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 2841

[2024] FWC 2841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

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, Mining and Energy Union, Australian Municipal, Administrative, Clerical and Services Union, the Community and Public Sector Union, and Professionals Australia

(B2024/1006)

DEPUTY PRESIDENT GRAYSON SYDNEY, 14 OCTOBER 2024

Application for an intractable bargaining declaration in relation to the proposed Transgrid Enterprise Agreement 2023

Introduction

1. NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid (Transgrid or Applicant) has applied for an intractable bargaining declaration (Declaration) pursuant to s.234 of the Fair Work Act 2009 (Cth) (Act) in relation to bargaining for the Transgrid Enterprise Agreement 2023 (Proposed Agreement).

1. The Respondents to the application are the:

(a)Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);

(b)Mining and Energy Union (MEU);

(c)Australian Municipal, Administrative, Clerical and Services Union (ASU);

(d)the Community and Public Sector Union (CPSU); and,

(e)Professionals Australia (Professionals Australia)

(together, the Union Parties).

1. During bargaining Mr Michael Moroney was appointed as an individual bargaining representative. He has not been actively engaged in bargaining since January 2024.

Introduction and Declaration

1. The matter was listed for mention/directions on 19 August 2024 and on 2 October 2024.

1. At the time of the first mention/directions hearing the Union Parties opposed the making of the Declaration. Following the second mention/directions hearing, Transgrid and the Union Parties made submissions that I could and should determine the application on the basis of an Agreed Statement of Facts (ASOF), that the Declaration should be made and that a post-declaration negotiating period of seven days should be ordered.

1. On 9 October 2024, Transgrid and the Union Parties filed submissions and an ASOF accompanied by a bundle of relevant documents.[1] By way of the consent position provided to the Commission on 3 October 2024 and as identified in the agreed statement of facts, the parties submitted that I could, and should, determine the application on the basis of the agreed statement of facts and without the need for a hearing.

1. For the reasons that follow I have made an intractable bargaining declaration in relation to the Proposed Agreement which specifies a post-declaration negotiating period from 14 October 2024 to 21 October 2024.

Factual Background

1. The factual background, as relevant to the determination of this matter, is uncontested and is summarised in the following paragraphs.[2]

1. Transgrid is the manager and operator of the High Voltage Transmission Network (HVTN) in New South Wales and the Australian Capital Territory. The HVTN transmits electricity from generators of electrical power to distributors (who in turn distribute to consumers), other states and some major end users.

1. Transgrid employs approximately 1764 employees. Of these, approximately 1420 employees are covered by the Transgrid Employees Agreement 2020 (2020 Agreement).

1. Transgrid has been negotiating a new enterprise agreement to replace the 2020 Agreement. On 13 June 2023 Transgrid initiated bargaining for the Proposed Agreement. Each of the Union Parties, and Mr Moroney, at least until January 2024, have been involved in negotiations.

1. The 2020 Agreement passed its nominal expiry date on 1 December 2023.

1. Since July 2023, there have been 32 bargaining meetings in relation to the Proposed Agreement.[3]. In addition, there have been several meetings with control room bargaining representatives to discuss control room-specific matters, as well as various conciliations convened by the Commission pursuant to s.240 or s.448A of the Act.

1. On 15 August 2023, the Union Parties provided their log of claims. The log included 28 claims for improvements to wages and conditions, along with at least a further 12 claims relating to employees based in Transgrid’s control room.

1. Between 20 December and 22 December 2023, Transgrid put an enterprise agreement to a vote of employees. A majority of eligible employees who voted in the ballot rejected the agreement.

1. The CEPU and Professionals Australia have been organising industrial action since January 2024 and their members have been engaging in such action since that time.

1. By 19 March 2024, further bargaining reduced the outstanding unresolved claims of the Union Parties to essentially five items.

1. On 16 April 2024, the CEPU filed an application for bargaining orders. The application sought orders that Transgrid provide the CEPU with information which the CEPU claimed was relevant to bargaining. Transgrid and the Union Parties participated in a conference before Deputy President Slevin on 7 August 2024, after which the application was unable to be resolved and the matter proceeded to hearing. Deputy President Slevin issued bargaining orders on 19 August 2024, which required Transgrid to provide the CEPU with certain information it sought in relation to the ongoing bargaining between the parties.[4]

1. On 3 June 2024, Transgrid filed an application for the Commission to deal with a bargaining dispute pursuant to s.240 of the Act.

1. On 11 June 2024, Deputy President Easton convened a s.240 conciliation conference. Transgrid and the Union Parties attended and participated in that conference. No agreement was reached regarding the terms of an enterprise agreement to be put to vote.

