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[2024] FWC 1914
General information, not legal advice.
Fair Work Commission
2024-08-02
Original judgment source is linked above.
[2024] FWC 1914 [Note: An appeal pursuant to s.604 (C2024/5297) was lodged against this decision.]
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Application to suspend or terminate protected industrial action (endangering life etc) - s.424 threatened, impending or probable - endanger the life, the personal safety, or the welfare, of the population or of part of it - application granted
[1] Pursuant to section 424(1)(c) of the Fair Work Act 2009 (the Act) the Fair Work Commission orders that protected industrial action in relation to the work defined in the Revised Safety Commitment as a declared incident or emergency work, and declared as such by the CEO of Transgrid, be suspended for a period of three (3) weeks effective from the date of this Order.
(a) NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid;
(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; (CEPU)
(c) all employees who will be covered by the classifications covering CEPU members in the proposed agreement to replace the Transgrid Enterprise Agreement 2020.
[3] The CEPU is ordered to distribute a copy of this Order to their respective members who will be covered by the Order, and advise members of the effect of this Order, by using the most expeditious mean(s) possible, including by electronic means.
[4] NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid is ordered to distribute a copy of this Order to all employees who will be covered by the Order and advise the employees of the effect of this Order, by using the most expeditious mean(s) possible, including electronic means.
[5] This Order comes into operation at 11:59PM on 24 July 2024.
[6] Reasons for my Decision will follow in due course.
(a) 219 public hospitals (not including private hospitals);
(d) a number of essential telecommunications hubs; and
(e) thousands of life support customers. Life support customers are individuals who use life support equipment at home, whose details are included on a special register. Life support equipment includes dialysis machines, oxygen concentrators and ventilators. During an unplanned blackout, life support customers may have back-up batteries or generators, however these may not be sustainable for long periods or may not always be available.
(a) the Australian Energy Market Commission (AEMC);
The above intended action is subject to the Safety Commitment recorded in the Order of Deputy President Hampton of the Fair Work Commission made on 11 December 2023 in PR769005 as follows:
An employee will temporarily suspend industrial action to perform Emergency Work, where such an employee is directed in writing to perform Emergency Work.
"Emergency Work" is work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
1. An employee will temporarily suspend industrial action to perform Emergency Work, where such an employee is directed in writing to perform Emergency Work or where suspending the action is necessary to perform work affected by and during a "Declared Incident".
2. A "Declared Incident" will be declared by the Chief Executive Officer of Transgrid and covers major emergency situations such as storms, bushfires, IT breakdown and major equipment failures.
3. "Emergency Work" is work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
4. An Employee who is ordinarily rostered to perform work will keep the mobile device they ordinarily use for communicating with the Employer on their person for the purpose of being notified of Emergency Work and/or a Declared Incident and will answer their phone if contacted by the employer.
5. At all times, a minimum of one Network Control Manager and One Senior System Operator who are ordinarily rostered to work will attend the Control Room and monitor their systems and respond and deal with alarms, hazards relating to system security and/or with requests from AEMO, generators, distributors, other transmission authorities, fire, police and emergency services and direct connect customers, with the exception of all planned and/or commissioning work.
AEMO has been advised that Transgrid may experience issues when returning transmission equipment back into service, either after planned works or unplanned outages, due to the ongoing industrial dispute.
AEMO is concerned that continued industrial action will impact Transgrid's and AEMO's ability to effectively manage system security and public safety in line with our respective obligations under the National Electricity Rules (NER).
In particular, AEMO is concerned that the inability to promptly return transmission equipment to service may be or may result in associated breaches of the following NER obligations:
In addition to the above NER clauses, Transgrid also have obligations under functions delegated to Transgrid as set out in the Schedule 1 of the Transgrid Instrument of Delegation. In particular, AEMO notes that the function of maintaining power system security within the Transgrid Operational Zone is delegated to Transgrid.
