Fair Work Commission|2025-03-20

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd Trading AS Endeavour Energy [2025] FWC 802 (20 March 2025)

s.269 - Intractable bargaining workplace determination

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

Endeavour Energy Network Management Pty Ltd Trading AS Endeavour Energy

Intractable bargaining workplace determination - Application for a confidentiality order

[1] On 6 November 2024, the Fair Work Commission (Commission) made an intractable bargaining declaration under s 235(1) of the Fair Work Act 2009 (Cth) (Act) in relation to the proposed Endeavour Energy Enterprise Agreement 2023 (the Proposed Agreement).[1] The bargaining representatives involved in bargaining for the Proposed Agreement are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) (together the Joint Unions), the employer, Endeavour Energy Network Management Pty Ltd t/as Endeavour Energy (Endeavour), and two employee bargaining representatives, Mr Dave Johnson and Mr Benjamin Vitucci.

[2] Having made an intractable bargaining declaration, the Commission is required by s.269 of the Act to make an Intractable Bargaining Workplace Determination (Determination). The Determination has been set down for hearing before a Full Bench from 31 March - 4 April 2025.

[3] Three contested applications have been made by the parties in relation to the Determination proceedings. On 5 March 2025, Endeavour made an application for an order of the Commission prohibiting the publication of some aspects of the evidence which it has filed in the Determination proceedings. On 5 March 2025, the Joint Unions made an application for an order for production of documents addressed to Endeavour. On 10 March 2025, Endeavour made an application for an order for production of documents addressed to CEPU.

[4] The three applications were listed for hearing before me on 12 March 2025. On 17 March 2025, I issued a decision in relation to the applications for orders for production of documents.[2] I deal with Endeavour's application in relation to the publication of some aspects of the evidence in this decision.

[5] Endeavour seeks orders from the Commission, which prohibit the publication of excerpts contained in a witness statement of Ms Sanja Milosavljevic who is the Head of Field Operations at Endeavour, and any transcript of the hearing in relation to these excerpts. The statement is dated 26 February 2025 and was filed in the Commission by Endeavour on 27 February 2025.

[6] The aspects of Ms Milosavljevic's statement which are subject to the proposed orders deal with conversations which Ms Milosavljevic had with employees following a mass meeting held by the CEPU on 9 October 2024. The statement relevantly provides:

9. Upon arriving at Hoxton Park FSC on the morning of 10 October 2024, I went to the desk area where the Hoxton Park team works to put my belongings down. At around that time, I had a conversation with (Employee A), along with around 1 or 2 other people, although I cannot recall specifically who they were.

10. As we were chatting, I recall that I asked the group words to the effect of, 'What was the outcome of yesterday's meeting? Are they going to support it or not?' Buy [sic] 'it' I was referring to Endeavour's latest offer to employees.

11. Employee A replied saying words to the effect that. 'We can't really lose anything because what was being offered in the vote is now the minimum. We're not going to accept the offer, we're going to go all the way to the Commission because we can't lose anything and things are only going to get better.

12. I said something back to the effect of, 'What do you mean? That's not really the case. Where is that coming from?'

13. It was the first time that I heard that employees thought there was 'nothing to lose'. As leader in the organisation, I had told employees on a number of times that voting 'yes' meant certainty in terms of what was on offer, and that we don't know what would happen in the future if the vote was 'no'.

14. Employee A said back to me, 'That's what was shared at the mass meeting.'

17. Based on my conversations with the field operations team (who indirectly report to me), I have observed that staff continue to think that there is nothing to lose by going to the Commission but are frustrated with the time it is taking. I say this based upon what they are telling me. In particular, I have had at least 10 conversations with field staff in the November 2024 Safety Days where similar sentiments were expressed, with a common theme that there was nothing to lose by going to the Commission. In around November in Springhill, I think it was Springhill Safety Day, I recall that an Endeavour Energy CEPU delegate [Employee B] said words to the effect of 'We are expecting a good Christmas present this year Sanja, looking forward to our 8-8-8 pay rise!

