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[2024] FWC 2182
General information, not legal advice.
Fair Work Commission
2024-08-20
Original judgment source is linked above.
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.
[1] Pursuant to s 424(1) of the Fair Work Act 2009 (Cth) (the Act), the Fair Work Commission orders that the following protected action in relation to the proposed agreement replacing the TransGrid Enterprise Agreement 2020 (Proposed Agreement) be suspended for a period of two (2) months effective from the date of this Order:
(c) bans on starting and finishing work anywhere other than at the prescribed Transgrid depot;
(d) bans on issuing Access Authority and Field Access Authorities to non-TransGrid staff;
(e) bans on using non-Transgrid toilets, changerooms and showers facilities where those facilities are required;
(f) bans on having Meal Breaks (Morning Tea, Lunch, Dinner and Afternoon Tea) anywhere other than in a Transgrid meal room;
(g) bans on training people who are not Transgrid staff;
(h) bans on the use of equipment used to test high voltage equipment;
(i) bans on the use of equipment used to test high voltage system protective devices and relays; and
(j) bans on staff on submitting and processing RFAs (Request for Access) that are submitted within 28 days of planned outages start date.
(a) NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid (Transgrid);
(a) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
(i) will be covered by the Proposed Agreement; and
[3] This Order comes into operation at 11:59PM on 16 August 2024.
[4] Reasons for my Decision will follow in due course.
(a) On 10 December 2023, the ETU applied for protected action ballot orders. The application provided for a safety commitment (the First Safety Commitment) 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
(b) On 28 December 2023, Transgrid filed an application pursuant to s.424 of the Act to stop industrial action. On 29 December 2023, the parties attended a hearing for Transgrid's application. In negotiations on that date, the parties agreed to an extended safety commitment (the Extended Safety Commitment), resulting in a discontinuance of the section 424 application, in the following terms:
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
2. A "Declared Incident" will be declared by the Chief Executive Officer of
Transgrid and covers major emergency situations such as storms, bushfires, IT
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
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
(c) On 16 July 2024, Solicitors for Transgrid sought a revision to the safety commitment (the Revised Safety Commitment) as follows:
(a) An undertaking not to apply locking and switching bans before 30 September 2024; and
(b) An undertaking that from 24 July 2024, no protected industrial action would interfere with supply to the Tomago Aluminium Smelter.
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.
[55] The evidence regarding the six incidents that have occurred where protected industrial action has threatened blackout and/or load shedding was compelling, and clearly established that protected industrial action engaged in has threatened to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. The most severe example would involve persons on life support equipment but would also involve multiple hospitals and nursing homes left with an electricity network that was not secure.
[56] The actions of the CEPU in the two particular examples of such incidents, and the balance of the six incidents, disclosed impermissible attempts to block and/or delay Declared Incidents and Emergency Work sought to be dealt with by Transgrid pursuant to the Extended Safety Commitment.
[57] The protected industrial action insofar as it affected maintenance within Transgrid did not on the evidence before the Commission, however, threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. That it has resulted in mounting delays in maintenance is undoubted, but such an effect is not proscribed, and is in reality a usual consequence of protracted industrial action.
[58] Upon my conclusion that the s.424(1)(c) criterion has been satisfied in some, but not all, respects, I was required by the Act to make an order suspending or terminating protected industrial action. The only protected industrial action to which the required order could apply was that which I found satisfied the s.424(1)(c) criterion relating to Declared Incidents and Emergency Work, and the operation of the Extended Safety Commitment.
[59] As to the discretion as to whether to make a suspension or termination order, I determined to make a suspension order as, notwithstanding submissions by Transgrid that bargaining was at an impasse, I considered that, particularly where the parties would not be able to access the intractable bargaining provisions of the Act until September 2024, termination would be premature.
[60] Regarding the issue of the duration of the order that I was required by s.427 to specify, I considered, as is apparent from the decision on transcript, that a three-week suspension would allow the parties to resolve issues surrounding the application of the Extended Safety Commitment and the CEPU's undertakings. That was particularly so where once such an order was made, any other industrial action notified ceased to be protected by reason of s.413(7) whilst such order is in operation.
We refer to Transgrid's application under section 424 of the Fair Work Act 2009 (Cth) (Application) and the Order made by Deputy President Cross on 24 July 2024 (Order).
[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.
At the hearing of the Application, Deputy President Cross made it clear that he expects the parties to use the 3 week suspension of protected industrial action to 'resolve issues of undertakings' and that he considered the safety commitment sought by Transgrid on 16 July 2024 to be 'productive':
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.
Accordingly, we invite the CEPU to agree - on an indefinite basis - to the measures set out in our 16 July 2024 letter.
