Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd T/A Ausgrid

[2024] FWC 1658

[2024] FWC 1658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Ausgrid Management Pty Ltd T/A Ausgrid

(B2024/804)

DEPUTY PRESIDENT SLEVIN SYDNEY, 1 JULY 2024

Proposed protected action ballot of employees of Ausgrid Management Pty Ltd

1. This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Ausgrid Management Pty Ltd (Ausgrid).

1. Ausgrid did not oppose the making of the order but sought that the closing date for the protected action ballot be 15 working days from the date of the order. The CEPU’s application sought that it be 10 days from the date of the order. Ausgrid also sought in accordance with s.443(5), that the Commission extend the period of notice required to be given under s.414(2)(a) of the Act before any of the proposed industrial action can be taken. Ausgrid initially proposed that the notice period for all action be extended to 7 working days.

1. Section 441 requires that the Commission must, as far as practicable, determine an application for a protected action ballot within 2 working days after the application is made. It was not practicable to do so here as the parties were not ready to fully argue Ausgrid’s s.443(5) application until today.

1. The application, along with Ausgrid’s application under s.443(5), was heard today. Ausgrid sought to be legally represented and I granted permission for this to occur because I was satisfied that the matter was sufficiently complex, and I would be assisted by legal representation.

1. At the commencement of the hearing, I was informed that the parties had reached agreement on the contested matters. It was agreed that the closing date for the protected action ballot be 15 working days from the date of the order. It was also agreed on the basis that the CEPU amend the application to include a Safety Commitment that will apply to the proposed industrial action, that Ausgrid would seek the notice period under s. 414 of the Act be extended to 4 working days. Once amended the CEPU would not oppose the order.

The CEPU’s Application – s.437

1. In relation to the CEPU application, I allow the amendment to the application to include the Safety Commitment. It appears in a note following the questions to be posed to the employees in the ballot. It is in the following terms:

NOTE: The above actions shall all be subject to the following safety commitment.

During any industrial action:

1. The following coverage will be ensured:
1. Emergency Services Officers (EMSOs) – rostered on as usual
2. District Operators / Operating Depot Supervisors (Dos) – Critical coverage levels;
3. Control room – Weekend roster minimum levels
4.  On – call rostered Field staff
5. Rescue Service Group – rostered as usual

2. The above staffing levels shall:
1. be ready, willing and able to perform any unplanned work (‘Emergency Work’) that meets the following criteria:

i.The work, if not performed immediately, would create a serious and imminent threat to human life or a serious and imminent risk of serious personal injury and/or illness; and

ii.The work cannot reasonably be performed immediately by any person not taking part in industrial action.

2. keep the mobile device they ordinarily use for communicating with the Employer on their person for the purpose of being notified of the need for Emergency Work;
3. Perform the Emergency Work provided that the Employer supplies a written direction to the Employee and the State Secretary urgently and without delay (which may be after the employee commences the work) which:

i.Outlines the nature of the work to be performed; and

ii.Describes why the work, if not performed imminently by the relevant employees would case a serious and imminent threat to human life or a serious and imminent risk of personal injury and/or illness.

1. I am satisfied, on the basis of the material before me, including the declaration of Tara Koot, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and attesting that the CEPU has been, and is, genuinely trying to reach agreement with Ausgrid, that all of  the requirements in s.443(1) of the Act have been met.

1. The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. The parties have agreed that the date for the ballot to close shall be 15 working days from the date of the order. I consider this timeframe sufficient to allow the steps in the order to be taken and for the conference required by s. 448A of the Act to occur.  For the purposes of s.443(3)(c) of the Act, I determine that the date by which voting is to close is 22 July 2024.

1. Consequently I will grant the CEPU’s application under s437 and make a protected action ballot order.

Ausgrid’s application – s443(5)

1. Ausgrid seeks that I specify in the order that there be a longer period than the 3 working days for the notification of industrial action under s. 414 of the Act. Ausgrid seeks that the order specify that the period be 4 working days. The application is not opposed.

1. The Commission may extend the period of notice at the time it considers an application for a protected action ballot order. The power to do so is conferred by s443(5) which reads:

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

1. Working Day is defined in s. 12 as follows:

working day means a day that is not a Saturday, a Sunday or a public holiday.

