Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Networks Pty Ltd T/A TasNetworks
[2024] FWC 1657
•25 JUNE 2024
| [2024] FWC 1657 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tasmanian Networks Pty Ltd T/A TasNetworks
(B2024/801)
| COMMISSIONER WILSON | MELBOURNE, 25 JUNE 2024 |
Proposed protected action ballot of employees of Tasmanian Networks Pty Ltd Trading As TasNetworks
These are my reasons for decision in relation to an application by The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, trading as CEPU Tasmania (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for the making of a protected action ballot order (PABO) in relation to certain employees of Tasmanian Networks Pty Ltd, trading as TasNetworks. The application was heard by me on Monday 24 June 2024 at the conclusion of which I advised the application would be granted and that reasons for my decision would be published in the near future.
The application was made on Thursday 20 June 2024 at 4:48 PM. The following day, on Friday 21 June 2024, the Fair Work Commission (the Commission) was advised that TasNetworks objected to the granting of the application for two reasons: an assertion that the applicant has not been, and is not genuinely trying to reach an agreement, and that the Respondent holds serious concerns about the safety implications about some of the actions proposed based on nature of its enterprise.
As the application was not consented to by TasNetworks, the National Practice Leader, Bargaining assigned the matter to me for hearing and determination.
Section 441 of the Act provides that the Commission must, as far as practicable determine PABO applications within 2 working days after the application is made, that is by the end of Monday 24 June 2024. In order to meet this requirement, Directions were issued by me on Friday 21 June 2024, requiring TasNetworks to file and serve short particulars of its objections and a precis of any witness evidence to be given by no later than 10:00AM, Monday 24 June 2024 and the CEPU to file and serve short particulars of its response and a precis of any further evidence to be given by no later than 1:00PM, Monday 24 June 2024. The parties were advised the matter would be the subject of a hearing at 3:30PM Monday, 24 June 2024.
At the hearing, Mr Chris Clark, CEPU State Organiser appeared for the CEPU, Ms Karen Tantari appeared for the Australian Services Union, Mr Luke Crowley appeared for Professionals Australia and Mr Peter Schultz appeared in his capacity as an independent bargaining representative. Ms Lisa Wilkins and Mr Chong Ong a TasNetworks Network Operations Specialist appeared for the Respondent and both also provided Witness Statements. The witness statements were admitted without any party requiring cross-examination.
The CEPU submits that it is eligible to make an application for a PABO, satisfying each of the criteria within s.437 of the Act. It also submits that the requirements of s.443, which set out the circumstances in which the Commission must make a PABO, have each been met.
The CEPU describes the employee cohort to be balloted as the following: “those employees of Tasmanian Networks Pty Ltd, who are members of and are entitled to be industrially represented by the CEPU and any employees that have appointed the CEPU as their bargaining representative and who would be subject to the proposed enterprise agreement”. The employees are presently covered by the TasNetworks Enterprise Agreement 2020 – 2024,[1] the nominal expiry date of which is 10 June 2024.
The Application material also discloses 6 other bargaining representatives, including two unions, the Australian Services Union Victorian & Tasmanian Authorities & Services (ASU) and the Association of Professional Engineers, Scientists And Managers Australia (Professionals Australia) and four employee bargaining representatives.
The material provided by the CEPU advises that the notification time for bargaining was on or around 9 February 2024, and the Notice of Employee Representational Rights was issued by the employer on or around 18 January 2024.
Relevant to part of the Respondent’s objections, the CEPU asserts it has been participating in good faith bargaining by attending fortnightly bargaining meetings since 9 April 2024 and in that meeting, members’ claims have been exchanged, discussed and considered. The union also states it is committed to continue with the bargaining process and that it and its members have been willing to discuss all claims with the company and that they have duly considered any offer or counter proposal which the employer has made.
The CEPU proposes employees eligible to vote in a PABO answer a single question approving or rejecting 54 elements of proposed protected industrial action. The questions to be put to employees is ATTACHED to this decision.
