Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power
[2022] FWC 290
•14 FEBRUARY 2021
| [2022] FWC 290 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Electricity Networks Corporation T/A Western Power
(C2021/4908)
| DEPUTY PRESIDENT BINET | PERTH, 14 FEBRUARY 2021 |
Application to vary or revoke a FWC Decision
On 20 August 2021 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed an application (Application) pursuant to section 603 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) to vary the consent order issued in B2021/358 on 3 June 2021 (Consent Order).
The parties bound by the Consent Order are the CEPU and the Electricity Networks Corporation trading as Western Power (Western Power).
On 23 August 2021, Western Power filed a response to the Application opposing any variation to the Consent Order on the grounds that the Consent Orders have ceased to have any legal force or effect.
On the same day, the parties participated in a conciliation, but the issues in dispute could not be resolved.
The Application was therefore listed for hearing in Perth on 30 November 2021.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 10 September 2021 and subsequently amended on 21 and 29 September 2021 (Directions).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Mr Philip Boncardo appeared on behalf of the CEPU and Mr Nicholas Ellery appeared on behalf of Western Power.
Evidence
The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
In accordance with the Directions the CEPU filed a witness statement setting out the evidence in chief of Mr Brendan Reeve (Mr Reeve). Mr Reeve is the Assistant Secretary for the Western Australian branch of the Electrical Division of the CEPU. He is leading the negotiations with Western Power in relation to which the Consent Order was issued.
At the Hearing Mr Reeve gave further evidence in chief orally and was cross examined by Mr Ellery.
In accordance with the Directions, Western Power filed a witness statement and a statement in reply setting out the evidence in chief of Ms Autumn Feuerheerd.
At the Hearing each of the Western Power witnesses gave further evidence in chief orally and were cross examined by Mr Boncardo.
The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties. The Digital Court Book was admitted at the Hearing as an exhibit and marked DCB1. Western Power also tendered a copy of the Western Power and CEPU Enterprise Agreement 2017 which was marked as Exhibit R1.
Closing submissions were filed on behalf of the CEPU on 13 December 2021. Closing submissions were filed on behalf of Western Power on 20 December 2021. A response to Western Power’s closing submissions were filed on behalf of the CEPU on 24 December 2021.
In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
The CEPU and Western Power commenced bargaining for a replacement enterprise agreement in August 2020.[2]
The bargaining has been protracted and progress has been slow. Western Power allege that the CEPU has continually made new claims preventing the parties finalising an agreement.
On 24 March 2021 Western Power made an application to the FWC pursuant to section 418 of the FW Act for the FWC for orders to stop industrial action then threated by the CEPU on the grounds inter alia that the CEPU were pursuing claims for non permitted matters.[3]
The application was listed for a conference. The conciliated outcome of the conference was captured in a written agreement (Conference Settlement). [4]
At paragraph 9, the Conference Settlement set out a list of the CEPU claims, and promised that ‘the CEPU will bring no further or additional claims in the bargaining’. In return for this concession Western Power agreed:[5]
a.not to oppose a further application for a protected action ballot order;
b.not to seek orders in the future to stop industrial action on the ground that non permitted matters were being claimed;
c.not to seek orders in the future to stop industrial action on the ground that it related toa significant extent to a demarcation dispute; and
d.to pay the fees for an agreed ballot agent to conduct a protected action ballot.
On 24 May 2021, Western Power made an application to the FWC for bargaining orders pursuant to section 229 of the FW Act on the grounds inter alia that the CEPU had not complied with the Conference Settlement.
The application was listed for a conference on 3 June 2021. Following lengthy discussions over numerous hours the parties agreed the terms of consent orders that would obviate the need for determination of the application.
The Consent Orders[6] were issued the same day and provided as follows:
“This Order is binding on and applies to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union of Australia (Electrical Trades Division) and its officers, delegates, employees and agents (CEPU) and the Electricity Networks Corporation.
[1] By 5.00pm (WST) on Friday 11 June 2021, the CEPU will provide Western Power with an exhaustive list of each and every one of its outstanding bargaining claims, accompanied by the CEPU’s proposed drafting for such claims.
