day-to-day running of the prime mover and generating equipment and they were the ones who were responsible for ensuring that the prime mover and generator were working and up to standard.

46 Mr Hollis had also prepared a document concerning the breakdown of hours spent on working on the generator plant, comparing the hours worked by Advance Power, Maintenance Fitters and the Maintenance Electricians. (Exhibit 9-F).

47 There was lengthy cross-examination of Mr Hollis which I do not propose to deal with in extensive detail only going to those issues of particular relevance to my consideration of this matter.

48 Mr Hollis acknowledged that, with the exception of the area tests now being done on a regular and systematic weekly basis, his duties had not changed over the 10 years of his employment as an Electrician and that in relation to his role, he took direction from a superior and was required to carry out that direction.

49 He also acknowledged that he had been the Union Delegate for most of the time that he had been employed and that at times he had been approached by other Tradesmen from other craft groups, as well as his own group, for assistance in the interpretation of the Award and its conditions. He agreed he had a reasonable understanding of the conditions of the Award and notwithstanding that, he had only realised since December of 2007 that he had an entitlement to this allowance. His response was that he was still learning the award after 10 years. It was Greg Walker, the new Electrician, who drew his attention to the provision.

50 Mr Hollis indicated that he relied on the Australian/New Zealand Standards (Exhibit 10) in relation to the payment of that the allowance as that document outlined the tasks and minimum requirements for running a diesel generator in a hospital. He did not agree that this was incorporated in his normal everyday duties which were detailed in his position description.

51 Whilst he acknowledged that the Electricians' role in conducting preventative maintenance on the generator was to report any faults detected or observed, with responsibility being on either the Assistant Engineer or the Engineer to approve repairs which would be done by the Contractor, he maintained that that would only happen if it was a major repair and they were able to do minor repairs such as replacing a burnt out wire or replacing a light globe.

52 He agreed that anything above minor work would need approval to conduct that repair and that he did not have the authority to either call the Contractor or conduct repairs or undertake routine services. He had to seek approval above a certain level but probably differed with the SWAHS as to where that level would be drawn.

53 He maintained that there was a requirement to be involved in supervising the Contractor because they been asked to assist in some small or large form on some occasions, for example because it might be a new employee of the Contractor. He agreed that that direction usually came from the Assistant Engineer.

54 Mr Hollis acknowledged the involvement of the Fitters in working in the generation plant and the checks they did relating to the prime mover and its other component parts.

55 Mr Hollis was also challenged on the figures he had provided in the table at Exhibit 9 - f and acknowledged that in fact the Fitters provided 52 hours of preventative maintenance per year and also provided after hours or emergency services in the generating plant.

56 When the Electricians and the Fitters were working on the generating plant they worked as a team and he acknowledged it was the manager's responsibility to ensure that the work was completed in a satisfactory manner.

57 However he continued to maintain his position that the Electricians were in complete charge of the generating plant. He had never worked on the generator because there had never been a fault on that particular part of the unit and if there was a fault it would be more than likely to be Electricians who would be required to work on it. He believed he had the appropriate technical skills to work on a major breakdown of the generator and get it up and running if need be. However they did not have the equipment there to do it.

58 Mr Hollis was also asked a number of questions about the PLC and whether he had operated or maintained this piece of machinery. He indicated that there had been an issue when they had to override the PLC, but was essentially unable to give details of maintaining it in a breakdown situation or of effecting repairs. He agreed the program was changed by the manufacturer, being the Contractor, and ultimately agreed he did not either pull the PLC down or change the programming.

59 In relation to the prime mover, Mr Hollis agreed that if there was a problem with the prime mover not taking the load he would not touch the prime mover. However he still maintained he was in charge of the whole plant because when running the weekly test it was not being remotely controlled from anywhere else. He had been asked by his organisation to run that generator or perform certain tasks and if he did and found a problem he either fixed it or reported it. He agreed that those responsibilities were in accordance with his job description.

60 If he observed a problem he would report it and he agreed that it would be Engineering Services who would take responsibility for the problem.

61 Mr Hollis also acknowledged that it was rare for electricians to be called in to repair and maintain the generator because it had failed to start and that this was as a result of the preventative maintenance program that was run. He agreed that the Engineering staff had charge of the overall preventative maintenance program.

62 He also acknowledged that there was an automatic operation for failures of supply and that the generator then shuts down automatically when power has been restored or the fault corrected.

63 He acknowledged that when he was required to be called in to repair a fault in the generation plant he was there to find out what caused the fault that set the generation off in the first place and that was under the direction of the Engineer and Assistant Engineer.

64 Mr Hollis was challenged on the number of hours that the Electricians maintained they worked on an annual basis in relation to electrical generation and whether that was a sufficient basis, being only a component of their total duties, to say that this was complete charge of a generation plant. Mr Hollis did not agree with this proposition.

65 He explained how he had arrived at the figures he had provided for Advance Power which were based on log books that were in the diesel house in a cupboard. He had not previously seen quarterly job reports as provided by Advance Power to the Engineering staff (Exhibit 7.10) but disputed their accuracy and completeness.

66 Mr Hollis did not deny that during his employment at Nepean Hospital he had had a number of disputes with the Area Health Service relating to his Award classification and wages. Those matters had been brought to the Commission on a number of occasions commencing in 1999, with some 12 Commission appearances over the next five or six years but with a negative outcome resulting.

67 His view of the role played by the Engineer and the Assistant Engineer in the maintenance of the generation plant was as an administrative role, there was no hands on. They directed people to do particular tasks and they were done and they would monitor the tasks through administration. If there was an issue with the performance or completion of a task his Leading Hand would take it up with him.

68 During the weekly area testing there was no supervisor or Assistant Engineer present.

69 In relation to the PLC he agreed it was part of the overall package and any fault finding process that had to be conducted on the generator would have to involve testing the PLC and may involve testing of other bits of ancillary equipment.

70 Mr Hollis also indicated that the Contractor only ran dummy loads during their period runs of the generator and at no stage did the Contractor or anyone else, other than Electricians, run the generator with hospital loads.

71 Mr Hollis indicated that they did not go into the generating room at any other time during the week, apart from the work involved in the weekly area test or unless there was an after hours breakdown or something came up on the alarm and they had an outage and they had to go down and check. The plant was locked all the time and there was no need for them to go into that room other than for those maintenance checks.

72 Mr Walker deposed in identical terms as Mr Hollis as to the nature of the duties and responsibilities he carried out at Nepean Hospital in relation to the generator, prime mover and generator plant.

73 He deposed that whilst employed as a Maintenance Electrician at Liverpool Hospital he had responsibility, as part of his duties, for the generating plant and equipment. The roles and responsibilities at Liverpool were exactly the same as the roles he carried out at Nepean Hospital. At Liverpool Hospital there were also a number of contractors engaged to perform work on the prime mover. However the fact that contractors worked on the prime mover at Liverpool was not seen as being enough, on its own, to stop Liverpool making the necessary payment of the allowance in accordance with the Award. The work at Liverpool was quite structured, they were tested on their competence is and would regularly meet with the engineers.

74 He did not provide a job description for the position at Liverpool Hospital.

75 He deposed that the work on the plant and equipment at the generator was required to be done. If the Maintenance Electricians did not maintain the plant and equipment, then the generator would simply fail and no one would take responsibility for the plant and equipment.

76 He further deposed that there was no major difference between the work he carried out at Liverpool Hospital and that performed currently at Nepean Hospital save for the fact that he was paid the allowance while working at Liverpool Hospital.

77 Mr Walker gave further evidence that at Liverpool Hospital there was particular training and competency requirements to qualify them to take charge and run the generator. On top of that Liverpool produced electricity at 11,000 volts and to work in that sort of area they needed to be trained in the high voltage switching arrangements with Integral Energy because they interfaced with their transformers on site. That extra knowledge wasn't required at Nepean because of lower power generation.

78 If electrical contractors came on site and carried out any work that required turning off the main switch, (e.g. to put a power point in where they had to put a circuit breaker on a switchboard) that would signal that there was no power and start their generator and power supply. It was therefore critical that when any contractors came in and turned off the power that the generator was isolated and controlled. He had been involved a number of times in turning off the generator and making it safe.

