Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Electricity Networks Corporation T/A Western Power
[2024] FWC 2900
•18 OCTOBER 2024
| [2024] FWC 2900 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
The Electricity Networks Corporation T/A Western Power
(B2024/1342)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 18 OCTOBER 2024 |
Application for protected action ballot order – Respondent seeking extension of notice period for the taking of protected industrial action – extension not granted.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission (FWC) under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order for CEPU members who are employed by Electricity Networks Corporation trading as Western Power (Western Power) and who would be covered by the proposed Western Power and CEPU Enterprise Agreement 2024. I granted the application in my decision [2024] FWC 2889 and issued the order in PR780351.
However, Western Power sought an extension of the notice period required for the taking of protected industrial action (PIA) from three days to seven days. The CEPU opposed such an extension. Given this, on 16 October 2024 I conducted a hearing to determine if an extension should be granted. I advised the parties of my decision in the matter of the extension on 17 October 2024 but undertook to provide written reasons as quickly as possible. Those written reasons are set out below.
Legislative Framework
Under s.414(2) of the Act, the notice requirements for the taking of employee claim action are as follows:
(2) [Minimum period of notice] The period of notice must be at least:
a) subject to paragraph (b):
i.if subparagraph (ii) of this paragraph does not apply—3 working days; or
ii.if the proposed enterprise agreement is a multi-enterprise agreement—120 hours; or
b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.
The provisions of the Act dealing with the extension of the notice period are set out in s.443(5), which states as follows:
(5) [When protected action ballot order may specify extended period] 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 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.
From s.443(5) it can be seen that there are three relevant considerations for the FWC in contemplating an extension of the period of notice. Firstly, the circumstances must be exceptional. Secondly, the exceptional circumstances must justify the extension of the period from three days. Thirdly, the FWC retains discretion over the extending of the notice period, even if the first two conditions are met.
Are there exceptional circumstances?
The relevant principles for determining exceptional circumstances were set out by a Full Bench of the FWC in National Tertiary Education Union v Charles Darwin University (NTEU). In that case, the Full Bench found as follows (citations removed):
“The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:
“[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.”
Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).
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.” [1]
Western Power submits that there are exceptional circumstances. In its written material it noted that previous decisions of the FWC had found that exceptional circumstances existed in the context of industrial action being taken in the electrical power industry. In particular, it drew my attention firstly to the decision of Commissioner Cambridge in CEPU v Ausgrid Management Pty Ltd (Ausgrid). In that decision, the Commissioner found that exceptional circumstances existed based on:
“…the potential health and safety implications that may be created for customers of the employer and the general public who rely upon the ongoing provision of electrical supply within the employer’s supply area.”[2]
Western Power also noted the finding of Commissioner Saunders in CEPU v Essential Energy (Essential) where the Commissioner found as follows:
“Essential Energy plainly conducts a business that provides an essential service. Any interruption to the safe supply of electricity by Essential Energy can have a significant impact on individuals and businesses, most particularly where the supply of electricity is needed to power life support equipment or other medical systems and where emergency measures are required to be put into place to ensure that wires, poles and other infrastructure is not left in a ‘live’ state after an accident, storm or other unexpected event. Having regard to all the evidence, I am satisfied that the circumstances concerning the taking of the types of industrial action proposed by the Employees are uncommon and special. I am satisfied on the evidence that the exceptional circumstances criterion is satisfied in this case.”[3]
Western Power also submitted that the period during which industrial action was likely to take place was a period during which it was carrying out its “summer readiness” program. I should note that this contention was not challenged by the CEPU and indeed it is uncontroversial that Western Power has previously experienced significant issues during the peak demand periods of high summer. The significance of this in Western Power’s submission was that the organisation was effectively in a peak period and it noted the finding of Commissioner Platt in Transport Workers’ Union of Australia v ISS Facilitative Services T/A ISS Security (ISS). In that decision the Commissioner found that exceptional circumstances existed and noted as follows:
“This is not a case where the impact of the proposed industrial action solely affects the employer. This would significantly impact the travelling public during the Christmas and New Year holiday period.”[4]
Western Power also noted the findings of Deputy President Wright in Transport Workers' Union of Australia v Virgin Airlines Pty Ltd [2023] FWC 2894 where the Deputy President found that a peak travel period for the airline industry contributed to a finding of exceptional circumstances.