[7] The effect of the confidentiality orders sought by Endeavour is that the identities of 'Employee A' referred to in paragraphs 9, 11 and 14, and 'Employee B' referred to in paragraph 17, would not be disclosed. Endeavour provided a draft order which permits named representatives of the Joint Unions to access an unredacted version of Ms Milosavljevic's statement (which would disclose the identities of Employee A and Employee B) and for the CEPU to provide it to any person who is or may be a witness in the Determination proceedings only for the purpose of the proceedings provided certain conditions are met. These conditions include that a copy of the confidentiality order is provided to that person, and the person has signed a relevant undertaking to keep the statement confidential.

[8] Ms Milosavljevic provided a further statement dated 11 March 2025 in support of Endeavour's application for confidentiality orders. The Joint Unions objected to aspects of Ms Milosavljevic's additional statement but I decided to admit the statement into evidence in its entirety. Ms Milosavljevic was not required for cross examination by the Joint Unions.

[9] Ms Milosavljevic explained that Endeavour is a highly unionised workplace, particularly the area of field operations, which she oversees, and system operations. Ms Milosavljevic estimates that around two-thirds of her indirect reports would be union members and that around 80% of the CEPU's delegates come from her area of field operations.

[10] Ms Milosavljevic explained that Employee A, who is a member of the CEPU works at Hoxton Park and he is one of Ms Milosavljevic's indirect reports, with two levels of management between him and Ms Milosavljevic. Ms Milosavljevic has worked with Employee A for 17 years in various roles she has had. Employee A and Ms Milosavljevic have a good working relationship and Employee A is often open and frank in his discussions with Ms Milosavljevic. Ms Milosavljevic greatly values the working relationship she has with Employee A.

[11] Ms Milosavljevic explained that at paragraph 17 of her first statement, she mentioned the name of another person she had a conversation with (Employee B) and provided details of that conversation. Employee B is a CEPU delegate. Employee B is one of Ms Milosavljevic's indirect reports, with two levels of management between Employee B and Ms Milosavljevic.

[12] Ms Milosavljevic said that she provided the evidence in the first statement on the basis that the identity of Employee A and Employee B would remain confidential. Ms Milosavljevic said that as a manager, it is important that she can have open and frank conversations with employees like Employee A and Employee B. Ms Milosavljevic is a big believer in having direct conversations with her employees so that she can provide them with information and they can provide information to her in return. Ms Milosavljevic finds that these conversations happen best when there is a level of trust between her and the employees. Ms Milosavljevic has worked very hard over many years to develop good relationships with her employees and a relationship built on trust.

[13] Ms Milosavljevic said that she is concerned about naming Employee A and Employee B without appropriate confidentiality protections as this may undermine open communications between her and her employees moving forward. Ms Milosavljevic is also concerned that this may also undermine open communications between management and the workforce more broadly moving forward.

[14] Ms Milosavljevic is particularly concerned that naming Employee A may irretrievably damage her good working relationship with him and with her employees at Hoxton Park. Ms Milosavljevic is also particularly concerned that naming Employee A may cause him to be targeted by other people, particularly union members, for being frank with Ms Milosavljevic. Ms Milosavljevic would not want this to happen simply because she named Employee A in her witness statement.

[15] The Joint Unions opposed the application on the basis that:

(a) it is not possible for the Joint Unions to test Ms Milosavljevic's evidence without

knowing the identities of Employee A and Employee B;

(b) Endeavour Energy has not identified why the orders are required or led evidence

[16] In relation to (a), Endeavour submitted that the orders proposed by Endeavour Energy include 'carve outs' for authorised persons to access the confidential information (including the parties, witnesses and legal practitioners acting on their behalf). The orders sought would not prevent the Joint Unions from testing the evidence.

[17] In relation to (b), Endeavour submitted that the additional witness statement of Ms Milosavljevic explains the reasons for the orders sought. In short, Ms Milosavljevic deposes that Endeavour is highly unionised and that disclosing the confidential information risks employees being less frank in their discussions with her moving forward.