79 There was also extensive cross examination of Mr Walker. Only relevant issues will be referred to.

80 Mr Walker acknowledged that on commencing at Nepean Hospital he would have sighted and signed a job description similar to that of Mr Hollis. He also acknowledged the terminology used in the job description in describing the duties required to be performed.

81 He agreed that he reported to his Leading Hand, who in turn reported to the Engineer. He had formed the view that the Electricians satisfied the definition in the Award and should be paid the allowance on the basis that "we take direction and we give charge to the generator and procedures".

82 He acknowledged he took direction from above to perform tasks on the generation plant. That was how he came to the conclusion that they satisfied the definition that they were in charge of "because there's no - whilst there's direction there is no charge or control of the generator set from a functional working point of view as electrician".

83 He definitely considered that he was in complete charge of the whole plant including the prime mover and was required to run and maintain the installation generally. "When the unit got turned on, functioning as an Electrician on that site, it was the Electricians that would charge the unit".

84 However he agreed that it was a very involved bit of equipment and he was not wholly and solely the person responsible for it. It was a team effort across the Electricians, all Contractors and all Engineering Staff.

85 He did not agree that the reason he was paid the allowance at Liverpool Hospital was because of some "local arrangement". When he commenced work at Liverpool Hospital other electricians were already receiving the allowance.

86 The basic equipment in the two hospitals was the same, but there was a difference of generating power on the side of the transformer. Liverpool was a bigger hospital therefore it was designed differently, they had individual power to each place rather than what happened at Nepean. They had two units side-by-side that would work together to accomplish a load, instead of having a really big one. Liverpool was probably growing and they'd added ones on and some buildings had their own stand alone generator that were obviously a lot less than 75 kws but that was part of their servicing as well.

87 Although he had not provided any supporting documentation relating to the job description at Liverpool he considered it was substantiated that they had similar duties, It was a State hospital and a State award they worked under. He received the same directions, and he had a Leading Hand who reported to the Engineer.

88 He said that at Liverpool they did similar area tests on a weekly, monthly and six monthly basis. Generally the system that Liverpool would operate, was that a floor or building would be more appropriate to test on, rather than to individual boards because there were just too many individual boards.

89 Mr Walker acknowledged that at Liverpool Hospital he did not have any approval or authority to either undertake works or expend financial resources on the generating plant. Those responsibilities lay respectively with the Leading Hand, the Assistant Engineers the Engineers and the Purchasing Officer.

90 In spite of this, he considered that he was in complete charge of the generation plant because he had to turn the unit on and run the unit to the Hospital or to a dummy load. It was the same system at Liverpool as at Nepean in that a power failure was simulated and the system started automatically.

91 Although he took directions from his Leading Hand at Liverpool, and took directions from his Leading Hand at Nepean, to run regular tests on the generator, he considered he was in complete charge of the whole plant including the generator and prime mover because "I can't see how you can run the generator on an automated system, prompt it to run on an automated system to maintain the system and not be in charge of that unit when you turn it on".

92 The Engineers generated the paperwork involved in the weekly testing and informed the NUM in the particular area. Mr Walker acknowledged that when he identified a problem with the generator he reported that problem to management and they made the decision as to what was to be done.

93 He also acknowledged that the generator needed servicing and maintaining from specialised people and that he didn't have the skills or knowledge to overhaul the generator, however he considered he that he did not need those skills.

94 An example was given of when the Contractor came in to do a repair on number 2 generator and the next day the Electricians noticed there was a problem about a couple of wires. They reported that. Mr Walker described what then took place to identify and resolve the problem but acknowledged that Mr Dean, the Assistant Engineer, came down and looked at it and authorised the Electricians to make the repair.

95 Mr Walker was also taken to the same calculations on hours spent in relation to the generation plant and also acknowledged total hours spent per year on maintenance by the Fitters and their role in the plant.

96 In relation to the prime mover he considered that working on the prime mover was part of the Advance Power contract.

97 He was extensively tested on his involvement in relation to the prime mover and ultimately agreed that his only involvement was to turn off the control circuit. He continued to maintain that he was in charge of the whole plant including the prime mover when it was starting and when running.

98 He considered that if there was a problem with the generator, the party to repair it would be whoever was most efficient, Advance Power or another contractor, that would be for the Hospital to decide. When a contractor was on-site he did not did not supervise them but they did work with them. To his knowledge there was no supervision of the contractors.

99 Mr Walker was also asked questions about callouts in relation to the generator but had no detailed knowledge of what occurred with other Electricians. He knew his Leading Hand had been called in because the generator did not start but that was as far as he could take it.

100 Mr Walker had also given evidence about the work carried out by Advance Power and subject to cross examination on that evidence. He maintained that the figure of 4 hours per year was based on the actual run time of the generator rather than being just the time they spent in the generating plant on each of their visits. He acknowledged they spent additional time doing other tasks in their maintenance and service work but he generally still did not consider that Advance Power carried out the hours that may have appeared on the docket sheets.

101 In looking at the weekly tests undertaken by the Electricians, Mr Walker agreed that about half an hour was involved in the generating plant actually running.

102 Whilst he considered Advance Power was responsible for maintenance of the prime mover he did not consider that they were in charge of it on a day-to-day basis. That was the operator, the Electrician who worked within the workshop whether the Leading Hand delegated it to himself or delegated that to either Mr Walker or Mr Hollis. On an everyday, normal basis they reported matters to "supervision" after identifying irregularities.

103 He also indicated that the generator and prime mover were integrated and neither could be run in exclusion of the other.

104 The issue of relevant competencies had not arisen because Nepean didn't pay the allowance.

Evidence - SWAHS

105 Both Mr Skinner and Mr Dean deposed in some detail as to the Preventative Maintenance Program at Nepean Hospital and the role of the Maintenance Electricians.

106 Mr Skinner deposed that there were direct reporting lines and lines of responsibility from senior management to his position, to the Assistant Engineer to the Leading Hand and then to the Tradesperson.

107 In the majority of occasions, work tasks were allocated either by a Request for Work or from the Preventative Maintenance Program. The Assistant Engineer prioritised the Request for Work and allocated the task to the appropriate Trade within the Preventative Maintenance schedule. Work tasks were allocated to the various Tradespersons by the appropriate Leading Hand, and were allocated according to priority of the task. The Assistant Engineer reported directly to Mr Skinner as to any problems in the tasks allocated, including the need for additional allocation of staff and financial resources, with the decision to make any such allocation remaining with Mr Skinner.

108 The Preventative Maintenance Program had been developed following advice from the Contractor (being experts in the field) and in consultation with the Leading Hand Electrician.

109 The Electricians were responsible for the preventative maintenance components of the generator. Any defects or problems identified in this process were reported through the Leading Hand Electrician to the Assistant Engineer who, if necessary, reported to Mr Skinner. In most cases the Assistant Engineer, with Mr Skinner's authority, would approve the repair and allocate the work to the appropriate Trade for minor repairs or to the Contractor for more complicated or major repairs.

110 It was part of the Electricians' normal duties to conduct regular tests on the generator as part of the Hospital's Preventative Maintenance Program. If they detected any faults during that testing, or during other work that might be required, in relation to the generation plant, they were to report in first instance to the Assistant Engineer. The Assistant Engineer, if necessary, would consult with Mr Skinner to advise of a major fault, but on most occasions would approve any minor repair work to be completed. That might be by way of a direction to the Electrician and/or other Trades staff to complete the work or might involve the calling of the Contractor.

111 However Mr Skinner said that there were components, the electrical side of which, was the Electricians' responsibility. They would be authorised to do certain work at certain times but in consultation with the Assistant Engineer.

112 The Assistant Engineer, through to Mr Skinner, was responsible for monitoring the work of the Electricians with the Leading Hand, ensuring they carried out their work, and reporting to the Assistant Engineer. They had daily contact and bi-weekly meetings .