[2] Western Power will allow the CEPU’s delegates who have been involved in bargaining to date to participate in a paid meeting with the CEPU on Wednesday 9 June 2021 from 7am to 12 noon to discuss and provide instructions in relation to the CEPU’s list of outstanding bargaining claims prior to such list being provided to Western Power in accordance with order
[3] The CEPU will not make amendments to the list of the claims referred to in order 1, without first notifying, its members and Western Power, of the details of the amendment, and explaining the basis for the amendment.
[4] The CEPU and Western Power will meet to discuss the CEPU’s proposed clauses on Monday 14 June 2021 and Tuesday 15 June 2021, unless alternative dates are agreed in writing.
[5] The CEPU will:
a. instruct members before 5.00pm (WST) on 4 June 2021 by email to all delegates at Western Power, not to attend or convene union meetings at Western Power depots or on any Western Power premises, without prior written authorisation of Western Power, instruct delegates to forward a copy of the instruction to members and forward a copy of this instruction (on ETU letterhead) to Mark Wilshusen; and
b. not instruct, encourage or permit union meetings to be held on any Western Power premises, without the prior written authorisation of Western Power.
[6] Any person bound or affected by this Order shall have the liberty to apply to
vary, extend or rescind this order.[7] Upon compliance with these Orders, the Electricity Networks Corporation will file a Notice of Discontinuance.
On 11 June 2021 in compliance with the Consent Orders the CEPU provided a list of outstanding claims and a marked-up version of a proposed enterprise agreement to Western Power.[7]
The scheduled bargaining meetings proceeded on Monday 14 June 2021 and Tuesday 15 June 2021 without incident.[8]
In the absence of receipt of a Notice of Discontinuance on 12 July 2021 Chambers contacted Western Power and inquired whether it intended to file a notice of discontinuance in relation to B2021/358 in accordance with the terms of the Consent Orders.
On 20 July 2021 Western Power’s representatives responded to Chambers asserting that:[9]
a.the CEPU had breached Order One in four instances;
b.the CEPU’s asserted breaches had ‘potential future ramifications’;
c.Western Power had taken no legal steps in connection with the breaches to date, but had the option of doing so in the future;
d.Because Order 7 provided that “Upon compliance with these Orders” Western Power would file a Notice of Discontinuance Western Power had not filed a Notice of Discontinuance on the grounds that the CEPU might later contend that doing so was evidence that Western Power accepted there had been compliance with the Orders;
e.Western Power had no opposition to the FWC dismissing the application; and
f.it had no intention to further prosecute the Application.
Relevantly the correspondence stated that:
“…the order continues to assist the parties and has work to do in the remainder of the enterprise bargaining.
Specifically, orders 3 and 5(b) have ongoing relevance, because they regulate the unions conduct whilst bargaining continues. It is not possible to make a judgement that there has been compliance with those orders, until such time as the bargaining is concluded.”
Rule 10 of the Fair Work Commission Rules 2013 (FW Rules) provides that:
“ (1) An applicant in an application before the Commission may discontinue the application at any time.
(2) To discontinue the application, the applicant must notify the Commission by:
(a) lodging a notice of discontinuance; or
(b) advising the Commission, or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant:
(i) wishes to discontinue the application; or
(ii) has settled the application; or
(iii) wishes to withdraw the application; or
(iv) no longer needs the Commission to deal with the application; or
(c) advising the Commission of the discontinuance during the course of a conference or hearing.
Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).
Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.
Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.
(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.”
On 21 July 2021 Chambers notified the parties that I had accepted Western Power’s correspondence of 20 July 2021 as a discontinuance pursuant to rule 10(2)(b)(iv) of the Fair Work Commission Rules 2013 and, accordingly, the file had been closed.