1. Between 22 and 26 July 2024, Transgrid put its Proposed Agreement (which it described as its ‘best and final offer’) to a vote of employees. The majority of eligible employees who participated in the ballot rejected the Proposed Agreement.

1. In July and August 2024, the Commission ordered two separate suspensions of protected industrial action being organised by the CEPU under section 424 of the Act.[5] An appeal against the first suspension was unsuccessful, while an appeal against the second suspension was successful. Transgrid did not ultimately press the redetermination of its application for suspension.[6]

1. On 11 September 2024, Transgrid filed an application pursuant to s.418 of the Act for orders to stop industrial action. That application was listed for hearing on 13 September 2024. Prior to the hearing, the CEPU advised that it had directed its members to immediately comply with any direction to perform ‘emergency work’ (which had a meaning agreed between the parties) even if they were unsure that the work was emergency work unless it was obviously not emergency work. On this basis, at the commencement of the hearing on 13 September, Transgrid withdrew its application.

1. On 7 August 2024, Transgrid filed the current application for an intractable bargaining declaration.

Outstanding Claims

1. It is necessary to outline the outstanding claims as these form the basis for Transgrid’s contention that the bargaining is intractable.

1. Transgrid and the Union Parties’ joint position is that, at a high level, the following items remain not agreed as at the time of this decision:

(a)Wages – noting that there is a disagreement between Transgrid and the Union Parties about whether superannuation has been agreed or whether it remains part of the overall wages package and has not been agreed;

(b)Overtime (which is a claim by the Union Parties for all overtime to be at double time);

(c)Working from home arrangements (a claim by the Union Parties for the inclusion of a provision entitling employees to work from home, and requiring Transgrid to consult about any change to these arrangements);

(d)Arrangements for the contracting out of work (a claim by the Union Parties in relation to the oversight of the qualifications and skills of contractors engaged by Transgrid);

(e)Income protection insurance (a claim by the Union Parties));

(f)The nominal term of the Proposed Agreement; and

(g)Backpay.[7]

1. According to the ASOF, the positions of the parties regarding each of the outstanding claims can be summarised as outlined in the following paragraphs.

Wages, superannuation, backpay and the nominal term of the Proposed Agreement:

1. On 4 April 2024, the Unions made their most recent offer which included the following position on wages:

(a)Wage increase of 6.5% in year 1;

(b)Wage increase of 6.5% plus a superannuation increase of 0.5% in year 2; and

(c)Wage increase of 6.5% plus a superannuation increase of 0.5% in year 3.

1. On 18 June 2024, Transgrid made an offer which it described as its ‘best and final offer’, which included the following position on wages:

(a)Wage increase of 5% in year 1;

(b)Wage increase of 4% plus a superannuation increase of 0.5% in year 2; and

(c)Wage increase of 4% plus a superannuation increase of 0.5% in year 3.

1. This offer included the following two additional concessions, conditional on a successful ballot of employees in July 2024:

(a)the first wage increase to be effective from 1 December 2023 for salary point employees on base salary, field allowance, and general-purpose allowance; and

(b)a one-off $1500 gross sign on payment for all employees covered by the Proposed Agreement.

1. It is Transgrid’s position that this offer is at the very outer limit of what it can offer, given the regulatory framework within which it operates and the limits of Transgrid’s funding under the Transgrid 2023–2028 Transmission Determination, an instrument made by the Australian Energy Regulator. This is disputed by the Union Parties.

1. Transgrid’s current position is that the concessions outlined in [30] are no longer part of its position in bargaining and accordingly:

(a)There is no sign-on payment on offer; and,

(b)The first wage increase under any agreement should apply from the commencement of the Proposed Agreement.

1. The Union Parties’ current position on wages is for the first increase to commence from 1 December 2023. The Union Parties’ position is that the parties agreed for the agreement to have a nominal expiry date of 1 December 2026. However, Transgrid’s position is that the nominal expiry date is no longer agreed.

1. The Union Parties have not made any offer on wages since 4 April 2024 and their position remains as outlined above at [28]. The Union Parties’ position is that a superannuation increase of 0.5% in year 2 and 0.5% in year 3 has been agreed to between the parties. Transgrid’s position is that superannuation is part of the overall wages position – which has not been agreed.

Overtime

1. The Unions maintain a claim that all overtime on Saturdays should be paid at 200%. Transgrid’s position is that there should be no change to overtime under the Proposed Agreement. This position has been immutable during negotiations.

Working from Home

1. The Union Parties seek the inclusion of a new ‘remote working’ clause to provide commitments on certain principles and arrangements when employees are working from home.

