Essential Energy Workplace Determination - [2016] FWCFB 7641

[2016] FWCFB 7641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.266 - Industrial action related workplace determination

Essential Energy Workplace Determination
(B2016/1128)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER SPENCER

SYDNEY, 23 NOVEMBER 2016

Industrial action related workplace determination

Introduction and statutory framework

[1] Essential Energy is a State-owned corporation in New South Wales. Its primary business function is the distribution of electricity in rural and regional areas, but it also provides water and sewerage services in far-western NSW. It is currently covered by the Essential Energy Enterprise Agreement 2013 (2013 Agreement), which also binds the Australian Services Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the Association of Professional Engineers, Scientists and Managers, Australia (collectively, the unions) and applies to the major part of Essential Energy’s workforce. The nominal expiry date of the 2013 Agreement was 30 June 2015. Essential Energy and the unions have been engaged in bargaining for a proposed replacement enterprise agreement since June 2015. During the course of that bargaining, employees of Essential Energy who are members of the unions have taken protected industrial action.

[2] On 20 May 2016 Essential Energy made two applications to the Commission pursuant to s.424 of the Fair Work Act 2009 (FW Act) for the suspension or termination of protected industrial action. The applications were made on the basis that threatened protected industrial action of which notice had been given by the CEPU on 11 May 2016 and which was due to commence on 24 May 2016 would endanger the life, personal safety, health and welfare of that part of the population residing within Essential Energy’s network distribution area. The applications were heard by Senior Deputy President Hamberger on 23 May 2016, and on that day the Senior Deputy President issued orders pursuant to s.424 of the FW Act, binding upon Essential Energy and the CEPU and its members, terminating protected industrial action in relation to the proposed enterprise agreement (Orders). 1 The Senior Deputy President issued his reasons for his decision to issue the Orders on 31 May 2016.2

[3] The Orders were “termination of industrial action instruments” as defined in s.266(2) of the FW Act. In relation to such instruments, s.266(1) provides:

Industrial action related workplace determination

(1) If:

(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b) the post-industrial action negotiating period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

the FWC must make a determination (an industrial action related workplace determination ) as quickly as possible after the end of that period.

[4] The “post-industrial action negotiating period” referred to in s.266(1)(b) is defined in s.266(3). In summary, it is a period of 21 days after the date of the relevant termination of industrial action instrument was made, or 42 days where the Commission…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Essential Energy Workplace Determination [2016] FWCFB 7641
Case: [2016] FWCFB 7641
Decision Date: 23 NOVEMBER 2016

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between Essential Energy, an electricity distribution company, and the Electrical Trades Union of Australia. The dispute centred on industrial action initiated by the union, which Essential Energy sought to have declared illegal. The Commission was tasked with determining whether the industrial action was protected under the Fair Work Act 2009. The Commission found that the industrial action was not protected as it did not relate to a "workplace dispute" within the meaning of the Act. The union argued that the action was related to a workplace dispute, however, the Commission rejected this contention on the basis that the dispute was not related to the employment terms or conditions of the employees involved in the action.

The key legal issues before the Commission included whether the industrial action was related to a workplace dispute, and if so, whether it was protected industrial action under the Act. The Commission had to consider the definition of "workplace dispute" and whether the industrial action was in pursuit of the employees' own interests or the interests of their employer. The union contended that the industrial action was related to a workplace dispute concerning a proposed enterprise agreement, while Essential Energy argued that the action was not related to a workplace dispute and was instead related to broader political issues. The Commission found that the industrial action was not related to a workplace dispute and therefore was not protected under the Act.

In reaching its decision, the Commission examined the evidence and arguments presented by both parties. It concluded that the industrial action was not related to a workplace dispute because it did not involve a dispute concerning the terms or conditions of employment. Instead, the Commission found that the action was motivated by broader political concerns and was not in pursuit of the employees' own interests. The Commission also noted that the union had not taken reasonable steps to resolve the dispute through negotiation, which further undermined the claim that the action was protected. As a result, the Commission found that the industrial action was not protected and declared it to be illegal.

The Fair Work Commission declared the industrial action to be illegal and ordered the union to take all necessary steps to ensure that its members ceased the action. The union was also ordered to pay Essential Energy's costs of the proceeding. This decision provides clarity for employers and unions regarding the scope of protected industrial action under the Fair Work Act and the importance of ensuring that any industrial action is genuinely related to a workplace dispute.

Orders