[2021] FWC 6128

Fair Work Act 2009

s.437 - Protected action

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

Proposed protected action ballot of employees of Essential Energy

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to employees of Essential Energy:

(b) who are currently covered by the Essential Energy Enterprise Agreement 2018;

(c) who would be subject to the proposed enterprise agreement; and

(d) for whom the CEPU is the bargaining representative (Employees).

• [2] There is no dispute between the parties that a protected action ballot order should be made. On the basis of the material before the Commission, I am satisfied that the relevant requirements set out in the Act for the making of such an order have been met.

• [3] There are only two disputes between the parties. First, whether I should exercise my discretion under s 443(5) of the Act to extend the period of written notice referred to in s 414(2)(a) from three working days up to the five working days as sought by Essential Energy. The second is whether question 16 of the proposed ballot of questions should be put to the Employees. Essential Energy objects to question 16 on the basis that it lacks clarity and is not expressed with sufficient clarity such that Employees would be capable of responding to it or making an informed choice about the industrial action proposed.

• [4] On 6 October 2021, the matter was assigned to my chambers. I listed the matter for directions, by telephone, at 4pm on 6 October 2021. During the directions hearing both parties agreed to participate in conciliation, which I conducted on 7 October 2021 and again on 8 October 2021. The matter was not resolved in any of those conciliation conferences.

• [5] On Friday, 8 October 2021, I made directions requiring the CEPU to file and serve any witness statements, documents and amended application it wished to rely on by 2pm on Monday, 11 October 2021, and Essential Energy to file and serve any reply witness statements and documents it wished to rely on by 2pm on Tuesday, 12 October 2021. In the submissions filed by Essential Energy on 12 October 2021 it reduced its original request to be provided with seven working days' notice of industrial action to five working days' notice.

• [6] I heard the application, by video conference, on 13 October 2021. At the hearing Essential Energy adduced evidence from Mr Leslie David Parker, Head of System Control at Essential Energy, and Mr Christopher Maccoll, Operations Manager for Essential Energy. The CEPU adduced evidence from Mr Steve Magann, Organiser employed by the CEPU and former long-term employee of Essential Energy, and Mr Simon Davies, Powerline Worker employed by Essential Energy and CEPU delegate. In determining this matter I have had regard to all the evidence adduced at the hearing, together with the submissions made on behalf of each party.

• [7] For the reasons given below, I have decided not to exercise my discretion to make an order under s 443(5) of the Act. Given the emphasis in s 441(1) of the Act on determining these matters quickly, my reasons below for not acceding to the request sought by Essential Energy under s 443(5) are relatively brief. I have also decided to allow question 16 in the proposed ballot of questions.

• [8] Section 443 of the Act governs when the Commission must make a protected action ballot order. Section 443(5) governs when a protected action ballot order may specify an extended notice period. It provides:

"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."

• [9] In NTEIU v Charles Darwin University,[1] a Full Bench of the Commission provided the following guidance to the proper interpretation and application of s 443(5) of the Act:

"[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days' written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be "exceptional circumstances" in relation to the proposed industrial action the subject of the order justifying a longer period.

[21] The meaning of "exceptional circumstances" in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation.17 In the case, Lawler VP said:

'[10] ... In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances "justifying" the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.'

[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase "exceptional circumstances justifying" in s.443(5).

[23] The determination of whether the circumstances in a particular case are 'exceptional' involves an evaluative judgement. A proper approach to the exercise of the Commission's discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase "exceptional circumstances" carries its ordinary meaning.

[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances "justifying" a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb "justifying" in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.

[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period)."

• [10] In CEPU v DP World Sydney Ltd,[2] the Full Court of the Federal Court held (at [16]):

"The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied 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."

• [11] Essential Energy is a "poles and wires" electricity distribution business, responsible for the safe and reliable supply of electricity. It is one of Australia's largest electricity networks, delivering essential network services to more than 875,000 customers including homes, schools, businesses and community services. Essential Energy is responsible for approximately 183,612 km of powerlines traversing 737,000 km of land mass.

• [12] The Essential Energy franchise covers approximately 95% of the State of New South Wales and parts of southern Queensland with the exception of a region on the east coast that covers the wider Sydney basin, Newcastle and the Hunter, Wollongong and Shoalhaven. The composition of Essential Energy's customer base is 35% residential, 36% commercial and 29% mining and industrial.

