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...
[2023] FWC 3218
•12 DECEMBER 2023
| [2023] FWC 3218 |
| 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
NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A TransGrid
(B2023/1329)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 12 DECEMBER 2023 |
Proposed protected action ballot of employees of NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A TransGrid.
This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A TransGrid (Transgrid or Employer).
The employees involved are mainly field based and generally engaged in either construction or maintenance work. There are also some relevant employees in control rooms. The maintenance employees are principally substation technicians and transmission line technicians. The construction employees are principally site managers, communication technicians, secondary systems technicians and control technicians. The employees are mainly based at six regional depots across New South Wales.[1]
On 5 December 2023, the Commission was advised that Transgrid did not generally oppose the application; however, it contended that certain proposed ballot questions were objectionable on various grounds. This included that the questions did not detail action that met the definition of industrial action under s.19 of the Act and others lacked clarity. A hearing was held on 6 December 2023 to determine the various objections.
During the hearing, the parties reached accommodations on some of the proposed questions, which were acceptable to the Commission; however, most of the objections to the ballot questions remained to be determined by the Commission.
On 11 December 2023 I issued the PABO in a modified form. My reasons for so doing are set out below.
Section 443 of the Act provides:
“443 When the FWC must make a protected action ballot order
(1)The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2)The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a)the name of each applicant for the order;
(b)the group or groups of employees who are to be balloted;
(c)the date by which voting in the protected action ballot closes;
(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e)the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f)the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
In essence, the dispute between the parties in this matter is whether the contested ballot questions proposed by the CEPU meet the requirements of s.443(1)(d) of the Act.
I observe for completeness that there are other statutory requirements for a PABO and all of the requirements, with the exception of the above, were not in dispute in this matter.
It is uncontroversial that in order to be protected employee claim action,[2] the action concerned must, amongst other requirements, be authorised by a PABO[3] and fall within the scope of the definition of industrial action in s.19 of the Act.[4]
Section 19 of the Act defines industrial action as follows:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
The Full Bench of the Commission in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[5] (Mornington Peninsula) described the present task in the following manner:
“[48]It will be apparent from our consideration of the ASU’s appeal below, that we agree. We also respectfully agree with the construction of s.19(1)(a) and (b) of the FW Act by Ross J in Easy which was as follows:
153. The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.
154. In the context of this case, I do not consider that the wearing of campaign clothing falls within either limb of the definition of industrial action in s 19(1)(a) of the Act. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. There is no evidence that MFB non-operational staff were required to wear a particular uniform, nor is there any evidence of a policy proscribing the wearing of union t-shirts. There may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could ffectt the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case. Thus Ms Antonakis’ wearing of the UFU t-shirt did not fall within s 19(1)(a) of the definition of ‘industrial action’.
155. Under s 19(1)(b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.
156. The meaning of the expression ‘a ban, limitation or restriction on the performance of work ... or on acceptance of or offering for work’, was considered by the Full Court in Davids Distribution Pty Ltd v National Union of Workers, albeit in a different statutory context (i.e. the definition of ‘industrial action’ in s 4(1)I of the Workplace Relations Act 1996 (Cth)). In their judgment, with which Burchett J relevantly agreed, Wilcox and Cooper JJ adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Ors v Giudice and Ors and said:
‘... we think the paragraph [s.4(1)(c)] ought to be read as applying only to limitations on the work of those imposing the ban.’
157. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.
[49] Turning then to the action described in 9 and 10 of the question, we consider that neither describes action that is capable of being a, ban, limitation or restriction on the performance of work by an employee”. Similarly, a ban on the wearing of a uniform or a name badge, in and of itself does not amount to a “ban, limitation or restriction on … the acceptance of or offering for work by an employee.” Though this might be the consequence in some circumstances, the ban on the wearing of the particular items of clothing in and of itself does not describe “the nature of the proposed industrial action”. The industrial action that might follow, namely a ban, limitation or restriction on the acceptance of or offering for work in uniform or while wearing a name badge, must in our view be described in the action for which authorisation through the ballot is sought. It should not be left to inference.
[50] Thus, as Ross J reasoned in Easy, if an employee is only prepared to perform work if they are wearing a particular item of clothing then the employee is placing a limitation or restriction on the performance of work on the acceptance or offering for work. But that action must form part of the description of the nature of the proposed industrial action contained in the question to be put to employees in the ballot. The action described in 9 and 10 of the question does not do so. To the extent that the Commissioner concluded at of her decision to the contrary, she was in our opinion in error. To the extent that the majority in ANF v Mornington could be said to have concluded that wearing of campaign clothing will at work be a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for the work by the employee for the purposes of s.19(1)(b), without more, then we respectfully disagree.”