AEMO believes that if Transgrid cannot meet these NER and delegated obligations:
Given the above, AEMO is becoming increasingly concerned about the impact ongoing industrial action might have on Transgrid's ability to promptly restore transmission equipment to service, as well as respond to unplanned events and emergencies. AEMO's highest priority is ensuring that it can continue to rely on Transgrid to fulfil its complementary obligations in relation to power system security. I would appreciate your assurance that adequate steps have been taken by Transgrid to ensure its continued compliance with its obligations and prompt response when required.
We act for Transgrid. On Friday 12 July 2024 Transgrid received a letter from AEMO in which AEMO raises concerns that continued industrial action is impacting and will continue to impact Transgrid's and AEMO's ability to effectively manage system security and public safety, including Transgrid's ability to promptly restore transmission equipment to service, as well as respond to unplanned events and emergencies. A copy of the letter is enclosed.
The concerns AEMO has raised are consistent with the concerns Transgrid has repeatedly raised with the CEPU over several months, including in our letters of 24 May 2024, 14 June 2024 and 29 June 2024, about the very serious and imminent risks to the electricity grid and to the public arising from the continued industrial action.
Having regard to the article published by the ABC on 9 July 2024, the CEPU has acknowledged these concern by the comments of Matt Murphy, National Industry Coordinator for the CEPU, who is reported to have said, among other things, that the NSW transmission network was being degraded the longer the stand-off lasted. The CEPU also acknowledged that the protected industrial action was causing the degradation, stating that '... a lot of the stuff we do is we will agree to do some work, take some equipment out of service, we'll then do all the work that's required to maintain it, then refuse to put it back in'.
This has now reached the point where, in Transgrid's view, the protected industrial action is threatening the life, personal safety, health or welfare of the NSW population, and threatens to cause significant damage to the Australian economy or part of it. By its letter, AEMO seems to share these views.
It is apparent from AEMO's letter, the CEPU's public comments and Transgrid's own concerns about the impact of the industrial action and the degradation of the network, that the situation has reached a critical point. Further, it is also clear that negotiations have reached a stalemate.
Transgrid respects the right of its employees to take industrial action. However, in light of the current circumstances, Transgrid calls for the CEPU and Professionals Australia (unions) and your members to immediately suspend all protected industrial action impacting system security on an indefinite basis. Specifically, Transgrid requires that:
Transgrid considers that this is the only responsible course of action in the present circumstances. If the unions do not agree to all of the measures set out immediately above, Transgrid intends to make an application under section 424 of the Fair Work Act 2009 (Cth) to terminate the protected industrial action. Transgrid is currently in the process of preparing that application.
Transgrid seeks a response to these matters as a matter of urgency and, in any event, by no later than 5pm on Thursday 18 July 2024.
(b) A First Forecast Lack of Reserve Level 2 Condition on 18 May 2024.
you are aware, members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU / ETU) are currently engaged in protected industrial action.
This protected industrial action is subject to a Safety Commitment. Amongst other things, that Safety Commitment provides:
1. An employee will temporarily suspend industrial action to perform Emergency Work, where such an employee is directed in writing to perform Emergency Work"....
2. "Emergency Work" is work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
You are directed to perform the following "Emergency Work".
Return switching of 974 Cooma 132 to Bega 132. The current situation leaves 24,286 customers, 882 of which are life support customers, multiple hospitals and nursing homes on radial. This is an unacceptable state in which to leave Essential Energy's network for an extended period particularly while facing uncertain weather conditions.
If this work is not performed imminently, in Transgrid's view, this would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury as informed by Essential Energy.
1. In Transgrid's view, you will be engaging in unprotected industrial action. Amongst other things, this means that Transgrid must not pay you while you are engaging in the unprotected industrial action with a minimum deduction of 4 hours;
I am in receipt of an email you have sent to Transgrid employees directing them to perform emergency work.
Your email does not clarify what the emergency is.
On the information you have provided it is not clear how you purport this to be an
To give proper consideration to your request please advise of the following:
What serious and imminent threat to human life currently exists?
What serious and imminent risk of personal illness or injury currently exists?