On 23 July 2021 at the request of the CEPU, Western Power identified the four alleged breaches of the Consent Orders as follows (Alleged Breaches):
a.The CEPU breached Order 1 by including the words ‘TBA’ in place of the dollar amount for the ‘campaign allowance’ in the proposed draft EA which it sent to Western Power on 11 June 2021 (Allegation 1).
b.The CEPU breached both Order 1 and Order 3 by announcing a claim for increasing the income protection allowance at a bargaining meeting on 14 June 2021 (Allegation 2).
c.The CEPU breached both Order 1 and Order 3 by announcing a claim at the bargaining meeting on 14 June 2021 to remove the exception commercially sensitive information from Schedule 1 of the 2017 Agreement.
d.The CEPU breached both Order 1 and Order 3 by announcing a claim at the bargaining meeting of 14 June 2021 to change the ordinary hours of the 2017 Agreement from 6:00 am – 6:00 pm to 5:00 am – 6:00 pm.
Western Power did not specify the nature of the ‘potential future ramifications’ to which its 20 July correspondence refers. The CEPU presumes it to be an assertion that:
a.Western Power is able to apply, or at a later date may be able to apply, to the FWC for a serious breach declaration pursuant to section 235 of the FW Act, which would mean that any industrial action taken thereafter could not be protected pursuant to s 413(7)(c) of the FW Act, and which may lead to the FWC making a bargaining related workplace determination thereby concluding bargaining for the proposed agreement; and/or
b.section 413(5) of the FW Act has not been complied with and any industrial action taken by the CEPU and its members authorised by a protected action ballot order will not meet the common requirements for protected action and therefore be unprotected, thus exposing the CEPU and its members to claims for compensation under section 545(2)(b) of the FW Act and/or pecuniary penalties under section 546(1) of the FW Act.
The CEPU denies that it has breached the Orders as asserted by Western Power. At the highest the CEPU say the alleged breaches were the result of oversight or inadvertence. In particular the CEPU say that:[10]
a.The acronym ‘TBA’ in the draft agreement was included not to foreshadow a future claim but rather to notate that the quantum of the camping allowance was yet to be determined following discussions between the parties. The CEPU’s claim is for additional living away from home benefits, with the CEPU proposal being a requirement for Western Power to provide a minimum standard of accommodation, with an allowance that compensates for that should that not be provided. The dollar amount is therefore dependent on consideration of what would constitute a minimum standard of accommodation and how departures from that minimum standard would be measured.
b.The income protection allowance is not a new claim. It was a matter of discussion between the parties earlier in the negotiation. Mr Reeve could not exactly recall the outcome of those discussions (i.e. whether employees or the company would cover the increase). At the meeting on 14 June 2021, the employer clarified that it was employees who would pay. The CEPU accepted this and did not then make a claim to the contrary.
c.The Union has not at any stage claimed for an amendment to the consultation clause under schedule 1 however there have been ongoing discussions around the company’s claim to remove its’ consultation obligations under clause 25. The primary source of concern for the Union is that schedule 1 is more restrictive than clause 25(a) in that it states that the company is not required to disclose confidential information. The question mark in the draft agreement was a notation to remind Mr Reeve to clarify whether the confidential information provisions were to apply to consultation in relation to redundancies.
d.The reference to crews commencing work at 5am was an idea posed by the CEPU during negotiations as a creative means to solve an impasse involving the hot weather allowance not a new claim.
The CEPU seek that the Consent Orders be either varied or revoked on the grounds that:
a.The Consent Orders were interim in nature and made by consent in circumstances where the FWC neither heard evidence nor made findings in relation to the jurisdictional facts set out in s 230(3) of the FW Act.
b.Western Power determined not to progress its application and, in effect, capitulated.
c.Western Power’s construction of the Consent Orders is narrow, pedantic, unreasonable and likely to lead unnecessary and ongoing future legal disputation between the parties.
d.Western Power’s (un-particularised) assertion of ‘potential future ramifications’ is advanced in order to apply undue pressure on the CEPU and its members to not exercise their right to organise and take protected industrial and/or to prevent them from exercising their right to engage in collective bargaining.
e.The CEPU is presently hamstrung in seeking clarification about claims or otherwise proposing alternatives during bargaining meetings, lest it be asserted that the Consent Orders have been contravened. This has had the effect, and will continue to have the effect, of stultifying and hamstringing effective bargaining meetings and negotiations.
f.There is a level of ambiguity and uncertainty about the construction and application of the Orders which requires clarification and rectification by the Commission.
