Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd Trading as Endeavour Energy
[2025] FWC 761
•17 MARCH 2025
| [2025] FWC 761 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.234 - Application for an intractable bargaining declaration
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Endeavour Energy Network Management Pty Ltd Trading AS Endeavour Energy
(B2024/1333)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 17 MARCH 2025 |
Application for an intractable bargaining declaration
Introduction and outcome
On 6 November 2024, the Fair Work Commission (Commission) made an intractable bargaining declaration under s 235(1) of the Fair Work Act 2009 (Cth) (Act) in relation to the proposed Endeavour Energy Enterprise Agreement 2023 (the Proposed Agreement).[1] The bargaining representatives involved in bargaining for the Proposed Agreement are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) (together the Joint Unions), the employer, Endeavour Energy Network Management Pty Ltd t/as Endeavour Energy (Endeavour), and two employee bargaining representatives, Mr Dave Johnson and Mr Benjamin Vitucci.
Having made an intractable bargaining declaration, the Commission is required by s.269 of the Act to make an Intractable Bargaining Workplace Determination (Determination). The Determination has been set down for hearing before a Full Bench from 31 March – 4 April 2025.
Three applications have been made by the parties in relation to the Determination proceedings. On 5 March 2025, Endeavour made an application for an order of the Commission prohibiting the publication of some aspects of the evidence which it has filed in the Determination proceedings. On 5 March 2025, the Joint Unions made an application for an order for production of documents addressed to Endeavour. On 10 March 2025, Endeavour made an application for an order for production of documents addressed to CEPU.
The three applications were listed for hearing before me on 12 March 2025. I have dealt with the applications for orders for production of documents in this decision. I will deal with Endeavour’s application in relation to the publication of some aspects of the evidence in a separate decision.
Application for an order for production of documents made by Joint Unions
The application for an order for production of documents made by Joint Unions sought the production of 51 categories of documents by Endeavour.
At the hearing the parties advised that they had reached agreement in relation to all categories of documents apart from Categories 2, 7, 10, 12-17 and 50.
Category 2
Category 2 is all documents recording any dividends, distributions and/or interest Endeavour paid to shareholders and/or investors in FY22, FY23 and FY24.
The Joint Unions explained that in the Determination proceedings, Endeavour has asserted that the Australian Energy Regulator (AER) provides an ‘amount’ for it to pay enterprise agreement covered employees (referred to as the ‘AER EA Budget’) (Endeavour’s Outline of Submissions (AS) at [4]) and that the Joint Unions’ claims will mean that Endeavor exceeds its ‘AER EA Budget’ by $173.2m in FY26 and $63.5m in first half of FY27 (AS [5]).
It has further asserted at AS[67] that exceeding the ‘AER EA Budget’ would require Endeavour to either (1) apply to vary the ‘annual revenue requirement’, (2) borrow the required funds (and increase debt), (3) absorb ‘excessive increases in labour costs within the ARR’ or (4) mitigate ‘increases in labour costs’. However, it contends that none of these options are feasible (AS [69] to [77]).
The Joint Unions submitted that the documents sought at categories 1 to 8 are relevant to whether Endeavour is able to absorb and/or mitigate the labour costs associated with the Joint Unions’ claims. The documents sought at categories 1 and 3, also seek information regarding the income/profit derived from Endeavour’s non regulated services.
The Joint Unions submit that Category 2 goes directly to the argument advanced by Endeavour about affordability of the claims advanced by the Unions. In this regard, any benefit investors have received over preceding years is relevant to their ability to fund any increase above the AER Determination. The Joint Unions referred to the Statement of Colin Crisafulli, General Manager, Future Grid and Asset Management filed by Endeavour, which states at paragraph 74(a) that reducing dividend payments is a potential avenue to fund the CEPU wages and allowances position but that this is not viable because it could ‘eat’ into the ‘Return On Capital’ building block and shareholders may decide not to invest in the business any further. In order to test that proposition, it is important to look at what returns shareholder have been obtaining in the preceding years, because the Joint Unions’ position is that shareholders have benefited from wages being kept low for an extended period under the current enterprise agreement which applies to employees. This is particularly the case given that a major shareholder is the NSW Government. Shareholders have received higher returns than they ordinarily would have, had wages kept up with inflation and/or living costs. The investor ability to fund any potential increase is a relevant consideration for the Commission and what they have received will be relevant to their ability to fund that increase. Further, the material is necessary to test the evidence of Mr Crisafulli about investors being reluctant to invest in the business based upon a drop in on returns, if in fact that occurs.