Western Power’s submissions also traversed its operations and how those operations might be impacted by industrial action. It relied upon the witness evidence of Mr Brett Hovingh to buttress such submissions, and I note that the submissions referred to below are in my assessment consistent with that evidence. It noted features of those operations such as the geographically disperse nature of its workforce, with many employees engaged to work in rural areas.
It submitted that stoppages of work with three days’ notice would impact on its “summer readiness” program in that scheduled work could not be carried out as planned but would need to be re-scheduled. Such re-scheduling was submitted to potentially mean the work was not carried out before the impact of summer began to be felt and as such there may be a greater risk of faults. Given that industrial action would impact on the normal performance of planned work but also its ability to respond to unplanned faults, Western Power submitted that there were
“potentially serious implications for the health and safety of the customers of (Western Power) and the general public…”[5]
In additional submissions at hearing, Western Power referred again to the prevailing case law on exceptional circumstances and the definition of that concept. It reiterated its public service function and the importance of the employees who would be taking the action to its overall operation. It also noted the time of year for the proposed action, being in the middle of the preparations for summer. Further, Western Power noted the form of action proposed in the ballot questions. It argued that each of those forms would create significant issues for its operations, particularly in light of the high union density amongst its workforce.
The CEPU provided oral submissions at hearing. In those submissions, the CEPU advanced the view that the circumstances were not exceptional. It proposed that Western Power was relying on inconvenience to customers, and the fact that it would be beneficial to have more time to plan its defensive actions – neither of which in the CEPU’s submission was exceptional in cases of industrial action but instead quite usual and typical. The CEPU further claimed that having a public service function was not unusual and could be attributed to all employers. The CEPU conceded that the particular time when PIA would likely take place was during a peak period but submitted that this was not relevant for the purposes of the notice period for that action. Further, the CEPU suggested that given the “summer readiness” program, it might be the case that the majority of the year might be argued to be a peak period in that Western Power was either preparing for summer or dealing with summer.
Consideration
I have considered the decisions in Ausgrid and Essential as well as the submissions of the parties. I have concluded that the circumstances of Western Power fall into the category of exceptional. Clearly, the provision of electricity is a service that is essential to the operation of almost every facet of modern society and the absence of power is something that can create serious issues, particularly during summer in Western Australia. As a result, I do not think the significance of the provision of power can be discounted in the manner for which the CEPU may have been contending.
While I am not suggesting that the CEPU was in any way trivializing the industry, I do think that if it is the case that all employers are engaged in public service, then there are some whose absence would be felt by the public far sooner and far more keenly than others. Given this, I accept the position of Western Power that there are exceptional circumstances that need to be considered.
Do the exceptional circumstances justify an extension of the notice period?
Western Power submitted that the exceptional circumstances justified an extension of the notice period. It proposed that there was a clear difference between three days’ notice and seven days, as follows (citations to the witness statement of Brett Hovingh removed):
. “If 3 working days' notice is given of the above forms of industrial action:
(a) The Respondent will need to cancel planned work scheduled to be undertaken during the industrial action period. This work cannot be moved up or brought forward, as the minimum customer notification period will not be able to be met. Instead, the cancelled work will need to be rescheduled to a later date. Because of the Respondent's current schedule of work, the planned work may not be rescheduled for some time.
(b) Planned 'summer readiness' work which is scheduled to occur during the industrial action period will not be able to go ahead and will be delayed, increasing the likelihood the Respondent will not complete its summer readiness program before summer starts. The impact of this is that the number of faults in summer is likely to increase.
(c) This will also impact the Respondent's bushfire readiness program, which is designed to address high risk areas and limit the occurrence of bushfires caused by the Respondent's assets.
(d) The Respondent will have limited ability to engage contractors to undertake the work during the industrial action period in place of the Respondent's employees.
(e) Customers who have hired generators to cover for a planned outage may not be able to cancel or reschedule the hire and installation for an alternative date. Customers who have stood down their workforce during the outage will need to recall those workers back to work.
