NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied..
[2024] FWC 1704
•1 JULY 2024
| [2024] FWC 1704 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2024/4307)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 JULY 2024 |
Alleged industrial action at NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid.
The NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid (Transgrid) made an application pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order to stop unprotected industrial action (the Application) being undertaken by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), including office-holders and delegates of CEPU who are employees of Transgrid (CEPU Delegates), and Employees of Transgrid who are members of CEPU who are covered by the TransGrid Enterprise Agreement 2020 (the Employees).
The Application was made at 08:13AM (Sydney Time) on 27 June 2024. Accordingly, as far as practicable, the Commission must determine the Application by midnight on 29 June 2024[1]. The matter was first listed for Hearing at 10.00am on 28 June 2024, with that Hearing subsequently relisted by consent to 12.00pm on 28 June 2024.
On Friday, 28 June 2024 following the Hearing my Chambers issued the following email to the parties:
Deputy President Cross has decided to Dismiss the Application. The reasons for this will be published in a Decision by 4:00PM on Monday, 1 July 2024.
Background
Since 13 June 2023, Transgrid and the CEPU have been negotiating for a proposed enterprise agreement (the Proposed Agreement).
The CEPU have been engaging in industrial action since January 2024. The CEPU has obtained a series of protected action ballot orders (PABOs).
The CEPU have issued notices of protected industrial action on the following dates:
(a) 29 December 2023
(b) 10 January 2024
(c) 2 February 2024
(d) 8 March 2024
(e) 18 March 2024
(f) 22 March 2024
(g) 5 April 2024
(h) 3 June 2024
(i) 5 June 2024
(j) 7 June 2024
(k) 19 June 2024
This Application relates to the Notice of Industrial Action dated 5 June 2024 (the Notice), which in particular provided:
Commencing Wednesday 12 June 2024
1. On 12.00am Wednesday 12 June 2024 and each day following commencing at 12.00am, subject to the Safety Commitment described below, the following 24 hour bans:
(a) A ban on Field staff amending or rectifying issued designs that would have otherwise required certification from a qualified engineer (Protection, Control, Automation, Secondary, Primary, Transmission Line Design). Including but not limited to Schematic Diagrams, Wiring & Connection Diagrams, Cable Schedules, Label Schedules, Relay Test Instructions, Relay Setting Files, Meter Test Instructions, Control System Databases.
(b) A ban on implementing changes for, commissioning or testing related to new plant and apparatus.
(c) A ban on witnessing or accepting contractor delivered work or commissioning.
(d) A ban on implementing changes for, commissioning or testing for customer or third party connections.
(Bans)
Transgrid manages and operates a high voltage transmission network (HVTN) through its control room. The control room operates 24 hours a day, 365 days a year. The control room is equipped with technology (including the 'supervisory control and data acquisition system (SCADA)) that allows operators to:
(a) manually regulate the voltage profile across the HVTN. This allows the HVTN to remain secure after a fault or other disturbances on the network, such as a lightning strike. This will minimise energy losses on the network and increase the efficiency of power flow;
(b) open and close circuit breakers to turn power on and off to parts of the HVTN. This is for the purpose of allowing work to occur on the network (planned and reactive), and in the case of emergencies; and
(c) monitor the behaviour of the HVTN and respond to alarms or issues as they arise in real time.
Between 12 June 2024 and 19 June 2024 (inclusive), none of the SCADA officers or employees otherwise associated with the Control room engaged in any of the Bans, with the exception of Mr Scott Sherrell, a Substations Technician based in Tamworth, who is a member of the Field Staff team. Mr Sherrell advised by email on 12 June 2024, that he would “partake in PIA today, Wednesday the 12/6/2024”.
Subsequently;
(a) On 20 June 2024, Mr Manoj Sinha sent an email advising he would be participating in Bans (b) and (d) of the Notice from 3 pm that day “…onwards until two hours”; and
(b) On 21 June 2024, Mr Tim Price sent an email advising he was participating in Bans at (b), (c) and (d) of the Notice “from today”.
On 25 June 2024, Transgrid became aware that five SCADA officers were planning to take industrial action in the form of the Bans, in relation to implementing changes for, commissioning or testing for customer or third party connections. That industrial action would have a particular impact on the Waratah Super Battery (WSB) project, which is a large scale battery, commissioned by the New South Wales Government and located the former Munmorah coal-fired power station.
The WSB is due to be put into service in the coming months and needs to be incorporated into the SCADA system. Part of that work was due to be performed on 26 June 2024 and following.