Outline of the parties’ submissions and evidence as filed
The CEPU puts forward that it has been participating in good faith bargaining by attending fortnightly bargaining meetings since 9 April 2024, “where members claims have been exchanged, discussed and considered”.[2]
The Respondent identified that bargaining took place on six dates between 9 April 2024 and 18 June 2024, a date shortly before the lodgement of the CEPUs protected action ballot order application was made to the Commission on 20 June 2024. TasNetworks note that the CEPU and the other two single bargaining unit unions, the ASU and Professionals Australia, also did not attend the bargaining meeting held on 4 June 2024.
TasNetworks argue that the CEPU has not been genuinely trying to reach agreement, being the prerequisite for the making of a PABO in s.443(1)(b). It further argues that if the Commission grants the application and makes an order, that it should insert within the order an obligation that any industrial action be subject to the essential limitations in order to meet power system security and safety concerns. Finally, it submits should the Commission grant the application for a PABO, that the period of written notice referred to in s.414(2)(a), for the taking protected industrial action, be longer than three working days on the basis of safety and security concerns.
Lisa Wilkins, the Respondent’s People Partner Enterprise and Agreement Project Manager provided a witness statement which detailed the Respondent’s objections on the matter of genuinely trying to reach agreement and was cross examined on those matters.
Ms Wilkins notes there was a slow start to bargaining. On 1 November 2023 another manager, Sarah Strugnell, Head of People Experience approached Mr Clark of the CEPU by email, requesting a time to discuss the TasNetworks enterprise agreement.. A further manager, Richard Ikin, People Experience Specialist then sought to commence bargaining on 12 and 13 March 2024, however it took until 9 April 2024 before bargaining could actually commence, including for reasons of Mr Clark’s leave and other unavailability.
Ms Wilkins gave evidence about the following matters, which she says demonstrate the CEPU is not genuinely trying to reach agreement;
No discussions regarding the Remuneration and Classification Framework
Putting forward that the CEPU has on multiple occasions stated that a Remuneration and Classification Framework is required for agreement to be reached, Ms Wilkins gave evidence that the CEPU have refused to engage with TasNetworks on the subject.
At the bargaining meeting held on 7 May 2024, TasNetworks sought to discuss the Remuneration and Classification framework. TasNetworks says the CEPU declined to do so, citing a lack of time and as a result the subject has not progressed.
No responses to TasNetworks’ proposed drafting
On 31 May 2024 TasNetworks provided the CEPU and other bargaining representatives with draft clauses dealing with five subjects for their consideration.
The provision of these clauses by 31 May 2024 had been mentioned by TasNetworks in the meeting held on 21 May 2024, with TasNetworks stating that it sought response to the material by 7 June 2024.
It is argued by TasNetworks that the CEPU has not yet responded to these materials or engaged in furthering the drafting of the clauses. At the meeting on 18 June 2024, Mr Clark stated that the unions would not agree to the clauses or the schedule for the provision of feedback on the clauses.
Further, TasNetworks argue that the CEPU has so far provided no explanation as to why the original program of providing feedback about the drafting in the meeting of 7 June 2024 has not been adhered to
Failure to attend bargaining meeting
On 15 May 2024, the CEPU sought information from TasNetworks about the position descriptions and base salary rates for the roles covered by the proposed enterprise agreement.
TasNetworks says that in the bargaining meeting which took place on 21 May 2024, it undertook to provide remuneration data by 31 May 2024. In the same bargaining meeting, Mr Clark of the CEPU stated he would like the next meeting, scheduled for 4 June 2024 to focus on the consultation and dispute resolution provisions of the proposed agreement. On 30 May 2024 however, Mr Clark wrote to TasNetworks stating that all unions, comprising the CEPU, the ASU and Professionals Australia, would not attend the next bargaining meeting as TasNetworks had not provided the remuneration data that had been requested and the unions needed that information to assist with their wage claim.
As a result of the disagreement over the provision of remuneration data the three unions, including the CEPU, did not attend the bargaining meeting scheduled for 4 June 2024 even though the topic to be discussed at that meeting was consultation and dispute resolution and not remuneration data.
Further lack of progression of remuneration discussions
In the bargaining meeting held on 18 June 2024, TasNetworks attempted to progress discussions about remuneration matters. It argues the relevant information was sent first on 31 May 2024 and then re-sent on 17 June 2024.
TasNetworks say that Mr Clark indicated to the meeting he had not read those emails. TasNetworks claims the CEPU has not responded to the material within those emails or at any time provided a response.
