[2022] FWC 1918

Fair Work Act 2009

s.229 - Bargaining order

Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and

Application by Australian Municipal, Administrative, Clerical and Services Union

Application for bargaining orders - CEPU/ASU - Utilities Management Pty Ltd - Interim relief

• [1] This published decision is an edited version of a decision delivered by Deputy President Anderson on transcript on 20 July 2022.

• [2] This decision concerns an application for interim orders pending the determination of bargaining order applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) under s 229 of the Fair Work Act 2009 (Cth) (FW Act).

• [3] I heard the applications on 20 July 2022. At the conclusion of the hearing I advised the parties that my decision would be reserved. In light of that, the applicant unions seek an interim order preventing the conduct of a ballot of employees of Utilities Management Pty Ltd working in its South Australian Power Networks (SAPN) business for an agreement covering those employees only. The ballot is scheduled to commence on 21 July 2022 and to conclude on 25 July 2022.

• [4] More generally, a second interim order is sought restraining Utilities Management from requesting employees to vote on an any agreement with a scope inconsistent with a scope order currently in operation.

• [5] The principles governing the making of interim orders are well established.[1] For interim orders to be granted, the applicant bears the onus of satisfying the Commission that a serious issue with a reasonably arguable case is to be determined; that it may suffer prejudice that cannot be adequately remedied if the interim order is not granted; and that the balance of convenience favours the orders sought. The required assessment by the Commission will necessarily be of a preliminary nature only.

• [7] I emphasise that the views expressed below are provisional only and necessarily subject to further and more considered examination of the evidence and submissions.

• [8] For the following reasons, I decline to make an interim order.

• [9] Firstly, I am not satisfied that the particular interim orders sought are within power in circumstances where the Commission has before it applications under s 229 for bargaining orders under s 230. These provisions of the FW Act do not expressly provide for interim relief. Powers to make interim orders under s 589 of the FW Act are not at large. As noted by a full bench in Wills v Grant and the Government of New South Wales[2] the power to make interim orders under s 589 is not an independent source of power to injunct conduct. Whilst there is arguably a link between the commissioning by Utilities Management of the ballot and its good faith bargaining obligations, I am not satisfied that the conduct of ballots are "matters" before the Commission under s 229 such that the power in s 589 can be invoked. Section 229 applications deal with conduct in bargaining. It is the alleged breach of good faith bargaining obligations which are the "matters" before the Commission.

• [10] Secondly, I turn to whether there is a serious issue to be tried which is reasonably arguable.

• [11] The union case for bargaining orders is centred in part on factual propositions that Utility Management's conduct in bargaining since a full bench scope order of 25 March 2022[3] and a Statement issued by me on 29 June 2022[4] has been in breach of good faith bargaining obligations because Utilities Management has allegedly refused to bargain over an agreement in the terms of the scope order and has allegedly failed to respond to union positions and claims for an agreement covering all its employees, is premature because bargaining has not reached an impasse and it is allegedly conducting parallel bargaining notwithstanding the scope order.

• [12] The union case for bargaining orders is also centred around a proposition that involves a legal question. The joint unions contend that, given a scope order is in operation, Utility Management's conduct in submitting a proposed SAPN-only agreement to a ballot is in and of itself a breach of good faith bargaining obligations because it is alleged that such conduct is inconsistent with the full bench scope order.

• [13] I am satisfied that these propositions, to varying degrees are arguable, though the evidence to support various of the factual propositions is strongly contested. At the very least, there is a serious issue to be tried on the legal question raised by the applicant unions, and aspects of the union case are reasonably arguable.

• [14] Further, there is significant room for reasonable minds to differ on the legal effect of a scope order, including whether an order determines scope simply for the purposes of bargaining (that is, in this matter, it only compels bargaining in a single track) or operates more broadly such that it determines the scope of a proposed agreement such that proposed agreements with different scopes cannot be put to a ballot of employees absent agreement by bargaining representatives to that course.

• [15] However, the balance of convenience weighs against interim orders being made.

• [16] The scheme of the FW Act provides that agreements balloted, even if approved by a majority, do not operate unless and until approved by the Commission. The FW Act specifies approval requirements. They include whether agreements were made consistent with good faith bargaining obligations in the wake of a scope order (s 187(2)). In other words, the propositions advanced by the unions in these proceedings are capable of being the subject of conclusive determination in any future agreement approval proceedings. The potential prejudice to the union position if the ballot is allowed to proceed does not extinguish the rights of the union to advance its position, whether or not bargaining orders are made (interim or otherwise).

• [17] In contrast, in these proceedings, any interim orders I make with respect to a ballot would not and could not conclusively determine whether any agreement subsequently made can or should be approved.

• [18] Further, the proximity of time between now and the ballot commencing and consequent inconvenience of deferral and the confused and confusing position that places employees who intend to participate in the ballot weigh against the interim relief sought.

• [19] I take into account that an interim order injuncting the conduct of the ballot, if within power, would retain the current status quo. This weighs somewhat towards the making of the order. However, I consider that the other considerations relevant to prejudice and balance of convenience outweigh that factor.

• [20] The second interim order sought is, in addition, speculative as there is no evidence before me that a ballot other than the one proposed between 21 and 25 July 2022 is proposed by the employer.

• [21] For these reasons I decline to make the interim orders sought.

• [22] Having reserved my decision on the merits of the applications, the Commission will now adjourn.

• [23] These reasons for decision will be provided to the parties and published.

Ms J Rogers with Mr J Harrison and Mr B Jewell, of an on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Mr S Cowen with Mr D Spencer, of and on behalf of the Australian Municipal, Administrative, Clerical and Services Union

Mr D Mugavin, of and on behalf of The Association of Professional Engineers, Scientists and Managers, Australia

Mr C Swan, Mr D Oliver, Mr G Hristopoulos, Mr J Semmler, Mr M Flynn, Mr P Williams and Mr R Cameron as Individual Bargaining Representatives

Mr M Minucci of counsel with Mr J Love, with permission, on behalf of Utilities Management Pty Ltd T/A SA Power Networks

[1] ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19]; Wills v Grant and the Government of New South Wales [2020] FWCFB 4514

[2] [2020] FWCFB 4514 at [34]

[3] PR739691

[4] [2022] FWC 1673

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