On 25 June 2024:
(a) At around 11 :27am, Mr Greg Phillips, Senior SCADA Maintenance Officer, sent an email to Mr Neil Sharman, SCADA Commissioning Lead, advising that he would be taking the following actions “from today”.
(b) At around 12:36pm, Mr Sharman responded to Mr Phillips and copied in five other SCADA officers, seeking their confirmation as to whether they would be engaging in protected industrial action.
(c) Between around 12:45pm and 2: 18pm, each of the five employees responded to Mr Sharman confirming they would also be engaging in the same industrial action.
Regarding work relating to the Bans, SCADA officers have engaged in work that would have been subject of the Bans between 12 June 2024 and 25 June 2024.
Transgrid’s Submissions
Transgrid maintains that the Bans will not be protected industrial action within the meaning of the Act as they are not within description in the Notice.
Transgrid submits it is clear from the Notice that the Bans were to commence at a specific time and day for consecutive 24 hour periods. Nothing in the Notice indicates that the Bans were to be undertaken on an intermittent or rolling basis or that one or more and not all the employees would be taking industrial action at the specified times for the specified period. However, subject to the exception of Mr Sherrell, no industrial action in accordance with the Notice commenced on 12 June 2024.
Rather, the practice of the CEPU members has been to notify Transgrid on the day that they were to participate in the Ban. In particular, on 25 June 2024, six CEPU members (being SCADA officers) gave notice that they would be taking the Bans that day. None of these emails gave 3 working days' notice, and they were effective that day. The same approach was taken a week earlier by Mr Sinha and Mr Price on 20 and 21 June 2024 respectively.
Transgrid submitted that it is apparent that the Bans are not operating as any form of continuous ban as specified in the Notice, and they are in fact bans which are applied randomly and periodically by individual employees on notice to Transgrid with effect on the day they are applying the Ban. Transgrid submitted that it can be readily inferred that this is co-ordinated by the CEPU.
Transgrid submitted the Bans are not protected action because:
(1) The Bans are not within the description of the nature and timing of the industrial action specified in the Notice. The Notice specifically states that the Bans were to commence on a specified time and would be continuous after their commencement on 12 June 2024, because ban starts at 12.00am on each day. The Notice refers to an ongoing ban. The Notice also suggests that the Bans will be taken by a collective group of employees who meet the description of the CEPU being their bargaining representative and being covered by the proposed enterprise agreement
(2) Pursuant to Section 414(6), the Notice "… must specify the nature of the action and the day on which it will start." The Notice does not comply with these requirements, insofar as the Bans were concerned. While the Bans commenced on 25 June 2024, the Notice referred to a commencement of 12 June 2024.[2] Transgrid submitted that the Notice does not, and cannot, permit the CEPU members, individually or as a collective, to impose the Bans at their discretion, at various random times of their choosing sometime after the specified commencement date and on a non-continuous basis.
Transgrid submitted “The CEPU cannot issue notices as a 'blank cheque' – one day, on a day of its choosing, deciding to take the industrial action notified. This would be entirely inconsistent with section 414(6) and entirely inconsistent with authorities cited above”, and that “The practical effect of the notice is that Transgrid must either overprepare for the prospect of industrial action without knowing when it may be taken and for how long or simply not be able to prepare at all”.
CEPUs Submission
Regarding criticisms by Transgrid of inadequate specificity in the Notice, the CEPU referred to the decision of the full bench of the Commission in Energy Australia Yallourn Pty Ltd v CFMEU,[3] where it held:
It is not necessary for the notice to contain precise details of when and how every future act or omission will occur or may occur. The specificity the Appellant seeks would constitute, in terms used in David’s Distribution, a major and unrealistic constraint on the protected industrial action that could be taken.
The enquiry the Commissioner undertook as to the adequacy of the notice in this case was consistent with the approaching Telstra in that she considered the nature of the Appellant’s operations, the location where the action would occur and its timing and the type of employees who would participate.
In this matter the CEPU submitted that Transgrid knows the nature of its own operations, the location where the action will occur, when the actual start, nature and type employees may participate. Transgrid cannot contend that it does not have the opportunity to respond to the action by making relevant preparations.
Regarding the Applicant’s submission that the Notice is otiose, the CEPU noted that Transgrid does not challenge the description of the nature of the action in the Notice. The Notice includes a start date and is valid.
The CEPU noted the purpose of the Notice was described by the Full Bench in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union[4] (Theiss) as follows:
… That is, the provision of the required notice is a condition precedent for the taking of the industrial action. The practical effect of the provision is that an employee who intends to undertake or participate in industrial action must ensure, or be satisfied, that his or her bargaining representative has provided the requisite notice. Any failure to provide the requisite notice will mean that the industrial action, if taken, will not be protected and thus will not enjoy immunity under s.415.