Separately, TasNetworks say that the CEPU sent its most recent wages proposal to TasNetworks at 7:48 AM on 18 June 2024, being a short time before the bargaining meeting was due to commence at 9:30 AM, leaving TasNetworks with an inability to respond to that material.
Mr Clark from the CEPU submitted the union has attended multiple bargaining meetings with an average of 10 delegates at each. The union has explained its log of claims in detail and demonstrated a clear understanding of the claims that have to be agreed, as well as genuinely considering the respondent’s position. Mr Clark accepted that the union did not attend the 4 June 2024 bargaining meeting, explaining that this was a product of discussion with the union’s delegates who instructed that wages were a bargaining priority. Mr Clark said that after the previous bargaining meeting, delegates felt that TasNetworks was stalling and that they wanted to position wages front and centre of the next bargaining meeting. He also put forward that it took considerable time, about a month, for TasNetworks to obtain and circulate the remuneration information and that the union required similar time to consider the information and its response.
Mr Clark also explained that the unions had to go through roughly 235 position descriptions to form their views and that they had insufficient time before the meeting to be able to do that and, relevant to the matter of the remuneration and classification framework, form their views about an appropriate classification structure.
Mr Crowley for Professionals Australia explained in respect of the classification structure that when the currently operating enterprise agreement was negotiated, there had been a facilitated bargaining processes involving another Member of the Commission, including over the matter of the classification structure. Despite expectations that there would be agreement on a new classification structure, TasNetworks had pulled out of the process and put the agreement to a vote. The consequence was that the unions were now not keen to have all matters in bargaining addressed except for the classification issue, as they foresaw the same possibility occurring in this round of bargaining, of unilateral withdrawal prior to agreement on classification structure.
CONSIDERATION
In considering this application, I take account of s.443 of the Act which provides the circumstances in which the Commission must make a PABO, with that section in turn requiring consideration of s.437 which prescribes eligibility for the making of a PABO application and related matters. The sections are as follows:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note:For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
“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.”
It is well settled that the Commission’s power to make a PABO under s.443 of the Act is not discretionary in nature, with s.443(1) imposing “a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s.437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted”.[3]
TasNetworks object to the making of the PABO for the reasons I have referred to earlier; that the CEPU is not genuinely trying to reach agreement and that some of the questions have safety implications. It also seeks that, should the Commission grant the application for a PABO, that the period of written notice referred to in s.414(2)(a) for the taking of protected industrial action, be longer than three working days on the basis of safety and security concerns. It instead proposes the notice period be 7 working days for all elements of the proposed ballot question.
Genuinely trying to reach agreement
An applicant for a PABO carries the evidential onus of establishing that they have been and are genuinely trying to reach an agreement.[4] The requirement in s.437(1)(b) for the Commission to be satisfied that “each applicant has been, and is, genuinely trying to reach agreement” invites a temporal consideration: in order to be so satisfied, the Commission must consider an applicant’s conduct not only at the time of the Commission’s decision but also at the date of application for the PABO.[5]
Determination of whether an applicant has been genuinely trying to reach agreement “involves a finding of fact applied by reference to the circumstances of the particular negotiations”. While all of the circumstances of the case require consideration, which frequently requires consideration be given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement, it is ultimately the test in s.443 that must be applied. There will be consideration given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[6]
In forming my views on the subject, I take into account that the Applicant submits it has been genuinely trying to reach an agreement, making reference especially to the progress of negotiations in the bargaining meetings which have taken place since 9 April 2024. Minutes of four bargaining meetings are before the Commission, but not for the six occasions on which bargaining has taken place. The minutes before the Commission would suggest a wide range of matters have been discussed and that some progress toward a common point has been achieved, even though considerable further progress is required before agreement in principle on all relevant matters is reached. The CEPU’s log of claims was presented to the bargaining meeting held on 23 April 2024. The log of claims is detailed and capable of being responded to.
In forming my views about whether the CEPU has been genuinely trying to reach agreement, I take account of the following three matters:
Ms Wilkins’ statement initially put forward there had been no engagement by the CEPU with the matter of a Remuneration and Classification Framework, however it also put forward that a proposal on the subject from the CEPU on behalf of all unions had been provided to the most recent bargaining meeting on 18 June 2024, shortly before it commenced.[7]
The CEPU has provided no response to TasNetworks drafting on five matters, despite there being no apparent opposition in the meeting held 21 May 2024 that TasNetworks would be providing the drafting by 31 May 2024 and that it sought a response by all parties by the time of the 7 June 2024 bargaining meeting.