Consideration
Western Power assert that the Consent Orders ceased to have legal effect when the Application was discontinued and as a consequence the Consent Orders:[11]
a.no longer exist;
b.can not be varied or revoked; and
c.can have no impact on the bargaining between the parties.
Clearly it can not be the case that orders, interim or otherwise, automatically cease to have legal effect when an application is discontinued or closed. If that were the case confidentiality orders would provide no protection beyond the filing of a Notice of Discontinuance or the issuing of a decision.
Western Power submit that even if a power to vary or revoke the Consent Orders is available there is no rational basis for varying or revoking the Consent Orders.
The Consent Orders were issued before the parties had the opportunity to file evidence or make detailed submissions in relation to the Application. Section 589 of the FW Act provides a power to make orders in such circumstances.
Section 589 of the FW Act provides:
“s.589 Procedural and Interim Decisions
(1)The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit FWC’s power to make decisions.”
Section 603 of the FW Act provides:
“s.603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note:If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2)The FWC may vary or revoke a decision under this section:
(c) on its own initiative; or
(d) on application by:(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.”
An order is a decision of the FWC.[12] Sub section of section 603 of the FW Act provides that the FWC is prohibit from varying or revoking certain types of decisions. The Consent Orders were made pursuant to the powers conferred by section 589 of the FW Act in relation to an application for orders pursuant to section 230 of the FW Act and does not fall into the category of excluded decisions.
The Application was made by the CEPU in its capacity as a party bound by the Consent Order. I am therefore satisfied that the CEPU has standing to make the Application.
The power under section 603(1) of the FW Act is not to be narrowly confined and must be given a broad and flexible operation.[13] It must be exercised in the context of the functions and powers of the FWC generally. Particularly relevant in this case is the requirement that the FWC promote cooperative and productive workplace relations[14] and that the FWC take into account the equity, good conscience and the merits of a matter.[15]
Western Power submit that the discretion in section 603 is only to be exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise. In support of this submission Western Power cite Grabovsky v United Protestant Association of New South Wales[16], and Endeavour Energy.[17]
In Grabovsky v United Protestant Association of New South Wales[18], the applicant sought to vary four decisions of members of the FWC, including a decision of a Full Bench in an unsuccessful appeal by the applicant. In essence the applicant was asking that the FWC overturn the Full Bench decision on the grounds that it was wrongly decided. In determining that it is was not an appropriate case for the exercise of the discretion in section 603 of the FW Act Ross J said:[19]
“[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?
[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.
[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so.”
In Endeavour Energy[20], Hamburger SDP was considering an application to vary a decision in relation to the manner of testing for drugs in circumstances where the manner of testing had been determined in the original decision which was then upheld on appeal by the applicant. Hamburger SDP observed:[21]
“[8] Section 603 of the Act empowers the Fair Work Commission to vary or revoke a decision made under the Act (with certain exceptions), either on its own motion or on application by a person affected by the decision. There are no legislative criteria prescribing when or how this power should be exercised. However, as the applicant acknowledged during the proceedings, it is a power that is rarely exercised and in many respects is exceptional because it is contrary to the principle regarding the finality of decisions.
[9] Applications to vary or revoke a decision should not be used to re-litigate the original case. It would generally be unacceptable, for instance, to allow a party, after a case has been decided against it, to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so. In this case, the applicant submitted that since the original decision was made, there has been a change in circumstances such that the applicant can no longer comply with the original decision. I agree that if there has been such a change this could constitute a reasonable basis for a variation of the original decision.”
Both of the cases relied on by Western Power involved final, not interim, orders. Situations in which the parties had ample opportunity to fully ventilate their respective positions and the FWC the time to reach a concluded decision with the benefit of sworn evidence and detailed submissions. In effect the applications to vary orders in those cases were an attempt to relitigate a case.