113 Mr Skinner deposed that the Electricians were not required to undertake most repairs involving the generating plant as they did not have specialised skills and equipment. They did not have any responsibility over the prime mover. Nor did they have any responsibility in the allocation of work tasks and repair works in relation to the generator. That remained the responsibility of Mr Skinner's position which was delegated to the Assistant Engineer and the Contractor. Further the Electrical staff were not responsible for the supervision of other Trades who may be required to work on the generator plant or the Contractor. They had been advised that they must report all faults found resulting from the routine tests which were part of the preventative maintenance. Mr Skinner, as Manager of the service, had the responsibility of notifying senior management of any potential problems or defects with the emergency generation.

114 Mr Skinner also deposed that the Electricians did not have any delegated authority to call the Contractor or undertake non-routine repairs without the approval of the Assistant Engineer. Whilst the Electrician may be required to provide assistance to the Contractor, they did not have any authority or direction over the Contractor or the Contractor's employees.

115 Mr Skinner did not consider that the Electricians had complete charge of the generator plant. They did not perform any duties on the prime mover, with the exception that, during testing, they observed that it started correctly. If it did not start or operate correctly it was reported to the Assistant Engineer who would decide, in consultation with Mr Skinner, the appropriate action to be taken. They did not have complete charge of the generator either, as again, any faults detected were reported up.

116 Mr Skinner's interpretation of the word "charge" meant in "total control or in control of". He assumed that there would be circumstances where they were in charge of parts of it, and if they were, it would only be the electrical plant.

117 Mr Skinner also indicated that other Tradespersons, and in particular the Mechanical Fitter, had some duties associated with the generator plant with these duties either carried out, as directed by the Assistant Engineer for non-routine work, or, in accordance with the preventative maintenance program.

118 He refuted the Electrician's claim that they took responsibility for the prime mover and indicated that this was false. When the system detected that emergency generation was required the prime mover started automatically. The role of the Electricians when conducting routine testing was to observe this start, and, if necessary, report any faults in that starting process.

119 Mr Skinner pointed out that in a genuine emergency no staff member was normally present. If an Electrician was "called in", their role was to ascertain the cause of the fault and ensure that the generators were supplying power correctly, if they weren't, they were required to advise the appropriate person accordingly.

120 Mr Skinner deposed that the overall responsibility of the Emergency Generation Plant remained with his position. It was his responsibility to report any problems in the emergency generation to Senior Management to minimise any possible impact on patient care. The reporting lines of the Electricians was well defined and known to them. The current Assistant Engineer also had an electrical trade background.

121 Mr Skinner outlined the actions he had taken upon receiving the request for payment of the allowance from the Electricians. He had sought further information from them and also received representation from their Union Officials, but remained of the view that the Electricians were not entitled to receive this payment. To confirm his view, and following the advice of the Human Resources Department, he contacted the Engineering Departments of other metropolitan hospitals and hospitals of a similar size to Nepean to inquire whether the allowance was paid in these facilities. Of the hospitals contacted, only Liverpool Hospital paid the allowance and he was advised that prior management had approved that payment.

122 He had annexed to his witness statement (Exhibit 15 - Annexure 6) a copy of the memorandum he had sent to Mr McReynolds detailing the results of his inquiries. The memo detailed some nine metropolitan and one non- metropolitan hospital, the name of the person contacted and their position, together with their response received. Within the Liverpool cluster only Liverpool Hospital indicated it paid the allowance.

123 Mr Skinner had not contacted Manly, Sutherland or Bankstown Hospitals, (which were nominated as paying the allowance in the ETU's survey). Without knowing the size of the Hospitals in question he couldn't comment, except that Manly was a smaller Hospital.

124 It was Mr Skinner's view that the allowance would only be payable to an electrician, for example, found in a smaller country hospital where there was a generator fitted and that electrician did not have the technical support of an Engineer or Assistant Engineer. Such electrician might also report to a senior who did not have either technical knowledge or electrical background. That person would therefore be required to carry out functions in the overall operation of the generator plant which were similar to the functions, that at Nepean, he and the Assistant Engineer undertook.

125 Mr Skinner acknowledged that he was not a licensed Electrician and did not participate in the day to day running of the generator. His role was that of overall responsibility.

126 In relation to the Contactor, they were not contacted as the first port of call for repairs or testing, as that was not part of their contract. He agreed that the Electricians were the first port of call to investigate any disruptions with respect to the generator. When the Contractors were on site the Trades staff were obviously always involved with them

127 Mr Dean also deposed as to the lines of reporting and responsibility, general organisation of the Trades area and the Preventative Maintenance Program, in similar detail as that deposed by Mr Skinner.

128 The Preventative Maintenance Program was developed over time and in consultation with the Leading Hands responsible for each Trade. It was a computer based system called Logicam. Each week it generated the maintenance program for the following week. The schedules were then provided to the Leading Hands who then assumed responsibility in completing the tasks allocated.

129 Mr Dean was responsible for the supervision of the Preventative Maintenance Program. He was also responsible for monitoring the work performance of the Electricians.

130 Mr Dean deposed that any changes in the program must be authorised and approved by him. If necessary he would take direction from and/or consult with the Engineer. Once tasks were allocated, neither the Leading Hands nor Tradespersons had the authority to vary the work tasks without first consulting with him. Once the work tasks had been allocated it was part of a Tradesperson's duty to document the task undertaken, time spent and materials used, with this information entered into the Logicam system and used to ensure that the allocated tasks had been completed appropriately. It also allowed for the information to be used in the monitoring and service history of any particular piece of equipment or machinery. The responsibility of monitoring the work performance of the Tradesperson was the responsibility of the Leading Hand of the particular Trade with any difficulties experienced or indicated being referred to Mr Dean.

131 Mr Dean was aware that the Electricians were claiming the allowance in question, and as their immediate supervisor and being a licensed Electrician himself, he considered that they were not in complete charge as they took direction from him in the performance of their normal duties including tasks associated with the generating plant. He believed that their duties in the generating plant were part of their normal duties in maintaining electrical services, plant and equipment. They did not have any responsibility for the prime mover. This remained with the Contractor, Advance Power, and for minor repairs, the Fitters. The Electricians had no charge or responsibilities over the Contractors when the were on site. They had no responsibility for the Fitters if they were working in the generating plant. They worked hand in hand with the Fitters if need be.

132 Mr Dean went on to detail the steps involved in the weekly testing process. There was a pre-determined schedule with a list compiled over the years in conjunction with the leading Hand and with a record kept of the areas tested. It took them over 12 months to go to every area in the Hospital. It was his responsibility to advise the area/departmental manager (which he did by email), that testing in accordance with the schedule was to be undertaken in a given area and to ensure that the tests did not interfere with patient service delivery. The Electricians did not have any responsibility in this, other than to advise him of the next area on the test schedule. Their role was to conduct the tests and report back to him should there be any problems.

133 The Leading Hand would basically pick up the paperwork for the test to be undertaken and the Electricians would carry it out.

134 He deposed that the Electricians did not have any responsibility or authority to cancel a test or to test a different area, that responsibility remained with Mr Dean. If the situation arose, due to other hospital priorities, he might cancel a scheduled test and redirect the Electrician to perform other work as necessary.

135 Mr Dean also detailed the work and responsibility carried out by the Contractor in the servicing of the generation plant. They also carried out any major repairs or overhauls of the generators, prime movers or major control equipment. The Electricians were not required to remove the cover from the generator or carry out any work on the prime mover unless of a very minor nature.

136 The generator functioned automatically and the Electricians did not run the machinery. A Programmable Logic Controller (PLC) controlled the system including running the second generator if required. For any problems associated with the PLC, the Contractor was called, and, as far as he was aware, the electricians did not have the necessary skills or equipment to work on the PLC program.

137 Mr Dean had also considered the figures as to maintenance hours worked on the generating plant as detailed in the affidavits of Mr Hollis and Mr Walker. He did not agree with those figures. He said that the service records would confirm that Advance Power spends over four hours on site, each visit.

138 Advance Power looked at the complete system. They manually started the generator rather than simulating a power failure. It was a simple matter of turning the key on the switchboard. They may spend all day changing oil, oil filters, conducting load tests, checking and changing coolant and overall the major service of the prime mover and ensuring that the system works as designed. He annexed copies of past quarterly service reports from Advance Power which he said clearly indicated the detail of the service provided. He also attached, as a comparison, the two most recent weekly preventative maintenance job dockets showing the required functions required to be completed by the Electricians.

