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
•4 JULY 2023
[2023] FWC 1576
The attached document replaces the document previously issued with the above code on 4 July 2023.
The previous version of the Decision did not include the print number.
Rosie Proctor
Associate to Deputy President Slevin
Dated 4 July 2023
| [2023] FWC 1576 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
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
(B2023/635)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 4 JULY 2023 |
Proposed protected action ballot of employees of Icon Distribution Investments Limited and Jemena Networks (ACT) PtyLtd. Extension of notice period.
This is an application by the Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia (CEPU) under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. The union seeks an order for the conduct of a ballot of employees of Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd T/A Evoenergy in the Australian Capital Territory (Evoenergy).
The order seeks a ballot of employees of Evoenergy who are represented by the CEPU and who will be covered by a proposed enterprise agreement. The ballot is to ask the employees to consider whether they wish to engage in 23 types of industrial action.
Evoenergy does not oppose the making of an order but seeks that any order made extend the written notice period for the taking of action approved by the ballot from the 3 working days required by the Act to 5 working days.
I do not propose to extend the notice period for the reasons set out below.
The CEPU’s application was supported by a statutory declaration of Mr Matthew McCann, Senior Organiser for the CEPU who based in the ACT. I am satisfied that the various requirements for the making of an order in ss 437, 438 and 440 are met.
It is proposed that the ballot be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and to assist in accommodating a conference under s.448A(2) of the Act, the closing date for the ballot will be 17 July 2023.
Extension of Notice Period
Evoenergy asks, if an order is made, it specify that the period of written notice referred to in paragraph 414(2)(a) of the Act be extended from 3 working days to 5 working days for the types of action identified in questions 1 – 8, 10 – 13, 16 and 23 of the Draft. The CEPU opposes any extension to the notice period.
Background
The matter was listed for directions on 23 June 2023. At the directions hearing Evoenergy sought and was granted permission to be represented by a lawyer. The application was unopposed. I was satisfied that the matters in paragraphs 596(2)(a) and (b) of the Act justified granting permission.
At the directions hearing the parties asked for time to prepare witness statements and written submissions on the issue of the extension of the notice period. Evoenergy indicated that it wished to call evidence from a witness who would not be available before 26 June 2023. In the circumstances it was not practicable to determine the matter within the 2 working days referred to in s.441 of the Act. The parties provided written statements and submissions in accordance with an agreed timetable and the matter was listed for hearing on 28 June 2023. Evidence was heard on 28 June 2023 and submissions on 29 June 2023.
The CEPU filed with its material an amended order and made application at the commencement of the hearing to amend the application. No objection was taken, and leave was granted for the application to be amended. The amendment added a Safety Commitment to be included in the ballot. The Safety Commitment was said to address the safety concerns raised in the material filed by the respondent.
Principles – Extension of time
The principles associated with the exercise of the discretion in subsection 443(5) to specify an extension of the written notice period are well settled.
The subsection provides:
443 When the FWC must make a protected action ballot order
. . .
(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, the protected action ballot order may specify a longer period of up to 7 working days.
In NTEIU v Charles Darwin University [2018] FWC FB 4011, the Full Bench of the Commission said:
[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days’ written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be “exceptional circumstances” in relation to the proposed industrial action the subject of the order justifying a longer period.
[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:
‘[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.’
[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).
[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
In CEPU v DP World Sydney Ltd [2019] FCAFC 99 the Full Court of the Federal Court held (at [16]):
The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a), being longer than 3 working days, the protected action ballot order may specify a longer period.
Evoenergy’s case
Evoenergy relied upon a witness statement of Mr David Wilkinson, Group Manager, Network Services. Mr Wilkinson is responsible for maintenance and replacement requirements of the electricity distribution network within the ACT.
In his statement Mr Wilkinson provided an overview of Evoenergy’s operations. He provided details of its electricity network both its physical size and by reference to its customer base. He described in some detail Evoenergy’s key areas of operation which include the Control Room, Contact Centre, Network Services, Customer Delivery, Administration, and Asset Standards. He said that the current enterprise agreement covers some 375 employees in non-managerial operational roles. He described the usual work of those employees as including planned and unplanned work.
