Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks..
[2024] FWC 2267
•23 AUGUST 2024
| [2024] FWC 2267 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid
(C2024/5724)
| VICE PRESIDENT GIBIAN | SYDNEY, 23 AUGUST 2024 |
Appeal by the CEPU against decision PR778397 of Deputy President Cross at Sydney on 16 August 2024 in matter number B2024/1027 – stay application – Commission can accommodate expedited hearing of the appeal – stay pressed pending appeal – whether balance of convenience favours stay – stay application refused.
Introduction
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the appellant) has filed a notice of appeal in relation to a decision and order of Deputy President Cross of the Fair Work Commission (the Commission) handed down on 16 August 2024, with more detailed reasons being provided on 20 August 2024. In the notice of appeal, the CEPU seeks a stay of the order to suspend industrial action made by the Deputy President. This decision concerns the stay application. A hearing was conducted in relation to the stay application on 22 August 2024.
The decision concerned an application under s 424 of the Fair Work Act 2009 (Cth) (the Act) by NSW Electricity Networks Operations Pty Limited as Trustee For NSW Electricity Networks Operations Trust T/A Transgrid (Transgrid or the respondent) filed on 12 August 2024. The application sought an order suspending or terminating protected industrial action. Transgrid relied on s 424(1)(c) and (d) of the Act, namely, that protected industrial action has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it and/or cause significant damage to the Australian economy or an important part of it.
The application was heard by the Deputy President on 16 August 2024. At the conclusion of the hearing on that day, the Deputy President announced his decision and made orders suspending particular protected industrial action for a period of two months. The Deputy President’s short reasons given orally at the conclusion of the hearing were as follows:[1]
The application has been made by Transgrid in this matter seeking orders pursuant to section 424(1) of the Act. There are two notices of protected industrial action that have recently, on 9 August, been issued.
Considering those particular notices, I note particularly the first notice that provides for what has been described as unlimited stoppages and would consider that that notice itself clearly outlines action that is threatened, impending or probable but that will have an effect of such action would have the effect of threatening consequences of the type set out in section 424(1)(c). As to the second notice, I consider that parts of that notice would also – and can be identified as protected industrial action that will have the effect as outlined in section 424(1)(c).
In particular, I note and I find that the bans outlined in that particular notice at (1), (3), (5), (11), (12), (14), (17), (18) and (20) of that notice would have the effect of threatening to have the consequences outlined in section 424(1)(c). I therefore see that there is then the consideration as to the appropriate order as to what should occur in relation to this matter. Contrary to the position that existed at the time of the Full Bench decision in Svitzer, the legislature has disclosed an object or purpose to terminate intractable enterprise bargaining as such.
In light of the fact that there is an application that has been made, I would consider that a short suspension that would allow that process to most likely run its course would be the appropriate suspension. It is not exactly clear as to how long those matters will take before the Commission because they are of such novel and recent incarnation. However, I would expect that a suspension of two months would allow for that avenue to run its course.
So in those circumstances, an order will be issued today suspending the industrial action for a period of two months from today's date.
The Deputy President published an order giving effect to his decision in the following terms:[2]
[1] Pursuant to s 424(1) of the Fair Work Act 2009 (Cth) (the Act), the Fair Work Commission orders that the following protected action in relation to the proposed agreement replacing the TransGrid Enterprise Agreement 2020 (Proposed Agreement) be suspended for a period of two (2) months effective from the date of this Order:
(a) one hour stoppages;
(b) bans on the performance of overtime;
(c) bans on starting and finishing work anywhere other than at the prescribed Transgrid depot;
(d) bans on issuing Access Authority and Field Access Authorities to non-TransGrid staff;
(e) bans on using non-Transgrid toilets, changerooms and showers facilities where those facilities are required;
(f) bans on having Meal Breaks (Morning Tea, Lunch, Dinner and Afternoon Tea) anywhere other than in a Transgrid meal room;(g) bans on training people who are not Transgrid staff;
(h) bans on the use of equipment used to test high voltage equipment;
(i) bans on the use of equipment used to test high voltage system protective devices and relays; and
(j) bans on staff on submitting and processing RFAs (Request for Access) that are submitted within 28 days of planned outages start date.