139 Mr Dean also considered that the Electricians were responsible on a weekly basis to carry out their normal duties in the preventative maintenance program relating to the emergency generator with any problems identified with this program reported back to him. He then made the decision as to the next action to be taken, whether it was to be fixed or not fixed. The Electrician and even the Leading Hand must first obtain his approval to perform any task associated with major electrical work to be performed throughout the Hospital, including any work associated with emergency generation.

140 Mr Dean deposed that the Electricians took responsibility, under his direction, for conducting the weekly and monthly testing of the generator. They did not have overall responsibility for the generator or whole generating plant and they definitely did not have any responsibility over the prime mover.

141 Mr Dean confirmed the evidence of Mr Skinner in relation to "call in" situations. The generator started itself and would shut itself down. If, out of normal working hours, an alarm was reported indicating the emergency generator has received a "call", the "on-call engineer" will contact the Electrician, if available, to attend the site and to investigate the reason for the start of the generator. He went on to say that it had occurred where no Electrician had been available to attend the site. The generator had started and shut itself down again without any "outside" intervention as it was designed to do.

142 It was Mr Dean's observation that the Electricians did an extremely good job in regards to the testing and monitoring of the emergency generator supply system and they prided themselves that they did not have failures because of the program they had in place.

143 Mr Dean also explained about the "three start" testing procedures undertaken by the Contractor as part of their service of the plant. Mr Dean did not think that this was done by the Electricians as they simply do a test start to a particular area as part of the weekly testing program.

144 To the best of Mr Dean's knowledge the Contractor, in carrying out the 4 site visits per year, spent a minimum of 4 hours on the quarterly inspections and up to six hours on the annual service. The only contract that Advance Power held at the Hospital was for the generator.

145 Mr Dean did not consider that they had the facilities at Nepean to do a major overhaul of the generator. He was not aware of whether Mr Hollis had the skills to carry out such an overhaul because he had never been asked to carry it out and wouldn't be asked. They would call in the Contractor.

146 Mr Dean also gave further detail about the alarm process and what actually happened when the generator started up and shut down due to an alarm. They did not always call in an Electrician when this occurred, it depended on whether they were available. As he lived not far away he sometimes came in. It was his call.

147 In cross examination Mr Dean generally continued to confirm the detail he had provided in his written evidence. He also continued to maintain the views he had expressed concerning the Electricians and issues relating to their claim for the allowance in question.

148 Mr Dean acknowledged that the Electricians worked in a team environment and that when faults or problems were identified there a consensus basis for the decision on responding to the fault involving the Leading Hand and the Electricians. However the final call as to what action to take was still his.

149 Mr Dean rejected any suggestion that in running the weekly test the person involved in the direct operation must also run and control the prime mover. He said the prime mover started automatically. The whole process involved was automatic. He also rejected the suggestion that the process was triggered manually. It was triggered automatically when the fuse was pulled. Whilst the generator could be started manually, under their system of tests, it was not. He did agree that pulling the fuse triggered the operation off, within the appropriate parameters.

150 Mr Dean was not aware of any minor repairs that the Electricians might have been required to carry out on the prime mover as part of their overall generator function, that would be a Fitter's role. In relation to the generator, they might tighten up a nut that had worked loose or clean battery terminals. He saw that as part of their duty to carry put plant maintenance.

151 Mr Dean agreed that the 4 hours spent on site by the Contractors on their visits did not mean the generator was being run for 4 hours. He agreed they probably spent about 20 hours per year on routine maintenance of the generator.

152 The Contractors were called in to breakdowns but Mr Dean said they didn't have many breakdowns. Advance Power had not been required to be called in during the last 12 months.

153 Mr Dean agreed that the Hospital power system remained an operational and safe system due to the commitment and responsibility of the Electricians. He thought they did a good job.

154 Mr Dean also indicated that they "over-complied" with the standards referred to the ETU's evidence, in that they conducted weekly tests when the standards only required monthly tests. They had to do weekly tests simply because they had so many areas they wanted to test as well and they couldn't fit them all in if they did only monthly tests.

Submissions

155 Mr Robinson for the ETU submitted that whilst there had been numerous decisions of the Commission in interpreting the provisions of an award, an "ad nauseum" analysis of provisions and grammar within a clause sometimes "lost the plot" as to the original understanding the draftspersons or legislators may have had in mind in relation to a provision. In this case the Award provision relating to the allowance in question was very specific and expressed the clear intention of the draftspersons in specifying that the allowance applies strictly to an electrician.

156 On the issue of the meaning of the phrase "in complete charge" as contained in the Award definition, he relied and expanded on the following definitions:
· Responsibility - A charge, trust or duty, for which one is responsible - a person or thing for which one is responsible.

Shorter Oxford Dictionary (Exhibit 16)
· Charge - Commission, trust, responsibility; - Care, custody, superintendence; a thing or person entrusted to the care of anyone.

Shorter Oxford Dictionary (Exhibit 17)
· Complete - having all its parts or elements; whole; entire; full.
· In Charge - in command; having supervisory powers.
· In Charge of - having the care or supervision of.
· In the charge of - in the care of, under the supervision of.
· Whole - comprising the full quantity, entire, full or total; containing all the elements properly belonging; complete: a whole set
· Include - to contain, embrace, or comprise, as a whole does parts or any part or element; to place in an aggregate, class, category or the like; to contain as a subordinate element, involve as a factor.

Macquarie Concise Dictionary (Second Ed. 1988) (Exhibit 18)

157 Mr Robinson submitted that in considering the definitions, he believed the intentions of the draftsperson, that "having the care or supervision of, or under the supervision of" had to be taken grammatically in the context of the words that followed, and that was about the care and supervision of the whole plant.

158 When the next words "including the prime mover" were considered, having regard to the photo evidence, the affidavit evidence and the inspections, the prime mover was indeed attached to and formed one complete device by having the prime mover and generator acting together.

159 He submitted the intention of the drafters was plain. The clause applies to electricians not supervisors or managers. It was about electricians having complete charge of an entire device when they were required to run and attend to it. The only way you could run that plant was to have complete charge of it.

160 Mr Robinson then took the Commission to a survey of hospitals paying the Award allowance to electricians (Exhibit 19), some 5 in total. He had sent out a random survey to members in hospitals. He suggested that any hospitals not paying the allowance (such as Auburn) would be a situation where they get the overwhelming majority of the work done by a contractor and that the electrician does not in any way shape or form attend the generator generally, run the generator or have any charge of the generator.

161 Mr Robinson submitted that he relied on the inspection as disclosing the role of the Electricians. However he noted that in relation to the Assistant Engineer and supervisor bring present during the inspection, under the normal circumstances of a weekly test, they would not be present. The Electricians, in conjunction with the Leading Hand as a team, ran the whole process themselves and reported back accordingly.

162 In relation to the job descriptions tendered by SWAHS (Exhibits 7.4 and 7.5) Mr Robinson submitted that was absolutely clear that there was no direct requirement whatsoever to attend the emergency power systems of the Hospital as there was no mention of the emergency power system. Management had realised this oversight or omission and sought to address it in their intended statement of duties (Exhibit 7.6).

163 Relevant provisions of the Electrical, Electronic and Communications Contracting Industry (State) Award were referred to as being indicative of the additional skills and responsibilities required, and recognised through competencies rather than an allowance, and necessary for electricians (such as Advance Power employees), to be able to perform work on the generator.

164 Mr Robinson also relied on the Generator Test Schedule (Exhibit 20) which listed the various areas affected, the test method and comments. He observed that as there were 120 odd distribution boards around the Hospital, with a weekly test, it would take approximately 2 years to test all areas.

165 Mr Robinson tendered a further document entitled "Generator Test Procedures" (Exhibit 21) for various locations around the Hospital.

