Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

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

Application for an intractable bargaining declaration

• [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied for an intractable bargaining declaration pursuant to s 234 of the Fair Work Act 2009 (Cth) (Act). The application relates to bargaining between the CEPU and others and Endeavour Energy Network Management Pty Ltd t/as Endeavour Energy (Endeavour) for a proposed new enterprise agreement. The proposed new agreement is the Endeavour Energy Enterprise Agreement 2023.

• [2] Endeavour and the other bargaining representatives that have been involved in the bargaining process - the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and two employee bargaining representatives, Mr. Johnson and Mr. Vitucci - do not oppose the application.

• [3] The factual background to the application is largely uncontentious and is set out in witness statements provided by the CEPU and Endeavour. Those witnesses were not required for cross-examination and the parties confirmed that they were content for the matter to be determined on the papers.

• [4] The facts that are relevant to the determination of this matter can be summarised as follows:

(i) Endeavour is currently covered by an agreement called the Endeavour Energy Enterprise Agreement 2021 (current agreement).

(ii) The current agreement covers approximately 1400 of Endeavour's 1580 employees engaged in Endeavour's field operations and system operations areas, as well as some office-based staff.

(iii) The current agreement expired on 31 December 2023.

(iii) The first bargaining meeting for a replacement agreement occurred on 21 September 2023 and meetings have been held on an almost weekly basis since then. On some occasions multiple bargaining meetings have occurred in a single week.

(iv) Since bargaining began, there have been approximately 40 meetings of the main bargaining group as well as approximately 27 additional meetings of bargaining subgroups to discuss issues relating to smaller subsets of Endeavour's employees.

• (v) The CEPU has made two applications for protected action ballot orders, the first on 20 December 2023[1] and the second on 7 May 2024.[2] Both applications were approved by the Commission.

(vi) Protected industrial action was first notified on 24 January 2024 pursuant to the first ballot order and on 23 May 2024 in the case of the second ballot order and has continued on an almost daily basis since.

• (vii) On 6 March 2024 Endeavour filed an application under s.240 for the Commission to deal with a dispute about the progress of bargaining for a replacement agreement.[3] The matter was allocated to me.

(viii) On 26 March 2024 I held a conciliation conference in the matter referred to above.

(ix) Following the conference on 26 March 2024, the CEPU advised that it no longer proposed to participate in any further conferences in that matter.

(x) On 16 July 2024, the Commission's file in the s.240 matter was closed.

(xi) In September 2024 the parties engaged in a private mediation process over the course of one week in an attempt to reach an agreement. No agreement was reached.

(xii) Between 23 October and 25 October 2024 Endeavour asked its employees to approve a proposed agreement to replace the current agreement by voting for a replacement agreement. The vote was unsuccessful by a margin of 57% to 43%.

• [5] Section 234 sets out the circumstances in which an application for an intractable bargaining declaration may be made:

234 Applications for intractable bargaining declarations

(1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.

Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.

(2) An application for an intractable bargaining declaration must not be made in relation to a proposed multienterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

• [6] Section 235 provides for the Commission's power to make an intractable bargaining declaration, the content of any declaration and its period of operation.

235  When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement - the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement - the day that the authorisation first comes into operation; or

(b) otherwise - the notification time for the proposed agreement.

Has an application for the declaration been made? - s 235(1)(a)

• [7] It was not in issue that the CEPU has made a valid application under s 234 of the Act. It is a bargaining representative for the proposed agreement, and the application is made in relation to a single-enterprise agreement, not a multi-enterprise agreement.

Is it after the end of the minimum bargaining period? - s 235(1)(c)

• [8] The nominal expiry date for the current agreement is 31 December 2023. The notification time for the proposed agreement was not later than 21 September 2023 when Endeavour agreed to bargain for the proposed agreement. The end of the minimum bargaining period is therefore 9 months after the nominal expiry date of the existing agreement in accordance with s.235(5)(a). The minimum bargaining period has therefore passed.