Planned work involves network asset maintenance. It involves work such as asset maintenance activities, capital works, a bushfire maintenance plan to detect asset defects and vegetation encroachments that may increase risk of bush fires, reliability works programs to improve quality of supply, and work to provide energy to customers. The planned work is scheduled work. Evoenergy schedules this work in a manner that permits it to respond to unplanned events which lead to power outages.
Unplanned work occurs in response to events that lead to outages. It arises in three circumstances; lost connections identified by computer monitoring systems, notification from customers or emergency services, and emergencies identified by Evoenergy staff. It is said that on average Evoenergy receives an average of 60 Network electricity fault calls per day, 58 network and general calls per day, and makes 67 calls per day to customers with life support equipment to inform them of outages.
Mr Wilkinson described how Evoenergy responds to unplanned events. He said that Reactive and On-call Teams respond to an incident. The Control Room is a critical as it is notified and manages every network issue. Here faults are diagnosed an decisions are made as to appropriate responses. Typically, the response involves a team travelling to a job, making an evaluation, and then carrying out the work required to repair the fault. Approximately 12 staff are used in reactive work every business day during business hours. A further 9 are used during business hours for first response work. Evoenergy maintains an on-call roster for out of hours work. Mr Wilkinson gave some recent examples of major emergencies.
Mr Wilkinson set out Evoenrgy’s concerns, that the industrial action described in the ballot questions, if taken, would threaten to endanger the health, safety and welfare of its customers, and the community generally. His specific concerns being:
The action proposed in question 1 to 6, which involve stoppages of work, may lead to insufficient qualified personnel available to undertake planned maintenance and respond to unplanned maintenance.
The bans of overtime proposed by question 7 may lead to critical work activities that had commenced on a day not being completed and preventing responses to out of hours emergencies.
Question 8 proposed bans on using various critical systems.
The bans on travelling outside normal working hours proposed by question 10 may lead to Evoenergy not completing critical work resulting in quality of supply risks.
The bans on locking systems proposed by question 11 could delay or stop work and impede the management of network load or supply and responses to emergencies.
The bans on issuing access authorities contemplated by question 12 would prevent staff from completing planned and unplanned work.
The bans on Field Staff switching in question 13 would put the general public and workers at risk as for their health and safety.
The bans proposed in question 16 on performing work which is the subject of bans by employees who are members of other unions could result in multiple unions placing bans at the same time.
Bans on performing higher duties proposed by question 23 could create an inability to provide continuity of support for frontline staff.
Mr Wilkinson described safety as Evoenergy’s highest priority. He said each of the actions proposed may delay planned work essential to the ongoing safety of the network, compromise Evoenergy’s ability to respond to unplanned events, and delay restoration of power to customers.
Mr Wilkinson described the steps that will be necessary to mitigate the industrial action as including:
Assessing work-related impacts;
Conducting risk assessments;
Reviewing rosters;
Liaising with customers;
Briefing ACT Government;
Providing notice to customers and the public;
Reviewing impacts on bushfire mitigation;
Considering environmental factors;
Reviewing and considering regulatory impacts; and
Considering Evoenergy’s customer guarantee obligations and any legal and financial and/or customer impacts arising from a failure to comply with those obligations due to industrial action.
Mr Wilkinson also referred to the requirements in the current enterprise agreement in respect of the use of contractors and said that there was little practical scope for using contractors to do anything to mitigate the effect of the industrial action.
Mr Wilkinson provided oral evidence. In that evidence he responded to the Safety Commitment proposed by the CEPU’s amended order. The terms of the Safety Commitment, at the time Mr Wilkinson gave his evidence, were:
Safety Commitment
1. In implementing any of the protected industrial action described in the questions above, protected industrial action will not be taken by Control Room Workers or Contact Centre Staff rostered on in accordance with their usual roster, and will perform work as usual.
2. During any period of industrial action, employees rostered to be on-call at the time the industrial action is taken, will not take industrial action that prevents them being ready, willing and able to perform unplanned work that, if not performed imminently, would create a serious and imminent threat to human life (hereinafter “Emergency Work”). This may include being directed to remain at the place where they usually commence work during the period of a notified stoppage of work for the purpose of holding themselves in readiness.
3. Employees rostered to be on-call will perform such work, notwithstanding any notified industrial action where the employee is directed to perform Emergency Work by a Group Manager, or above, or provided with a written direction to perform the Emergency Work.