166 Mr McReynolds, during the course of his submissions indicated that he had not previously seen this document, had not had the opportunity of cross examining the ETU's witnesses and Mr Dean, the Assistant Engineer was away for 12 weeks, so he was unable to seek further instructions in relation to the document.

167 The Commission therefore gave Mr McReynolds leave to verify the status of the document and whether it was an "official" document and had the approval of the Engineering staff.

168 By correspondence dated 28 October 2008 Mr McReynolds advised the Commission (attaching a memorandum from Mr Dean) that Mr Dean had not previously seen the document and it was not an official form. He submitted "that the Commission should give this document little weight towards the Union's claim".

169 The Commission accepts that submission as being reasonable in the circumstances. The Union could have sought to tender the document during course of the evidence of either of its two witnesses or during cross examination of Mr Dean and the document could have been appropriately tested as a result. I do not propose to refer to the document further.

170 Mr Robinson drew the Commission's attention to the minimum requirements enshrined in the Australian/New Zealand Standards (Exhibit 10). He emphasised that, in relation to the testing procedures, the Electricians were the only ones that incorporated the Hospital as a load on the generator. The Contractor did not. That was a very significant difference. If the Contractor made a mistake or something went wrong, the Hospital circuitry was protected. However when the Electricians played their role in the testing, the Hospital was vulnerable if they didn't follow the right protocols, meaning the Hospital itself was a load to the system.

171 In relation to the documentation concerning the service visits of Advance Power, Mr Robinson submitted that the role the Contractor played at Nepean Hospital was no different than the role that any other electrical contractor or building services contractor would play in their attendance at the Hospital.

172 Mr Robinson briefly summarised the relevant evidence and submissions that the Commission should take into account.

173 He further submitted that the SWAHS witnesses clearly identified their roles as supervision. That supervisory role was in relation to all the plant and maintenance systems, the same as any supervisor or managerial structure. They were reporting and decision making structures, but not structures that delved into the day-to-day activities of the Electricians. The supervision and management played no role in the running and general attendance, including breakdowns, of the generator nor did the Contractor and that was clear from the evidence. Further the Nepean Hospital Electricians were the first port of call for an emergency response, not the Contractor, and that was required by Hospital management.

174 Mr Robinson submitted that the Electricians satisfied the requirements of the Award provision and on that basis requested that the Commission grant the draft orders as sought.

175 Mr McReynolds, for SWAHS, submitted that, in relation to the work of the Contractor, they were relied on by the Service as having the overall knowledge and skills to service all generation plant and every component in that generation plant. They had the overriding technical expertise in the performance of those tasks. They were not "in charge of", or "took responsibility for", the performance of those tasks however, that was the responsibility of management, being the Engineer and the Assistant Engineer.

176 The Commission was taken to the job descriptions that had been agreed to and signed by both Mr Hollis and Mr Walker, where it clearly stated that they were required to "undertake required corrective and preventative maintenance to electrical services, plant and equipment and other general electrical appliances and systems". It was submitted that that clearly would include the generation plant as well as plant and equipment throughout the whole site.

177 Mr McReynolds also indicated that Exhibit 20, the Generation Test Schedule, was prepared and maintained by the Assistant Engineer, not the Electricians. The Assistant Engineer was responsible for the upkeep of that document and advised the Electricians of when and where tests were to be performed and advised the respective area that a test was about to be undertaken.

178 The generating plant at Nepean Hospital was for emergency generation only. Full time electricity generation was not required. The system was such that when a failure to the power supply was detected, it started the generator automatically and distributed the new electricity to the affected areas. When power had been restored, it shut down automatically and no physical intervention was required. What may be required was the detection of what caused the power failure in the first place.

179 It appeared from the evidence that the Union's claim was based on the premise that because the Electricians undertook work tasks and performed regular and scheduled tests on the emergency generation system in accordance with the scheduled routine preventative maintenance program, that they had an entitlement to be paid the allowance under dispute.

180 However the tests concerned were routine and regular and had been part of the Hospital's preventative maintenance program for a considerable number of years. The testing schedule that was run, was in excess of the requirements of the relevant industry standards.

181 It was submitted that the inspection demonstrated that the Electricians could not be considered as having complete charge in running these tests. For example, the notifying advice to the area to be tested was not produced by the Electricians, this was done by the Assistant Engineer who was also responsible for the upkeep and maintenance of the preventative maintenance program, including the tests to be undertaken on emergency generation. He was responsible for deciding which area was to be tested, not the Electricians. The inspection showed that the Electricians, as the qualified Tradespersons, were responsible, in accordance with their position descriptions, for undertaking preventative maintenance to electrical services, plant and equipment.

182 Mr McReynolds submitted that whilst the Union was pressing that all three Electricians at Nepean were "in charge", and were therefore entitled to be paid the allowance, the definition clearly referred to "an electrician". This phrase clearly referred to the singular, not the plural or a multiple. He queried how all three Electricians could be in charge of the same piece of equipment or area, and, at the same time. He said that Mr Hollis had also agreed in cross examination that the term implied the singular.

183 Mr McReynolds also stressed that the definition did not say "any electrician" or "all electricians" nor did it imply the word "electricians" as the plural or in multiple terms.

184 Mr McReynolds then took the Commission through the history of the particular allowance provision firstly, when it was inserted in the Public Hospital Employees (Skilled Tradesmen) (State) Award in 1980 and secondly, when it was first inserted in the Electricians &c., Award in 1919 (see Background and Chronology above.) The wording had changed little over time, with the exception of the original 1919 clause which reads "an electrician in charge of generating plant shall be one who" whereas the current Award reads "electrician in charge of generating plant" means an "an electrician who".

185 Mr McReynolds submitted that this provided support for their argument that the intention of the allowance was to only be payable to an individual employee who was in complete charge and responsible for the whole plant and the continued generation of electricity. The SWAHS position remained that, due to the management structure in place, the Hospital did not even have an individual employee who could be considered as having complete charge of the generation plant. The relevant evidence of Messrs Skinner and Dean were referred in this regard. Further it was acknowledged by the employees in cross examination that they took direction from the Engineer and the Assistant Engineer.

186 Mr McReynolds submitted that the SWAHS's submissions were supported by relevant definitions (acknowledging that they were also relied on by the ETU), as follows (Exhibit 7.22):
· Complete; having every necessary part, entire.
· Charge; to command; place a burden upon or assign responsibility to.
· In Charge of; having responsibility for.
· Whole; containing all the component parts necessary to form a total; complete, all the parts, elements etc, of a thing; an assemblage of parts viewed together as a unit.
· Include; to have as contents or part of the contents; be made up of or contain; to add as part of something else; put in as part of a set, group or category.

The Collins Concise Dictionary (Second Edition 1988)

· Complete; having all its parts or elements; whole; entire; full.
· In Charge; in command; having supervisory powers.
· In Charge of; having the care or supervision of.
· In the charge of; in the care of, under the supervision of.
· Whole; comprising the full quantity, entire, full or total; containing all the elements properly belonging; complete: a whole set.
· Include; to contain, embrace, or prize, as a or does parts or any part or element; to place in an aggregate, class, category all the like; to contain as a subordinate element, involved as a factor.

The Macquarie Concise Dictionary (Second Edition 1988).

187 He submitted that the definitions for the terms "whole", and "including" also strengthened the SWAHS's interpretation of the clause and referred to the Electricians' original written submission of December 2007 (Exhibit 15 - Annexure 2), which provided four points which they considered justified the payment of the allowance. Three of those dot points - 1), 2) and 4), related directly to the day to day duties of an Electrician, as documented and provided in their position descriptions. As shown in evidence, the remaining dot point - 3) was not a task that was allocated to the Electricians beyond their monitoring and testing of the generation system.

188 In response to Mr Skinner's request for further additional information from the Electricians, Mr Hollis, by letter of 14 February 2008 (Exhibit 9 - Annexure D), relied in part, on the reference in the Award (Clause 6 Wages, (iii)):

"the weekly wage is referred to in subclause (i) and (iv) of this clause are inclusive of the Hospital trades staff allowance, paid in recognition of the responsibility, specialised skills, flexibility and discretion exercised by such trades persons and the environment in which they work."