(Footnotes omitted)
The reference to Easy is to the Decision[6] of Ross J, sitting as a member of the Federal Court of Australia.
The Full Bench in Mornington Peninsula had earlier confirmed the statutory approach required that the Commission must be satisfied that the questions concern action that at least has the potential to be industrial action if taken by all or some of the groups of employees to be balloted.[7]
In terms of the requirements of s.437(3)(b) of the Act, the more recent Full Bench of the Commission in National Tertiary Education Industry Union v Curtin University[8] (NTEU v Curtin) described the task as follows:
“[50] Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”. In context, this is to be read as meaning that the “the nature of the industrial action” must be the subject of the questi–n - that is, it must be the matter for which a “yes” or “no” answer is sought. The word “nature” is one of high generality, and in context refers to the “character, kind or sort”[9] of the industrial action. The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act.[10] However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”[11]
(underlining added)
[51] The above passage points to the need to distinguish between what must be specified pursuant to s 437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s 414(1). In respect of the latter, s 414(6) requires that the notice “specify the nature of the action and the day on which it will start”. As stated in Prosegur[12] (2) albeit by reference to s 443(3)(d) rather than s 437(3)(b):
“[38] ... Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).”
[52] In a similar vein, the Full Bench in Total Marine Services said that “the precise timing and length of the action is not determined at the stage of authorisation.”[13]
[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement[14] and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland[15] states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange[16] are not consistent with that approach and should not be followed.”
For the purposes of this Decision, I have referred to the ballot questions by reference to their original numbering set out in the draft order.
The ballot questions in dispute were conveniently grouped by the parties into the 3 categories set out below.
Travel/ Living away from home
The proposed questions are in the following terms:
“9. An unlimited number indefinite and/or periodic bans on living away from home?”
…
14. An unlimited number of indefinite and/or periodic bans on travelling outside normal working hours?”
Transgrid’s objection was on the basis that neither of the proposed questions fell within the definitions of industrial action for the purposes of ss. 19(1)(a) or 19(1)(b) as there was no specific ban on the actual performance of work or a difference in work practice. Transgrid referred to the following passage in Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd[17] (CFMMEU v Peabody) as follows:
“[119] The present case can be contrasted with cases about travel from an employee’s
accommodation or residence to work. Regardless of whether the employer has facilitated such travel it is not work. The present case involves employees being transported within the workplace after they have commenced work. The fact that Peabody provides buses to transport employees from the camp to the Mine site prior to 5.45 am/pm does not result in employees who utilise those services being at work in the sense that they are working, if they arrive before the time at which they are directed to board vehicles to travel from the main administration building to the in-pit crib huts. While being transported from the camp to the mine site, employees are travelling and not working…”
It submitted that this approach was followed in The Australian Workers' Union v Colas New South Wales Pty Ltd.[18] Transgrid further contended that the same logic, that travel to attend work is not work, could and should be applied to conclude that living away from home is also not work. In summary, it submitted that as neither activity could be considered to be the performance of work there was no “ban on work” for the purposes of s.19(1)(b).
Transgrid also made reference to the finding that picketing in and of itself did not fall within the legislative definition of industrial action,[19] despite being a very well-known colloquial form of industrial action. It contended that similarly to this matter, though the proposed action may appear colloquially to be industrial action as it is “in relation to” work, there is not sufficient connection to “work” to meet the s.19(1)(b) test, and any consequent effect on the performance of work does not mean a ban on the work itself. That is, the precise terms of s.19 of the Act must be applied.
In relation to s.19(1)(a), Transgrid further submitted that the questions are not posing the performance of work in a different way, but instead are proposing a ban on non-work tasks which cannot be considered industrial action.
In response, the CEPU submitted that the proposed action was industrial action as it did impact the manner in which work is customarily performed. Reference was made to the Enterprise Agreement[20] where it was submitted that there are express obligations on employees regarding travelling and working away from home, and therefore any disruption to this would create a delay to the ordinary course of work. With regard to question 14, travelling only within work hours, the CEPU submitted that the nature of usual work would be disrupted as employees are usually expected to travel to a site prior to work hours which would now be delayed to only travelling from the commencement of a shift, therefore lowering productivity and impacting work. It submitted that though phrased as a “ban” for the purposes of s.19(1)(b), it fell within the meaning of “performing work differently” under s.19(1)(a).