4. If no employees rostered to be on-call are available, other employees will suspend industrial action where such an employee is advised that none of the employees on-call are available and the employee is directed to perform Emergency Work by a Group Manager, or above, or provided with a written direction to perform the Emergency Work.
5. Employees required to carry out Emergency Work will suspend any partial work ban in circumstances where the ban is necessary to perform Emergency Work and the employee is directed to perform Emergency Work by a Group Manager, or above, or provided with a written direction to perform the Emergency Work.
Mr Wilkinson said the Safety Commitment did not allay his concerns about the proposed industrial action as it fell short in a number of areas. He said the use of the word ‘or’ in commitment 1 meant that the exemption was only for Control Room Workers or Contact Centre Staff. He was also concerned that the expression ‘usual roster’ meant that the exemption would not apply to workers who were filling in for leave, or not otherwise usually rostered to do that work.
As to commitment 2, Mr Wilkinson was concerned that the definition of ‘Emergency Work’ was too narrow. He preferred a definition that he had included in his statement that described emergency work as unplanned events where there is a threat to safety, reliability, or security of supply; a threat of injury or damage to any person, property or the distribution system; or a failure of power system components. He was also concerned that the commitment to perform emergency work only applied to employees rostered to be on-call at the time the industrial action is taken.
Mr Wilkinson’s concerns about commitment 3 were that it was too limited in applying only to on-call work which is only performed outside of business hours.
In relation to commitments 4 and 5 he was concerned that these commitments only apply where an employee is directed to perform emergency work by a Group Manager, or above. He said this would take too long as it added a further step in the process of addressing an emergency.
Mr Wilkinson was required for cross examination. He was challenged about his understanding of the Safety Commitment. As to the first commitment he said the business would be more comfortable if the word ‘or’ was replaced with ‘and/or’. As to the on-call workers referred to in commitments 2 and 3 Mr Wilkinson maintained these were a small number and would be of little assistance during business hours when Reactive Teams are preferred to On-Call teams. Re-active Teams are comprised of employees rostered on shift. On-Call employees are on an on-call roster.
He also gave evidence of a concern over the reference to a written direction to perform emergency work in commitments 3, 4 and 5. He understood such a direction must come from a Group Manager or above. It was put to him that these words were not a requirement that Group Managers and above put their direction in writing but allowed qualified employees other than Group Managers to direct work be performed, only such directions must be in writing. He said that if the meaning was clarified then he would be more comfortable. He accepted that directions to give work in writing could be given by others and that the use of email and text message meant that written directions could be given quickly. Mr Wilkinson conceded that the risks to the business arising from the proposed industrial action would be less under the Safety Commitment, but that did not allay the concerns he raised in his earlier evidence.
In his cross examination he reiterated that the Control Room and Contact Centre held critical roles. He also clarified that customers who had urgent need for continuous supply of power, such as those on life support, are made aware Evoenergy does not guarantee continuous supply and those customers are encouraged to have back up power sources.
He was asked about how Christmas leave periods were managed and said that during that period a large proportion of the workforce take leave requiring scheduling of work in a manner which accommodated those absences.
During cross examination there was some questioning about the meaning of 5 working days and Mr Wilkinson displayed some confusion over whether it included weekends and public holidays. The source of the confusion seemed to be Evoenergy operates 7 days a week, 24 hours a day, every day of the year. In the ordinary sense, for Evoenergy every day is a working day. Mr Wilkinson however confirmed that he understood the 5 working days Evoenergy was seeking as the period for the notification of industrial action was 5 working days excluding weekends and public holidays, or effectively 8 calendar days. He agreed that in the usual course of business Evoenergy does not get 8 calendar days to deal with unplanned interruptions to supply.
When asked whether the steps that Mr Wilkinson had listed as necessary to prepare for and mitigate the impact of the proposed industrial action had, or could have, already commenced. Mr Wilkinson insisted that while the business had done some preparations by way of planning meetings, it could not prepare because it did not know the extent of the industrial action that would be taken. Mr Wilkinson’s response to suggestions that preparations could be made in advance of industrial action being taken was that they could not without knowing what action would be taken, who would take the action, and where it would be taken. He appeared to make some concessions that 8 calendar days was not necessary to take steps such as risk assessments and informing customers and others about the impacts of the industrial action but maintained that there were many steps that needed to be taken to mitigate the effects of the action and together these took time.