Upon receipt of the requested information we will give further consideration to your
Absent any further information, We strongly refute any suggestion that employees are undertaking unprotected industrial action by refusing to perform the requested work and reserve all rights with respect to the threats you have made to their employment.
I note Transgrid has requested under the safety commitment a response to return a feeder
to service to alleviate the risk to ~24,000 people on the South Coast. This was in response to a request by Essential Energy who requested "that TransGrid invoke whatever emergency provisions are available to have this line returned to service. In consultation with Les Parker (Head of System Control Essential Energy) on behalf of Essential Energy I am advising that the current situation which leaves tens of thousands of regional customers radial is an unacceptable state in which to leave our network"
Transgrid has directed in writing by Darren and requested standby response to both perform the restoration under the safety commitment and/or as a mitigation step to relocate the switching personnel from Yass to Cooma to reduce any further risk to customers in the event the loss of load occurs. Presently the CEPU has advised Transgrid personnel to not respond.
I was advised by Keiren Tolley that she received a call from Matt Murphy last night at 9:23pm and told me that no one would be responding to 974 line switching and the employee directed by CEPU to be called back off the job.
Due to fatigue risks to Transgrid personnel the matter was left overnight as Transgrid was unable to change the current status given the return home of Transgrid's personnel.
This morning Transgrid has again requested standby personnel to attend to this matter as a means to mitigating any further risk.
As discussed last night, these customers are currently being supplied by a radial feed and hence are at risk in the event of any disruption to this single feeder. In the event of loss of supply the risk of a lack of redundancy is immediate and no longer imminent.
The loss of supply is an immediate threat to the radial feeder with 24,286 customers of which 882 are life support customers. A delayed response would have a significate impact on these customers including the life support customers and creates a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
Transgrid believes the failure to respond both last night and currently, is in breach of the safety commitment.
I refer to the above matter and to your recent communications with employees about works to be performed on the 974 Cooma-Bega line. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) represents the industrial interests of members you have contacted.
The ETU understands you have directed employees to perform work in a period of protected industrial action on the basis that such work is "Emergency Work" for the purpose of the Safety Commitment. The ETU has the following concerns.
1. On 3 May 2024, you advised employees that the "current situation leaves 24,286 customers [without power], 882 of which are life support customers, multiple hospitals and nursing homes on radial". The ETU had received instructions that, at that time, there was no power outage.
2. Accordingly, the ETU immediately wrote to you seeking clarification of:
a. Whether the 24,296 customers currently had power;
b. What serious and imminent threat to life existed at the time;
c. What serious and imminent risk of personal injury existed at the time.
3. The ETU required the above information to be able to properly advise its members as to whether there was Emergency Work to be undertaken.
4. You failed to respond, in any way, to the ETU's correspondence. Instead, Transgrid continued to communicate directly with ETU members. Keiren Tolley, Manager of Execution, has refused to engage with ETU organiser, Matt Murphy. Instead, they have continued to communicate directly with ETU members. This conduct is obviously concerning and undermines freedom of association.
5. The ETU has since been advised that Keiren Tolley has directed Mr Paul Goulding, ETU member, to relocate to Cooma for the duration of the purported incident. This direction is neither lawful nor reasonable, for the following reasons (without limitation):
a. relocations are intended to be by mutual consent. Transgrid has not sought our member's voluntary consent;
b. the direction has had no regard to our member's personal or family circumstances;
c. the direction purports to rely on the ETU's Safety Commitment. It extends far beyond that Safety Commitment and appears to require our member to perform duties that extend
I refer to the above matter and to recent correspondence between the parties. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) responds to your most recent email as follows:
1. The ETU denies that the current situation can properly be characterised as an "Emergency" for the purpose of the Safety Commitment. There has been no disruption to power supply and the community has full power.
2. As a gesture of good faith, the ETU has arranged for the Yass standby employee to travel to Cooma to be locally available to switch if the radial Bateman's Bat-Bega 132kV line is affected and/or there is a disruption to power. In either of these events, the employee will immediately restore power. The employee will be in a position to do so, as there is an ability to immediately bring the 974 132kV Cooma-Beha line into service.