Endeavour objected to this category on the grounds of relevance. Endeavour submitted that the dividends and distributions for previous financial years have been declared and paid. The money is no longer under Endeavour’s control. They have no bearing on Endeavour’s ability to absorb and/or mitigate labour costs moving forward. The current AER Determination sets the money available for dividend payments for Endeavour’s regulated business and the relevant figures are publicly available. Endeavour relied upon Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2] where the CEPU sought production of (among other things) Transgrid’s dividends paid in the past three financial years (in the context of an application for good faith bargaining orders). In that case, Deputy President Slevin declined to make the orders sought on the basis that the dividend information was not relevant to bargaining. Endeavour submitted that for the same reasons, that information is not relevant to this arbitration.
Category 7
Category 7 is remuneration (including salary, superannuation and bonuses) paid to each member of Endeavour’s executive leadership team (ELT) in FY22, FY23 and FY24 expressed on an individual basis but deidentified (e.g., ELT member no.1, ELT member no.2 etc.).
The Joint Unions submit that this category of documents is relevant to the argument advanced by Endeavour as to its ability to fund the claims advanced by the Unions. The increases paid to the ELT is highly relevant to what pay increase should be paid to the enterprise agreement covered employees.
Endeavour objects on the basis of relevance. Endeavour would consent to providing information about the amount allocated to all non-enterprise agreement covered employees and contractors.
Category 10
Category 10 is all documents recording any dividends, distributions and/or interest Ausconnex paid to shareholders and/or investors in FY22, FY23 and FY24.
The Joint Unions submit that the documents sought at categories 10 to 14 relate specifically to Ausconnex, a wholly owned subsidiary of Endeavour which provides unregulated services. These documents are relevant to challenge the proposition advanced by Endeavour that borrowing funds from related businesses is not viable (AS [73]). The Joint Unions submit that this category of documents goes directly to the argument advanced by Endeavour to afford the claims advanced by the Unions. The Joint Unions have pointed to paragraph 74(d) of Mr Crisafulli’s statement which states that Endeavour can hypothetically use the profits from Ausconnex to fund labour in Endeavour, but that the profits are around $2 million per annum. The Joint Unions submit that they are entitled to test this evidence with reference to the documents sought in category 10.
Endeavour submits that this should be rejected for the same reasons as category 2 and that dividends, distributions and/or interest from previous years cannot be used to fund labour costs.
Category 12
Category 12 is all documents recording plans and/or strategy related to Ausconnex’s growth in FY25, FY26 and/or FY27.
The Joint Unions submitted that if Ausconnex is projected to grow, that will have a corresponding impact on Endeavour’s capacity to fund a wage increase.
The Joint Unions submitted that they would agree to narrow the category as follows:
all documents created between 1 July 2021 and the date of the order recording plans and/or strategy related to Ausconnex’s growth in FY25, FY26 and/or FY27.
Endeavour objects to category 12 on the basis of oppression and relied upon paragraph 39 of a Statement of Melissa Irwin, who is the Chief Data, People and Sustainability Officer, for Endeavour. Ms Irwin gave evidence that “All documents” may be emails, meeting minutes, proposals to customers, contracts, financial documents, board papers, segmentations strategies, product line strategies and more. Ms Irwin stated that every single project Endeavour plans to do would have documents that fall within category 12. Ms Irwin said that multiple people would hold the various documents. It would be impossible comply before the hearing.