Can you please provide your response by midday tomorrow, 2 August 2024
I refer to the above matter and to your correspondence to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, (the ETU), dated 1 August 2024. The ETU responds as follows:
1. Transgrid's proposed revised safety commitment is entirely unreasonable. It provides Transgrid, and its CEO, unmitigated discretion to suspend its employees' protected industrial action, with no meaningful recourse for its employees or the ETU. It is contrary to freedom of association and wholly curtails the rights afforded to employees by the Fair Work Act's provisions in respect of industrial action.
2. The ETU maintains that the extended safety commitment, which was agreed by the parties, adequately addresses any legitimate safety concerns and that it is Transgrid's conduct that has been the source of any delayed responses to emergency situations.
3. On the basis of the above, the ETU does not agree to Transgrid's proposed revised safety commitment.
If you have any queries, please do not hesitate to contact me.
2. A ban on the use of Transgrid corporate credit cards
3. A ban on starting and finishing work anywhere other than at the prescribed Transgrid depot
5. A ban on issuing Access Authority and Field Access Authorities to non-TransGrid staff
6. A ban on performing work which is subject to protected action bans by any or all of
Professionals Australia, CFMEU, PSA or USU members
7. During worktime, attaching union and industrial campaign-related material to outgoing mail and/or emails and adding ETU/CEPU and industrial campaign-related material to Transgrid materials and displays
8. During worktime, speaking to members of the public during work related telephone calls about the industrial action and ETU/CEPU campaign for a new enterprise agreement
9. During worktime, providing information, in any form, concerning the views of employees about industrial action and the ETU/CEPU campaign for a new enterprise agreement to members of the community including to members of the media
10. During worktime, providing the email address of the CEO and Executive General Manager - Delivery and other information to members of the community including to members of the media when communicating about the industrial action and ETU/CEPU campaign for a new enterprise agreement
11. A ban on using non-Transgrid toilets, changerooms and showers facilities where those facilities are required
12. A ban on having Meal Breaks (Morning Tea, Lunch, Dinner and Afternoon Tea) anywhere other than in a Transgrid meal room
13. A ban on cell functions whilst operating the network
14. A ban on training people who are not Transgrid staff.
16. A ban on Transgrid staff including work orders when completing timesheet.
17. A ban on the use of equipment used to test high voltage equipment.
18. A ban on the use of equipment used to test high voltage system protective devices and
19. A ban on using test equipment to verify the accuracy of high voltage and measuring
20. A ban on staff on submitting and processing RFAs (Request for Access) that are submitted within 28 days of planned outages start date.
21. A ban on Field staff amending or rectifying issued designs that would have otherwise
required certification from a qualified engineer (Protection, Control, Automation, Secondary, Primary, Transmission Line Design). Including but not limited to Schematic Diagrams, Wiring & Connection Diagrams, Cable Schedules, Label Schedules, Relay Test Instructions, Relay Setting Files, Meter Test Instructions, Control System Databases.
22. A ban on operators performing cell duties unless specifically rostered as a cell resource for that shift.
23. A ban on implementing changes for, commissioning or testing related to new plant and apparatus.
24. A ban on witnessing or accepting contractor delivered work or commissioning.
25. A ban on implementing changes for, commissioning or testing for customers
26. A ban on Transgrid staff completing substation switching familiarisations for other staff
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
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
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
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
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.
6. The Employees undertake to take all reasonable steps to ensure reliable supply to
(a) A statement of Mr Adam Hoare dated 13 August 2024; and
(b) Various evidence from the July Application outlined in the following table:
(a) A statement of Mr Matthew Murphy, National Industry Coordinator - Electrical Trades Union (CEPU), dated 15 August 2024;
(b) A statement of Mr Paul O'Malley, a Business Systems Analyst employed by the Transgrid, dated 15 August 2024; and
(c) A statement of Mr Timothy Johns, a Senior Systems Operator employed by Transgrid, dated 15 August 2024.
action has threatened, is threatening, or would threaten:
(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(b) to cause significant damage to the Australian economy or an important part of it.
(a) an undertaking not to engage in certain protected industrial action (namely, locking and switching bans) until 30 September 2024; and
(b) an undertaking not to engage in protected industrial action that would interfere with the supply to the Tomago Aluminium Smelter.