189 Mr McReynolds submitted that this reliance was incorrect and referred the Commission to the decision of Conciliation Commissioner Cansdell in Health Commission of New South Wales v Labor Council of New South Wales and ors, Re: Special skills & disability allowances for tradesmen employed in Public Hospitals (unreported, IRC 78/630, 22 February 1980). (Exhibit 7.14). This decision rejected a claim for an increase in the tradesmen's allowance (other than National Wage movements) and indicated that the allowance was paid to tradesmen in hospitals in recognition of "the special factors met in the environment of hospital work" which included performing some work outside their own trade and that the various trades work as a team. As there had been no change in that work, Cansdell CC said there was no justification for an increase in the allowance.

190 Mr McReynolds submitted that whilst the Electricians were required to perform some tasks outside their normal work and work as a team, that this did not imply or show in any way that they were in complete charge of a whole generation plant. They were directed and supervised by others at all times.

191 Mr McReynolds submitted that the relevance of the tradesmen's allowance provision inserted in the Award in 1980, was that it recognised, by way of a special allowance, that hospital tradespersons used specialised skills in various areas.

192 Mr McReynolds submitted that the Electricians were incorrect in their view that they were in charge of the generation plant and the prime mover because they were required to perform maintenance tasks on a regular basis as part of the Preventative Maintenance Program and that Engineering Staff did not take charge in directing their duties in relation to the generation plant.

193 In relation to the responsibility of Engineering Staff in supervising and directing the tradespersons, reliance was placed on a decision of the Public Hospital Employees (State) Conciliation Committee in Hospital Employees Engineers (State) Award Re: (unreported, IRC 81/596, 19 March 1982) (Exhibit 7.17). In the decision, Conciliation Commissioner Cansdell noted the abnormalities that existed between the rates of pay of hospital engineers as compared to the rates of pay for the tradesmen they supervised. However he had found in favour of the engineers and awarded accordingly, thereby acknowledging the supervisory and management responsibilities of engineers and assistant engineers in directing skilled tradespersons.

194 Further reliance was placed on two decisions of Conciliation Commissioner McArdle, in Re: Dispute Health Administration Corporation and Electrical Trades Union of Australia, New South Wales Branch, (unreported, IRC85/180, 3 April 1985), (Exhibit 7.19), and Re: Dispute Health Administration Corporation and Electrical Trades Union of Australia, New South Wales Branch, (unreported, IRC86/598, 20 June 1986), (Exhibit 7.18). The issue being considered in those matters was the qualifications of the persons supervising the electrician making the claim for the allowance, the issue being did, or did not, the supervisor have electrical knowledge.

195 Mr McReynolds submitted that these decisions acknowledged the necessary supervision and direction provided by the Engineering Staff and what was put in question was whether the person had electrical knowledge, not who provided the supervision and direction. Again, these decisions supported the SWAHS's position in detailing a well defined line of reporting and responsibilities between Engineers and Managers and skilled trades as their subordinates.

196 The definition of "in charge of generation plant" did not make this difference.

It was submitted that it could be concluded that in order to receive this allowance there must be no management or supervisory positions directing the electrical tradesperson in relation to the complete charge of a generation plant. This would be relevant to hospitals that had been identified as paying the allowance but where they were of a smaller size than those of Nepean Hospital.

197 As the SWAHS had provided in evidence, the Hospital had a licensed electrician as the Assistant Engineer. Even if this person did not hold electrical qualifications, due to the structured lines of reporting and responsibilities, the SWAHS would still maintain a similar position as to the non payment of the allowance. An analogy could be drawn with the everyday occurrence of a person building a home where they engaged a builder to construct the home and it was the builder's responsibility to engage appropriate tradespersons, supervise and direct them in building that home to the required specifications and building standards etc.

198 Similar comparisons could be drawn between the health industry and other industries where managers were required to manage others with different qualifications and professional backgrounds.

199 In this matter it had been shown that the Electricians did not have sole coverage of the generation plant. It was clear that the Fitters were required and directed by management to have a role in undertaking maintenance and repair on the generating plant as part of the Preventative Maintenance Program. There was also evidence as to the role of the Contractor, Advance Power.

200 In cross examination both Electricians had agreed that their job descriptions clearly indicated that they took direction and supervision from others. They did not have any control or direct supervision responsibilities over other trades or the Contractor' employees who were required to provide services in relation to the generation plant.

201 Mr McReynolds detailed the major role of the Electricians, employed, on the direction of their management, in completing routine maintenance tasks and routine tests associated with the generation plant and reporting back to management any faults/necessary repairs. It was a automated system. The electricians were not required to service or repair the generator or the prime mover and did not have the necessary skills or equipment to undertake these functions. Those responsibilities remained with the Contractor.

202 It was acknowledged by the SWAHS that due to the commitment of the Engineering services, the Electricians and other Trades Staff, in conducting a sound preventative maintenance program, it was very rare that the emergency generation system failed.

203 The fact that the allowance was paid at Liverpool was not a justifying factor for paying the allowance at Nepean. Reference was also made to the research of the SWAHS in relation to whether other hospitals paid the allowance. Mr McReynolds indicated SWAHS was of the view that Liverpool had paid the allowance as an over award payment, particularly as it appeared to pay this in-charge allowance to more than one electrician. It could only be assumed that a local arrangement had been made between the electricians employed at Liverpool and the management responsible for electrical services at the time.

204 SWAHS questioned the reasons for the claim made. In his 10 years of employment with the Health Service, Mr Hollis had been in dispute over his salary level for least eight of those years and this was not disputed by Mr Hollis who made reference to his 12 Commission appearances. It was questionable that he was not aware of this allowance until told by Mr Walker that they received it at Liverpool. Mr Hollis had been the Union Delegate for the Trades Staff for a considerable time and in providing even a minimal service to his fellow members must have had some reasonable understanding of the Award and its associated conditions. It should also be noted that the allowance is particular to electricians only, Mr Hollis's trade.

205 Mr McReynolds also dealt with the issue of the hours worked per year by the Electricians, Fitters and Contractor on the generation plant tendering in the process extracts from the Contractor's Sign In/Sign Out Log Attendance Book (Exhibit 22). He submitted that the Electricians' per annum figure of 88 hours equated to about 20 minutes of work for each, per day. This was a little over 5% per week of their total working time or about 4% over a year. The allowance that was being claimed was a weekly allowance. This would indicate that in order to attract the payment, the majority of time spent, or a considerable period of time, should be involved in the performance of the task associated with the allowance.

206 In relation to the performance of duties which attracted an additional weekly allowance and the entitlement to a proportional amount when completing those duties at less than the fulltime equivalent, the following decisions were relied on: Re Dispute Health Commission of New South Wales and Health & Research Employees' Association of Australia, New South Wales Branch (unreported IRC 81/1386, 22 January 1982) (Exhibit 7.20) and Re Hospital Employees Administration and Clerical (State) Award Matter (unreported, IRC 82/102, 22 January 1982) (Exhibit 2.21).

207 The SWAHS acknowledged the importance of the role of the Electricians on the emergency generation plant but it was insignificant compared to their other duties.

208 Finally in summary, Mr McReynolds submitted that the Electricians carried out routine tasks as directed and under supervision and with limited autonomy. They had no "in charge" responsibilities and carried out duties in relation to the generation plant within the duties outlined in their job description. The SWAHS specifically employed persons with the necessary skills and qualifications to undertake corrective electrical maintenance to systems, services, plant, equipment and other general electrical appliances as directed by the Engineering services. It was the Engineer who had overall responsibility for engineering services on the entire site including the emergency generation plant. Further an over-award payment and/or a local arrangement by another hospital or hospitals did not justify the payment of the allowance at Nepean Hospital or in another Area Health Service.

209 Mr Robinson, in reply, submitted that little weight should be given to the extract from the Contractor's Sign In/Sign Out Log Attendance Book (Exhibit 22) as tendered by SWAHS due to the detail which was not present in the document. The validity of the document was also queried.



Consideration

210 I have carefully considered the evidence and the submissions of the parties. The inspection of relevant areas at Nepean Hospital during the weekly testing of the emergency generation plant has greatly assisted that consideration. The Commission expresses its appreciation for the assistance of the parties in that regard.