[2] This Order is binding on:
(a) NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid (Transgrid);
(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
(c) all employees of Transgrid who:
(i) will be covered by the Proposed Agreement; and
(ii) are a member of the CEPU.
[3] This Order comes into operation at 11:59PM on 16 August 2024.
[4] Reasons for my Decision will follow in due course.
The effect of the order is that all protected industrial action in relation to the proposed agreement ceases to have protection for a period of two months. That is because the common requirements that apply for industrial action to be protected industrial action include that an order suspending or terminating protected industrial action is not in operation.[3]
As is set out in the transcript, the Deputy President indicated at the conclusion of the hearing that he would publish reasons as soon as possible. The CEPU did not immediately seek permission to appeal from the Deputy President’s decision and rather waited for the Deputy President to produce more detailed reasons. The Deputy President subsequently published his reasons for decision on 20 August 2024. The CEPU filed a notice of appeal on the same day and communicated to the Commission that it sought an urgent hearing of the appeal as well as a stay pending determination of the appeal.
It is relevant to record that the Deputy President earlier made an order suspending protected industrial action in relation to the proposed agreement for a period of three weeks commencing on 24 July 2024.[4] Permission to appeal from that decision was refused.[5] Transgrid has also applied to the Commission for an intractable bargaining declaration under s 234 of the Act. I was informed that the application for an intractable bargaining declaration has been listed for hearing before a member of the Commission from 7 October 2024.
During the hearing of the stay application on 22 August 2024, I indicated that the Commission would accommodate an expedited hearing of the appeal on 2 September 2024. Following the hearing, the Commission issued directions to facilitate the hearing of the appeal on 2 September 2024.
Decision of the Deputy President
Relevant Transgrid employees are covered by the Transgrid Employees Agreement 2020 (the 2020 Agreement). The 2020 Agreement passed its normal expiry date on 1 December 2023 and Transgrid has been renegotiating a new enterprise agreement since July 2023. The bargaining remains unresolved.
In the decision, the Deputy President recorded that protected industrial action has been taking place since December 2023. On 27 December 2023, the CEPU served notice of protected industrial action in relation to the control room. The notice prompted an application by Transgrid under s 424 of the Act to suspend or terminate the protected action. That application was resolved on the basis that the CEPU would give an amended “safety commitment” to be incorporated into future notice of protected action and give what was referred to as the Extended Safety Commitment.
Protected industrial action continued to take place throughout 2024 until the suspension of protected industrial action on 24 July 2024. The first period of suspension concluded on 14 August 2024. On 9 August 2024, the CEPU issued two further notices of protected industrial action both to commence at 12:00am on 15 August 2024 which the Deputy President set out in his decision.[6] Each notice contained the Extended Safety Commitment and a commitment in relation to the Tomago aluminium smelter in the following terms:[7]
1. An employee will temporarily suspend industrial action to perform Emergency Work, where such an employee is directed in writing to perform Emergency Work or where suspending the action is necessary to perform work affected by and during a “Declared Incident”.
2. A “Declared Incident” will be declared by the Chief Executive Officer of Transgrid and covers major emergency situations such as storms, bushfires, IT breakdown and major equipment failures.
3. “Emergency Work” is work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
4. An Employee who is ordinarily rostered to perform work will keep the mobile device they ordinarily use for communicating with the Employer on their person for the purpose of being notified of Emergency Work and/or a Declared Incident and will answer their phone if contacted by the employer.
5. At all times, a minimum of one Network Control Manager and One Senior System Operator who are ordinarily rostered to work will attend the Control Room and monitor their systems and respond and deal with alarms, hazards relating to system security and/or with requests from AEMO, generators, distributors, other transmission authorities, fire, police and emergency services and direct connect customers, with the exception of all planned and/or commissioning work.
6. The Employees undertake to take all reasonable steps to ensure reliable supply to the Tomago Aluminium Smelter at all times.