1. Transgrid does not agree to a clause being included in the Proposed Agreement in relation to working from home, and considers that the matter is dealt with adequately through existing policies. Its position is that the Proposed Agreement should not prescribe any entitlements to work from home. This position has remained unchanged throughout negotiations.

Contracting Out

1. The Union Parties’ position is that they seek a provision in the Proposed Agreement to require Transgrid to ensure that all persons (including employees, contractors and labour hire workers) are appropriately qualified and skilled to work on interconnectors, transmission towers, transmission lines and other works associated with the transmission of electricity, including by holding a number of specific qualifications.

1. Transgrid’s position is that the current clause in the 2020 Agreement provides sufficient employee protection on the use of contractors. It has held this position throughout negotiations.

Income Protection

1. The Union Parties maintain a claim that the Proposed Agreement should provide for Transgrid to facilitate payroll deductions for income protection insurance premiums for employees covered by the Proposed Agreement (with employees meeting the cost of the premiums).Transgrid does not agree to the inclusion of a clause in the Proposed Agreement in relation to income protection. Transgrid has proposed a policy that would provide for an opt-in self-funded scheme, administered by Transgrid by way of payroll deductions.

Statutory Framework

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) repealed the former serious breach declaration provisions of the Act and replaced them with a new scheme of provisions relating to intractable bargaining declarations,[8] with effect from 6 June 2023. This scheme is contained in Subdivision B of Division 8 of Part 2-4 of the Act.

1. Section 234 of the Act deals with the circumstances in which an application for an intractable bargaining declaration may be made:

234  Applications for intractable bargaining declarations

(1)    A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.

Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.

(2)    An application for an intractable bargaining declaration must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

1. Section 235 of the Act provides as follows:

235  When the FWC may make an intractable bargaining declaration

Intractable bargaining declaration

(1)The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a)   an application for the declaration has been made; and

(b)  the FWC is satisfied of the matters set out in subsection (2); and

(c)   it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(2)The FWC must be satisfied that:

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC’s processes to deal with the dispute; and

(b)  there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c)   it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

What declaration must specify

(3)The declaration must specify:

(a)   the date it is made; and

(b)  the proposed enterprise agreement to which it relates; and

(c)   any other matter prescribed by the procedural rules.

Operation of declaration

(4)The declaration:

(a)   comes into operation on the day it is made; and

(b)  ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

End of the minimum bargaining period

(5)The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a)   if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following:

(i)the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii)the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b)  the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6)For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a)   if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or

(b)  otherwise—the notification time for the proposed agreement.

1. Section 235(1) confers upon the Commission a discretionary power to make an intractable bargaining declaration if all of the preconditions set out in paragraphs (a), (b) and (c) are met. The precondition in s. 235(1)(a) for an application for the declaration to have been made connotes a valid application that conforms with the requirements of s. 234.[9]

1. The requirement in s. 235(1)(c) is that the ‘minimum bargaining period’ has ended. The minimum bargaining period as defined in s.235(5) is the later of:

·     the day that is 9 months after the nominal expiry date(s) of the existing agreement(s); or

·     the day that is 9 months after the day that bargaining starts, being the ‘notification time’ for the proposed agreement.

1. Whether the minimum bargaining period has ended is essentially an issue of fact.[10] The notification time for a proposed agreement is as set out in s.173(2). The issue of the Notice of Employee Representational Rights (NERR) in respect of a single-enterprise agreement (other than a greenfields agreement) must occur not later than 14 days after the notification time for such an agreement, so the fact that the NERR has been issued will usually be a reliable indicator that the notification time has already occurred.[11]

1. The second precondition in s.235(1)(b) requires the Commission to be ‘satisfied’ as to each of the matters in paragraphs (a)-(c) of s.235(2) before making a declaration. Those matters are that:

   (a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC’s processes to deal with the dispute; and

   (b)    there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

   (c)    it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

2. Satisfying the criteria in s.235(2)(a) requires a finding of fact that the Commission has dealt with the dispute about the agreement under s. 240, and that the Applicant for the intractable bargaining declaration has participated in the Commission’s processes to deal with the dispute.[12]

1. Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is ‘no reasonable prospect of agreement being reached’ if an intractable bargaining declaration is not made.[13]

1. Section 235(2)(c) requires the Commission to make a further evaluative judgment, in relation to whether it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement.[14] The ‘reasonable in all the circumstances’ criterion requires an assessment of what is ‘agreeable to reason or sound judgment’ in the context of the relevant matters and conditions accompanying the case.[15] The requirement to take into account the views of the bargaining representatives means that their views must be treated as a matter of significance, but not necessarily a determinative consideration, in the assessment of whether it is reasonable in all the circumstances to make the determination sought.[16]