[18] In relation to (c), Endeavour submitted considerations of open justice and procedural fairness are relevant, but do not operate in a vacuum. This application is concerned with protecting the identity of employees who are not parties to this proceeding and who are not proposed to be witnesses. Endeavour's interests lie in ensuring that it maintains frank communications between management and its workforce, which may be jeopardised by revealing the confidential information. In this case, the balance between considerations of open justice and Endeavour Energy's interests are struck by making the orders sought.

[19] Section 594 of the Act enables the Commission to make an order prohibiting or restricting the publication certain documents or information associated with proceedings before the Commission. The section provides:

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).

[20] The CEPU relied upon the recent decision of Vice President Gibian in Application by the United Nurses of Australia[3] which canvassed numerous authorities relevant to the application of s.594. The following principles may be distilled from these authorities and the Vice President's decision:

• The power to make an order prohibiting or restricting the publication of the specified types of information or documents under s 594(1) arises if the Commission is satisfied that it is desirable to do so "because of the confidential nature of any evidence, or for any other reason...".[4]
• The power conferred on the Commission to make non-publication orders has the potential to conflict with the open administration of justice.[5]
• The application of the principle of open justice in the court system requires that the circumstances in which orders will be made prohibiting the publication of documents or evidence before a court will be limited. Generally, such orders will only be made if it is necessary to do so in the interests of justice and to secure the proper administration of justice in a particular case.[6]
• The test of desirability, rather than necessity, contemplates a wider scope for exercising the Commission's discretion to make a non-publication or non-disclosure order than the common law dictates for the courts.[7]
• Public confidence in the Commission's processes is aided by those processes being conducted in a transparent manner and exposed to public scrutiny in a manner similar to court proceedings.[8]
• In making an assessment whether it is desirable to make a non-publication order because of the confidential nature of the document or evidence or for any other reason, it is appropriate for the Commission to take into account the desirability of the Commission's processes being open and transparent while keeping in mind that other considerations may, nonetheless, mean it is desirable to restrict the publication of evidence or documents produced in Commission proceedings.[9]
• The courts have observed that one consequence of the principle of open justice is that untested allegations of an embarrassing or potentially damaging to individuals or organisations may become public.[10] Mere embarrassment or distress has not been regarded as sufficient to justify a non-publication order even on the lower standard of whether it is desirable to make such an order.[11]

[21] I have considered these principles in determining the matter.

[22] Ms Milosavljevic's concerns about naming Employee A and Employee B can be summarised as follows:

Ms Milosavljevic provided the evidence in her first statement on the basis that the identities of Employee A and Employee B would remain confidential.
As a manager, it is important that Ms Milosavljevic can have open and frank conversations with employees like Employee A and Employee B. These conversations happen best when there is a level of trust between Ms Milosavljevic and the employees.
Naming Employee A and Employee B without appropriate confidentiality protections may:
- undermine open communications between Ms Milosavljevic and her employees in the future.
- undermine open communications between management and the workforce more broadly in the future.
In addition, naming Employee A without appropriate confidentiality protections may:
- irretrievably damage Ms Milosavljevic's good working relationship with him and with her employees at Hoxton Park.
- cause him to be targeted by other people, particularly union members, for being frank with Ms Milosavljevic.

[23] Relevantly, this is not a situation where Ms Milosavljevic says that Employee A and Employee B provided her with information which they each asked her to keep confidential. Nor is there any evidence to suggest that Employee A and Employee B have requested that their identities remain confidential. For these reasons, I do not believe that the names of Employee A and Employee B would be regarded as confidential for the purposes of s.594(1). However, I may make an order under s.594(1) if I am satisfied that it is desirable to do so 'for any other reason.' I therefore propose to examine the reasons advanced in Ms Milosavljevic's evidence in support of making the order.
[24] Ms Milosavljevic has not specifically explained the connection between identifying Employee A and Employee B and this potentially undermining open communications between management (including Ms Milosavljevic) and employees.