In his decision, the Deputy President noted that he had found in his earlier decision that the actions of the CEPU disclosed impermissible attempts to block and/or delay declared incidents and emergency work and referred to evidence he said indicated that the CEPU would continue to challenge determinations by Transgrid of emergency work and declared incidents.[8] The Deputy President’s consideration was then as follows:[9]
While the CEPU point to the continued existence of the undertaking not to engage in certain protected industrial action (namely, locking and switching bans) until 30 September 2024, and say that Transgrid mischaracterises the ambit of the protected industrial action under contemplation, it is clear that the action notified in in both the Stoppages PIA Notice and the Bans PIA Notice facilitate vastly increased levels of action and probable disruption.
Indeed, the Stoppages PIA Notice notifies of 24 consecutive 1 hour stoppages occurring on Thursday 15 August 2024, and each day following. Just how such action could co-exist with the notified safety commitment was the subject of evidence. Mr Murphy stated that when an employee is on a stoppage, they may be at a rally or fishing. Either way, if at such rallies, fishing, or otherwise engaged, those CEPU members would not be standing available, and would not be available to deal with issues arising under the safety commitment. Curiously for a registered organisation, the CEPU urged that Transgrid could avail itself of non-union
employees and contractors in the case of an emergency arising during a stoppage.What is abundantly clear is that if action pursuant to the Stoppages PIA Notice is taken, which is impending and probable, that action would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it, because a large number of employees of Transgrid, who had given a safety commitment would be unlikely to comply with that commitment.
In relation to s 424(1)(c) of the Act, the conclusion of the Deputy President was as follows:[10]
A particular factor in my determinations has been the position put clearly by the CEPU that, notwithstanding my conclusion in the First Decision that the actions of the CEPU in the July Application disclosed impermissible attempts to block and/or delay Declared Incidents and Emergency Work sought to be dealt with by Transgrid pursuant to the Extended Safety Commitment, the CEPU have unequivocally stated they will continue to act in the same manner. That position allows me to conclude that the conduct that formed the basis of the First Decision would, without the Order, certainly continue with the attendant risks.
The Deputy President concluded that a period of suspension of two months was appropriate, including to allow for the intractable bargaining processes under the Act to proceed and be determined.[11]
Approach to a stay application
The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1) of the Act, which provides:
(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
A commonly cited formulation of the principles applicable to the grant of a stay is found in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 785 in which Ross VP (as his Honour then was) said:[12]
In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.
The usual principles require a preliminary assessment of the merits of the appeal, both on the question of permission to appeal and the substantive merits of the appeal. This assessment is necessarily preliminary in nature, given that the Commission will not (at that stage) have the benefit of full argument in relation to the appeal or access to, or the opportunity to consider, all the relevant materials. That is particularly so where, as here, the stay application is required to be dealt with on an urgent basis.
In relation to the balance of convenience, Ms Castles, who appeared for the CEPU with the permission of the Commission, referred to the decision of the Full Bench in Coal and Allied Operations Pty Limited v Crawford (2001) 109 IR 409 (Crawford). Ms Castles referred to the observation of the Full Bench that statements in decisions of the Commission to the effect that it “normally grants a stay to restore the status quo pending an appeal simply recognise that in most cases the balance of convenience favours the grant of a stay”.[13] Ms Castles submitted that the status quo in the present matter is the circumstances that existed before the Deputy President made the order suspending protected industrial action, namely, that the CEPU and its members could take protected industrial action. It submitted that a stay should be granted to preserve that situation pending appeal.
For its part, Transgrid submitted that Crawford was a very different case as it involved the reinstatement of a group of employees. It was understandable, in that context, that the balance of convenience might favour preservation of the status quo pending an appeal. Transgrid submitted that, in this instance, it has the benefit of the order of the Deputy President suspending protected industrial action and should not be deprived of the benefit of that order unless sufficient basis is demonstrated for a stay to be granted. It submitted that the balance of convenience was against the granting of a stay, particularly if the Commission was able to accommodate an urgent hearing of the appeal.
These submissions provide an example of why it is inadvisable to endeavour to develop or apply general rules as to the assessment of where the balance of convenience will lie in case of an application for an order staying a decision pending appeal. The considerations that will be relevant to an assessment of where the balance of convenience lies, or what is appropriate to be done to balance the interests of the parties and the public interest, will vary depending on the nature of the decision subject of the appeal and all the circumstances of the particular case.