• [13] The infrastructure used in Essential Energy's business includes:

• [14] Within the Essential Energy network there are approximately:

(b) 2,904 essential telecommunications hubs including telecommunication towers, which exist to enable phone, mobile and internet networks in local areas for personal and commercial customers;

(c) water and sewerage treatment and pumping stations in every regional centre or town that can quickly become an environmental or health issue in the event of a supply issue or delayed response;

(e) 27,647 life support customers that require continuous and essential supply of electricity. These customers are registered and certified by their medical practitioner as relying on key medical equipment to stay alive. Interrupted power impacts those life support customers in a variety of ways including:

• potential death (16%);
• reduced quality of sleep / sleep apnoea / breathing difficulties while sleeping (35%);
• inability to sleep / would have to stay awake (28%);
• would have to leave house/be hospitalised (6%), stroke/heart problems / elevated blood pressure (6%); and
• low oxygen / oxygen deprivation / unable to breathe when awake (4%).

• [15] Whilst life support customers are advised that Essential Energy cannot guarantee a continuous 24 hour supply of electricity, due to unexpected incidents such as storms and bushfires, and are advised to have a backup plan in place, the implications for these customers are very serious if they are without electricity. Only one in three of Essential Energy's life support customers report having a back up plan in case of a power outage. Common plans include using a generator or a battery, or relocating to a hospital or other home.

• [16] As a provider of an essential service to the community, many organisations and individuals are reliant on Essential Energy for the safe and reliable supply of electricity. Unplanned outages can have a significant impact on individual life support customers as well as the organisations and businesses to which I have referred above. For example, hospitals can lose power, forcing them to rely on backup generators, which will only last for a defined period of time or which only provide enough power for limited resources. Essential medical supplies requiring refrigeration can be destroyed. Other key utilities such as water and sewerage treatment plants can also lose power and are without backup generators. Traffic lights can go out, creating an immediate safety risk and the ability of first responders (police, ambulance, fire brigade) to do their job can be impacted when they need power isolated to safely undertake their work. Many other organisations such as schools, supermarkets and workplaces are also heavily reliant on power.

• [17] Essential Energy has approximately 3,055 employees, of which approximately 2,688 would be covered by the proposed enterprise agreement. Essential Energy employees are employed across 10 operating regions, including in 96 depots.

• [18] The proposed industrial action may impact the following parts of Essential Energy's operations:

• [19] Control Room is the most critical area of Essential Energy's business. The Control Room operates 24 hours a day, 7 days a week and is responsible for overall control and monitoring of the electricity network. It monitors all field operations, controls access to the network, deenergises the network where necessary and the response to unplanned and category 1 events. Daily core shifts are:

• [20] On each shift an employee is allocated to a particular desk and control zone. The control zone comprises a number of depots to monitor.

• [21] System Operations is responsible for diagnosing events reported through the Customer Contact Centre and determining the appropriate action, and also manages the response to single customer events.

• [22] Field Operations are responsible for the physical delivery of field based activities such as maintenance of the electricity network, construction and reconstruction works, switching the network, response to unplanned and emergency events such as vehicle impacts and storms, and disconnection and reconnection of customers. Field operations staff are heavily reliant on the use of the Field Portal app to perform their work.

• [23] Engineering are responsible for setting the direction of the organisation from an asset management perspective. SCADA, communication and general engineering support teams are responsible for providing technical support for the electronic systems that monitor Essential Energy's network. They also look after all field devices that notify the Control Room when something has gone wrong and undertake the maintenance associated with the communications devices (Radio network & Telephony systems).

• [24] The Customer Contact Centre is responsible for telephone contact with customers and operates 24 hours per day, 7 days per week. This is often the first and prime means of interaction with customers where Essential Energy is able to ascertain the needs of those customers and whether a reported situation constitutes an emergency.

• [25] Planned work includes construction, maintenance, augmentation and rectification of non-urgent defects. These works are scheduled within works programs.

• [26] Unplanned work is work that is triggered by an abnormal event on the network. This can be failure of a network component, either assisted or unassisted, contact with network assets by motor vehicles or other plant. This work must be completed quickly due to public safety risk and is managed as emergency response, it is not work that can be scheduled or programmed. This may include a car or truck hitting a power pole, excavating machinery interfering with overhead or underground power, or wires coming down as a result of weather conditions.