If 7 working days' notice is give of the above forms of industrial action, the Respondent will:
(a) have the option of re-prioritising high priority or high profile planned work (such as summer readiness work) to occur during the notice period, because minimum customer notification requirements can be met;
(b) be able to give more notice of cancelled outages to customers, allowing them to plan and limit the impacts of the rescheduled outage; and
(c)be better placed to engage contractors and arrange for them to travel and perform high priority or high profile work (such as bushfire readiness work) in rural areas during the industrial action period.”[6]
In further submissions at hearing, Western Power reiterated the impact in rural areas of a three-day notice period, drawing on the unchallenged evidence of Mr Hovingh. It drew on Mr Hovingh’s evidence to highlight the limited options for bringing work forward within a three-day period as opposed to a seven-day period. The upshot of this was that the likelihood of the summer readiness program being completed on time was reduced, which then increased the likelihood of faults during summer. Further, Western Power would have a reduced ability to respond to those faults.
Western Power submitted, again drawing on Mr Hovingh’s evidence, that the provision of seven days’ notice would improve the ability to engage suitably qualified contractors for regional areas. It was submitted that seven days would also allow some ability to bring forward some high priority work. Finally, Western Power noted the situation with hospitals. It was uncontroversial between the parties that the impact of industrial action on a hospital would be that there would be no interruption to power supply. Given that the hospitals do not schedule surgery during a planned outage, the action would have the effect of allowing them to actually conduct surgery. Western Power submitted that it was reasonable to conclude that seven days’ notice would provide greater ability to do this than three days, as patients would need to be advised of the change of date for surgery and make themselves available, and the hospital would need to schedule staff to carry out the work.
With respect to justification, the CEPU submitted that there was little justification for an extension. It claimed that many of the points raised by Western Power did not in fact support the need for an extension. The CEPU emphasised that the claims about the impact to people on life support and in similar situations needed to be assessed in light of the reality of any CEPU action, which was that the power would actually stay on, rather than be turned off. Thus, the difference for customers who were expecting planned work with an outage is that they might find out earlier that there would be no outage. The CEPU submitted that there was limited utility in that difference.
The CEPU noted that this observation was made with respect to planned work and planned outages as opposed to unplanned / response work. However, with respect to response work, the CEPU noted that Western Power’s target response time was forty-five minutes. The CEPU observed that such time might lend itself to a notion that there should be no industrial action, but it did not suggest that there was any utility in a longer notice period.
The CEPU also addressed the submission and evidence that longer notice might allow some high priority work to be brought forward. It noted that in cross-examination Mr Hovingh had stepped away somewhat from this proposition and that it was clear that moving planned work around was difficult. As such, it was submitted that the FWC could be comfortable inferring that there would not be any significant movement of work with additional notice. In any case, if work was brought forward, it would logically suggest that other planned work would need to be cancelled. As a result, the CEPU suggested that there would be no significant impact on the summer readiness program outcomes as a result of extended notice being required.
With respect to Western Power’s contention that additional notice would assist with securing contractors, the CEPU noted that this was an argument that essentially said more notice is better, which it submitted was true in most situations and thus not an argument of itself. It noted further that Western Power was at liberty to commence preparations immediately to address this potential issue.
In addressing Western Power’s submissions with respect to hospitals and bringing forward surgery, the CEPU, while conceding that three days was probably not sufficient, nevertheless noted that there was no evidence that seven days would be sufficient or indeed any evidence of how long it might take. The CEPU submitted that while clearly more notice is better, this does not provide sufficient grounds for an extension.
The CEPU also conceded that safety issues around emergency work were unresolved - albeit that it evinced an intention to grapple with those issues – but noted that s.424 of the Act was available to deal with those issues.
In response to the CEPU’s submissions, Western Power proposed that the lack of a safety commitment as part of the order was a relevant factor for the FWC to consider. Western Power submitted that in an emergency situation – particularly in a remote rural area – the problem needs to be dealt with immediately. If PIA was underway and there was no commitment to deal with emergencies, then this created a serious problem. While conceding the CEPU’s point that the length of notice would have no bearing on this issue directly, Western Power nevertheless proposed that the additional notice would give them greater time to engage with a contractor and to get that contractor’s workforce into the rural areas.
Consideration
In examining the justification issue I will deal with the issues of planned work and unplanned / emergency work separately. In the case of planned work, I am mindful of the CEPU’s observation that with respect to such work, if CEPU members take action then the upshot of this is that the power stays on. Any planned outages are put on hold and so the power user has no interruption to their supply. Western Power has identified some potential issues that may flow from this. Firstly, it identifies that some customers may have taken preparatory steps to mitigate the anticipated loss of power and in doing so incurred costs or inconvenience. I am not satisfied that such examples and evidence as were provided are sufficient to justify an extension of time. Western Power also notes the example of hospitals and the lost opportunity created by the power not being turned off.