It is useful to set out the full passage from the decision of the Full Bench in Crawford which is as follows:[14]
We think that the two approaches referred to in Edwards are not in truth different tests but aspects of the application of the same test. The factors which are relevant to the balance of convenience may differ depending on a range of considerations including the type of application, the nature of the decision or act which is sought to be stayed and the impact of the decision or act on the one hand and the stay of its operation on the other upon each of the parties. When considering whether to stay the operation of a remedy granted pursuant to s 170CH, some matters may be relevant to the balance of convenience which may not be relevant in applications to stay orders made under other sections of the Act. For example, when considering an application to stay an order for payment under s 170CH it is clearly appropriate to have regard to the financial position of the person who stands to benefit from the remedy. Where the person is suffering financial hardship the stay order might be moulded to provide some access to the remedy pending the appeal. By way of contrast, where it is the operation of an order increasing award rates which is sought to be stayed, the financial position of the employees covered by the award is unlikely to be a very significant factor, although it may be. The statements to be found in various decisions that the Commission normally grants a stay to restore the status quo pending an appeal simply recognise that in most cases the balance of convenience favours the grant of a stay. This is because of the difficulty which may be encountered, if a stay is not granted, in restoring the parties to their original position, if the appeal is ultimately successful. Equally procedures have been developed to protect the interests of beneficiaries during the period in which the operation of an order is stayed. One common method of providing protection is to require that the applicant for a stay pay any moneys due into an interest-bearing trust account. The Commission has wide powers to make orders and require undertakings to meet the circumstances of particular cases. Care should be taken not to fetter the exercise of those powers by introducing principles or rules which might be a substitute for a proper examination of all of the relevant circumstances.
Where the balance of convenience lies may sometimes be difficult to discern, but in our view no purpose is served by formulating generalisations about where the balance might lie in particular types of cases. All of the circumstances must be considered. Our view in this respect may be thought inconsistent with some views tentatively expressed in Edwards v Telstra Corporation but we think that, when the matter is considered in the way we have outlined, there is no inconsistency in fact.
The passage emphasises that it is inappropriate to attempt to formulate generalisations about where the balance of convenience might lie in a particular type of case.
It may be that, in many cases, the balance of convenience will favour the granting of a stay because, without a stay, it will be difficult to restore the status quo if the appeal succeeds. That is a consideration in this matter. The circumstances immediately before the order made by the Deputy President was that the CEPU and its members were able to organise and participate in protected industrial action in support of claims relating to the proposed agreement. Looked at simplistically, those circumstances could be restored if the appeal succeeds by quashing the decision and order of the Deputy President. However, I am conscious that an interruption in the capacity of the CEPU and its members to take protected industrial action, even temporarily, might alter the course of the bargaining. It is not possible to say that the state of the bargaining prior to the suspension order could necessarily be restored following a successful appeal.
However, it is significant that the circumstance that interrupted the status quo was that, having heard the evidence presented by the parties, a member of the Commission was satisfied that protected industrial action had threatened, was threatening or would threaten to have consequences of a type referred to in s 424(1)(c) of the Act. That is a circumstance in which Parliament has dictated the Commission must suspend or terminate protected industrial action. The CEPU, of course, contends that this conclusion was affected by appealable error. Nonetheless, in advance of determination of the appeal, it is at least relevant to the balance of convenience that a member of the Commission has concluded that the protected industrial action would threaten to have consequences injurious to the population or part of it.
Transgrid’s submissions suggested that the stay application should be approached on the basis that it was entitled to the benefit of the order of the Deputy President and should not be deprived of that benefit without a proper case established. In the case of private inter partes litigation, it is often said that the starting point is a successful party is entitled to the fruits of its victory.[15] That approach is particularly pertinent to a money case.[16] Although it is not necessary to demonstrate special or exceptional circumstances, an applicant must demonstrate that there is a reason for the grant of a stay, or that the matter is an appropriate case, for the exercise of the discretion to stay the decision under appeal.[17]
Some proceedings in the Commission are reasonably analogous to private civil litigation. Unfair dismissal proceedings are aptly described as inter partes litigation albeit that particular cases may raise issues touching upon collective interests or the public interest. Other Commission proceedings are far removed from being merely private civil litigation and necessarily involve collective interests and the public interest. Section 424 of the Act is an example. The Commission is required to make an order suspending or terminating protected industrial action under s 424(1) not to protect or benefit the employer or employers involved in the bargaining, but because the protected industrial action is threatening to cause harm to the population or part of it or the Australian economy or an important part of it. An order can be made under the section on the Commission’s own initiative or on application made by various persons, including relevant federal, State or Territory Ministers.[18]
In those circumstances, concepts derived from individual private litigation may have limited utility. It is at least a mistake to mechanically apply principles applied by the courts in dealing with civil disputes. In Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) [2005] NSWIRComm 305; (2005) 146 IR 388, a Full Bench of the Industrial Relations Commission of NSW said (at [37]):[19]
The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation.