The CEPU submitted that Full Bench also specifically noted that it has never been suggested that a requirement to give notice of protected industrial action is also to be understood as carrying with it an obligation for employees to engage in the conduct specified in the notice.
Consideration
The starting point is the construction of the Notice. The relevant question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the Notice.[5] The Notice provided:
Commencing Wednesday 12 June 2024
1. On 12.00am Wednesday 12 June 2024 and each day following commencing at 12.00am, subject to the Safety Commitment described below, the following 24 hour bans:
[Emphasis added]
The bans are clearly 24 hour bans, which may commence at 12.00am on 12 June 2024, and each day following. The emphasis on “may” arises from the decision of the Full Bench in Thiess[6], where the Full Bench found it has never been suggested that a requirement to give notice of protected industrial action is also to be understood as carrying with it an obligation for employees to engage in the conduct specified in the notice. The Full Bench found the opposite conclusion was stated in the Full Bench decision in Boral Resources (NSW) Pty Ltd,[7] where another Full Bench observed:
There is no doubt that the notice requirements in s. 414 are an important part of the scheme of the Act relating to industrial action and provide the employer with an opportunity to take defensive action as may be appropriate to protect its business and custom. Part of the consideration of what defensive action to take will include an assessment of the likelihood of the industrial action being taken. This might cover the possibility of early agreement being reached either as to issues in dispute or the process of addressing those issues as well as the possibility of some or all employees deciding for whatever reasons not to take part in the action. The assessment might also involve consideration of past practice and experience between the parties in relation to bargaining and the taking of industrial action. However there is no legislative requirement that industrial action once notified must be taken and, as the Senior Deputy President noted in her decision, it is not unusual in the current bargaining regime and that under the WR Act for notices to take protected industrial action to be withdrawn or not acted upon.
[Emphasis of Theiss Full Bench]
Pursuant to the Notice, action could commence at 12.00am Wednesday 12 June 2024, or any day following commencing at 12.00am. The bans were clearly not continuous, but were separate, possible, 24 hour bans.
Transgrid relied on what it described as the events subsequent to provision of the Notice to impugn the Notice and the protected nature of any action. However, but for the actions of Mr Sinha on 20 June 2024, which themselves may have been an expression of his shift times in the period of a 24 hour ban, such subsequent events were in accordance with the Notice. In particular:
(a) Mr Sherrell engaged in the Bans on 12 June 2024; and
(b) When on 25 June 2024, Mr Bradbury and Mr Sharman became aware that five SCADA officers were planning to take industrial action in the form of the Bans, that would have a particular impact on the WSB project, they sought and received confirmation from the five SCADA officers that they would be engaging in the protected industrial action.
Indeed, the conduct of Transgrid outlined in paragraph (b) of the above paragraph, is consistent with it taking steps to arrange its operations in response to the Notice so as to minimise the disruption of any protected industrial action.
Nothing in the terms of the Notice indicates that the Bans will be collectively, as opposed to individually, imposed. The Notice is simply compliance with s.414(1) of the Act, and is written notice by the CEPU, as a bargaining representative of employees of Transgrid for whom the CEPU is the bargaining representative, that those employees intend to take protected industrial action as outlined.
The complaint of Transgrid appears to relate, at least in part, to the notification of, yet failure to undertake, notified industrial action. As noted above, there is no obligation to undertake notified industrial action, and it has been observed that such conduct can be used as a disruptive tactic in negotiations.[8] Were an allegation of such conduct advanced, there are available avenues to address such allegations pursuant to the Act.
Conclusion
I am not satisfied that the Bans specified in the Notice are not, or would not be, protected industrial action. Accordingly, there arises no obligation to order a stop to such action.
Accordingly, the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Seck of Counsel on behalf of the Applicant.
Mr G Jolly on behalf of the Applicant.
Mr I Latham of Counsel on behalf of the Respondent.
Mr A Kentish on behalf of the Respondent.
Hearing details:
Sydney.
28 June 2024.
In-Person.
[1] S.420(1) of the Act.
[2] Davids Distribution Pty Ltd v National Union of Workers (1999) 91 IR 198 at [84]; Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601; 113 IR 104, at [24].
[3] (2013) 233 IR 223.at [59] and [60].
[4] [2015] FWCFB 55303 at [68].
[5] Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304, at [86].
[6] Theiss at [75].
[7] [2010] FWAFB 1771; (2010) 193 IR 286, at [14].
[8] Theiss at [76] and [77].
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