Category 13
Category 13 is the contract(s) for the construction of the “132kv substation” referred to at paragraph 4 of the statement of Leanne Pickering.
The Joint Unions submitted that it will withdraw this category subject to Endeavour agreeing to produce documents in response to revised category 12.
Endeavour submitted that the context in which Ms Pickering refers to the substation and asset relocation is as follows:
… Ausconnex designs, builds and operates large-scale electrical infrastructure and network solutions, and covers all phases of the project from asset financing to ownership, management, maintenance and assessment repairs. For example, Ausconnex is building a 132kv substation for Microsoft and is completing asset relocation jobs (e.g. poles) as part of construction of the M12 for Transport for NSW.
Endeavour submitted that Ms Pickering is describing, in broad terms, Ausconnex’s operations. The substation and asset relocation jobs are cited as an examples of the type of work Ausconnex performs.
Endeavour submitted that the documents sought are not relevant. It is unclear how access to the contracts could assist the Commission determine whether Endeavour is able to borrow money from Ausconnex.
Endeavour further submitted that Ms Pickering does not refer to any ‘contract’. Those documents have not been put in issue and there is no legitimate forensic purpose in seeking their production.
Category 14
Category 14 is the contract(s) for the “asset relocation jobs” referred to at paragraph 4 of Ms Pickering’s Statement.
The Joint Unions submitted that it would withdraw this category subject to Endeavour agreeing to produce documents in response to revised category 12.
Category 15
Category 15 is all documents recording Endeavour Energy’s agreed resource commitments with Ausconnex, including (but not limited to) ‘Project on a page’ documents (referred to at paragraph 52 of the statement of David Campbell).
Endeavour submitted that it opposes this category of documents on the grounds of relevance and oppression.
Category 16
Category 16 is all documents recording Endeavour Energy’s forecasted resource commitments with Ausconnex (referred to at paragraph 52 of the statement of David Campbell).
Endeavour submitted that it would consent to an order providing the documents relied upon Mr Campbell at paragraph 52, however the Joint Unions submitted that it also sought documents which Mr Campbell did not rely upon, so that they could test his evidence.
Category 17
Category 17 is all documents recording the total time spent or hours worked by enterprise agreement covered employees when performing work for non regulated services, including work for Ausconnex, in FY22, FY23 and/or FY24.
The Joint Unions submits that these documents are relevant to testing the extent to which enterprise agreement covered employees perform work for Ausconnex. The evidence of Mr Crisafulli suggests at paragraph 50 that the extent to which enterprise agreement covered employees perform work for Ausconnex is limited.
The Joint Unions submitted that they would agree to narrow the category as follows:
all documents recording the total time spent or hours worked by enterprise agreement covered employees when performing work for non regulated services, including work for Ausconnex, in FY22, FY23 and/or FY24.
Endeavour opposes this category on the grounds of oppression and relevance. Ms Irwin gave evidence that Endeavour will consent to an order to provide total hours of work on Ausconnex in FY22, FY23 and FY24. However, this will not differentiate between hours of enterprise agreement employees and contract employees. Endeavour does not separately record this data. Ms Irwin said that it would be impossible to comply with this before the hearing. It would require that Endeavour looks at each Ausconnex project and then look up the hours per person. Endeavour would then confirm if the worker was an enterprise agreement employee. Endeavour would then manually add up all of the enterprise agreement employee hours on the project. Endeavour would then repeat for every Ausconnex project during the period. It would be possible to comply with this order in a couple of months, however would require additional resources.
Category 50
Category 50 is all documents recording the legal costs Endeavour has incurred in respect of bargaining (including bargaining strategy and Commission proceedings B2024/193) and/or industrial action taken by the Unions (including Commission proceedings B2024/1007, B2024/530 and C2024/5641) in the period between 1 July 2023 and 6 November 2024.