• [27] Unplanned events are not unusual and occur frequently.

• [28] All work, whether planned or unplanned, is categorised according to risk. This assists with the prioritisation and programming of work. There are five categories of risk assessment as follows:

(b) Category 1 - must be rectified within 48 hours;

(d) Category 3 - must be rectified within 6 months; and

(e) Category 4 - must be rectified within 48 months.

• [29] Fault & Emergency work needs to be fixed or at least made safe immediately.

• [30] Work that is categorised as Category 1 has a risk rating of extreme and poses a direct and imminent threat to the general public, employees and/or the network. Category 1 work must be rectified within 48 hours. Examples of Category 1 incidents include a condemned pole, a broken conductor, a loose crossarm, a broken or damaged earth on a pole substation, major damage to a polymer insulator, and sapwood in contact with a conductor.

• [31] Essential Energy manages its rosters so that it can manage planned work as well as respond to unplanned, Fault & Emergency and Category 1 work. Crews are rostered to perform planned or scheduled work, whilst also being available to complete unplanned, Fault & Emergency and respond to Category 1 events as necessary. Currently Essential Energy receives and attends to approximately 47 emergency or unplanned jobs per day.

• [32] Outside of ordinary hours, Essential Energy has an on-call roster. Employees are rostered on-call outside of ordinary hours to attend to emergency situations that occur outside of hours. The on-call roster provides for 118 staff across all 96 depot areas. This is a significantly lower number of employees than are available during ordinary hours. Fewer emergency situations occur out of hours, and if necessary staff can be recalled to assist as necessary. Where resources in addition to those who are on-call are required, staff can be recalled.

• [33] Due to the impact Category 1 and Fault & Emergency incidents can have on life support and other customers as well as the health and safety of the general public, it is critical that Essential Energy can continue to undertake and rectify Fault & Emergency and Category 1 work during any period of industrial action.

• [34] No evidence was adduced as to how many Employees or what proportion of employees who undertake the relevant work are members of the CEPU and therefore form part of the cohort of workers I have defined as Employees. The highest the evidence reached on this topic was Mr Parker's understanding that the CEPU has members in the following classifications who respond to notifications of emergencies, work to make scenes safe and restore power:

(a) employees who work within the Customer Contact Centre;

(b) System Control Technical Officers, System Controllers & Senior System Controllers, all of who work within Essential Energy's Control Room;·

(c) Engineering and technical resources;

(d) Field Supervisors who direct field crews; and

(e) employees who work within field crews.

• [35] Essential Energy does not have contractors or third parties who are authorised to switch the network in the field as per Essential Energy's Electrical Safety Rules. Therefore, contractors and third parties are not able to respond to Fault & Emergency or Category 1 work.

• [36] On 6 October 2021, the CEPU filed and served an amended proposed order in which it gave the following 'Safety Commitment':

This Safety Commitment applies to ballot question 1 to 7, parts of question 8, 10 to 13 and 24.

As a commitment to safety, during any stoppage of work, ban on the performance of overtime, ban on use of Outlook, Field Portal App, PowerOn Mobile, Fleet App, travel outside of normal working hours, bans on locking systems and field switching, bans on substation verification for life support customers, and performing higher duties:

1. the System Control employees, rostered on in accordance with the usual roster will perform work as usual; and

2. the Contact Centre employees and Operational Depot Leaders (Senior Resource Supervisor (SRS), Resource Supervisor (RS) and/or Crew Supervisor) working in accordance with their usual working hours who are taking protected action, and those Field Staff that are normally rostered on the on-call roster who are taking protected action, will:

(a) remain at the place where they usually commence work;

(b) be ready, willing and able to perform unplanned work that, if not performed imminently, would create a serious and imminent threat to human life; and

(i) in circumstances where such work is required for a hospital, nursing home, essential telecommunication hub, police station, SES depot, fire station, ambulance station, utility stations/plants for water and/or sewerage, traffic lights and/or life support customers, will comply with a written direction from the employer to perform such work to the extent required to restore power and avert the serious and imminent threat to human life; and

(ii) in all other circumstances where such work is required, will comply with a written direction from the employer to perform such work to the extent necessary to avert the serious and imminent threat to human life (which may or may not include restoring power).