With respect to this, there was no compelling evidence that seven days – albeit conceded to be better than three days – would be sufficient to allow the hospital to re-schedule surgery to what was previously a day where surgery could not be performed. Nor was any evidence tendered to demonstrate that there were in fact any planned outages for hospitals in what could reasonably be assumed to be the initial period of likely action based on the ballot close date and the effect of s.459(1)(d). Given this, I can find no justification for an extension in this submission.
Western Power also gave evidence and submitted that its summer readiness program would be at risk and that a seven days’ notice period might allow it to bring forward some work. I did not find this submission to be particularly compelling. After cross-examination I formed the view that it was likely that such work as might be able to be brought forward with extra notice – requiring the work previously scheduled for that time to be delayed – was at the margins and unlikely to make any significant difference. I am satisfied that it is the amount of action taken, rather than the notice provided, that will have the most impact on the progress of the summer readiness program and the bushfire readiness program.
This observation also goes to Western Power’s submissions about having to cancel other planned work which would then not be able to be called forward and would have to be delayed until a later time. It is to be presumed that no matter what notice is given, some work will not be done and will have to be moved to a later time. I am again not satisfied that the extension of notice will fix this problem. Extended notice may move the problem to work that would have been done on the days falling at the end of the seven day notice rather than the work to be done at the end of three day notice period. However, given the evidence about how much work could be moved forward with the extra notice, I do not think there is justification for an extension.
In considering the impact on unplanned / emergency work, I take the view that any action irrespective of notice will create issues in this circumstance given the need for a forty-five minute response. However, I am mindful that Western Power did suggest that the problem is exacerbated in rural areas, and that seven days’ notice is more likely to allow it to make arrangements with contractors than three days' notice. I note however that Mr Hovingh’s evidence was that the extra notice would give:
“…them more time to reallocate and mobilise their workers…”[7]
This to me does not equate to a statement that such workers cannot be mobilized in three days – it is merely a self-evidence statement that more notice gives more time. Given this, I cannot be satisfied that the additional notice will make a difference. I also note that if I accept that Western Power is required to operate from a standing start then this might mean that the self-evident statement takes on a greater significance. However, it has four full weeks before any action can take place. There is no reason it cannot speak with its contractors about potential action and how that might be addressed long before any action could take place. There is no reason it cannot make contingency plans with those contractors and advise them that it may have a need to call on them - not with no notice but with three full working days of notice. Such early engagement should allow Western Power to at least be aware of those areas that may present additional difficulty and decide now how it will deal with them if and when employee action takes place.
The submission seems premised on the idea that Western Power would not seek to engage with those contractors as early as possible but rather would wait until it was actually served with the notice of employee action and only then address the issue. I doubt this is a realistic scenario. I concede that even with early engagement with the contractors there may still be problems. This is not unusual in cases where industrial action is taken. However, I am not persuaded that providing extra notice of the action at the time is going to necessarily improve the outcomes for Western Power with respect to this issue.
Conclusion
In summary, I am not satisfied that there is sufficient justification to extend the notice period required for PIA, even though exceptional circumstances exist. On that basis, I will not exercise my discretion to extend the notice period and the requirement for notice will remain three working days as per s.414(2)(a)(i) of the Act.
DEPUTY PRESIDENT
Appearances:
J Fox for the applicant.
B Pole of MinterEllison for the respondent.
Hearing details:
2024.
Perth (by video):
October 15,16.
[1] National Tertiary Education Union v Charles Darwin University [2018] FWCFB 4011 at [21] – [23]
[2] CEPU v Ausgrid Management Pty Ltd [2021] FWC 3023 at [9]
[3] CEPU v Essential Energy [2021] FWC 6128 at [44]
[4] Transport Workers’ Union of Australia v ISS Facilitative Services T/A ISS Security [2016] FWC 8006 at [6]
[5] Western Power’s Submissions page 4 paragraph 28
[6] Western Power’s Submissions page 5 paragraphs 31 - 32
[7] Witness Statement of B Hovingh page 11 paragraph 70(c)
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