The provision of remuneration data for consideration by the CEPU and other unions.
On 15 June 2024 Mr Clark wrote to Mr Cunningham, TasNetworks’ Head of Operational Systems. He asked for the provision of “the base salary rates for the positions that are covered by the existing TasNetworks agreement for bands 1,2,3,4,&5 and their position descriptions please”. Clarification of his needs was given in a further email of the same date.
Before TasNetworks provided the information on 31 May 2020, the CEPU wrote to them on 30 May 2025 advising;
“After consultation with the SBU we will need to postpone next weeks bargaining meeting until TasNetworks has provided the information we have asked for to assist us with our wage claim because it is the most pressing matter that we want to address.
If you don't think you will be able to provide this information by the COB next Friday the 7° can you let us know COB tomorrow by replying all so that the SBU can present an alternative wage claim at the bargaining meeting
schedule for the 18th”
Following this indication from the CEPU, Ms Strugnell reminded Mr Clarkthat the matter of Consultation and Dispute Resolution was programmed for discussion at the next bargaining meeting on 4 June 2024 rather than the matter of remuneration. Mr Clark responded;
“The SBU and our delegates have changed their position and want wages to be the next item on the agenda, given that the information required will be sent today we will need some time to analyse it to further develop our wage claim including the classification and points based progression structure, as such we will not be attending next weeks meeting but should be in a position by the 18° of June to continue the negostions, (sic) see you then.”
On 31 May 2024 TasNetworks provided “market range” remuneration material to the CEPU and other unions.
The material now before the Commission shows that TasNetworks remonstrated with the proposition the forthcoming meeting should be postponed or that its agenda should be changed.
On 17 June 2024, the day before the next bargaining meeting, Mr Clark changed tack; arguing the information provided on 31 May 2024 was now insufficient for discussion purposes. To a degree this was a valid criticism as the material provided by TasNetworks on 31 May 2024 provided only the “market range” for certain nominated classifications, and did not set out the base salary rates sought by the union. Even so, the 31 May 2024 material could have been sufficient to found a reasonable discussion as well as bargaining about wage rates, albeit that it would have been justified for the unions to seek further information on the subject.
Following Mr Clarke’s communication on 17 June 2024, Mr Cunningham, provided further information on the same day which set out greater detail, including salary bands and market ranges.
In my oral advice to the parties at the conclusion of proceedings on 24 June 2024, when I announced that an Order would be made, I said to them that my views were that I was satisfied on balance that s.443(1)(b), the genuinely trying to reach agreement criterion, had been met.
The reference to satisfaction being on balance is because I consider there have been faults in the bargaining process on both sides, likely brought about because neither side appears to be particularly mindful of need to observe all aspects of the good faith bargaining requirements. This is not to say that any party has breached the requirements, but it is to say that the conduct of both has been undesirable and should not be replicated as bargaining continues.
For the CEPU and the other two unions simply to say they would not attend a scheduled bargaining meeting because they don’t like the agenda for the meeting is unprofessional, illogical and not respectful to the other people in the bargaining room. At the same time, for TasNetworks to grudgingly provide critical remuneration data for consideration by the unions cannot have been thought through particularly well and is open to complaint.
The balance in my mind has been swayed in favour of granting the application by the explanation given by Mr Clark about the frustration experienced by the CEPU’s delegates as well as the explanation given by Mr Crowley for Professionals Australia about unions’ experiences with the classification structure in the previous bargaining round, for the currently operating enterprise agreement. I am satisfied from these explanations that there is a reluctance on the part of the unions to be in a situation again in which matters associated with the classification structure could be pushed aside without resolution if that was the last remaining issue. I have also been persuaded in favour of granting the PABO application by the explanation given by Mr Clark about his need to peruse a substantial number of position descriptions and undertake a consequential remuneration analysis. I accept in this regard that such task would take time and may well have been beyond the time available to him before the 4 June 2024 meeting. Taken together these matters allow a finding that the CEPU, the Applicant in this matter, has been genuinely trying to reach agreement, albeit that its bargaining posture suffers from the faults identified above.