This Commission is similarly required to perform its functions and exercise its powers in a manner that, among other things, is fair and just and promotes harmonious and cooperative workplace relations and takes into account the objects of the Act. In exercising a power such as that conferred by s 424(1) of the Act, the Commission is not merely adjudicating a private dispute.
In the circumstances of this matter, I was not greatly assisted by the suggestion that the Commission will generally grant a stay to preserve the status quo or that Transgrid is prima facie entitled to the benefit of the order made by the Deputy President. Neither approach grapples with the necessity of balancing the interests of the parties and the public interest in the particular circumstances of this case and to take into account the objects of the Act.
Arguable case
It is appropriate to first consider whether the CEPU has an arguable case on appeal. The grounds set out in the CEPU’s notice of appeal are as follows:
1. The Deputy President erred in issuing the order pursuant to s 424 of the FW Act:
(a) as he failed to take into account the re-examination of Mr Murphy concerning the priority that would be given to Emergency and Declared Incident work as a result of the undertakings to perform switching and locking whenever that work was required;
(b) as he failed to take into account the evidence of Mr O’Malley at (statement) [45] – [78] the substance of which was to the effect that where Emergency Work or Declared Incident work would not be delayed by the protected Industrial Action (PIA).
(c) As he failed to take into account the evidence of Mr Johns to the effect that the proposed bans would not impact upon CEPU’s ability to identify and respond to emergencies at (at Ex R3, statement) [12] – [34].
2. The Deputy President erred in issuing the order pursuant to s 424 of the FW Act, as on the whole of the evidence he could not have been satisfied, within the meaning of s 424(1), that the bans set out at (1), (3), (5), (11), (12), (14), (17), (18) and (20) of the Second Notice would have the effect of threatening consequences of the type set out in s 424(1)(c). In this regard the Deputy President did not take into account the statements and oral evidence of Mr O’Malley and Mr Johns, and the statement and reexamination of Mr Murphy.
3. The Deputy President fell into error when considering the length of the period of suspension. In particular the Deputy President failed to consider that the effect of a 2 month period of suspension would effectively bring to an end the enterprise bargaining.
4. The Deputy President fell into error when he purported to consider the effect of the Respondent’s claim that negotiations were intractable in circumstances where the evidence indicated continuing negotiations had resulted in further agreement between the parties.
5. The Deputy President fell into error when considering the reasoning of the Full Bench (of which he was a part) in Re Svitzer Pty Limited [2022] FWCFB 213 at [39].
6. The Deputy President fell into error when:
(a) he said in transcript “Contrary to the position that existed at the time of the Full Bench decision in Svitzer, the legislature has disclosed an object or purpose to terminate intractable enterprise bargaining as such” in circumstances where s. 234 and 235 are not engaged in this matter.
(b) he took into account at [45] of the Decision, the amendments to the FW Act which provided power to the Commission to make an intractable bargaining declaration and subsequently an intractable bargaining workplace determination, when, those amendments, sections 234 and 235 of the FW Act had not been engaged, do not inform upon the discretion whether to order a suspension or to terminate protected industrial action under s. 424.
As has been observed, when considering whether to grant a stay, consideration of whether an appellant has an arguable case on appeal is necessarily preliminary in nature. In this matter, some of the grounds allege errors of fact, or a failure to take into account aspects of the evidence. The stay hearing was short, and I was not taken directly to the evidence. My capacity to assess the strength of those grounds is necessarily limited.