Background

1. Ausgrid’s application was supported by two statements from Sam Sofi, Group Executive – Safety, Delivery & Operations dated 25 June 2024 and 28 June 2024. At the time those statements were prepared Ausgrid sought an extension of the notice period for protected industrial action  from 3 working days to 7 working days. As the CEPU has now offered the Safety Commitment Ausgrid no longer presses 7 days’ notice and accepts that 4 days’ notice is appropriate. I read Mr Sofi’s statements in the context of those changed circumstances. The following background is taken from those statements.

1. Ausgrid is the largest distributor of electricity on Australia’s east coast. It operates a large electricity distribution network. Ausgrid is responsible for the supply of electricity to more than 1.8 million customers, which include residential, large and small businesses, as well as major industry including mining, shipping, tourism, manufacturing, and agriculture.

1. The work conducted by Ausgrid falls into two categories – planned work and unplanned work. It has 3,039 employees, including 2,784 employees covered by the Ausgrid Enterprise Agreement 2021. The employees are engaged across approximately 32 operational depots, district operator facilities and corporate offices. The 2021 Agreement covers frontline employees and the majority of middle and frontline managers/supervisors within Ausgrid. Ausgrid considers that approximately 60% of the 2,784 employees covered by the 2021 Agreement are eligible to be CEPU members. Work is performed in control rooms, field operations, a network contact centre, administration and engineering. Mr Sofi explained the work performed in each of these areas.

1. Mr Sofi’s statement addressed the adverse impact that may flow from the proposed industrial action. The action may lead to outages. He explained the circumstances surrounding outages which occur in the network where Ausgrid is unable to supply electricity to some of its customers and Ausgrid’s performance in addressing these outages as quickly as possible. He explained the safety implications of the outages and the imperative in minimising their impacts. Detail was given about responses to unplanned outages and outages which occur when planned work is performed. Mr Sofi also explained how Ausgrid is informed of unplanned outages. He outlined in some detail Ausgrid’s response to outages in the network including identifying the work performed by different work areas and the typical response times. The responses are triaged with safety considered as a top priority. He referred particularly to vulnerable customers including around 51,00 life support customers who require continuous and essential supply of electricity. The health and safety impact of outages on those customers was emphasised. Possible impact on other customers was also referred to. Mr Sofi referred to the importance of Ausgrid’s program to mitigate bushfire risks at its assets in bushfire prone areas.

1. Mr Sofi described the difficulties associated with mitigating the adverse effects of the proposed industrial action. He referred to Ausgrid’s limited use of contractors due to regulatory constraints and the specialisation of the work it performs. He explained that training of workers to perform the work performed by Ausgrid employees takes time and is costly. Mr Sofi stated that his view is that it is not practicable to use contractors to replace or supplement Ausgrid employees taking industrial action to respond to unplanned events because contractor employees will lack the necessary expertise, training, skills, qualifications, and experience and will generally not be available in the time required.

1. Mr Sofi described the steps that would be required to manage the proposed industrial action. He said if Ausgrid has only 3 working days’ notice of protected industrial action, it will have a limited opportunity to assess the potential impact of that action, any risks to the safe operation of the Ausgrid network, and the impact for customers of all types and the community generally. Once the extent of the impact of the action is known Ausgrid will need to put contingencies in place to address the disruption to planned and unplanned work.

1. Disruptions to planned work can be addressed by rescheduling. Mr Soji states that under the National Electricity Customer Framework, Ausgrid is required to provide 4 clear business days’ notice of an electricity outage. With three working days’ notice of industrial action, it is impossible for Ausgrid to assess the impact of protected industrial action and notify its customers of any outages associated with changes to planned work or its expected duration

1. Disruptions to the ability of Ausgrid to respond to emergencies and attend to unplanned work will also require rearranging and organising rosters so that shiftworkers and on call staff can provide better Network coverage for periods of protected industrial action. Mr Sofi attests that if Ausgrid is given only 3 working days’ notice of industrial action, the adverse impacts of the industrial action will certainly be felt. With the additional time, Ausgrid will have a greater opportunity to reschedule planned work and determine if there is appropriate resource coverage for unplanned work and thereby minimise the impact on its customers and the general public.

1. Mr Sofi accepts that it will not be possible to completely mitigate the impacts of proposed industrial action, but additional notice would allow time for Ausgrid to evaluate the impact of industrial action that may be taken, determine what actions it can and cannot take to mitigate the effects, and prioritise vulnerable customers and critical works accordingly.