The Joint Unions submitted that these documents are directly relevant to the argument advanced by Endeavour that it cannot fund the Unions’ claims in circumstances where Endeavour has elected to spend those funds elsewhere during bargaining. Further, invoices for work performed do not attract legal professional privilege. To the extent that certain narrations contain legal advice, the Unions are content for Endeavour to redact those parts of the documents.
The documents sought at category 50 are relevant to test the evidence of Mr Crisafulli at paragraph 81 and the proposition that it is the Joint Unions’ claims that will cause Endeavour to exceed the ARR (and risk the business’ continued operations) as opposed to any other commercial decisions it has made in respect of the negotiations between the parties and the protected industrial action taken by the Joint Unions.
Endeavour submitted that it objects to production on the basis that documents are not relevant, would reveal internal deliberations of Endeavour and are privileged to the extent they disclose legal advice. Even if Endeavour’s position has been impacted due to ‘other commercial decisions’, it is unclear how that information could assist the Commission at all in determining the merits of the parties’ positions. The Joint Unions were entitled in the course of bargaining to take protected industrial action. Endeavour was similarly entitled to reach for the ‘circuit breaker’ under s 424. That it did so should not now be a factor weighing against it in this arbitration.
Documents sought from the CEPU
The application for an order for production of documents made by Endeavour sought the production of 13 categories of documents by the CEPU.
At the hearing the parties advised that they had reached agreement in relation to all categories of documents apart from Categories 6, 7, 11 and 12.
Category 6
Category 6 is all documents and information relied upon by Mr Manalo to assert that people are leaving employment with Endeavour Energy to go to other employers for higher pay. (see paragraph 22 of the Statement of Jean-Pierre Manalo)
Category 7
Category 7 is a list of the enterprise agreements and the specific clause number (or other source of entitlement if applicable) upon which Mr Lomax relied to assert that the payment of an inclement weather, hazardous weather or similar allowance or payment is ‘industry standard’ in the electrical power distribution industry. (see paragraph 29 of the Statement of Stuart Lomax)
Category 11
Category 11 is all documents recording the discussions at the mass meeting held on 9 October 2024. (see paragraph 78 of the Statement of Tara Koot).
Endeavour submitted that this is relevant to the issue of whether or not representations were made by CEPU representatives at that meeting on 9 October 2024, to the effect that employees could not go backwards in in a workplace determination. Endeavour clarified that it is not seeking draft witness statements or documents which attract privilege.
The CEPU submits that the category is oppressive and has offered contemporaneous notes of the meeting. During the hearing, Endeavour revised the Category 11 documents as follows:
All documents that were prepared in that meeting and recording the discussions at the mass meeting held on 9 October 2024; and
The WhatsApp chat group of any senior delegate reporting on discussions or the content of the mass meeting held on 9 October 2024.
Category 12
Category 12 is all documents created between 1 September 2023 and 1 March 2025 containing information about the ETU’s multi-employer bargaining strategy. (see paragraph 104 of the Statement of Tara Koot)
Paragraph 104 of the Statement of Tara Koot provides:
Essential Energy and Ausgrid also follow this 3-year cycle with both of their new EAs expiring in 2027. If the bargaining cycle were extended beyond the typical 3 years within the distribution industry, this would significantly limit the union's ability to engage in multi-employer bargaining if this strategy were adopted before the next round of negotiations.
Endeavour submits that this evidence should only be given weight if multi-employer bargaining is a strategy that is being pursued.
Consideration
Section 590(2)(c) of the FW Act gives the Commission the discretionary power to make orders requiring a person to provide copies of documents or records, or any other information to the Commission, for the purpose of the Commission informing itself as to a matter before it.