While Transgrid relied on the case of Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[21] to support that the questions were not a “ban” on “work,” the CEPU referred to the same case to support the proposition that under s.19(1)(a) the actions would cause the performance of work differently and therefore should be accepted as industrial action.
I am prepared to accept that the refusal to travel and live away from home as contemplated by questions 9 and 14 may not, of themselves, involve the performance of work, at least for some purposes, including for payment of the hours involved. This means that the first part (performance of work) of s.19(1)(a) may not be engaged. However, I consider that both questions would in any event involve industrial action for the following reasons.
Even if the actions may not be the performance of work for present purposes, the refusal to travel outside of normal working hours or to live away from home (both for the purposes of the performance of work) is the adoption of a (different) practice in relation to work by an employee. I see no basis to read the notion of a “practice” narrowly and the very purpose of the travel and stays is to facilitate the performance of work, at remote or other work sites. The fact that both practices are regulated by the present Enterprise Agreement[22] applying to the parties also directly reinforces that they occur in connection with work and the performance of work. In the context of these workplaces, the practice is in relation to the manner in which the work concerned is performed.[23]
The evidence[24] is that the actions restrict, limit or delay the performance of work. Both elements are therefore satisfied, and this meets the requirements of s.19(1)(a) of the Act.
Further, and in the alternative, the actions constitute a ban, limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee. The evidence[25] is that the travel is required for the employees concerned to attend ready to commence work at regional or other locations. The evident and direct intended impact of the bans is that the employees will not make themselves available to commence the work at the location(s) and time(s) otherwise required. This directly restricts the performance and/or acceptance of the work concerned. This meets the requirements of s.19(1)(b) of the Act.
Accordingly, I found that both questions 9 and 14 were to be included in the Order.
Protected Industrial Action of other Unions
The proposed question is in the following terms:
“16.An unlimited number of periodic and/or indefinite bans on performing work which is subject to protected action bans by any or all of Professionals Australia, CFMEU, PSA or USU members?”
The context for the question is that bargaining for the proposed agreement also involves other bargaining representatives, including in particular the 4 unions named in the question. The question presupposes that the one or more of the other unions will make and obtain a PABO and this will lead to a protected action ban involving the work of that unions’ members. At the point of hearing this application, no such PABO applications had been lodged.
Transgrid made reference to the need for informed consent of the employees asked to vote on the proposed action. It contended that in line with United Firefighters' Union of Australia v Country Fire Authority,[26] (UFU v CFA) employees must be able to understand what work is not to be done and not done, and what action is to be done or not done and the implications of such. It subsequently accepted that the Full Bench in NTEU v Curtin[27] has clarified that the test is not one of "informed consent," but contended that the principles remain applicable.
Further, it was submitted that the matter was complicated by the fact that the CEPU are the first union involved in bargaining to make a protected action ballot order application and as such, the Commission and the employees cannot be clear what action they are being asked to authorise if or when the other unions also lodge applications and orders are made and acted upon.
Transgrid submitted that due to the above considerations, the ‘nature’ of the industrial action was not identified or defined. In Prosegur, the Full Bench stated that s.443(3)(d) of the Act:
“…requires specification of the nature of the “proposed industrial action” in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise.”[28]
The CEPU relied upon the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy[29] (Essential Energy) to support the submission that ballot questions of this nature had been approved by the Commission in the past:
“I consider that the question posed is not difficult to understand at a conceptual level. It effectively asks the Employees whether they wish to impose a ban on the performance of work which is the subject of a protected action ban by another union. For example, if CFMMEU members impose a ban on the performance of particular work, members of the CEPU are being asked whether they approve the imposition of a ban on such work. I am confident the Employees will understand the question they are being asked and will be able to give an informed and considered answer to question 16. The question will remain as part of the ballot.”[30]
Transgrid submitted that it was not clear whether in the Essential Energy case, regard was had to the Full Bench cases of Prosegur, NTEU v Curtin and UFU v CFA. It submitted that when viewing the present circumstances with the benefit of Full Bench authorities, the conclusion should be that the proposed action is not clear enough. In response, the CEPU submitted that there is sufficient specificity as to the nature of the action, as it is specified in the question that the only action the relevant employees could support is protected industrial action. The CEPU conceded that the form of the ban is not able to be put before members currently, but the question itself and its meaning is capable of being understood and responded to by members. Further, the CEPU contended that if issues arose from this question in the future, that could be agitated later as required.