(a) Effective industrial action will almost always cause harm to the employer's business which, in turn, will frequently adversely affect third parties.[4]
(b) The mechanisms in section 424(1) are not triggered "where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining".[5]
(c) There must be an appropriate evidential basis to found the satisfaction required by section 424(1).[6] That is, whether the decision maker is satisfied of the matters specified to in in section 424(1) "is not simply a matter of impression or value judgment ... the decision maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question."[7]
The effect of agreeing to the Revised Safety Commitment would be to significantly diminish the ETU members' ability to engage in industrial action. For example:
(a) There is no agreed definition of an "Emergency" or "Emergency Work". It provides total discretion for Transgrid to determine what is an emergency and what is a declared incident.
(b) There would be no ability for the ETU to make enquiries when its own safety commitment is being invoked. It would need to file a dispute in the Fair Work Commission. I am not aware of a mechanism in the Fair Work Act for the ETU to do so.
(c) An emergency can just be a "risk of system outage". Arguably, any incident on the network can create such a risk, so this Revised Safety Commitment would require the ETU's members to suspend industrial action to attend any incident Transgrid identifies as creating a risk of outage.
(d) The Revised Safety Commitment requires all members to "facilitate" the connection of any transmission, generation and storage facilities. This would mean members would have to suspend industrial action any time Transgrid decides it wants to connect new equipment to the network. The word "facilitate" is broad and would cover everyone from in the control room to field officers.
(e) The Revised Safety Commitment is far in excess of any safety commitment the ETU has with any provider in NSW. The ETU is currently bargaining with, and engaging in industrial action at, Endeavour Energy, Ausgrid and Essential Energy. None of these providers have sought a safety commitment so extensive.
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.
Okay. And when you say that there'll be consideration, well, you can go to page 125, ... of the court book. Would I be correct in understanding that what might face Transgrid is similar correspondence regarding particulars, and how it could be said that it's emergency work?‑‑‑Yes, Your Honour. I think that's a fair example.
(a) A ban on the performance of overtime (Ban 1) could disrupt the completion of any required emergency or declared incident work if the emergency or declared incident occurred during overtime hours.
(b) A ban on starting and finishing work anywhere other than at a prescribed Transgrid depot (Ban 3), a ban on using non-Transgrid toilets, changerooms and showers facilities where those facilities are required (Ban 11), and a ban on having Meal Breaks anywhere other than in a Transgrid meal room (Ban 12), could be relied upon to prevent an expedient response to an emergency or required urgent works by an employee electing to travel to a depot rather than directly to the location where the works are required, and may cause unnecessary delay.
(c) A ban on the use of equipment used to test high voltage equipment (Ban 17) would delay the urgent replacement of high-voltage assets which require the use of equipment to test such high voltage devices.
(a) The stoppages outlined in the Stoppages PIA Notice; and
(ii) (Ban 3) bans on starting and finishing work anywhere other than at the prescribed Transgrid depot;
(iii) (Ban 5) bans on issuing Access Authority and Field Access Authorities to non-Transgrid staff;
(iv) (Ban 11) bans on using non-Transgrid toilets, changerooms and showers facilities where those facilities are required;
(v) (Ban 12) bans on having Meal Breaks (Morning Tea, Lunch, Dinner and Afternoon Tea) anywhere other than in a Transgrid meal room;
(vi) (Ban 14) bans on training people who are not Transgrid staff;
(vii) (Ban 17) bans on the use of equipment used to test high voltage equipment;
(viii) (Ban 18) bans on the use of equipment used to test high voltage system protective devices and relays; and
(ix) (Ban 20) bans on staff on submitting and processing RFAs (Request for Access) that are submitted within 28 days of planned outages start date.
It is important to bear in mind, however, that the purpose of s 424(1) is the protection of the population and the economy from the specified types of endangerment and significant damage, not to bring to an end enterprise bargaining which is perceived to be "intractable". The state of progress, or otherwise, in bargaining is a consideration which may be taken into account in the exercise of the discretion under s 424(1) as to the type of order to be made, but the FW Act does not disclose any object or purpose to terminate "intractable" enterprise bargaining as such.
Mr Dalton of Counsel, on behalf of the Applicant.
Mr Crocker of Counsel, on behalf of the Applicant.
Mr Agius of Counsel, on behalf of the Respondent.
Mr Anward of Counsel, on behalf of the Respondent.
[2] [2024] FWC 1914, at [54].
[4] Construction, Forestry, Mining and Energy Union v Woodside Burrup Pty Ltd [2010] FWAFB 6021 at [41].
[5] National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014 at [8];
[6] Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 at [49].
[7] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 208 (per Gleeson CJ, Gaudron and Hayne JJ).
[8] [2024] FWC 1914, at [56].
[9] Statement of Matthew Murphy dated 15 August 2024, at [82].
[16] [2022] FWCFB 231, at [39].
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 2182
(2000) 203 CLR 194