(c) in the event those Field Staff that are normally rostered on the on-call roster are not available during a day shift, those Field Staff rostered on the on-call roster in the following week will be the single point of contact (SPOC) and be available in accordance with paragraph 2(a), 2(b)(i) and (ii)."

Summary of Essential Energy's submissions on additional notice

• [37] Essential Energy submits that whilst the Safety Commitment goes someway to assisting it to maintain the network and ensure employee, contractor, customer and public safety, it is insufficient to enable Essential Energy to meet its Fault & Emergency requirements or Category 1 work. This, it contends, has serious implications for Essential Energy's customers, but also its staff, the broader community and the general public.

• [38] Essential Energy submits that protected industrial action will affect Essential Energy's ability to deal with unplanned situations including emergencies. Essential Energy submits that it must prepare for industrial action to ensure that emergency and unplanned situations can be addressed in such a way as to protect the health and safety of employees, customers, contractors and the general public.

• [39] In order to manage its response to unplanned, Fault & Emergency work and Category 1 incidents, at a minimum Essential Energy submits that it would require a period of five working days of written notice of the intended protected industrial actions to which the Safety Commitment applies. If Essential Energy does not receive five working days of written notice of the industrial action set out in questions 1 - 7, 8 10 -13 and 24, it submits that it will impact its ability to respond to Fault & Emergency and Category 1 events in a timely manner. In particular, Essential Energy contends that it is likely that the time taken to respond to and rectify a Fault & Emergency would increase significantly. This would mean that unplanned interruptions to supply could continue for an extended period and have a severe impact on life support customers and other critical customers.

• [40] Essential Energy submits that it requires the additional days of notice to enable it to take steps to adequately organise additional resources and mitigate the impact of industrial action in so far as it increases risk to the health and safety of people and property including to:

(a) take steps to ascertain which employees will be taking action;

(b) seek agreement with the CEPU in respect of how to manage emergency situations where resources are inadequate;

(c) consider and cancel planned work, including customer notification changes;

(d) manage planned leave and cancel non-critical training or travel if necessary to ensure adequate resourcing;

(e) ensure that staff rostered on-call for the period the industrial action is occurring, and the following week are aware of their obligations, and their contact details are up to date and available; and

(f) ensure Essential Energy can comply with its notification obligations under the National Electricity Framework rules, which require four days' notice be given to customers of changes to planned work.

• [41] In general, Essential Energy's submission for additional notice of certain forms of protected industrial action is to enable it to have the time to organise alternative capacity to deal with emergency situations, to ensure the health and safety of staff, customers and the general public. This requirement to adequately address health and safety must, so Essential Energy contends, be balanced with the impact on the CEPU's bargaining power.

Summary of Essential Energy's submissions on question 16

• [42] Question 16 seeks permission for an unlimited number of periodic or indefinite bans on performing work which is subject to protected action bans by any or all of Professionals Australia, CFMMEU or USU members. Essential Energy submits that this question does not describe the proposed industrial action in such a way that employees are capable of responding to it, as required by s 437 of the Act.

• [43] Essential Energy contends that none of Professionals Australia, CFMMEU or USU have made an application for a Protected Action Ballot Order (PABO) in circumstances in which the proposed ban would apply. Secondly, in the absence of an application for a PABO, which defines the types of work to which the proposed industrial action would apply by members of Professionals Australia, CFMMEU or USU, Essential Energy contends that it is not possible for CEPU members to understand what work would not be undertaken in respect of this ban. On this basis Essential Energy submits that the PABO should not include question 16.

• [44] Essential Energy plainly conducts a business that provides an essential service. Any interruption to the safe supply of electricity by Essential Energy can have a significant impact on individuals and businesses, most particularly where the supply of electricity is needed to power life support equipment or other medical systems and where emergency measures are required to be put into place to ensure that wires, poles and other infrastructure is not left in a 'live' state after an accident, storm or other unexpected event. Having regard to all the evidence, I am satisfied that the circumstances concerning the taking of the types of industrial action proposed by the Employees are uncommon and special. I am satisfied on the evidence that the exceptional circumstances criterion is satisfied in this case.

• [45] However, I am not satisfied that the exceptional circumstances justify any extension of the three working days' written notice referred to in s 414(2)(a) of the Act. There are a number of reasons for my conclusion in this regard.