In Glen Cameron Nominees Pty Ltd v Transport Workers’ Union of Australia[22] a Full Bench of the FWC specifically rejected an appellant’s contention in that case that the power under section 603 was limited to the matters described by Ross J in Grabovsky v United Protestant Association of NSW Ltd,[23] namely, to instances where there has been a change in circumstances or where the initial decision was based on incomplete or false information, or fraudulently or otherwise procured. It held:[24]
“In this respect, the Appellant submitted it has not been suggested by any party that there has been a change in circumstances, nor that the Decision was based on incomplete or false information. Thus, there is no apparent basis for the exercise of any revocation power which might exist. We do not agree with this submission. The above extract relied upon by the Appellant merely outlines circumstances where the power to vary or revoke a decision has generally been exercised. Ross J was not purporting to and did not set out rules as to thethe discretion conferred by section 603. Thus, this submission must be rejected.”
As was pointed out in Esso Australia Pty Ltd v Australian Workers’ Union[25] interim or procedural orders of the FWC are varied and revoked with far greater frequency than final orders:[26]
“Hence, if a document cannot be filed within the time specified in an order made by the Fair Work Commission, an application might be made for the time to be enlarged, or alternatively for the order to be revoked and a new order made allowing greater time, and, if there were good reason for the failure to file the document timeously, no doubt time would be enlarged, especially when it is appreciated that to refuse to enlarge time would preclude the possibility of protected industrial action by reason of s 413(5). Similarly, if a document were filed within time but later found not to comply with requirements imposed by the Fair Work Commission, and there was a satisfactory excuse for the failure in compliance, time in which to file a document complying with requirements might be enlarged retrospectively.”
In fact the High Court in the Esso Case contemplated that the variation or revocation could in fact take effect retrospectively avoiding what might otherwise constitute a breach of the relevant order:[27]
“The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct "obvious errors”
In Castlemaine Perkins Pty Limited T/A Castlemaine Perkins v United Voice,[28] Asbury DP had before her a case where an application for bargaining orders was made under s 229, but before it was heard and determined, interim orders were made requiring certain steps to be taken by the union before a particular date. When those steps were not taken, the company made application for s 418 orders, arguing that because of s 413(5), industrial action which had been notified would not be protected action. As is the case here, the union applied to vary the interim order. Deputy President Asbury noted:[29]
“Esso establishes that in a case involving a breach of an order of the Commission so that s. 413(5) of the Act is engaged, it may be appropriate to exercise the discretion to vary the interim bargaining order if a satisfactory excuse or good reason for non-compliance with the relevant order is established or the non- compliance is because of oversight or inadvertence. Esso does not establish that a variation must be granted in such circumstances. The cases dealing with the discretion in s 603 of the Act establish that all relevant circumstances should be considered before a decision to vary an order is made so that a breach is cured or becomes of no effect. Other relevant circumstances may include matters such as the effect of a variation on the rights of other parties and whether the exercise of the discretion to vary an order so that non-compliance is cured would undermine other provisions of the Act.”
The Consent Orders were drafted ‘on the run’ in a Conference that extended over several hours into the evening. The outcome was a swift but roughly crafted solution. The intent of the Consent Order was to avoid further deterioration of the relationship with the parties by facilitating bargaining occurring more efficiently and effectively. The effectiveness of the Consent Order was reliant in both sides applying the Consent Order in pragmatic way.
The Consent Orders intentionally had no specified end date because it was the expressed intention of Western Power that they wished to secure an ongoing commitment by the CEPU not to introduce additional claims for however long it took the parties to reach a concluded agreement. The Consent Orders were always intended by Western Power to survive the discontinuance of the Application. This is self evident from the communication of 20 July 2021 from Western Power’s representatives to the FWC.
The Consent Orders expressly contemplated that they might be varied on application of either party.
Unfortunately, the effect of the Consent Orders in practise has been to stall bargaining by limiting the scope for creativity in solutions to bargaining impasses and to potentially limit the statutory right of the workforce to use protected industrial action to advance its claims.
