ELECTRICAL CONTRACTING INDUSTRY AWARD R 22 OF 1978

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00788

DELIVERED : THURSDAY, 17 NOVEMber 2022

FILE NO. : APPL 37 OF 2022

Applicant

AND

Electrical Group Training and others

Respondents

CatchWords : Industrial Law (WA) – Application to vary award – Increasing allowances – Deletion of respondents no longer trading or no longer in existence –Updating respondent’s details

Legislation : Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth) 

Result : Award varied

Representation:

Applicant : Electrical Trades Union WA

First Respondent : Electrical and Communications Association of WA Inc

Case(s) referred to in reasons:

Commission’s Own Motion v Not Applicable (2022 State Wage case) [2022] WAIRC 00273; (2022) 102 WAIG 431

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch v The Electrical Contractors Association of Western Australia (Union of Employers) and Others (2000) 80 WAIG 2684

Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance t/a Chemist Warehouse Perth [No 2] [2021] WASCA 76

The Registrar, Western Australian Industrial Relations Commission v The Electrical and Communications Association of Western Australia (Union of Employers) [2022] WAIRC 00279; (2022) 102 WAIG 457

Reasons for Decision

1         The Electrical Trades Union WA (ETU) applied to vary the Electrical Contracting Industry Award R 22 of 1978. The variations are to:

(a) increase a number of allowances in the Award;

(b) update the names and addresses of some respondents listed in the Second Schedule of the Award; and

(c) remove from the Second Schedule respondents who are no longer trading or no longer in existence.

2         Section 40 of the Industrial Relations Act 1979 (WA) (IR Act) empowers the Commission to vary an award.

3         The ETU is a party bound by the Award and therefore has standing to bring the application: s 40(2).

4         As the Award is not one that is for a limited duration, s 40(3) of the IR Act is inapplicable and no barrier to the variations sought.

5         The amendments proposed do not affect any substantive change to the scope of the Award or its area of operation. The application therefore does not attract the requirements of s 29A of the IR Act for publication of the proposed amendments or service on the s 29A parties.

6         The application has otherwise been duly served as required by the IR Act and the Industrial Relations Commission Regulations 2005 (WA). Notice of the application was also advertised in the West Australian.

Increasing allowances

7         The ETU seeks to vary several allowances by 4.65% in line with the 2022 State Wage case [2022] WAIRC 00273; (2022) 102 WAIG 431. The allowances in this category are:

(a) Clause 18 - Special Rates and Provisions;

(b) Clause 27 - Grievance Procedure and Special Allowance;

(c) Clause 36 - Superannuation; and

(d) First Schedule - Wages.

8         Principle 6.3 of the 2022 State Wage Case Statement of Principles states:

Allowances which relate to work or conditions which have not changed, and service increments may be adjusted as a result of the State Wage order, or, if an award contains another method for adjusting such allowances, in accordance with that other method.

9         Principle 6.4 applies. It provides:

In the absence of any other prescribed method, where the Commission has determined that it is appropriate to adjust existing allowances relating to work or conditions which have not changed or service increments for a monetary safety net increase, the method of adjustment shall be as follows: divide the monetary safety net increase by the rate of pay for the key classification in the award which applied immediately prior to the safety net increase, and multiply the resulting figure by 100.

10      The ETU also seeks variation of allowances in line with CPI changes from June 2011 to June 2022. The allowances in this category are:

(a) Clause 12(2)(e) - Meal Allowance;

(b) Clause 19 - Car Allowance;

(c) Clause 20 - Travel Allowance;

(d) Clause 21(6) - Distant Work Allowance; and

(e) Clause 30 Special Provisions ‑ Western Power Allowances.

11      Principle 6.1 of the 2022 State Wage Case Statement of Principles states:

Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant change in the level of those expenses.

Finally, the ETU seeks to vary clause 30(6)(a) Living Away from Home Allowance to align with a like allowance in clause 25.3 of the Building and Construction General On‑Site Award 2020.

12      The application to vary these allowances is unopposed.

13      These allowances were last varied on 17 December 2021: [2021] WAIRC 00640; (2021) 102 WAIG 11. That variation updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021.

14      The ETU has provided the Commission with a schedule setting out the methodology and calculations supporting the variations now sought. The calculations show that the variations are consistent with the Statement of Principles as set out above. The Award does not itself specify a method for adjusting allowances which is at odds with the methods set out.