[25] However, it can be surmised that Ms Milosavljevic's concern appears to be that if employees (including Employee A and Employee B) become aware that their conversations with her might be included in a witness statement in the Determination proceedings, they are less likely to have open conversations with Ms Milosavljevic and other management representatives, for fear that these conversations may be repeated by them. In my view, this concern arises whether Employee A and Employee B are identified or not. It is the fact that Ms Milosavljevic has recorded the content of conversations with employees in a witness statement which could give rise to a reluctance by employees to have open conversations with her rather than the identity of the persons she had the conversations with.

[26] Ms Milosavljevic also does not explain the basis for her concern that naming Employee A may irretrievably damage her good working relationship with him and with her employees at Hoxton Park. Employee A and Employee B are likely to become aware that they have been named in Ms Milosavljevic's statement (if they are not already aware) as the proposed confidentiality order does not prohibit named representatives of the Joint Unions from talking to those employees.

[27] It seems to me that if Employee A is concerned about Ms Milosavljevic giving evidence about her conversation with him on 10 October 2024, it is likely that Employee A would hold this concern regardless of whether his identity is publicly revealed or confined to the Joint Unions' representatives. If Employee A regarded the conversation between him and Ms Milosavljevic on 10 October 2024 as private, the publication of this conversation in a witness statement, even in a deidentified way, could detrimentally affect the working relationship between Employee A and Ms Milosavljevic, given that the purpose of Ms Milosavljevic's evidence appears to be to oppose the Joint Unions' claims. Consequently, the concern is more likely to be about Ms Milosavljevic revealing details of a private conversation between them than revealing Employee A's identity.

[28] It is also possible that Employee A is not concerned at all about the conversation being recorded in Ms Milosavljevic's statement given Ms Milosavljevic's evidence that she had at least 10 conversations with field staff in November 2024 in which it was conveyed by employees that there was nothing to lose by going to the Commission. If this evidence is accepted by the Commission, it suggests that employees were openly talking about the matters conveyed by Employee A to Ms Milosavljevic and that Employee A may not be concerned about his comments being repeated by Ms Milosavljevic.

[29] Having regard to either scenario, I have difficulty accepting that Ms Milosavljevic's specific concern that the naming of Employee A (and not any of the other matters canvassed above) would likely result in her good working relationship with Employee A and with her employees at Hoxton Park being irretrievably damaged.

[30] In relation to Ms Milosavljevic's concern that naming Employee A could cause him to be targeted by other people, particularly union members, for being frank with Ms Milosavljevic, there is no evidence which establishes that this is likely to occur. Further, the fact that at least ten other employees have also been 'frank' with Ms Milosavljevic that there was nothing to lose by going to the Commission suggests that employees are being open in expressing this belief and are therefore unlikely to regard Employee A's actions in talking to Ms Milosavljevic about the mass meeting as being indiscreet or inappropriate.

[31] I have no reason to doubt that Ms Milosavljevic's concerns about naming Employee A and Employee B without appropriate confidentiality protections are genuinely held. However, for the reasons outlined above, I believe that it is the content of the conversations in Ms Milosavljevic's witness statement (which are not the subject of the proposed confidentiality orders), rather than disclosure of the identity of Employee A and Employee B, that is more likely to affect the relationship between Endeavour and its employees. In the circumstances, I find that the desirability of the Commission's processes being open and transparent outweigh Endeavour's concerns that the naming of Employee A and Employee B may jeopardise the maintenance of frank communications between management and its workforce.

[32] I am not satisfied that it is desirable to make the orders sought by Endeavour under s.594 because of the confidential nature of the material referred to in the proposed orders, or for any other reason. I therefore decline to make the orders.

Printed by authority of the Commonwealth Government Printer

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd Trading AS Endeavour Energy [2025] FWC 802

At a glance

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Judgment (61 paragraphs)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd Trading AS Endeavour Energy [2025] FWC 802 (20 March 2025)

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Legislation Cited (1)