I can accept, consistent with that found by the Commission in Essential Energy that the employees might well understand the general notion proposed in the question. That is, if there is a ban on work (for example) by members of one of the other unions, they would also ban that work. This was the nature of the objection dealt with in that matter. However, the provisions of the Act require that question identify the character, kind or sort (nature) of the proposed action that is capable of being industrial action under the Act.
At this point and as presently phrased, the question does not do this. This is particularly so as the nature of the actions that may become relevant (the bans by other unions) is also not known at this point and cannot be understood as part of the question.[31] Further, I also observe that whether the actions would constitute industrial action for the employees involved in this ballot, is difficult to ascertain given the circumstances of this matter. For example, the subject of the various bans by other unions (the work involved) may not be capable of being a ban, limitation or restriction relevant to the CEPU members. The same may apply to the requirements of s.19(1)a) of the Act. The caution[32] in Ambulance Victoria is apt in this regard.
I do not consider that this question can properly form part of this application or the order.
I emphasise that this does not mean that questions of this kind cannot form part of a PABO. Each application must be determined in its own factual context and having regard to the precise question proposed. A different question and/or different context may see a different outcome.
Communication as Industrial Action
The proposed questions were in the following terms:
“18. Speaking to members of the public during work related telephone calls about the industrial action and ETU/CEPU campaign for a new enterprise agreement?
…
“20.Distributing ETU/CEPU and industrial campaign-related material to members of the public and Transgrid staff whilst performing work, including but not limited to t-shirts, caps, badges, facemasks, written communications including posters and stickers?
“21.During worktime, providing information, in any form, concerning the views of employees about industrial action and the ETU/CEPU campaign for a new enterprise agreement to members of the community including to members of the media?
“22.During worktime, providing the email address of the CEO and Executive General Manager Delivery and other information to members of the community including to members of the media when communicating about the industrial action and ETU/CEPU campaign for a new enterprise agreement?”
Transgrid objected to these questions on the grounds that they did not form part of usual work performed by the relevant employees and therefore were not a “ban” for s.19(1)(b) or the performance of work differently for s.19(1)(a) of the Act. It referred to the case of Independent Education Union of Australia v All Hallows' School Limited TA All Hallows' School and others[33] (All Hallows) in support of the proposition that mere communication of industrial action is not in itself, industrial action without a corresponding stoppage or ban.
Transgrid also made reference to the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Electrical Pty Ltd,[34] (EDI Downer) where Deputy President Beaumont dealt with a similar matter involving electricians and media communication as industrial action, and concluded as follows:
“[67] If one considers the observations of the Full Bench at paragraph [28] of the Mornington v ASU, the judgments of Tracey J in Ambulance Victoria v United Voice and Ross J in United Firefighters Union of Australia v Easy, it also cannot be said that the second subclause of question 8 speaks of electricians performing work in a manner different to that in which it is customarily performed (first element of s 19(1)(a)) or that there is an adoption of a practice in relation to the work (second element of s 19(1)(a)). The relevant employees are electricians, their jobs not extending to communications and media as one might understand in a corporate context.
[68] For the reasons provided, I am of the view that question 8 does not specify a question which includes what is properly described as being in the nature of proposed ‘industrial action’, as that term ‘industrial action’ is understood by reference to s 19 of the Act.
[69] However, it is important to appreciate that this Commission as currently constituted is of course duty bound to follow Full Bench authority.[35] It is noted that there is no departure from such authority, such as Mornington v ASU or for that matter Ambulance Victoria v United Voice, but what can be concluded is that question 8 does not describe the nature of the proposed industrial action in such a way that employees are capable of responding to it.[36] To be able to respond, the application should propose a question and contain other details about the nature of the industrial action and other relevant matters that will permit employees to make an informed choice on whether to authorise the nature of the proposed industrial action specified in the question.[37] This has not occurred in this case.”
Transgrid also made reference to passages of Ambulance Victoria[38] as follows:
“[23] It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed.
[24] …the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee’s normal duties. What is proposed is the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers’ normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee’s normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail.