In considering whether to exercise its discretion, the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.[3] It is necessary to establish grounds for a belief that a document or class of document exists, and that such a document or class of documents may be or have been in the possession, custody or power of the person required to produce.[4] The documents sought must be identified with sufficient particularity.[5] The documents sought must have apparent relevance to the issues in the proceedings.[6] The test for relevance does not require that a party demonstrate direct relevance, rather, the documents must have some potential relevance.[7] The documents sought must be used to support the requesting party’s existing case.[8] An order to produce cannot be used for the purpose of a ‘fishing expedition’; that is, used for the purpose of exploring if there is a supportable basis for a case that might potentially be advanced.[9]
Application for an order for production of documents made by Joint Unions
Category 2
I accept the Joint Unions’ submissions that investor ability to fund any potential increase is a relevant consideration for the Commission and what they have received would be relevant to their ability to fund that increase. I also accept that the material is category 2 is necessary to test the evidence of Mr Crisafulli about investors being reluctant to invest in the business based upon a drop in on returns, if in fact that occurs. I propose to issue an Order to Endeavour that it produce the documents sought by the Joint Unions in Category 2 and note that Endeavour intends to seek a confidentiality order with respect to these documents.
Category 7
I accept the Joint Unions’ submission that this category of documents is relevant to the argument advanced by Endeavour as to its ability to fund the claims advanced by the Unions and that the increases paid to the ELT is relevant to the pay increase that should be paid to the enterprise agreement covered employees.
I propose to issue an Order to Endeavour that it produce the documents sought by the Joint Unions in Category 7 and note that Endeavour intends to seek a confidentiality order with respect to these documents.
Category 10
I accept the Joint Unions’ submission that these documents are relevant to the proposition advanced by Endeavour that borrowing funds from related businesses is not viable. I also accept the Joint Unions’ submission that these documents are relevant to Mr Crisafulli’s statement that Endeavour can hypothetically use the profits from Ausconnex to fund labour in Endeavour, but that the profits are around $2 million per annum.
I propose to issue an Order to Endeavour that it produce the documents sought by the Joint Unions in Category 12 and note that Endeavour intends to seek a confidentiality order with respect to these documents.
Category 12
I accept Ms Irwin’s evidence that the production of these documents would be oppressive, and that it would be would be impossible comply with an order requiring the production of these documents before the hearing.
I will not issue an Order to Endeavour with respect to the documents in Category 12. However, I note that the documents appear to be relevant and I grant liberty to apply to the Joint Unions to seek a narrower range of documents with respect to plans and/or strategy related to Ausconnex’s growth.
Categories 13 and 14
I do not accept that these documents are relevant and I will not issue an Order to Endeavour with respect to the documents in Category 13 and 14.
Categories 15 and 16
I accept that these documents are relevant but that it would be oppressive for Endeavour to produce the documents, based upon Ms Irwin’s evidence.
I propose to issue an Order to Endeavour that it produce the following documents:
All documents relied upon by Mr David Campbell in stating the matters at paragraph 52 of his witness statement including the ‘project on a page documents.
Category 17
I accept that the documents in this category are relevant but that it would be oppressive for Endeavour to produce the documents, Ms Irwin’s evidence.
I propose to issue an Order to Endeavour that it produce the following documents:
1. A document recording the total time spent or hours worked by enterprise agreement employees and contract employees when performing work for non regulated services, including work for Ausconnex, in FY22, FY23 and/or FY24.
2. All documents relied upon by Mr Crisafulli in relation to the statements made in paragraph 50 of his witness statement.
Category 50
I do not accept that these documents are relevant to the argument advanced by Endeavour that it cannot fund the Unions’ claims. I was not referred to any evidence which indicates that Endeavour uses the same revenue streams or budget for employee related costs and legal fees. It is therefore unclear how expenditure on legal fees would affect the fund available for employee’s remuneration. In the circumstances, I will not issue an Order to Endeavour with respect to the documents in Category 50.
Documents sought from the CEPU
Categories 6 and 7
These documents are relevant to the Determination proceedings. I propose to issue an Order to the CEPU that it produce the documents sought by Endeavour in Categories 6 and 7.