In its submission Evoenergy contended there were exceptional circumstances justifying an extension of the notice period for the taking of the relevant industrial action. Those circumstances were said to be EvoEnergy is the major electricity provider in the ACT, a large number of steps are required to try to ameliorate the effects of proposed industrial action, and there were adverse safety consequences to individuals and the ACT if the steps he described are not taken.
Evoenergy submitted the nature of its enterprise as a major electricity provider in the ACT in and of itself gives rise to exceptional circumstances. Reference was made to a number of decisions of the Commission which support such a finding[1]. The submissions went on to stress the adverse impact the proposed industrial action may have on the ACT community including vulnerable customers such as those on life support and key customers such as hospitals, nursing homes, emergency services and critical Commonwealth Government infrastructure. The submission also emphasised the need to ensure safety of workers and the integrity of the network as Evoenergy’s highest priorities.
Evoenergy’s submissions referred to FWC decisions which have found exceptional circumstances and exercised the discretion in the past to extend the notice period. In those cases the notice period was extended in some cases to 5 working days in others to 7 working days.
Evoenergy submitted that the extension of the notice period for the specified action to 5 days does not go further than reasonably necessary to ensure appropriate steps can be taken to ensure the safety and wellbeing of the ACT community whilst still allowing the relevant employees to exercise their rights to take industrial action without diminishing the effectiveness of the action.
CEPU’s case
The CEPU relied upon a witness statement of Mr Matthew McCann, Senior Organiser for the CEPU based in the ACT. Mr McCann confirmed that the CEPU has approximately 170 members. Mr McCann stated that an extension of the 3 working days’ notice of industrial action would significantly reduce the employees’ bargaining power and will likely lead to an increase in the level and duration of industrial action and/or the type of action that will need to be taken to apply an equivalent amount of bargaining pressure.
Mr McCann addressed the steps that Mr Wilkinson described as necessary to mitigate the impact of the industrial action. He said steps such as risk assessments, work schedules, rostering of employees could be taken prior to any notification of action being given. Similarly, he stated that steps such as liaising with customers, briefing the ACT government, proving notice to customers of possible impacts, reviewing impacts on bushfire risks, reviewing regulatory impacts and consideration of customer obligations are regularly undertaken in changed circumstances and can be taken now. He noted that risk assessments are necessary when work is performed regardless of whether industrial action is occurring.
Mr McCann said that the Safety Commitment was prepared in response to the concerns raised by Mr Wilkinson. The Safety Commitment was developed by Mr McCann and delegates of the union employed by Evoenergy. The Safety Commitment is said to address many of the concerns raised in Mr Wilkinson’s statement. The Safety Commitment is to apply during all periods of industrial action
Mr McCann said item 1 of the Safety Commitment guaranteed any industrial action will not affect the Control Room or Contact Centre. The other items will ensure the business has access to employees who would suspend action to respond to unplanned outages which involve an imminent threat to human life that may arise.
Mr McCann was cross examined about the Safety Commitment. He accepted the first commitment that Control Centre staff be excluded was limited to a relatively small number of employees. He was cross examined about the definition of emergency work and that, as it was limited to imminent threats to human life, it would apply in very limited circumstances. Mr McCann maintained that given the nature of the business there were many incidents which could meet that description. An example of a car hitting a power pole was explored. It was suggested that this would not be contemplated by the Safety Commitment. Mr McCann said it may, especially if the incident resulted in live wires being down. Mr McCann said that it was for the Control Room to decide based on the information it had on the nature of the incident. Another example of branches falling onto lines was given and Mr McCann’s evidence was that such an incident may give rise to a risk to life.
Mr McCann confirmed that the bulk of the CEPU’s members work in Network Services where the maintenance work is performed. Mr McCann said that on-call workers can and do respond to incidents during business hours. He was asked about his knowledge of other unions plans for protected industrial action. He said he had spoken to two unions and they had no plans.
In its submissions the CEPU accepted the Commission has previously found exceptional circumstances apply in businesses that operate electricity distribution networks, such as that run by the Evoenergy. It accepted that Mr Wilkinson’s evidence provides a foundation for a finding that “exceptional circumstances” exist. The CEPU submitted, however, the Commission would not be satisfied that the exceptional circumstances justifies additional notice. Alternatively, it submits the discretion available under subsection 443(5) should not be exercised.