The need to make findings about genuinely trying to reach an agreement includes not only a consideration of its conduct to the time of the CEPU’s application, but its likely future bargaining posture as well. This stems from the requirement in s.443(1)(b), that an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement.
In respect of its past conduct, there appears to have been on the part of the CEPU a certain degree of unilateralism within its communications, as well as even argumentativeness above the tone put by the TasNetworks representatives. Those matters of themselves do not exclude a finding that the CEPU has been genuinely trying to reach an agreement. After consideration of the CEPUs approach on these matters, as well as its explanation about the feelings of its delegates which then informed the communications it made to TasNetworks, I consider that a finding the CEPU has been genuinely trying to reach an agreement is open to me.
Similarly, the submissions and explanations given to me by Mr Clark lead me to conclude that the CEPU is genuinely trying to reach an agreement. There is no lack of preparedness on his part to engage in active negotiations with TasNetworks about the remaining matters, including about the significant issues of remuneration and classification structure.
Accordingly, I am satisfied the entirety of the requirement in s.443(1)(b) is met. That finding, together with my earlier findings about the status of s.443(1)(a), obliges me to make a protected action ballot order. As there is no dispute before me about the proposed ballot question and its elements, the order will be made in the form proposed by the CEPU.
Safety implications
The Respondent proposed in its submissions that there should be an undertaking by the CEPU, included within the order issued by the Commission, about safety and system security matters. TasNetworks’ submissions about the form of the undertaking were these;
“27. If the Commission considers that it is required to make the Protected Action Ballot Order, then the Respondent seeks that any industrial action be subject to the following essential limitations in order to meet power system security and safety concerns:
a. The Transmission and distribution control operators and fault dispatch rostered on in accordance with the usual roster will perform work as usual.
b. Employees from either the customer team or who support the control system function or those that are normally rostered in the on-call roster will:
i. Remain at the place where they usually commence work or undertake oncall duties.
ii. Complete any delegated function or direction received from AEMO (or the transmission control room as delegate) complying with the Employer’s
ordinary response time.iii. Complete work as usual as it relates to the maintenance and control of any system that supports network control.
c. Employees will comply with a reasonable direction from TasNetworks to perform work during an emergency that creates a risk to health and safety.
d. In all instances where there is a power outage, employees will comply with all reasonable directions from the employer to the extent required to restore power and avert the serious and imminent threat to human life.
e. An Employee who is rostered to perform work will keep the mobile device they use for communicating with the Employer on their person for the purpose of compliance with the Employers safety procedures of remote or isolated work, as well as all requirements detailed in 11.3 of the PSSR or 4.11 of the NER.”
TasNetworks pointed to a number of earlier orders issued by other members of the Commission where such commitments had been given. The Respondent though did not include in its submissions, references to those decisions or orders.
After the substantive hearing had concluded and before I announced my decision, the Respondent provided to my Chambers, but not at that time to the other parties (which has since been remedied), a decision which it said dealt with an arbitration of this type. I did not see this correspondence before announcing my decision. I have since perused the decision which is the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd[2021] FWC 3533, before Commissioner Cambridge. The decision does not deal with the matter of an undertaking of the type now sought by the Respondent in this matter.
At this stage, I am unaware that any Member of the Commission has ordered, without consent, the inclusion of such commitments. In the absence of comprehensive submissions about my jurisdiction to make such an order other than by consent, I will decline to do so. To the extent that an undertaking of this type could modify the rights of the CEPU and its members to take protected industrial action of chosen types, the inclusion of such an undertaking on the determination of the Commission would potentially be inconsistent with the Commission’s established reasoning on the making of changes to protected action ballot questions, chosen by an applicant party.[8] Further, whether particular protected industrial action has implications of harm to individuals or the community is a matter more properly dealt with in Part 3 – 3, Division 6 of the Act, instead of Part 3 – 3, Division 8, in which the powers for the issue of a PABO reside.
TasNetworks’ efforts on these matters may be better directed to negotiating changes with the CEPU to how the elements of protected industrial action are expressed.