Grounds 3 to 6 in the notice of appeal allege error in relation to the decision of the Deputy President to order that protected industrial action be suspended for a period of two months. At this preliminary stage, I accept that those grounds are arguable and raise what appear to be novel questions as to the relevance of the possibility of an intractable bargaining declaration being made in exercising the discretion to determine the period of suspension. However, those grounds do not, in my opinion, support granting a stay. If those grounds are accepted, the Full Bench would, at most, reconsider whether the period of suspension ordered by the Deputy President was appropriate or some shorter period should be ordered. Success on those grounds could not result in no period of suspension. Section 424(1) of the Act requires the Commission to at least suspend protected industrial action for some period if it is satisfied that consequences of a type referred to in s 424(1)(c) or (d) are threatened.
Grounds 1 and 2 allege that the Deputy President erred in making an order under s 424(1) of the Act as a result of a failure to take into account aspects of the evidence or because he could not have been satisfied on the evidence that the notified protected industrial action would have the effect of threatening consequences of a type set out in s 424(1)(c). Those grounds, if successful, could result in the decision and order of the Deputy President being set aside as a whole and the application redetermined.
The grounds challenge the availability of factual conclusions or whether particular evidence was appropriately considered. Transgrid disputed that the conclusions of the Deputy President were not reasonably open to him and submitted that the references to the evidence in the grounds of appeal were selective and overlooked unchallenged evidence given by witnesses it called at first instance. In the circumstances, I accept that the CEPU has arguable grounds of appeal in relation to grounds 1 and 2 and that this consideration favours granting of a stay. However, I am unable to form any clear view as to the strength of those grounds without having been taken in detail to the evidence. I also accept that the CEPU has an arguable case on permission to appeal given the significance of the dispute and the grounds it seeks to advance on appeal.
It is appropriate to add that the notice of appeal was necessarily drafted quickly and in circumstances in which the CEPU can have had only a limited opportunity to review the reasons of the Deputy President. Whilst not expressly addressed in the grounds of appeal, the focus of the Deputy President on whether the CEPU and its members were likely to comply with the Extended Safety Commitment in assessing whether protected industrial action threatened to have consequences for the purposes of s 424(1)(c)[20] raises an issue as to what industrial action was relevant. Where the Extended Safety Commitment was included in the notices of protected industrial action, a possible consequence of non-compliance with the commitment might be that the relevant industrial action would be unprotected.[21] Only the threatened consequences of protected industrial action are relevant for the purposes of s 424(1) of the Act. I express no view about that matter. Submissions can be received on that question, if necessary, at the hearing of the appeal.
Balance of convenience
The CEPU submitted that the balance of convenience favoured a stay being granted for essentially two reasons. Firstly, it contended that the evidence did not establish that the protected industrial action notified by the CEPU would threaten to endanger the life, the personal safety or health, or the welfare of the population or part of it. It was submitted that there was no such threat because the CEPU had given an undertaking, in the form of the Extended Safety Commitment, that its members would suspend protected industrial action if they are directed to perform emergency work or in the event of a declared incident. The CEPU also pointed to the continued existence of its undertaking not to engage in protected industrial action in the form of the locking and switching bans. In those circumstances, it was said that there is no threat to the population or part of it and that factor favours granting a stay.
The difficulty with that submission is that, having heard the evidence directly, the Deputy President came to the contrary conclusion. The Deputy President concluded that a large number of employees of Transgrid would be unlikely to comply with the Extended Safety Commitment given the nature of the notified protected industrial action and that the CEPU will continue to act in a manner that the Deputy President regarded as involving attempts to block or delay emergency work or work in relation to declared incidents.[22]
If I had heard the evidence, I may or may not have come to the same conclusion. At this stage, I cannot say. However, it is relevant to the balance of convenience that the Deputy President found that the Extended Safety Commitment was not likely to operate effectively or avoid the threat that might otherwise exist to the life, the personal safety or health, or the welfare, of the population or of part of it. In advance of hearing full argument on the appeal, it is not appropriate for me to simply accept the submissions of the CEPU that there is no risk. That matter weighs against the granting of a stay.
Secondly, the CEPU contends that the suspension of protected industrial action has the effect of preventing any protected industrial action and that the CEPU and its members should not be “shut out from exercising their rights to take action if the Deputy President erred … in making the order”. It submitted that the effect of the order was to suspend protected industrial action for essentially the remainder of the bargaining or at least for two months and that its bargaining power would be reduced. This was said to be inconsistent with the object in s 3(f) of the Act to encourage enterprise-level collective bargaining.