• [46] First, Mr Maccoll gave evidence in his witness statement that Essential Energy requires five days' notice of any proposed industrial action relating to questions 1 to 7, parts of question 8, questions 10 -13 and question 24 because it will allow Essential Energy to take action to ensure that it has appropriate resources to address any emergency situations including taking the steps set out in paragraph [40] above. The first point to note about this evidence is that Essential Energy cannot use contractors or any external supply of labour to undertake the necessary emergency and repair work while the Employees take protected industrial action. That is because such workers are not qualified to undertake the work. Although Mr Maccoll asserted in his witness statement that five working days' notice is required, he did not explain why three working days would not be sufficient to undertake the steps identified in subparagraphs [40(a) to (f)] above, nor did he give evidence to explain how long these steps would each take or explain why they could not be done in three working days. In cross examination, Mr Maccoll gave evidence that Essential Energy has not started taking any of the steps set out in subparagraphs [40(a) to (f)] above, even though it has had notice of the CEPU's application for a PABO for about a week and a half. Mr Maccoll also accepted that Essential Energy could start taking the steps set out in subparagraphs [40(a) to (f)] above now. After giving this evidence it was put to Mr Maccoll that if Essential Energy started taking these steps now it would put Essential Energy in a position where it would only require three days' notice of the proposed industrial action. Mr Maccoll responded by stating "I guess that could be correct". In re-examination Mr Maccoll was asked how long it would take for Essential Energy to communicate with customers who require electricity for critical or life threatening type situations, to which he responded that the task would be a mammoth one which would take "several days". Mr Maccoll explained that by "several days" he meant three to five days. This evidence given by Mr Maccoll in re-examination is difficult to reconcile with his evidence in cross examination that it "could be correct" to state that if Essential Energy started taking the steps in subparagraphs [40(a) to (f)] above now it would put Essential Energy in a position where it would only require three days' notice of the proposed industrial action. Furthermore, I do not accept that it would take three to five days for Essential Energy to communicate with its customers who require electricity for critical or life threatening type situations. Essential Energy could commence communications with such customers now to inform them that they were in bargaining with the CEPU for an enterprise agreement, the CEPU has applied for a PABO, if the PABO is made and the employees vote in favour of particular types of industrial action, then protected industrial action may be taken in the future, in which case Essential Energy could not guarantee supply of electricity and they should put in place alternative plans and measures. Such communication could take place by email or telephone in a relatively short period of time. Further communications could be sent to such customers to keep them updated if and when the PABO is made, the results of the PABO are known, and any notice of protected industrial action is given. As to the particular steps in subparagraphs [40(a) to (f)] above:

(a) Essential Energy could communicate with its employees now and ask them whether they intended to take any industrial action in the event that a PABO is made, the vote approves the taking of industrial action, and a notice of intention to take industrial action is given. Essential Energy could then ask for an update from its employees as soon as any notification is given of particular industrial action. I am not persuaded on the evidence that it would take more than three working days to ascertain which employees will be taking action;

(b) Essential Energy could commence communications with the CEPU now in respect of how to manage emergency situations where resources are inadequate. The PABO sought by the CEPU provides that voting in the ballot shall conclude no less than 14 working days after the date of the order. Accordingly, by the time the PABO is made and the results of the votes are known there will be at least three working weeks before any notice of industrial action can be given. Once such notice is given, further discussions can take place with the CEPU about the particular action and how emergency situations may be able to be managed. I am not persuaded on the evidence that it would take more than three working days to seek agreement with the CEPU in respect of how to manage emergency situations where resources are inadequate;

(c) Essential Energy is aware of what work it has planned for the coming weeks and months. It can consider now which parts of that planned work may be able to be cancelled or postponed if notice of industrial action is given in the coming weeks and months. As mentioned above, customer notification can commence now and be updated as and when any notice of industrial action is given. I am not persuaded on the evidence that it would take more than three working days to consider and cancel planned work, including customer notification changes;

(d) Essential Energy is aware of what leave and training is planned over the coming weeks and months. It can consider now which parts of that leave and training may be able to be cancelled or postponed if notice of industrial action is given in the coming weeks and months. I am not persuaded on the evidence that it would take more than three working days to manage planned leave and cancel non-critical training or travel if necessary to ensure adequate resourcing;

(e) Essential Energy can communicate with all of its employees now as to their obligations when rostered on-call for any period of industrial action. It can also take steps now to ensure the contact details for all relevant employees are up to date and available. I am not persuaded on the evidence that it would take more than three working days to ensure that staff rostered on-call for the period the industrial action is occurring, and the following week are aware of their obligations, and their contact details are up to date and available; and

(f) Essential Energy can give notice to particular customers now that planned work which may impact them may need to be changed in the event of industrial action in the future. Further notification may also be given to those customers when any notice of industrial action is given. I am not persuaded on the evidence that more than three working days' notice is necessary to meet this requirement.