Nonetheless, the parties were directed to have discussions with each other about whether the Order to be issued by me could include consent phrasing for such commitments. The parties were advised that if I was informed within a particular period, there was consent for an undertaking similar to that sought by TasNetworks, the consent wording provided would be included in my order (and not to be included if there was no consent). Those discussions did not lead to a agreement on the subject and so the proposed undertaking is not included in the Order I make.
Notice period – exceptional circumstances
TasNetworks submit there are exceptional circumstances of the nature referred to in s.443(5), that would justify the Commission extending the period of written notice referred to in s.414(2)(a) to 7 working days.
The Full Bench in NTEU v Charles Darwin University[9] referred to the importance of a careful consideration being given to an application for an extended notification period;
“[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.”
The same Full Bench then laid down a three-stage approach to be taken in determining such applications;
“[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).”[10]
TasNetworks submitted the following about the need for an extended notification period;
It is the sole Tasmanian agency responsible for the transmission and distribution of electricity and critical telecommunication services. It also facilitates the transfer of electricity between Victoria and Tasmania through Basslink.
It is required to cooperate with and assist the Australian Energy Market Operator (AEMO) in the proper discharge of power system security responsibilities.
A failure to guarantee appropriate staffing levels would create a degraded response and jeopardise the safety and security of the Tasmanian electricity network, TasNetworks’ employees and the Tasmanian community.
Further, it argued;
“26. In a real sense, the potential implications of work being impacted include the following:
a. The Respondent supports the ongoing operations of critical community resources such as hospitals, aged care facilities, operations of emergency services and other critical infrastructure.
b. The respondent is a crucial support for all emergency events that occur in Tasmania and without its involvement emergency events mitigates risks associated with electricity such as major public health concerns, lack of heating, public lighting infrastructure, refrigeration and the failure of telecommunications infrastructure.
c. The Tasmanian community includes a significant number of customers who rely on electricity supply for life-support and the management of critical medical, mobility and health issues. This includes, but is not limited to:
i. oxygen concentrators, kidney dialysis, CPAP machines and other medical equipment;
ii. refrigerated medication, electric wheelchairs and electric reclining furniture (including beds).
d. Failing to connect, delaying or refusing power, degraded response rates and unnecessary power outages have a significant impact on these customers and create a critical risk to health and safety.
e. The Respondent’s call centre and fault dispatchers cannot see the type of life support equipment each customer has, meaning that the Respondent must treat
all life support customers as if they have critical equipment in their homes.f. The Respondent also plays a critical role in making safe the electricity network following interference with a pole, line or any other event where the electricity network has the potential to pose a health and safety risk to our employees, contractors or the Tasmanian community.”
Mr Chong Ong, TasNetworks’ Network Operations Specialist provided a detailed witness statement elaborating on the above and further matters of network and community safety. Mr Ong’s statement was admitted without any requests for his cross-examination.
Pertinent to the pre-requisite findings required by NTEU v Charles Darwin University, I am first satisfied from the above evidence that the matters of network and community safety referred to in Mr Ong’s statement in particular are exceptional. There is an apparent risk to the network from certain, but perhaps not all forms of protected industrial action. Those risks and their consequences are exceptional in the sense of being out of the ordinary course, or unusual, or special, or uncommon but not needing to be unique, or unprecedented, or very rare.
In turn, the risks and potentially heightened or unacceptable consequences, can be offset to a degree through allowing a longer response period for TasNetworks, before the particular notice of protected industrial action commences.
Relevant to the exercise of discretion on my part, I take account that there appears to be a relatively high degree of distrust between the bargaining parties; that could predispose the CEPU to notify stronger forms of protected industrial action sooner. Further it is accepted that a longer notice period could weaken the relative position of the CEPU, that it sought to achieve through a PABO. Those matters, individually or in combination, do not displace the state or consequence of the identified risks, and I consider it appropriate in certain questions to extend the notice period to 7 working days.
Further to directions given to the parties at the conclusion of proceedings on 14 June 2024, I have been advised by the parties they are agreed that the following should be the Commission’s order in respect of the notice period:
“Pursuant to s.443(5) of the Act, the period of written notice for proposed industrial action specified in questions 1, 3, 4, 5, 7-14, 17-33, 35, 36, 38-41, 46, 47, 48, 50, 51, and 54 is extended to 7 working days and the period of written notice for proposed industrial action specified in the remaining questions shall be 3 working days.”