[25] For the same reasons there is no relevant limitation or restriction for the purposes of s 19(1)(b). Furthermore, there is no “ban” for the purpose of that paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the word “contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result.” Action 12 does not include any prohibition on work.”
The CEPU submitted that these questions fell within the definition of industrial action for the purposes of s.19(1)(b) as it proposed a departure from work usually performed, involving a stop of usual work to perform the communication, and therefore would cause a disruption or restriction on work. In response to Transgrid’s argument that it was not usual work for the relevant employees, the CPEU submitted that as the proposed action was to occur during work hours and would cause a delay, it constituted industrial action. In support of this, the CPEU referred to the decision of the Full bench in Australian Nursing Federation v Mornington Peninsula Shire Council[39] which found as follows:
“In respect of the distribution of information to clients, and the media about the reason for industrial action, one such circumstance would arise if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s.19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s.19(1)(b)).”
The CEPU also referred to passages from Mornington Peninsula which dealt with stopping work to type a phrase into documents regarding the current industrial action, where the Full Bench found as follows:
“[27] We consider that the action for which authorisation is sought in 2 is the action of “interrupting work periodically, over an indefinite period or for specified periods”. That which follows merely describes conduct in which an employee will engage whilst interrupting his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period or duration of the industrial action, being the interruption to the work. That is, the interruption will occur for the period of time that it takes an employee to include the statement in a relevant email or emails that forms part of the work the employee normally performs before sending it to them. The activity also has the effect of delineating the nature of the interruption to work that will be authorised (for the purpose of typing or retyping the statement) from an interruption to work for another purpose that will not be authorised.
[28] However, even if the conduct in which an employee will engage during the period that work is to be interrupted pursuant to 2, can be said to form part of the action for which authorisation through the ballot is sought, we consider that the action as described as a whole in 2 is capable of being industrial action as defined in s.19 of the FW Act. This is because the action of typing or retyping in each email to be sent, the identified statement, and then sending the email, appears to us to be “the adoption of a practice in relation to work (sending emails) by an employee”, which when combined with the interruption to the work in order to type or retype the relevant message, has the result that there is “a delay in the performance of the work”.”
I have set out the approach taken by the Full Bench in NTEU v Curtin earlier in this Decision. I observe that in light of that most recent authority, care should be taken in considering any approach that has relied upon the notion of “informed consent”.
In EDI Downer, the Deputy President was dealing with 2 questions that included stoppages of work “in order to communicate” … “any content”. In that matter, the Deputy President reasoned, in effect, that because the proposed questions did not specify the nature or purpose of the communication, it could readily be distinguished[40] from Mornington Peninsula.
I also observe that consistent with authority, this Decision is not the place for major statements of principle. Each question and each circumstance may be subtly different and each case needs to be assessed in its own context.
Against this I turn to the remaining questions in dispute in this matter.
Question 18 refers to the employees speaking to the public during work related telephone calls about the industrial actions and the campaign for a new enterprise agreement. It is apparent that introducing the proposed topic into work related phone calls would be the performance of work in a manner different from that in which it is customarily performed. The action refers to work-related calls. The purpose of the communication and the action is also clear.
The issue is whether the result required by s.19(1)(a), that is – the restriction or limitation on, or a delay in the performance of work, is reasonably evident,[41] from the question. Given the direct link to the performance of the work by the employees concerned, a work-related phone call, and the extent of the communication involved, it is apparent that the different manner of performance would impact upon the length of the phone calls and delay the normal performance of work.
Question 18 falls within the scope of industrial action and has been included in the Order.
However, whilst questions 20, 21 and 22 would occur whilst performing work, or during worktime, and may well involve the performance of work in a manner different from that in which it is customarily performed, there is no evidence before the Commission that this would result in the restriction or limitation on, or a delay in the performance of work. Perhaps more importantly, such cannot be said to arise by direct inference given the manner in which the communications could be performed, such as giving a piece of paper or a card to the public or the media. The caution[42] in Ambulance Victoria is apt in this regard.
In this case, the CEPU led no evidence about this despite the direct challenge from Transgrid on this basis, amongst others. I observe that the absence of a sufficient factual context is perhaps more relevant than in other circumstances because the results (the effect upon the work) are not evident from the particular questions concerned. Furthermore, the CEPU did not seek to adjust the questions or to be given an opportunity to do so in response to any decision of the Commission.[43]
Based upon the material before the Commission, I was not satisfied that questions 20, 21 and 22 should be included in the Order.