Consideration

1. The principles to be applied in applications under s. 443(5) were set out by the Full Bench in NTEIU v Charles Darwin University [2018] FWCFB 4011. The Full Bench considered a three-step approach to the subsection is required. It involves first identifying what makes the circumstances exceptional for the purpose of s 443(5). Ausgrid conducts a business that provides an essential service. Any interruption to the supply of electricity can have a significant safety impact on the community. Having regard to the evidence of Mr Sofi about Ausgrid’s business, the service the business provides to the community, and the potential impact of the industrial action on the community I am satisfied that the circumstances are uncommon such as to constitute exceptional circumstances. I note that a number of decisions of the Commission in the electrical power industry support such a finding.[1]

1. The second step is to consider whether the exceptional circumstances justify an extension of the 3 working days’ notice referred to in s 414(2)(a) of the Act. Ausgrid contend that an extension is justified based on the evidence of Mr Sofi about the number of steps required to mitigate the adverse safety impact of the proposed action. That adverse impact is couched in terms of the safety risks associated with the action should Ausgrid have insufficient time to take the necessary steps to mitigate the risk arising from the industrial action.

1. Ausgrid’s evidence is that the industrial action has the potential to cause significant harm. Mr Sofi’s evidence as to the timing of Ausgrid’s response to the action is couched in terms of the complexity of the response required by Ausgrid when employees are unavailable to work and the need for it to meet the requirement in National Electricity Customer Framework that Ausgrid provide 4 clear business days’ notice should there be an electricity outage.

1. I am satisfied the Safety Commitment goes some way to ameliorate the seriousness of the safety impact of the industrial action. It will give Ausgrid access to key employees to reorganise its planned work and plan and perform emergency unplanned work. I consider this commitment alleviates the risk associated with the action by allowing Ausgrid to identify and plan its response to incidents which may arise during any industrial action. That planning work is one of the steps identified by Mr Sofi as critical to alleviate the safety impact of the action. The Safety Commitment ensures employees will be available to do this work. I also note that unplanned incidents are dealt with as they arise and so extending the notice period would not assist in addressing the exceptional circumstances associated with the proposed industrial action.

1. The provision of a similar safety commitment was an important consideration in decision of the Commission to not extend the notice period for the taking of industrial action in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy[2021] FWC 6128 and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Icon Distribution Investments Limited and Jemena Networks (Act) Pty Ltd T/A Evoenergy[2023] FWC 1576.

1. The parties have agreed that the exceptional circumstances, which include the need for Ausgrid to take the action to mitigate the adverse impact of the action described by Mr Sofi, justifies the extension of the notice period to 4 working days. For these reasons, I am satisfied that the extension sought is justified.

1. The third step of considering whether to exercise the discretion in s443(5) referred to by the Full Bench in NTIEU requires deciding whether the circumstances also justify the Commission to interfere with the employees’ statutory right to take industrial action on 3 working days’ notice. I have decided it is appropriate to extend the notice period by one working day in this case given that the employee’s union, the CEPU, consents to the extension.

1. I will grant the application to extend the notice period in s. 414(2)(a) in relation to the industrial action proposed by the ballot to 4 working days.  

Conclusion

1. The CEPU’s application under s. 437 for a protected action ballot order is granted.

1. Ausgrid’s application under s. 443(5) to extend the notice period in s 414(2)(a) is granted.

1. An Order has been separately issued in [PR776375].

DEPUTY PRESIDENT

Appearances:

A Aghazarian, on behalf of the Applicant.

V Bulut, of Counsel, on behalf of the Respondent.
Instructed by F Booth, Solicitor.

Hearing details:

2024.
Sydney, in person.
1 July.

[1]CEPU v Essential Energy[2021] FWC 6128 at [44]; CEPU v Icon Distribution Investments Limited and Jemena Networks (Act) Pty Ltd T/A Evoenergy[2023] FWC 1576 at [49];.CEPU v Ausgrid Management Pty Ltd [2021] FWC 3023, at [9]; CEPU v Utilities Management Pty Ltd T/A SA Power Networks [2018] FWC 1139 at [7]; Association of Professional Engineers, Scientists and Managers Australia v Utility Management Pty Ltd T/A SA Power Networks [2021] FWC 1080 at [105] and CEPU v Electricity Networks Corporation T/A Western Power [2021] FWC 1944, at [9].

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