[2024] FWC 1308

Fair Work Act 2009

s.604 - Appeal of decisions

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

Application for a stay under s 606 - application granted

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal it has lodged against a decision of Deputy President Saunders made yesterday, 16 May 2024. In the decision ( [2024] FWC 1282) the Deputy President determined to make an order under ss 426 and 427 of the Act suspending protected industrial action by members of the CEPU employed by Endeavour Energy Network Management Pty Ltd (Endeavour). The order was made on application by a third party, Shoalhaven Starches Pty Ltd (Shoalhaven), which contended that the protected industrial action was threatening to cause it significant harm. The Deputy President was satisfied that this was the case, and that the various requirements of s 426 had been met. He issued an order suspending protected industrial action for a period of 3 days commencing at 6am today, Friday 17 May 2024, and ending at 6pm on Sunday 19 May 2024.

• [2] By ground 1 of its notice of appeal, the CEPU contends that the Deputy President erred in concluding that the protected industrial action was threatening to cause Shoalhaven significant harm within the meaning of s 426(3), in circumstances where the action was not threatening the viability of Shoalhaven, disrupting the supply of goods or services, or reducing its capacity to fulfil contractual negotiations, but was only preventing it from taking steps to avoid incurring costs. The second ground of appeal contends that the Deputy President erred at [34] in concluding that the CEPU and its members would be able to resume protected action after three days, because s 430 requires further written notice to be given following an order suspending protected action. The CEPU contended that this led the Deputy President to err in his consideration of whether he was satisfied that it was appropriate to make a suspension order because he did not properly consider the impact that the order would have on the union and its members.

• [3] The CEPU requested an urgent appeal and applied for an urgent stay of the decision. At the stay hearing this afternoon, the CEPU advised that the most critical switch work, which had evidently been the animating purpose of the application, had now been completed. Shoalhaven acknowledged that this was the case and said that it neither consented to the stay nor opposed it. It said that the decision was correct but made no submission on the balance of convenience.

• [4] Before exercising the discretion to grant a stay under s 606, the Commission must be satisfied that the applicant has an arguable case, with some reasonable prospect of success for permission to appeal and on the merits. The balance of convenience must also weigh in favour of the decision being stayed.

• [5] As to an arguable case of error, the gist of ground 1 was that the Deputy President had not applied the principles in CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021. It is not clear to me how this is said to have been the case. The Deputy President set out in detail the harm that Shoalhaven was likely to suffer and gave a clear explanation of his conclusion that it would be significant. It appears to me that the Deputy President undertook the exercise required of him by s 426(3). As to ground 2, I read the passage in question simply to mean that after the suspension, the process of protected action can continue. I consider that the Deputy President was well aware of s 430. Nevertheless, the CEPU might be able to develop these grounds in the appeal. The CEPU has at least an arguable case, with some reasonable prospect of success, in relation to permission to appeal and the appeal.

• [6] As to the balance of convenience, the CEPU contended that, in light of the critical work having now been completed, the balance of convenience was all one way. The order under s 426 by its nature curtailed its members' industrial action rights, which was a weighty and serious matter, whereas there was nothing on the other side of the scales because Shoalhaven's interests were no longer affected. I agree with the union. The balance of convenience favours a stay. For the above reasons, a stay order was issued a short time ago in PR775138.

G. Fredericks of counsel for Shoalhaven Starches Pty Ltd

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