For completeness, none of these “communications” actions expressly provide for a ban, limitation or restriction upon the performance of work so as to fall within s.19(1)(b) of the Act. Further, this decision does not stand for the proposition that questions of this nature are not capable of forming part of a PABO. Indeed, if the restriction or limitation on, or a delay in the performance of work was made clear in the question (or supported by the factual context where necessary), a different outcome may follow.
Other matters
Transgrid withdrew their objection to question 23 regarding locking systems in light of an amended question. Question 23 as amended now reads:
“23. An unlimited number of indefinite and/or periodic bans on using physical or digital locking systems, including (but not limited to) locking or unlocking of phones, iPads, tablets, computers, switchboard, switch rooms, electrical cabinets, access gates, air brakes switches, circuit brakers, switching stations and sub stations?”
The CEPU withdrew question 19 which read as follows:
“19.Wearing in Transgrid offices ETU/CEPU and industrial campaign-related t-shirts, caps, badges, facemasks?”
On the basis of the material before me, including the declaration of Mr Nicholas Bligh, Union Official with the CEPU, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Transgrid, I was satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met. I was also satisfied that the many other requirements for the issuing of the PABO in the form determined by the Commission have been met, including those not in contest and not expressly dealt with in this Decision.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[44] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, and following consultation with the Parties, the Commission has determined that the date by which voting is to close is 22 December 2023. This also established the ballot period for the purpose of s.448A(2) of the Act. In establishing this period, I have applied the principles set out by the Full Bench in CEPU v Nilsen.[45] Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. Without being definitive, I have had regard to the known circumstances of the parties, the capacity for the ballot agent to conduct a ballot in the period specified and the implications of the requirement to order attendance of all bargaining representatives at, and to conduct, the s.448A compulsory conciliation conference during the ballot period.
Clause 5 of the draft order has been amended to consolidate the final ballot questions.
The Order has been separately issued in PR769005.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Appearances:
A Kentish and M Murphy for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
G Jolly and J Wilde of Minter Ellison, with permission, with S Berriman and S Pickering for NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust.
Hearing details:
2023
Adelaide by MS Teams video link
6 December.
[1] Drawn from exhibit 1 – statement of Samuel Pickering.
[2] Defined in ss.408 and 409 of the Act.
[3] Section 409(2) of the Act.
[4] Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 4740 at [24].
[5] [2017] FWCFB 4740.
[6] United Firefighters’ Union of Australia v Easy [2013] FCA 763.
[7] [2017] FWCFB 4740 at [46].
[8] [2022] FWCFB 204.
[9] Macquarie Online Dictionary.
[10] Ambulance Victoria v United Voice [2014] FCA 1119, 245 IR 375 at [19] (Ambulance Victoria).
[11] Ibid at [18].
[12] Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562 (Prosegur)
[13] [2009] FWAFB 368, 189 IR 407 at [39].
[14] See ss 186(2)(a) and s 188.
[15] John Holland Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWAFB 526 (John Holland).
[16] National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd[2009] FWA 221 (FreshExchange).
[17] [2019] FWC 4641.
[18] [2020] FWC 2813.
[19] David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463.
[20] Transgrid Enterprise Agreement 2020.
[21] [2013] VSC 105 at [34].
[22] Clauses 18, 33 and 34.
[23] See by contrast Easy at [153].
[24] Samuel Pickering, General Manager of Talent and Capability at Transgrid.
[25] Ibid.
[26] [2006] AIRC 563 at [31].
[27] [2022] FWCFB 204 at [53].
[28] Ibid at [38].
[29] [2021] FWC 6128.
[30] Ibid at [52].
[31] See Mornington Peninsula at [49].
[32] Ambulance Victoria at [20] to [23].
[33] [2016] FWCFB 262.
[34] [2022] FWC 364.
[35] Pacific Access Pty Ltd v Community and Public Sector Union (1998) 83 IR 323, 333.
[36] John Holland Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWAFB 526, [19].
[37] National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd[2009] FWA 221, [10].
[38] [2014] FCA 1119.
[39] The majority decision in [2011] FWAFB 4809 at [23].
[40] EDI Downer at [58] to [79].
[41] Ambulance Victoria at [24] and Mornington Peninsula at [38].
[42] Ambulance Victoria at [24].
[43] This was expressly discussed during the course of the hearing.
[44] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400
[45] [2023] FWCFB 134.
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