Accordingly, the Orders issued by me will reflect the parties’ agreement, other than amending the word “questions” to “question elements” in order to reflect that the ballot will consist of a single question with 54 elements.
Ballot Agent
The CEPU proposes the ballot agent for the PABO, if granted, be the Australian Electoral Commission. TasNetworks does not dispute the proposal. The Australian Electoral Commission is an eligible protected action ballot agent and accordingly will be appointed to conduct the ballots through the Orders issued by the Commission.
CONCLUSION
Consideration of the foregoing matters leads me to make the following findings.
I am satisfied, for the purposes of s.443(1)(a) that the CEPU application has been made under s.437 and that all relevant considerations within that section have been met by the Applicant. In particular, I am satisfied that:
The CEPU is the bargaining representative of the employees who will be covered by the proposed enterprise agreement and has applied for a PABO to be conducted to determine whether employees wish to engage in particular protected industrial action for the proposed agreement (s.437(1));
There has been a notification time in relation to the proposed enterprise agreement (s.437(2A)); and
The Application specifies the matters required by s.437(3).
I am satisfied for the purposes of s.443(1)(b), that the CEPU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. This finding extends to the proposed ballot question and its elements.
I am satisfied that, for the purposes of s.443(5), there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a), requiring that the commencement of employee claim action be longer than 3 working days in the case of certain question elements. Pursuant to s.443(5) of the Act, the period of written notice for proposed industrial action specified in question elements 1, 3, 4, 5, 7-14, 17-33, 35, 36, 38-41, 46, 47, 48, 50, 51, and 54 is extended to 7 working days and the period of written notice for proposed industrial action specified in the remaining question elements shall be 3 working days.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 August 2024.[11] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR776406.
s.448A conferences
This matter will also proceed before me to a s.448A compulsory conciliation conference along with the other related matter (B2024/549) on a date and time to be fixed. To the extent that this matter involves any additional bargaining representatives, an Order an order will be issued requiring their attendance 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.
COMMISSIONER
Appearances:
C Clark, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
K Tantari, for The Australian Services Union Victorian & Tasmanian Authorities & Services
L Crowley, for The Association of Professional Engineers, Scientists And Managers Australia
P Schultz, Independent Bargaining Representative
Lisa Wilkins, for Tasmanian Networks Pty Ltd T/A TasNetworks
Chong Ong, for Tasmanian Networks Pty Ltd T/A TasNetworks
Hearing details:
24 June.
2024.
ATTACHMENT – BALLOT QUESTION
The question(s) to be put to voters in the ballot are:
In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:
The imposition of a ban for a specified period, including indefinitely, on using mobile phones and or car and truck mobile radios and or landlines.
The imposition of a ban for a specified period, including indefinitely, on using personal tools.
The imposition of a ban for a specified period, including indefinitely, on using company supplied tools.
The imposition of a ban, for a specified period, including indefinitely, on the performance of any switching?
The imposition of a ban for a specified period, including indefinitely, on undertaking any off-road jobs.
The imposition of a ban for a specified period, including indefinitely, on undertaking repairs or preventative maintenance to TasNetworks plant and equipment.
The imposition of a ban for a specified period, including indefinitely, on using electronic devices for work-related purposes (including, without limitation, computers or iPads)?
The imposition of a ban for a specified period, including indefinitely, on working rostered days off and public holidays?
The imposition of a ban for a specified period, including indefinitely, on responding to emails or texts messages?
The imposition of a ban for a specified period, including indefinitely, on completing any paperwork, reports, EWCs and job packs.
The imposition of a ban for a specified period, including indefinitely, on completing any paperwork.
Indefinite or periodic bans on responding to emails.
The taking meal breaks, in concert with other employees, at the same time and/or the same places (i.e. groups of employees).
The imposition of a ban, for a specified period, including indefinitely, on working with and or the supervision or authorization of contractors to TasNetworks including the issuing permits.
The imposition of a ban, for a specified period, including indefinitely, on contact with TasNetworks managers regarding the Enterprise Agreement included but not limited to reading or replying to TasNetworks correspondence or attending TasNetworks meetings or briefings.
Indefinite or periodic employee claim action in the form of not undertaking work, tasks or responsibilities normally undertaken by supervisors or managers.