I accept that the suspension of protected industrial action may have a significant impact on the practical ability of a bargaining party to bring pressure to bear in negotiations. The capacity to organise and engage in protected industrial action is an important right in collective bargaining[23] and represents, if not the sole means of seeking improved wages and conditions, at least a very significant aspect of the means by which employees and their representatives are able to achieve improved outcomes in bargaining. It is relevant that the CEPU and its members have already been prevented from taking protected industrial action for some weeks as a result of the earlier suspension order made by the Deputy President.
To be balanced against that factor is that the Commission is able to accommodate an early hearing of the appeal on 2 September 2024 such that, in the absence of a stay, the CEPU and its members will be deprived of the capacity to engage in protected industrial action only until that time. If the appeal is successful, the decision and order of the Deputy President could be quashed at that time. The suggestion that the effect of the suspension order was to prevent protected industrial action for the remainder of the bargaining prejudges the outcome of the appeal and other proceedings. That will only be the case if the appeal is unsuccessful, and an intractable bargaining declaration is made prior to the end of the two-month period of suspension. Beyond knowing when those proceedings are listed, I have no basis to infer that an intractable bargaining declaration will be made or when that is likely to occur. In any event, if the Full Bench can determine the appeal on 2 September, the submission is not well-founded.
In light of all these considerations, I do not believe that the balance of convenience favours granting a stay. Where the Commission is able to accommodate an expedited hearing of the appeal, the prejudice to the CEPU and its members is, whilst real, not such as to persuade me a stay should be granted. It is necessary to balance that prejudice against of the Deputy President’s findings as to the threat posed by the notified protected industrial action and the interests of Transgrid and the public generally. Having considered the whole of the circumstances, the balance of convenience does not favour granting a stay.
Conclusion
For these reasons, the application for a stay order is refused. I note that this decision does not preclude the CEPU from renewing its application for a stay at the hearing of the appeal on 2 September 2024 in the event that the Full Bench is not able to determine the appeal on that day or some further proceedings are necessary to redetermine Transgrid’s application.
VICE PRESIDENT
Appearances:
M Castles, solicitor, Maurice Blackburn, for the appellant.
R Dalton KC and A Crocker, counsel, appearing for Transgrid instructed by MinterEllison.
Hearing details:
2024.
Sydney (video using Microsoft Teams):
22 August.
[1] Transcript of Proceedings, 12 August 2024 - PN885-889.
[2] PR778397.
[3] Fair Work Act 2009 (Cth), s 413(7)(a). See explanation provided in Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65, 202 FCR 200 at [72] (Lander J), [130] (Buchanan J) and [182] (Perram J).
[4] NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2024] FWC 1914.
[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid [2024] FWCFB 333.
[6] [2024] FWC 2182 at [13].
[7] [2024] FWC 2182 at [14].
[8] [2024] FWC 2182 at [36].
[9] [2024] FWC 2182 at [37]-[39].
[10] [2024] FWC 2182 at [42].
[11] [2024] FWC 2182 at [45].
[12] Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 785 at [5].
[13] Coal and Allied Operations Pty Limited v Crawford (2001) 109 IR 409 at [16].
[14] Ibid at [16]-[17].
[15] See, for example, Woodlawn Capital Pty Ltd v Motor Vehicles Insaurance Ltd [2015] NSWCA 227 at [9] (Beazley J); Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd (No 2) [2015] FCA 1208 at [19] (Jagot J).
[16] Hermitage Motel Pty Ltd v PE Kafka Pty Ltd [2008] FCA 483 at [6] (Gyles J).
[17] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695; Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 at [19] (Wright P).
[18] Fair Work Act 2009 (Cth), s 424(2).
[19] Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd [2006] NSWIRComm 2; (2006) 149 IR 361 at [12]-[14].
[20] [2024] FWC 2182 at [39].
[21] Endeavour Energy Network Management Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2024] FWC 2232 at [6].
[22] [2024] FWC 2182 at [39] and [42].
[23] Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [196] (Kirby J).
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