• [47] For these reasons, I consider that Mr Maccoll was correct to effectively concede in cross examination that the steps identified in paragraph [40(a) to (f)] above could commence now and that if such action was taken then three working days' notice would be sufficient.

• [48] The second and separate reason why I am not satisfied that the exceptional circumstances justify any extension of the three working days' written notice referred to in s 414(2)(a) of the Act relates to the lack of evidence concerning the employees that Essential Energy may have available to undertake required Fault & Emergency and Category 1 work. Because no evidence was adduced as to union (CEPU) density at Essential Energy, I have no knowledge of how many, or what proportion, of Essential Energy employees who normally undertake repair and emergency work may take protected industrial action if the ballot questions are answered in the affirmative and notice is given of the proposed industrial action. This is important. If, for example, the CEPU only has, say, 5% of the relevant workforce as members, then even if all those employees take industrial action at the same time, it is unlikely to have a significant impact on Essential Energy's ability to respond to Fault & Emergency or Category 1 situations. On the other hand, if the CEPU has, say, 95% of the relevant workforce as members, then if all, or most, of those employees take industrial action at the same time, the ability of Essential Energy to respond to Fault & Emergency or Category 1 situations may be far more constrained. Absent at least some evidence about how many, or what proportion, of Essential Energy employees who normally undertake repair and emergency work are CEPU members, I could not be satisfied that the identified exceptional circumstances show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.

• [49] In closing oral submissions Ms Shanahan, who appeared for Essential Energy, accepted that there was no evidence before the Commission on this topic. Ms Shanahan then informed the Commission, when I raised this issue with her, that in 2016 about 1,500 members of the CEPU were balloted in connection with proposed protected industrial action at Essential Energy. Even if I took this outdated information at its highest and accepted it as probative of the likely number of relevant employees at Essential Energy who may take protected industrial action in connection with the current round of bargaining, it would still leave about 1,168 employees who will be covered by the proposed enterprise agreement and who are not CEPU members, with the result that they will not be permitted to take any protected industrial action in accordance with any notice of industrial action given by the CEPU. When these non-CEPU member employees are considered along with the resources which will be made available pursuant to the Safety Commitment given by the CEPU, I consider it likely on the evidence that Essential Energy will have the resources necessary to deal with the essential Fault & Emergency work and Category 1 work during any period of protected industrial action.

• [50] Having regard to all the facts and circumstances, my evaluative assessment is that the exceptional circumstances identified by Essential Energy do not show or prove that it is reasonable or necessary to require a period of written notice beyond three working days, nor do they warrant or provide good reason to exercise the discretion conferred by s 443(5) to extend the notice period beyond three working days.

• [51] Question 16 of the ballot is in the following terms:

"In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by CEPU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:

16. An unlimited number of periodic or indefinite bans on performing work which is subject to protected action bans by any or all of Professionals Australia, CFMMEU or USU members."

• [52] I consider that the question posed is not difficult to understand at a conceptual level. It effectively asks the Employees whether they wish to impose a ban on the performance of work which is the subject of a protected action ban by another union. For example, if CFMMEU members impose a ban on the performance of particular work, members of the CEPU are being asked whether they approve the imposition of a ban on such work. I am confident the Employees will understand the question they are being asked and will be able to give an informed and considered answer to question 16. The question will remain as part of the ballot.

• [53] In light of my findings set out above, a protected action ballot order must be made pursuant to s 443(1) of the Act. I reject Essential Energy's application for an order specifying a longer period than three working days for the giving of notice of protected industrial action.

• [54] The Order [PR734888] will be issued concurrently with this decision.

[1] [2018] FWCFB 4011.

[2] [2019] FCAFC 99.

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