211 The SWAHS has clearly acknowledged the dedication, commitment and efforts of the Electricians in their participation in the preventative maintenance program and the importance of the role they carry out.

212 The Commission can only endorse that view.

213 However it is quite apparent to me that the preventative maintenance program in place at Nepean Hospital is very much a team effort involving as it does, the Leading Hand Electrician, the Electricians, the Fitters, the Contractor, the Engineering Staff, and in particular from that group, the Assistant Engineer.

214 The ETU seeks that the Commission make orders requiring that the Sydney West Area Health Service specifically recognise the provisions of Clause 7, Additional Wage Rates, subclause (x) "Electrician in Charge of Generating Plant 75 Kilowatts or more" of the Public Health Service Employees Skilled Trades (State) Award (Incorporating the Ambulance Service of NSW Skilled Trades) and apply those provisions to Electricians as defined in Clause 2 of the Award.

215 That definition provides as follows:

"Electrician in Charge of Generating Plant" means an electrician who has complete charge of the whole plant including the prime mover and generator and is required to run the plant and maintain and attend to the installation generally.

216 However the orders sought do not specify that they are to only apply to Electricians (as defined) at Nepean Hospital. Any orders made in the terms sought by the ETU would therefore have application to all electricians employed within the SWAHS no matter where they were employed.

217 This was not an issue that was addressed by the parties in any way, so I am unsure whether that is indeed what the ETU intends by the orders that it seeks.

218 In any event I would not even begin to consider making orders in such broad terms when the only evidence before the Commission concerns the Electricians and the emergency generation system at Nepean Hospital.

219 There appears to be no real argument between the parties as to the meaning of the specific definition in the Award which is the subject of this dispute. Indeed both sides have relied on many of the exact same definitions of certain terms in the provision. Mr Robinson has included the definition of "responsibility" and has relied on the Shorter English Dictionary rather than the Collins Concise Dictionary relied on by Mr McReynolds. Both however have relied on the Macquarie Concise Dictionary (Second Edition 1988). Mr McReynolds has sourced the same list of terms he has relied on in both the dictionaries he cited.

220 I do not consider that I am, strictly speaking, required to interpret the Award provision in question pursuant to s.175 of the Act. Although it is clear that in settling a dispute notified pursuant to s.130, the Commission has that power.

221 What is required is a consideration of the evidence before the Commission and reaching a conclusion as to whether that evidence confirms that the work performed by the Electricians at Nepean Hospital in relation to the emergency generation plant, in all the circumstances, satisfies the requirements of the definition of "Electrician in Charge of Generating Plant".

222 The proper meaning of relevant terms used in that definition is, of course, crucial to that consideration.

223 Mr Robinson rightly pointed out that there have been numerous decisions of this Commission in relation to the interpretation of provisions of awards and agreements. However I do not agree with his submission as to intention of the drafters/legislators.

224 The recent decision of the Full Bench in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigade Employees' Union [2008] NSWIRComm 158, succinctly summarised four principles of statutory (and award) interpretation relevant to the issue to be decided in that particular case as follows:

40 First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

41 The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking and Others [1990] HCA 6; (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 459.

42 This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 at [14] and [16]

14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572–575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168–169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].)

.......

16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma [1995] ZACC 1; (1995) (4) BCLR 401 at 402; [1995] ZACC 1; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)

43 Secondly, in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.

See also Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 at [44].

44 Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113:

Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.

45 This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted:

Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments...

46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie:

But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.

47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ).

225 Applying the first principle referred to above there is clearly no ambiguity or inconsistency in the Award provision under consideration and the purpose of the provision is crystal clear.

226 Mr Robinson also argued that the intention of the drafters was, in effect clear, and had to be taken into account when considering the grammar of the various phrases in the definition and their respective placement.

227 However this is not the approach that should be taken in applying this first principle. What should be assessed is essentially what the drafters meant by the provision. This links into the fourth principle, which is of particular relevance for the approach to be taken in this matter, namely that "attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used".

228 Both parties have relied on the dictionary definitions of relevant terms in the Award provision which clearly relay the commonly understood and accepted "plain and ordinary meaning" of those terms. However in doing so they arrive at different conclusions which arises from the interpretation they place on the practical application of the Award provision to the work of the Electricians in question.

229 This squarely raises the issue of the relevant evidence before the Commission and what conclusions can be logically reached based on that evidence. This will be dealt with shortly.

230 The third and fourth principles, namely consideration of the context and consideration of extrinsic materials, are also of some relevance in this matter.

231 As set out in the Background and Chronology above, the Award definition under consideration in the making of the first Award in 1980 was taken directly from the identical definition in the Electricians &c., (State) Award. In turn, that definition, in its current wording, stretches back to the first award thus titled and made in 1919. An earlier untitled award covering Electrical Trades made by the relevant Industrial Board in 1916 contained the same definition. This differed from the first recorded award made by the Electrical Trades Board in 1910 (1 IG 295) which referred to "Electrician in charge of Generating Station" being .."an electrician who has to run a plant and attend to the installation generally....".

232 The only change to the award provision in the Electricians &c., (State) Award in the intervening has been the establishment of a differential in the rate of pay applicable depending on the capacity of the generator (i.e. less than or more than 75 kws).

233 However, static and unchanged as the State award provision may have remained over those many years, and clear as the meaning of the provision might be, it certainly could not be said that the industry/trade it relates to has remained static and unchanged. Indeed the changes in both the nature of the manufacturing industries and establishments covered by that State award and the work of electrical tradespersons have evolved and changed significantly particularly in the area of technological advancements and work organisation.

234 The point I make is, that although the meaning of the definition in question has not changed, the circumstances in which it would be relevant to apply the provision to a currently employed electrician certainly has changed and vastly so.

235 This is where it becomes crucial to consider all the relevant evidence before the Commission and whether, in applying the "plain and ordinary meaning" of the terms within the definition, the Electricians at Nepean Hospital satisfy the necessary requirements inherent in the definition and are therefore entitled to be paid the allowance provided for in the Award.

236 I have very carefully considered all of the relevant evidence in this matter both written and oral.

237 I have to say that in considering the dictionary extracts referred to by the parties I have great difficulty in seeing how Mr Robinson can possibly say, based on the evidence, that they support the case the ETU advances on behalf of its members and justifies the making of the orders as sought.

238 The generation plant at Nepean Hospital is used for emergency generation only. It is an automatic system controlled by a Programmable Logic Controller (PLC). Should there be a failure of the grids mains power or a local system failure, to any part of the Hospital, for any reason, then the emergency generation system automatically starts up and provides substitute power. It automatically shuts down when it is no longer required to provide such power generation.

239 As Mr Skinner pointed out in his evidence, in a genuine emergency, out of hours, no staff member would be present and the emergency generation system would start up automatically without the requirement of any intervention by a staff member. If an Electrician was called in, he was only required to identify the cause of the fault and ensure that the generators were supplying power correctly and if they weren't they were required to advise the appropriate person accordingly. On the evidence that appropriate person would be the Assistant Engineer.

240 I also note from the evidence that there was no set call out roster for the Electricians and they were not required to participate in any call out roster. I consider this to be just one of the factors of significance in terms of any consideration of whether or not they had "complete charge of the whole plant" as maintained by the ETU.

241 I would have considered that, where a particular employee was designated as having "complete charge of the whole plant", that being such an important plant, then that person would be automatically contacted, or at least reported to, and required to attend, in the case of the emergency generation system being required to come online out of hours. Essentially that appears to be what happens as the Assistant Engineer is contacted in such an event.

242 The Electricians carry out a regular weekly testing program of the emergency generation system. This program is part of the Hospital's overall Preventative Maintenance Program. The Electricians were not responsible for setting up the program, although it is clear from the evidence that the Leading Hand Electrician participated in the consultative process undertaken by the Engineering Staff as did (more relevantly) the Contractor.

243 The Electricians, in carrying out that regular weekly testing program, do not supervise or exercise control over any other employee, including employees of the Contractor.