15      I am therefore satisfied that it is appropriate to make the variations to the allowances as sought.

Replacement of Second Schedule – Respondents

16      The application seeks to vary the Award by substitution of a new Second Schedule of respondents.

17      The Electrical and Communications Association of WA Inc filed a response. It trades under the name Electrical Group Training. It opposes being added to the Second Schedule because:

(a) It is not a successor of any entity listed in the Second Schedule;

(b) It is not a union of employers, nor is it registered as an organisation under the IR Act; and

(c) Is a national system employer as defined in the Fair Work Act 2009 (Cth) and so has no interest in the Award.

18      The application to substitute the Second Schedule is otherwise unopposed.

19      What if any practical effect will the proposed variation have? What is the significance and purpose of the Second Schedule?

20      The Award is a common rule award. It applies to and within the industry as defined in the Award. The effect and significance of common rule awards was discussed by Martin J in Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Gance t/a Chemist Warehouse Perth [No 2] [2021] WASCA 76 at [56]‑[61].

21      That the Award is a common rule award was confirmed by Kenner C (as he then was) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch v The Electrical Contractors Association of Western Australia (Union of Employers) and Others (2000) 80 WAIG 2684. The learned Commissioner there considered an application to vary the Award, by the consolidation of two schedules referring to ‘named parties and respondents’ into one schedule. At 2684, the learned Commissioner noted that the Award is a common rule award, that is, applies to the industry as defined in the scope clause, not the activities undertaken by the respondents. Accordingly, the inclusion of named respondents and changes to them do not affect the Award’s scope.

22      As the Second Schedule does not have any bearing on the scope of the Award, it is not an operative provision. Its practical significance is that the persons and entities listed are parties to the Award pursuant to s 38 of the IR Act. They are therefore entitled to be served with applications made under Part II, Division 2A of the IR Act and to participate in proceedings initiated by such applications.

23      Commissioner Kenner’s decision was delivered prior to the 2005 amendments to the Workplace Relations Act 1996 (Cth) which had the effect that national system employers as defined by the Workplace Relations Act 1996 (Cth) became covered by the Commonwealth industrial relations legislation to the exclusion of the IR Act. Subject to the transitional arrangements of the Workplace Relations Act 1996 (Cth) preserving the Awards as Notional Agreements Preserving State Awards (NAPSA) the respondents to the Award who national system employers ceased to be covered by the Award. The transitional provisions and the Award’s status as a NAPSA ended on 31 December 2015.

24      As far as I have been able to ascertain, since that time, none of the national system employer respondents have participated in any proceedings concerning the Award. This is unsurprising given the lack of any practical interest in the Award.

25      The upshot is that there is no good reason for retaining the respondents listed in the Award who have ceased to exist, ceased to trade or ceased to be covered by the Award. Rather, their inclusion is obsolete. It is therefore appropriate to update the Second Schedule.

26      Turning to the specific respondents listed in the current Second Schedule to the Award:

(a) The Electrical Contractors’ Association of Western Australia (Union of Employers): was deregistered on 27 June 2022: The Registrar, Western Australian Industrial Relations Commission v The Electrical and Communications Association of Western Australia (Union of Employers) [2022] WAIRC 00279; (2022) 102 WAIG 457. It is appropriate that it be removed from the Second Schedule.

(b) Electrical Electronic Group Apprenticeship Scheme Inc.: the ETU seeks to remove this entity and add as a respondent Electrical and Communications Association of WA Inc trading as Electrical Group Training.

The ETU has not told the Commission why it is appropriate to add the Electrical and Communications Association of WA Inc as a respondent. An ASIC Association Summary records that Electrical & Electronic Group Apprenticeship Scheme Incorporated, previously registered with the Department of Commerce, Western Australia, was deregistered on 11 November 1999. No evidence has been presented to the Commission to establish that its business was transferred to the Electrical and Communications Association of WA Inc.

The ETU disputes the assertion that the Electrical and Communications Association of WA Inc is a national system employer, pointing out that its website describes it as ‘a not‑for‑profit charity committed to building a diversified electrical industry through education and training’. The ETU does not suggest it is a registered organisation, union of employers or a peak employer body. Nor does it suggest that it employs employees who are covered by the Award.

The respondent currently listed in the Second Schedule should be removed, without substitution.