(b) A First Forecast Lack of Reserve Level 2 Condition on 18 May 2024.
(b) forecast elevated demand for electricity due to cold weather conditions; and
(c) constraints associated with the Relevant 3 Lines being out of service.
I refer to recent communications from you to TransGrid employees, including members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU). The ETU has the following concerns:
1. At about 7:45am this morning, a Notice declaring a declared Incident, singed by you, was circulated to employees (the Notice).
2. The Notice refers to a forecast LOR on Monday, 20 May 2024.
3. The Notice fails to identify how circumstances, which are forecast to occur in two days, meets the following definition of "Declared Incident" as prescribed by the Safety Commitment:
"A "Declared Incident" will be declared by the Chief Executive Officer of TransGrid
and covers major emergency situations such as storms, bushfires, IT breakdown and
4. It is the ETU's view that, based on the limited information you have provided, the circumstances cannot properly be regarded as a "Declared Incident" at this stage. On that basis, this provision of the Safety Commitment has not been triggered.
5. In the future, all such correspondence ought to be directed to the ETU, in addition to employees. This will assist the parties to communicate effectively and ensure ETU members are able to respond appropriately to bona fide Declared Incidents.
6. In respect of this Notice, the ETU requests you either withdraw it or provide a proper basis to justify the characterisation of the circumstances as a Declared Incident.
(a) Capital Program: work performed under the capital program involves the building and installation of new assets, or the replacement of existing assets; and
(b) Maintenance Program: the maintenance program consists of work to ensure the smooth operation of existing HVTN assets. This includes routine work such as inspections and preventative maintenance tasks, as well as emergency or incident response work such as:
(i) responding to incidents where the supply of electricity is interrupted or cut off (known as 'loss of supply events');
(ii) dealing with asset condition issues like oil leaks; or
(iii) dealing with asset failures like transmission towers falling over.
The ETU undertakes until 30 September 2024 not to engage or organise to engage in the following actions authorised by the protection action ballot order of 11 December 2023 being an unlimited number of indefinite and/or periodic gains on the completion of field staff and control room staff writing and carrying out field staff switching for work groups, client, contractors, accredited (indistinct) risks.
An unlimited number of indefinite and/or periodic bans on using physical or digital locking systems including but not limited to locking or unlocking of phones, iPads, tablets, computers, switchboard, switch rooms, electrical cabinets, access gates, air brake switches, circuit breakers, switching stations and substations (being the switching or locking bans).
...Well, noting the undertakings provided by the respondent union, I nonetheless find that pursuant to section 424(1)(c) that the requisite jurisdictional hurdle has been met in relation to the threat to persons and the public and the like. I intend to order that protected action in relation to the work defined in the required safety commitment declared as - as a declared incident or emergency work and declared as such by the CEO of Transgrid be suspended for a period of three weeks effective from the date of this order.
That will be the terms - the first terms - or the first term of the order. Effectively, what that puts in place is the breathing space within which the parties can, what seems to be, resolve issues of undertakings between themselves. Let me be abundantly clear, as I think I was with my questioning of the applicant, and not so much with the respondent, but I thought I'd said enough. I consider the Extended Safety Commitment urged at page 325 of the digital court book to be something that would be productive in the further conduct between the parties.
An order will issue with the associated notations as to notification to the parties and it will be - commence operation at 11.59 pm tonight. A decision will be published as soon as possible thereafter giving reasons.
Mr R Dalton of Counsel (KC) on behalf of the Applicant.
Mr A Crocker of Counsel on behalf of the Applicant.
Mr I Latham of Counsel n behalf of the Respondent.
[6] Monash University v NTEIU [2013] FWCFB 5982 at [54]: Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; (2012) 202 FCR 200 at [128]- [130] per Buchanan J, [179]-[180], [182] per Perram J.
Printed by authority of the Commonwealth Government Printer
NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 1914
(2012) 202 FCR 200