244 The Electricians' participation in the weekly testing program is of a preventative maintenance nature only as the name of the program suggests.

245 A further important and significant factor in relation to maintenance is that regular servicing of the emergency generation plant is undertaken by an outside Contractor. It could therefore, in my view, be said that the Contactor has a greater and more significant role to play in "maintain and attend to the installation generally". Regular servicing of the equipment in question and the carrying out of any necessary major repairs is an essential component in the ongoing reliability and performance of the emergency generation system.

246 There is no evidence that the Electricians take any part whatsoever in this servicing process, with the exception of the example Mr Hollis gave of assisting employees of the Contractor where a new person may have been in attendance and required to be made familiar with the site.

247 The Electricians have no authority to undertake tasks outside the parameters set down for them or to make repairs in relation to the emergency generator other than that of a very minor nature and well within the scope of their job description. I consider the examples given by Mr Hollis in no way suggest that as a result they have "complete charge of the whole plant".

248 There is also no evidence that any other employee, be that a Trades employee or a Contractor, was required to report to the Electricians or seek their authorisation before carrying out any task in relation to the emergency generation system. Any involvement by the Electricians in the work of electrical contractors coming on site in relation to any necessary isolation procedures would be part and parcel

249 The tasks they perform are carried out through a chain of direction from the Assistant Engineer to the Leading Hand Electrician to the Electricians. In turn their direct lines of reporting are to the Leading Hand Electrician and thence to the Assistant Engineer.

250 The Electricians have no authority to alter the schedule of the testing program. That authority is reserved to the Assistant Engineer.

251 The Electricians have no control over or responsibility for the PLC which controls the emergency generation system. Any problems arising with the PLC requiring repair or servicing are carried out by the Contractor.

252 Based on the evidence of the role they perform in the weekly testing program, I also cannot see how they are "in complete charge of the whole plant including the prime mover".

253 The Fitters are also responsible for preventative maintenance in the emergency generation plant as part of the Hospitals Preventative Maintenance Program, particularly in relation to the prime mover.

254 Whilst it is true that during the weekly testing of the emergency generation system, the Electricians are required to take action initiating that emergency generation of power which then takes the load (rather than the dummy load that occurs during the servicing by the Contractor) all that occurs within strictly confined and preset parameters. It involves removing a fuse to initiate a power failure in a particular area, it does not involve a manual starting up of the generator/prime mover per se. No independent discretion is required to be exercised by the Electricians other than identifying any fault arising and monitoring that the system works as it is intended to. Matters that I consider come clearly within the parameters of their existing job description. That also applies to any consideration of what is involved in the more extensive monthly testing and the dummy load bank testing carried out. That same consideration would apply to the daily visual inspection carried out, about which there was very little evidence.

255 On the evidence, it is the Assistant Engineer who monitors the role played by the Electricians and has the responsibility for ensuring that the preventative maintenance program operates as it should with direct supervision and conveying of directions carried out by the Leading Hand Electrician.

256 I also accept the submission of Mr McReynolds, and the cases he has cited in support, in relation to the relevance of the time actually spent by the Electricians in relation to the emergency generation system each week. That time amounted to approximately 1 hour. In the absence of any evidence that the Electricians have any real role to play on a regular basis in relation to the emergency generation plant outside that time period, it could hardly be suggested that that time spent justified the payment of a weekly allowance.

257 It was also Mr Hollis's evidence that the generation plant remained locked for the rest of the week.

258 It is also significant that the claim for the allowance was not made until after Mr Walker had commenced at the Hospital in November 2007 and told Mr Hollis that he had received the allowance when he was at Liverpool Hospital.

259 I also consider that an experienced Union Delegate such as Mr Hollis who admitted that he had raised issues about his entitlements under the Award and indeed had come to this Commission to seek assistance on a number of occasions, would have long since gone through the Award and considered any provisions that could give rise to any additional payments or benefits. He is by no means a novice in relation to his industrial rights under the Award and exercising those rights.

260 There is absolutely no evidence before the Commission as to the basis for that payment at Liverpool Hospital, which appears, on the evidence of Mr Walker, to have been paid to all Electricians. Similarly there is no substantive evidence about what systems or work practices are in place at Liverpool in relation to any generators they may operate and on what basis and in what circumstances such operation takes place.

261 There may well have been some "local arrangement" as Mr McReynolds suggests or, as has sometimes happened in awards in various industries to my knowledge, an allowance that is not strictly payable is paid to an entire group or a classification as a means of attracting/retaining employees especially in areas of skill shortage.

262 However there is no evidence before me as to the basis for, or the history of, that payment at Liverpool Hospital.

263 Similarly that position would also apply to the other Hospitals referred to by Mr Robinson as paying the allowance. Equally Mr McReynolds was not in a position to provide detailed evidence in relation to the hospitals included in the SWAHS survey as not paying the allowance.

264 It is not just a simple matter of looking at what other hospitals do (or don't do) and saying that that is therefore a proper basis for either paying or not paying the allowance. As I have already indicated each establishment would have to be considered individually as to the circumstances applicable at that establishment and the work of the electricians in question before reliance could be placed on that situation.

265 Mr Robinson submitted that it was significant that the definition specified "an electrician who..." etc. and not some other position. That is true. However equally true and of greater relevance is Mr McReynolds' submission that "an electrician" signifies a singular person and not a group or all electricians. He makes a cogent point that it is hard to see how you could have more than one person at the same time equally "in complete charge of the whole plant". Of course that it not to say it would not be possible for a number of electricians at a particular establishment to have such complete charge at various times and sufficiently so as to warrant the payment of the allowance. Again that would depend on a consideration of the particular circumstances in operation at that establishment.

266 Mr McReynolds drew a useful analogy with a property owner and a builder undertaking the building of the home for that person. Another very simplistic example is that of the standard Leading Hand provisions in awards. Indeed one only has to look at Clause 9, Leading Hands of the Award under consideration in this matter. Obviously only one person can be designated in charge of a particular group of employees at any one time. But who that person is may vary from time to time depending on circumstances.

267 The wording of the definition in question is quite clear and is not, in my view, subject to any doubt as to its meaning. What is then relevant in assessing whether, in applying the definition, there is an entitlement for an electrician to be paid the allowance, in any establishment with the requisite generation plant, is a consideration of the factual circumstances of the actual role undertaken by that electrician in that specific establishment. Circumstances and facts may vary from establishment to establishment. The factors that I have addressed above would be of relevance to any such assessment.

268 I readily acknowledge the responsibility imposed on the Electricians in playing their important role in the Hospital's Preventative Maintenance Program. They carry out their role efficiently and with commitment and dedication and have make a significant contribution to the on-going success of the Hospital's program. The same could be said of the other participants, the Leading Hands Electrician (and any other relevant Leading Hands), the Fitters, the Assistant Engineer, Engineering Staff and the Contractor. It seems to me to be very much a team effort.

269 Therefore having carefully considered the relevant evidence and the submissions of the parties I have come to the conclusion that the Electricians at Nepean Hospital do not satisfy the requirements of the definition at issue.

270 I consider that the role they perform falls within their current Job Description as do the duties they listed in their letter to Mr Skinner of December 2007.

271 The fact that a new and expanded job description (Exhibit7.6), proposed to be signed off by Electricians on the completion of their next performance review, now specifically lists "emergency generation system" (along with five other electrical systems) does not alter that view. Those systems are listed under the heading of :

Day to Day Activities:

Become familiar with all services and equipment and their operation

272 Similar tasks are then listed. There does not seem to be any substantive difference between the job descriptions, only more detail and differences in style and layout in the proposed job description.

273 Based on the evidence before the Commission and applying the definition under consideration, I am unable to find that the Electricians at Nepean Hospital exercise "complete charge of the whole plant including the prime mover and generator" and are "required to run the plant and maintain and attend to the installation generally". As a consequence they do not have any entitlement to be paid the allowance set out in Table 2, Additional Rates and Allowances, 7 (x) of the Award.

274 The Commission declines to issue the orders as sought by the ETU.

275 This matter is therefore concluded.

Elizabeth Bishop

Commissioner




LAST UPDATED:
12 December 2008