(c) Dominic Riggio: the ETU provided a LinkedIn profile for ‘Dominic Riggio’. According to that profile, Mr Riggio was previously a part owner/operator of KEC Pty Ltd (Kambalda Electrical Contractors). Mr Riggio is now Managing Director at Westlec Rewind and Electrical Services. According to an ASIC Company Search, KEC Pty Ltd changed its name on 23 April 2019 to CAN 079059751 Pty Ltd. Mr Riggio was, but is no longer, a director of that company. It is registered but appears to no longer trade.

The LinkedIn profile also refers to the rewind division of KEC Pty Ltd being relocated from Kambalda to Pinjarra.

According to ABN details for Westlec Rewind & Electrical Services, it is owned by the D & J Riggio Family Trust. Dominic Riggio is listed as a trustee and manager.

I am not satisfied that Dominic Riggio has ceased to own or operate a business covered by the Award. I will not remove this name from the Second Schedule. I will, however, amend the address to reflect the address for Westlec Rewind and Electrical Services as shown in the current ABN details.

(d) A.B.B. James Watt Pty. Ltd.: According to an ASIC Company Extract, this company was deregistered on 5 January 2018. It is therefore appropriate to remove it from the Second Schedule.

(e) Jeff Richards Electrical Service: according to an ASIC Business Name Extract, this business name is cancelled. Having conducted due searches, no information has come to the Commission’s attention that suggests the owner of the business continues to trade in the industry covered by the Award. It is therefore appropriate to remove this name from the Second Schedule.

(f) Kilpatrick Green Pty. Ltd.: according to an ASIC Company Extract, this company was deregistered on 4 February 2021. It is therefore appropriate to remove it from the Second Schedule.

(g) McKernan and Lawer: The Second Schedule has a Carnarvon address for this business. The Commission located ABN details for a sole trader business registered under the trading name Ross G Mckernan in Carnarvon. The ABN for the business was cancelled from 11 March 2013 by the Executor for Ross George McKernan, indicating that Ross G Mckernan is now deceased. Another ABN was held by Ganmain Pty Ltd for the business McKernan Electrical, also in Carnarvon. Ganmain Pty Ltd was deregistered on 20 March 2015. I am therefore satisfied the owner of the business known as McKernan and Lawyer in Carnarvon is now either deceased or deregistered. It is therefore appropriate to remove this name from the Second Schedule.

(h) Manjimup Radio Centre: according to an ASIC Business Name Extract, this business name was cancelled on 19 February 1998. Western Australian Museum records available on the museum’s website record that Manjimup Radio Centre was established and run by Cyril and Kathleen Newton and Frederick Newton. The Museum record also contains a date of birth in 1924. It is not clear whether the date of birth is for Cyril Newton or Kathleen Newton. When the Award was made in 1978, the Newtons would likely have been in their 50s. I do not know whether they owned the business at that point in time. If they did, and they are still living, they are likely aged in their late 90s. Otherwise, due searches have been conducted and there is no information that suggests the business continues to trade, nor that the owners of the business at the time the Award was made continue to trade in the industry covered by the Award. It is therefore appropriate to remove this name from the Second Schedule.

(i) O’Donnell Griffin Pty. Ltd.: according to an ASIC Company Extract, this company is under external administration. If it does continue to trade, it is a national system employer. It is therefore appropriate to remove it from the Second Schedule.

(j) Ralph M. Lee (W.A.) Pty. Ltd.: according to an ASIC Company Extract, this company was deregistered on 10 June 1998. It is therefore appropriate to remove it from the Second Schedule.

(k) Skilled Engineering Pty. Ltd: according to an ASIC Company Extract, this company changed its name to ‘Programmed Skilled Workforce Pty Ltd’. Accordingly, its name will be changed to reflect its correct current name. Although Programmed Skilled Workforce Pty Ltd is likely a national system employer, no application has been made to remove it from the Second Schedule.

(l) Swispec Pty. Ltd.: according to an ASIC Company Extract, this company was deregistered on 29 September 2022. Accordingly, it should be removed from the Second Schedule.

(m) Drake Industrial, Industrelec, J. & S. Castelhow Electrical Services, Kelmec Services, MacKenzie Electrical Service and Wormald Fire Systems: it is proposed these parties remain listed in the Second Schedule but that in some instances, their names be updated and addresses be changed to their current principal place of business. The Commission is satisfied that the new addresses are the current principal place of business for these respondents. It is therefore appropriate to make the changes.

27      An order will issue in the following terms:

(a) THAT the Electrical Contracting Industry Award R 22 of 1978 be varied in accordance with the following schedule and that the variations shall have effect from the beginning of the first pay period commencing on or after the date of this order.