The imposition of a ban, for a specified period, including indefinitely on Call Backs.
The imposition of a ban, for a specified period, including indefinitely on “On Call.”
Indefinite or periodic bans on the performance of overtime.
Indefinite or periodic bans on the installation of cables.
Indefinite or periodic bans on the installation of cross arms.
Indefinite or periodic bans on the use of EWP’s.
Indefinite or periodic bans on the use of ladders.
The imposition of a ban for a specified period, including indefinitely, on resetting electrical equipment.
Stoppage of work for a period of 15 minutes including consecutive stoppages.
Stoppage of work for a period of 1 hour, including consecutive stoppages.
Stoppage of work for a period of 2 hours, including consecutive stoppages.
Stoppage of work for a period of 4 hours, including consecutive stoppages.
Indefinite or periodic 6 hour stoppages of work, including consecutive stoppages.
Indefinite or periodic 8 hours stoppages of work, including consecutive stoppages.
Indefinite or periodic 10 hour stoppages of work, including consecutive stoppages.
Indefinite or periodic 24 hour stoppages of work, including consecutive stoppages
Stoppages of work, including consecutive stoppages.
Employee action in the form of wearing and or displaying of Union related clothing and material.
The imposition of a ban for a specified period, including indefinitely, on disconnecting power, except for safety reasons.
The imposition of a ban for a specified period, including indefinitely, on connecting power, except for safety reasons.
The imposition of a ban for a specified period, including indefinitely, on the handing in of TasNetworks meter readings.
The imposition of a ban for a specified period, including indefinitely, on working outside the employee’s normal geographical area.
The wearing of enterprise bargaining campaign material, such as t-shirts, badges and stickers, and periodic stoppages of work for up to 15 minutes’ duration on each occasion to explain the campaign material to customers and the general public?
Note – High-vis or any other required personal protective equipment (PPE) must still be worn.
Indefinite or periodic stoppages of work for up to 15 minutes’ duration on each occasion to distribute and explain enterprise bargaining campaign material to customers and the general public.
The imposition of a ban for a specified period, including indefinitely, on working rostered shifts on weekends.
The imposition of a ban for a specified period, including indefinitely, on participating in any meetings via any video conference platform.
The imposition of a ban for a specified period, including indefinitely, on the creation of work orders and service requests or similar.
Indefinite or periodic bans on refuelling TasNetworks vehicles and/or trucks?
Indefinite or periodic bans on issuing work orders.
Indefinite or periodic bans of not communicating with AEMO.
Indefinite or periodic bans of not installing tepary HV switches.
Indefinite or periodic bans of not going to EWR T ups.
Indefinite or periodic bans of delegates and TasNetworks workers talking to the media about the EBA campaign.
The imposition of a ban for a specified period, including indefinitely, on streetlight maintenance, repair or replacement.
The imposition of a ban for a specified period, including indefinitely, on installation of temporary bypass metering.
Employee action in the form of sending global email to all TasNetworks staff, using TasNeworks IT equipment updating them about protected action and or bargaining.
Employee action in the form of talking to the media and TasNetwork customers about the EBA campaign including, but not limited to protected action.
The imposition of a ban for a specified period, including indefinitely, live work.
Do you support the taking of the bans listed from 1 through to 54 YES [ ] No[ ]
[1] AE508264.
[2] F34B, Item 2.1.
[3] National Tertiary Education Union v Curtin University[2022] FWCFB 204, [37], see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty. Ltd[2023] FWCFB 132, [52].
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Kraft Foods Limited[2010] FWA 4404, [34].
[5] Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union[2015] FWCFB 379, [44] – [46].
[6] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368, [31] – [32]; see also Esso Australia Pty Ltd v AMWU, CEPU) and AWU [2015] FWCFB 210, [35].
[7] Witness Statement of Lisa Wilkins, [18], [31].
[8] See, for example, NTEU v Curtin University[2022] FWCFB 204, [51] - [53], in which the Full Bench distinguished between what must be specified in an application for a PABO and what must be specified in a notice of employee claim action.
[9] [2018] FWCFB 4011.
[10] Ibid.
[11] This is, in effect, thirty (30) working days from the date of the Order, as required by the AEC.
Printed by authority of the Commonwealth Government Printer
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