[2021] FWC 3533

Fair Work Act 2009

s.437 - Application for a protected action ballot Order

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

Proposed protected action ballot of employees of Endeavour Energy Network Management Pty Ltd.

[1] On 17 June 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CEPU who are employees of Endeavour Energy Network Management Pty Ltd (the employer) and whose employment is to be regulated by a proposed agreement to replace the Endeavour Energy Enterprise Agreement 2017.

[2] The application seeks a ballot of employees of the employer who are members of the CEPU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Bradley Currey (the Statutory Declaration) dated 16 June 2021. In summary, the Statutory Declaration provided information about events involving attempts made by the CEPU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received correspondence dated 18 June 2021, from lawyers acting for the employer advising that the employer opposed the application for a PABO. Consequently, the application was listed for a Hearing before the Commission held at Sydney on 22 June 2021, at which time the following appearances were recorded:

Ms L Shanahan from Kingston Reid lawyers appeared for the employer.

[4] Prior to the Hearing, the employer did not file any evidence or other material that indicated the basis for its stated opposition to the application for a PABO. Apparently, the employer conveyed its concerns to the CEPU and engaged in some discussion about the issues that it had with the PABO. At the commencement of the Hearing on 22 June 2021, the Parties were provided with an adjournment of the proceedings to enable discussion about a potential for an agreed position to be reached.

[5] Regrettably, no agreed position was established. However, the Parties did agree to request an adjournment of the proceedings to enable the employer to provide evidence and other material in support of its concerns, which would then be responded to by the CEPU. The further Hearing of the matter was conducted on 2 July 2021.

[6] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

"443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee."

[7] At the resumption of the Hearing, it became apparent that the most significant matter of contest between the Parties involved the period of written notice for the taking of industrial action that was to be specified in the PABO. The draft PABO provided by the CEPU did not include an indication that the period of 3 working days' written notice prescribed by subsection 414 (2) of the Act, should be extended pursuant to subsection 443 (5) of the Act, and this issue was the subject of contest raised by the employer.

[8] Ms Shanahan, who appeared on behalf of the employer, advanced an argument seeking to have the Commission provide for an extension of the written notice referred to in paragraph 414 (2) (a) of the Act, from 3 working days to 7 days. It was submitted that the Commission should be satisfied that there were exceptional circumstances which would justify extending the notice period for the taking of any protected industrial action.

[9] Ms Shanahan introduced evidence in the form of witness statements of Robert Thomas Armstrong, the employer's Manager System Operations, David Adam Campbell, the employer's Head of Field Operations and Amber Burdett-Dow, the employer's Customer Contact & Experience Manager. The evidence of these individuals supported the basis upon which the employer sought to have the written notice period for the taking of industrial action extended to 7 days. In summary, it was submitted that, in this instance, the exceptional circumstances related to the essential public services functions performed by the employer, and the potential implications for the health and safety of the customers of the employer and the general public within the employer's supply area, all of whom were reliant upon the ongoing provision of electricity supply which may be disrupted by the taking of any industrial action.

[10] Mr Boncardo who appeared for the CEPU, opposed the extension to the notice period as was sought by the employer. Mr Boncardo introduced evidence in the form of witness statements of Ellen Louise McNally, Nathan Gale, Tony McCarthy, and Brad Currey which supported the proposition that a period of 3 working days would provide sufficient time for the employer to implement contingency arrangements to deal with any impacts that would arise from the taking of any industrial action. It was submitted that the capacity for contingency arrangements to deal with any impacts arising from industrial action meant that, in this instance, the Commission should not be satisfied that exceptional circumstances existed, and therefore, there was no basis upon which to extend the written notice period for the taking of industrial action.

[11] Mr Boncardo further submitted that particular limitations in the form of safety commitments that were included in respect to certain forms of the proposed protected industrial action, meant that there was a delimited nature of the proposed protected industrial action. The delimited nature of the proposed protected industrial action included that all employees who are ordinarily rostered to perform work would attend work and be available to perform unplanned work that, if not performed forthwith, would create a serious and imminent threat to human life. Mr Boncardo asserted that the delimited nature of the stoppages proposed in the amended application was particularly significant in assessing firstly, whether there were exceptional circumstances and secondly, whether any exceptional circumstances if established, could justify an increase in the minimum notification period for taking protected industrial action.

[12] The submissions made by Mr Boncardo also asserted that if the Commission was of the view that there were exceptional circumstances that justified an extension to the notification period, there were a variety of factors which should not lead to the granting of the extension as sought by the employer, or at most, provide for only an extension for a 5 day notice period. The factors mentioned by Mr Boncardo included that; the employee bargaining power would be greatly diminished by any extension of the notice period; the employer had capacity to take defensive measures; the delimited nature of the proposed industrial action meant that emergency and urgent work in life threatening situations would be able to occur; and because any 7 working day notice period could not include Saturdays and Sundays, it effectively became a 9 day notice period.

[13] Having carefully considered all of the evidence, and the respective, competing submissions of the Parties, the Commission has been persuaded that exceptional circumstances exist in satisfaction of the requirements of subsection 443 (5) of the Act, and justifying an extension to the notice period for taking protected industrial action. In particular, in this instance, the Commission has been cognisant of the potential health and safety implications that may be created for customers of the employer and the general public who rely upon the ongoing provision of electrical supply within the employer's supply area. The employer unambiguously provides an essential public service in the form of electrical supply to a significant customer area encompassing Greater Western Sydney, the Blue Mountains and the Mid-West, the Southern Highlands, the Illawarra and the South Coast, an area spanning 24,980 square kilometres.

[14] The Commission acknowledges that any extension of the minimum notice period for taking protected industrial action will in many, but not all instances, be likely to reduce the potential deleterious impacts of the industrial action, and thus diminish the bargaining power that may have otherwise been obtained from the taking of the industrial action. Further, the Commission commends the CEPU's safety commitments and the consequent delimitation of particular forms of the proposed industrial action which seeks to curtail life threatening emergency situations arising from any disruption to electrical supply or other impacts of particular forms of the proposed industrial action. However, caveats in respect to serious and imminent threat to human life should apply to all forms of industrial action.

[15] As commendable as they are, the safety commitments are a reflection of the essential public service function of the employer's operations, and unfortunately, they also present a practical difficulty regarding who would determine whether a particular circumstance required the imminent performance of work to avoid a serious and imminent risk to human life. Further, the nature and extent of the potential for severe public health and safety predicaments to occur as a result of any interruption to electrical supply, is a matter that must be appropriately balanced against all other factors and recognised by providing an essential services supplier such as the employer, with an extended period to take defensive action in response to any industrial action which may have such severe public health and safety consequences.

[16] However, exceptional circumstances in satisfaction of subsection 443 (5) of the Act, has only been established in respect to the forms of industrial action specified in questions 1 to 6 inclusive, 8, 14, and 15 of the PABO, and it has not been established in respect to the forms of industrial action specified in the remaining questions of the PABO. Consequently, the period of written notice for the taking of industrial action will be extended to 7 days for any form of industrial action taken pursuant to questions 1 to 6 inclusive, 8, 14, and 15, and the written notice for the taking of any industrial action specified in all other questions shall be 3 working days.

[17] The Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[18] Therefore, pursuant to subsection 443 (1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the CEPU. Accordingly, an Order [PR730864] shall be issued separately.

Mr P Boncardo, Counsel with Ms C Taylor from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia appeared for the Applicant.

Ms L Shanahan, Solicitor of Kingston Reid with Ms E Murison from Endeavour Energy Network Management Pty Ltd from appeared for the employer.

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