In its closing submissions the CEPU sought to amend the Safety Commitment. There was no objection to this course. The amendment was to vary the definition of Emergency Work in item 2 to include imminent risk to serious personal injury.
The CEPU submitted that the Safety Commitment reduces that matters of concern raised by Evoenergy. It is said to do this by first by excluding Control Room and Contact Centre staff and by providing coverage for unplanned events which may involve a serious and imminent risk to human life. The CEPU points to a similar safety commitment which led the Commission to not extend the notice period in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v. Essential Energy [2021] FWC 6128.
The CEPU submitted that Evoenergy has failed to provide sufficient detail for the necessary findings to be made concerning the actual impact on the business to justify extending the notice period. The CEPU submitted that Mr Wilkinson’s evidence going to the steps needed to mitigate potential industrial action was insufficient to justify the extension. The CEPU submitted that the impact of the extension on the bargaining power of the union and potentially the nature of the industrial action to be taken outweigh the concerns raised by Evoenergy.
Consideration
The three-step approach suggested by the Full Bench in the NTIEU case involves first identifying what makes the circumstances exceptional for the purpose of s 443(5). The parties agreed that the circumstances are exceptional. Evoenergy conducts a business that provides an essential service to the ACT. Any interruption to the supply of electricity by Evoenergy can have a significant safety impact on the community. Having regard to the evidence of Mr Wilkinson about Evoenergy’s business and the essential service the business provides to the community I am satisfied that the circumstances concerning the impact of the taking of industrial action proposed in the Draft Order are uncommon and special and constitute exceptional circumstances.
The second step is a to consider whether the exceptional circumstances justify an extension of the 3 working days’ notice referred to in s 412(2)(a) of the Act. Evoenergy contend that an extension is justified based on the evidence of Mr Wilkinson 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 if the steps are not taken.
On the material provided I am not satisfied that the exceptional circumstances justify an extension of the 3 working days’ written notice referred to in s 414(2)(a) of the Act. I am not satisfied for the following reasons.
First, the Safety Commitment goes some way to ameliorate the seriousness of the safety impact. It will do so in two ways.
The Safety Commitment will ensure that during any industrial action Evoenergy will have access to employees to operate the critical work performed in the Control Room and Contact Centre. I do not accept Mr Wilkinson’s reading of item 1 of the Safety Commitment. The CEPU clarified both in the evidence of Mr McCann and in submissions that item 1 of the Commitment applied to both areas of operations. I consider this commitment alleviates the risk associated with the action by allowing these critical functions to operate and assist Evoenergy in identifying and planning its response to incidents which arise during any industrial action. That planning work is one of the steps identified by Mr Wilkinson 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.
The Safety Commitment will also provide Evoenergy with access to staff to perform emergency work during periods of industrial action. The amended Safety Commitment defines emergency work as unplanned work that, if not performed imminently, would create a serious and imminent threat to human life or imminent risk to serious personal injury. The Safety Commitment will allow Evoenergy to direct employees who would otherwise be on-call, or if those employees are not available, other employees, to perform emergency work. The employees will suspend industrial action to perform the work.
I do not accept Evoenergy’s suggestion that the commitments contained in the Safety Committment is of little utility. Evoenergy raised some concerns about the wording of the commitments. It raised that the Control Centre commitment was limited to a few staff. This complaint is merely a reflection of the number of employees who are usually employed in the Control Centre, which is understandably small compared to the larger Network Services area of operations.
Another complaint was that on its reading items 3, 4 and 5 only allowed directions to be given by Group Managers or above and such senior managers may not be available. The CEPU through the evidence of Mr McCann, and in submissions, confirmed that the commitment allowed authorised persons to make directions. Group Managers or above may direct work be performed by any means however if another authorised person was to make the direction that direction was required in writing. Even if Evoenergy’s limited reading of the commitment applied, and I find it does not, no evidence was provided to explain why, when, or how often, a group manager would be unavailable. It would be expected that during periods of industrial action Evoenergy will ensure that appropriate senior staff are available to deal with emergency situations.