Has the FWC has dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC's processes to deal with the dispute? - s 235(2)(a)

• [9] It was not disputed that the CEPU participated in the s.240 dispute proceedings at a conference before the Commission on 26 March 2024. That conference canvassed the full range of matters that were then in dispute between the parties in relation to the proposed agreement. The CEPU submitted that it was not necessary for the Commission to have exercised all or any of its powers under s.595(2) during the s.240 conference in order for the Commission to be satisfied of the requirement in s.235(2)(a).[4] No other party submitted to the contrary or otherwise contended that the Commission had not dealt with 'the dispute' as required by the subsection. Having convened the s.240 conference and taking into account the subject matter of the discussions and the participation of the CEPU, I am satisfied that the requirement of s.235(2)(a) has been met.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? - s 235(2)(b)

• [10] The parties have been bargaining for over 13 months. There has been in excess of 40 bargaining meetings. As recently as September 2024 the parties participated in private mediation processes in an unsuccessful attempt to reach an agreement. The employees have recently voted down a form of agreement proposed by Endeavour. The parties are at odds as to the number of issues that remain in dispute. The Applicant maintains that there are 21 such issues. Endeavour says the number is 31. The disputed provisions include important matters such as wage increases/rates of pay and various allowances, outsourcing, shift penalties and inclement weather provisions. The parties agree that bargaining has reached an impasse. I am satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make a declaration.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? - s 235(2)(c)

• [11] The matters referred to in paragraph [10] above also weigh in favour of a conclusion that it is reasonable in the circumstances to make the declaration. The parties are experienced bargaining participants and have engaged in the bargaining process over an extended period but despite their efforts, the matter remains unresolved. In this case ongoing protected industrial action in an important sector such as the electrical power industry has the potential to cause disruption and loss without necessarily delivering an agreement between the parties, at least not in the foreseeable future. None of the bargaining representatives expressed a view that a declaration would be unreasonable in the circumstances. I am satisfied that it is reasonable to make the declaration sought.

• [12] The preconditions for the making of an intractable bargaining declaration in s 235(1) have been satisfied. There is no other matter which I am aware of which, in the exercise of my residual discretion, would weigh against the making of an intractable bargaining declaration. I propose to make the declaration as sought by the CEPU.

Post-declaration negotiating period - s 235A

• [13] Where an application for an intractable bargaining declaration is granted s.235A confers on the Commission the power to specify a 'post-declaration negotiating period.' The CEPU and Endeavour are of the view that there should be such a period but disagree as to its duration.

• [14] The CEPU argues that the period should be 7 days. They say that a 7-day period is consistent with previous periods determined to be appropriate in similar circumstances in the same industry. They say that employees have not had a pay increase since July 2023 and further delay would be unreasonable. Further, they argue that any period beyond 7 days would not result in any agreement between the parties given the history and length of negotiations to date. Finally, they say that any extension of the negotiating period beyond 7 days would only serve to delay the making of a determination under Division 4 of Part 2-5 of the Act and frustrate the purpose of s.269 which requires determinations to be made as quickly as possible.

• [15] Endeavour submitted that the parties would benefit from further Commission involvement given the last conference was held on 26 March 2024 and that further time after the making of any declaration would, with Commission assistance, provide the best chance for agreement to be reached on at least some matters or otherwise result in a narrowing of the issues in dispute. Endeavour said that given the number of matters in dispute any possible reduction in those matters through a post-declaration negotiating period would ensure the more efficient and timely conduct of proceedings for a workplace determination. In my view, this latter argument carries considerable force. In United Firefighters' Union of Australia v. Fire Rescue Victoria[5] the Full Bench observed:

"...we hold a significant concern that, because of the radical difference in the positions of the parties at the present time as to what constitute the agreed terms and the matters in issue, the arbitration required to be conducted will be considerably extended by the need to determine, as a preliminary step, which matters need to be arbitrated. This may compromise the Commission's capacity under s 269(1) to make an intractable bargaining workplace determination 'as quickly as possible'. We consider therefore that the specification of a post-declaration negotiating period would be useful for the purpose of giving the parties an opportunity to resolve, or at least narrow, their differences as to what matters will need to be arbitrated."[6]

• [16] I am of the view that it is appropriate to specify a 14-day post-declaration negotiating period to provide the best opportunity for the parties to come to an agreed position on, at the least, the terms that are not agreed and will require arbitration. The Commission will be available, on request, to assist the parties during the post-declaration negotiating period.

• [17] The intractable bargaining declaration which I will make will specify a post-declaration negotiating period of 14 days. The declaration is made by a separate order that is published in conjunction with this decision and which, in accordance with s 235(4)(a) of the Act, will operate from the date of this decision.

[4] Reliance was placed on the decision in TWU v. Cleanaway Operations Pty Ltd [2014] FWC 91 at [67]- [70].

[5] [2023] FWCFB 180.

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