Category 11
The documents in revised Category 11 are relevant and not oppressive. I propose to issue an Order to the CEPU that it produce the following documents:
1. All documents that were prepared in that meeting and recording the discussions at the mass meeting held on 9 October 2024; and
2. The WhatsApp chat group of any senior delegate reporting on discussions or the content of the mass meeting held on 9 October 2024.
Category 12
The documents in Category 12 were opposed by the Joint Unions on the grounds that they would reveal internal deliberations relating to policy or industrial strategy.
The Full Bench in The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd[10] recently provided the following useful summary of decisions which are relevant to this issue [citations omitted]:
[18] Staff members of unions (and employer organisations) engage in internal discussions and deliberations relating to industrial strategy and policy matters. There is no express statutory protection preventing the Commission from ordering the production of documents relating to those deliberations. However, the Commission and its predecessors have treated internal deliberations with caution.
[19] Munro J in Clerks (Alcoa) said:
“The determination of whether a party should be compelled to produce information which may be within its possession must in my view be primarily guided by the considerations referred to by the 1975 National Wage Case Bench when it said:
“This wide-ranging discretion conferred on the Commission is statutory recognition of the complex exigencies which permeate industrial relations. What procedures are fair and reasonable in the handling of a dispute must depend upon the particular mix of factors involved and inevitably calls for the exercise of broad discretion and judgment.”
…There are many instances in Australian practice recognising that participants in industrial relations will be sheltered from compulsory production of information categorised as internal to their deliberations in industrial relations matters…
Against the application of the practice of sheltering the company’s internal industrial relations deliberations in this instance must be balanced the consideration that production is sought to be compelled of what may be evidence relevant to important issues of fact. Findings on the particular facts in issue undoubtedly have relevance to the overall determinations to be made in this case. This circumstance leads me to a question whether this is a case where production of such documents as may be relevant ought be compelled. I have concluded that production should not be compelled. Resolution of the issues of fact as to the company’s attitude toward the FCU and toward the maintenance of award coverage is not essential to the determination of the matters in dispute.”
[20] Further, Watson SDP in Health Services Union v Austin Health & Ors noted that the Commission ‘will not in normal circumstances allow the investigation of deliberative processes leading to tactical decisions taken’.
[21] The Full Bench in Clermont Coal discussed the Commission’s approach to ordering the production that would reveal internal deliberations relating to policy or industrial strategy as follows:
“ … [T]his Commission and its predecessors have traditionally been cautious in ordering any party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. However, this has never been elevated to an absolute rule, akin to a privilege, that any such documents will never be ordered to be produced…”[11]
Ms Koot’s statement does not indicate that there is a current strategy with respect to multi-employer bargaining involving Endeavour Energy but contemplates that such a strategy might be adopted in the future ‘before the next round of negotiations. In the circumstances, I do not accept that the documents in Category 12 are relevant. Further, I believe that such documents would reveal internal deliberations as to the CEPU’s industrial strategy or policy, which taking into account the authorities referred to above, weighs against the CEPU being required to produce this category of documents. I will not issue an Order to CEPU with respect to the documents in Category 12.
Next steps
The parties are directed to confer and provide agreed draft orders for production of documents to my Chambers incorporating this decision and matters which are agreed between the parties by 4:00pm on Tuesday 18 March 2025.
Liberty to apply is granted in the event that agreement cannot be reached on the content and/or form of the orders.
DEPUTY PRESIDENT
Appearances:
Mr D. Mahendra, Counsel, for the Applicant
Mr A. Crocker, Counsel, for the Applicant
Hearing details:
2025
12 March
In person, Sydney and via Microsoft Teams
[1] [2024] FWC 3063
[2] [2024] FWC 2200
[3] Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 3847, [23].
[4] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [36].
[5] Ibid, [35].
[6] Clermont Coal Pty Ltd v Brown[2015] FWCFB 2460, [19].
[7] McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, [35].
[8] Kirkman v DP World Melbourne Ltd[2015] FWCFB 3995, [19].
[9] Ibid, [35].
[10] [2024] FWCFB 266
[11] Ibid, [18]-[21]
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