Evoenergy also raised that the stipulation that if others could make a direction in writing they might be hampered if the industrial action in question 8, which involves a ban on using systems including communications systems such as email, was in place. Mr Mcann’s evidence was that the CEPU was not interested in causing undue harm to the community and on this evidence it can be expected the CEPU not to use the industrial action in question 8 to undermine the Safety Commitment. Be that as it may, as the CEPU pointed out in submissions, the bans in question 8 do not include bans on the use of text messaging which is a common means of issuing written instructions. Mr Wilkinson accepted this was currently used and would be available.
I am satisfied that the Safety Commitment will operate to reduce the safety risks associated with the taking of protected action. Without the commitment the task of Evoenergy to mitigate those risks would be more onerous and may take more time.
Another matter that leads to the conclusion that the exceptional circumstances do not justify an extension of the notice period is the lack of particularity in Evoenergy’s evidence as to how long the steps it says will mitigate the safety issues arising from the industrial action might take. Evoenergy accepted in closing submissions that there was no evidence of the time each of the steps identified by Mr Wilkinson would take. The evidence was that there were many steps and it would take some time to get through them all. There was no estimate of how long each step would take nor an estimate of how long it would take to get through all of them.
Mr Wilkinson was reluctant to accept that any of the steps could be taken before the proposed industrial action commenced. Evoenergy contended that preparations could not be made until it knew what action was being taken, where and by whom. They involve assessing work related impacts, conducting risk assessments, reviewing rosters, communicating with customers, the public and the ACT Government, reviewing bushfire and other environmental impacts, reviewing regulatory impacts and consideration of legal and financial obligations to customers. I agree with the CEPU that a number of these steps could be commenced well before any industrial action is taken.
I take the view that even before knowing the specific nature of any actual industrial action the proposed questions in the amended ballot order, all of which are subject to the Safety Commitment, provide sufficient for the business to commence the steps described by Mr Wilkinson. These included modelling of anticipated work impacts and risk, preliminary communications with stakeholders, considering potential environmental impacts, and assessing potential difficulties with regulatory and contractual obligations. Mr Wilkinson said that some preparatory work had occurred concerning planning work but failed to give detail directed to why other preparatory steps could not be made. The evidence was simply an assertion that details of the actual industrial action to be taken was needed.
A further question arises as to which of the steps are necessary to alleviate the safety concerns. Steps involving the contractual, regulatory and financial impact of the industrial action do not appear to be directed at alleviating the safety impact that gives rise to exceptional circumstances.
For these reasons, taken together and separately, I am not satisfied that the extension sought is justified.
It is not necessary to move to the third step of considering whether to exercise the discretion in s443(5) and if deciding to do so how long the notice period should be extended. Had it been necessary I would have declined to exercise the discretion given the matters described above. The Safety Commitment addresses the most serious safety concerns raised by Evoenergy. There is insufficient evidence as to how long the steps Mr Wilkinson described as necessary to prepare for any action would take. I have some doubt that all of the steps described are necessary to address the safety concerns over the industrial action. In the circumstances I am unable to make an assessment first that three days is inadequate nor if I did make that assessment how long would be adequate.
The tenor of Evoenergy’s case is that it would like as much time as possible and that on balance, given the employees have a statutory right to take industrial action, 5 working days would be appropriate. The evidence of Mr Wilkinson suggests that Evoenergy had not turned its mind in a structured way to how many days is necessary to take of the steps. Mr Wilkinson displayed some confusion about whether working days included weekends. Also, while he eventually clarified that he understood the application was for 5 working days which amounted to 8 calendar days, I did not get the impression that Evoenergy had gone through a process of identifying how many days it would require to take the specific steps set out in his statement.
Had it been necessary to consider exercising the discretion to interfere with the statutory right of the CEPU to give 3 working days’ written notice of industrial action I would not have done so.
Conclusions
I am satisfied that the statutory tests for the issuing of a protected action ballot order are met. I decline to extend the notice period referred to in paragraph 414(2)(a) of the Act.
An order in the terms of the draft order provided and amended by the CEPU has been separately issued in PR763748.
DEPUTY PRESIDENT
Appearances:
Mr A Kentish for the applicant
Mr M Minucci for the respondents
Instructed by Mr P McNulty
Hearing details:
Sydney, 28 June 2023
Sydney, 29 June 2023
[1]CEPU v Ausgrid Management Pty Ltd [2021] FWC 3023, at [9]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power [2021] FWC 1944, at [9].
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