The proceedings do not concern the enforcement of the Consent Orders, that is a matter for a court of competent jurisdiction. As a consequence it is not necessary for me to reach a concluded view as to whether the Consent Orders have in fact been breached. However, it is something that I have taken into account in determining whether it is appropriate to grant the remedy sought by the CEPU in this Application. I am not inclined to the view that the CEPU has breached the Consent Order and if it has then those breaches are at best technical and are not contrary to the intent of the Consent Order.
There is no clear prejudice to Western Power arising from the alleged breaches. To the contrary the alleged breaches have provided a mechanism by which Western Power has been able to subdue the appetite of the workforce to pursue protected industrial action during a holiday period when minimising the impact of industrial action with the use of staff labour would have been challenging.
There is significant prejudice to the CEPU and its members if it believes it is restrained from exercising its lawful right to take industrial action. As Bromberg J explained in Esso Australia Pty Ltd v AWU[30]:
“Broadly stated, and consistently with the objects set out at ss 3(f) and 171(a)[, ]the FW Act provides for enterprise-level collective bargaining for the making of enterprise agreements, as a means of enabling industrial parties to resolve their industrial disputes. Collective bargaining is a process in which employees bargain with their employer as a collective rather than individually. To be successful, bargaining usually involves the making of concessions. Sometimes concessions are freely made, but an inherent feature of a collective bargaining regime is the recognition that concessions may need to be extracted through the application of industrial pressure. Industrial action is an available form of pressure and the capacity to lawfully exert such pressure, including by inflicting loss or damage, is permitted but is subject to certain conditions. As to the last-mentioned characteristic of collective bargaining, the FW Act calls permitted industrial action “protected industrial action”
If the Consent Order remains in force in its current form then it is likely further legal uncertainty and/or litigation will ensue, further damaging the relationship of the parties and distracting them from concluding an agreement.
I am satisfied that the drafting of the Consent Orders has had the unintended effect of hampering effective and efficient bargaining by restricting the capacity of the CEPU to clarify its claims and propose alternatives (potentially palatable to Western Power). Given that the Consent Order is not achieving the purpose for which it was made it is appropriate that it be varied to more clearly reflect the agreement reached by the parties at the conference held on 3 June 2021.
A draft variation to the Consent Order to this effect will be provided to the parties. The parties will be invited to propose within 7 days of the date of this Decision any modification to the draft variation which will better ensure the Consent Order achieves its intended purpose.
DEPUTY PRESIDENT
Appearances:
Mr P Boncardo, for the Applicant
Mr N Ellery, for the Respondent
Hearing details:
2021
Perth
2 December
Final written submissions:
Applicant's Final Written Submissions, 13 December 2021
Respondent’s Final Written Submissions, 20 December 2021
Applicant’s Final Written Response, 24 December 2021
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB), 1302.
[3] C2021/1650.
[4] DCB 702, 712-716.
[5] DCB 702, 712-716.
[6] PR730462.
[7] DCB 644, 661-697, 720-756.
[8] DCB 645.
[9] DCB 781-782.
[10] DCB 648-650, 834-835.
[11] DCB 868-869.
[12] Fair Work Act 2009 (Cth) s.598(3).
[13] Minister for Industrial Relations (Vic) v Esso Australia Pty Ltd (2019) 268 FCR 520 at [34] and [36].
[14] Fair Work Act (n 12) s 576(2).
[15] Ibid s 578(b).
[16] [2015] FWC 5161 (Grabovsky).
[17] [2014] FWC 198 (Endeavour Energy).
[18] Grabovsky (n 16).
[19] Ibid at [37]-[39].
[20] Endeavour Energy (n 17).
[21] Ibid at [8]-[9].
[22] [2017] FWCFB 4636 (Glen Cameron).
[23] Grabovsky (n 16).
[24] Glen Cameron (n 22) at [41].
[25] (2017) 263 CLR 551 (Esso).
[26] Ibid at [51].
[27] Ibid at [49].
[28] [2018] FWC 4470 (Castlemaine Perkins).
[29] Ibid at [76].
[30] (2016) 258 IR 396 at [240].
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