1. Where the Commission is satisfied as to each of the matters in paragraphs (a)-(c) of s.235(1), it retains a residual discretion as to whether an intractable bargaining declaration is actually made. However, it is difficult to identify what discretionary matters might remain for consideration if the Commission has already satisfied itself as to the criteria in s.235(2).[17]

1. Section 235(3) provides the matters which must be specified in the declaration. Section 235A provides that the Commission may, if it considers it appropriate to do so, specify a period in the declaration called a ‘post-declaration negotiating period’. Item 847 of the Revised Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 explains that s.235A ‘would allow the FWC to, when making an intractable bargaining declaration, specify a period after the making of the declaration for the parties to continue to negotiate with a view to reaching an enterprise agreement before the FWC proceeds to make a workplace determination.’ During this period, the Commission cannot make an intractable bargaining workplace determination but may provide other assistance during the period such as conciliation.

Consideration

1. I have considered the evidence and submissions filed in this matter in my determination of the application and the conclusions I have reached.

Has an application for the declaration been made? — s.235(1)(a)

1. It is uncontroversial that Transgrid, as an employer that will be covered by the Proposed Agreement,[18] is a bargaining representative for the agreement and is therefore entitled to make an application for a declaration under s.235 of the Act. The Proposed Agreement is not a greenfields agreement and this application does not pertain to a multi-enterprise agreement. I therefore find that a valid application has been made under s. 235(1)(a) of the Act.

Is it after the end of the minimum bargaining period? — s.235(1)(c)

1. The end of the minimum bargaining period is the later of the day that is 9 months after the nominal expiry date of the 2020 Agreement or the day that is 9 months after the day bargaining starts.[19]

1. The parties submitted that the nominal expiry date of the 2020 Agreement was 1 December 2023, and that on 13 June 2023 Transgrid initiated bargaining for the Proposed Agreement (which is the notification time for the purposes of section 173(2)). More than 9 months have elapsed since the nominal expiry date of the 2020 Agreement. This is not in dispute. I therefore find that the precondition under s.235(1)(c) of the Act is established.

Has the FWC dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC’s processes to deal with the dispute? — s.235(2)(a)

1. Pursuant to s.240 of the Act, Transgrid filed a dispute on 3 June 2024 and participated in a conference on 11 June 2024. The issues the subject of the dispute application concerned the core issues which Transgrid contends have made the bargaining intractable - namely wage increases, overtime and contracting out arrangements, income protection insurance, working from home conditions and backpay. There was no dispute between the parties that the Commission has dealt with the dispute about the Proposed Agreement under s.240 of the Act and that Transgrid participated in the Commission’s processes.

1. I find that the Commission has dealt with the dispute about the agreement under s.240, and that Transgrid has participated in the Commission’s processes to deal with the dispute.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? — s.235(2)(b)

Joint Submissions

1. Transgrid and the Union Parties jointly submitted that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration sought by Transgrid for the following reasons:[20]

(i)the parties have been bargaining for over twelve months;

(ii)the parties remain a substantial way apart on some key issues, particularly wages;

(iii)there has been no substantive movement on wages or, indeed, any other issues since April 2024;

(iv)two direct votes of employees on Transgrid’s Proposed Agreement have been unsuccessful;

(v)there has been a significant amount of industrial action since January 2024 (save during the period when protected industrial action was suspended);

(vi)there has been a significant amount of litigation, including applications by Transgrid under sections 418 and 424 of the Act, and an application by the CEPU for good faith bargaining orders; and

(vii)Transgrid has provided the Union Parties with information required under the Commission’s good faith bargaining orders, and the parties have held further meetings, without any breakthroughs in the negotiations.

1. On that basis, Transgrid and the Union Parties submit that the Commission can be satisfied of the matters set out in s235(2)(b).

Findings

1. Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is ‘no reasonable prospect of agreement being reached’ if an intractable bargaining declaration is not made. ‘No reasonable prospect’ is obviously not the same as ‘no prospect’ in that it does not require a ‘certain and concluded determination’[21] that an agreement cannot be reached if a declaration is not made but rather, on the ordinary meaning of the words used, requires an evaluative judgment that it is rationally improbable that an agreement will be reached.[22]

1. I am satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. I consider it to be rationally improbable that an agreement will be reached.

1. The parties have, in my view, reached an impasse in negotiations. Their positions on wages, superannuation and backpay remain a significant distance apart. The Union Parties have not changed their position on a wages package since 4 April 2024 and Transgrid has made no enhanced offer on wages since 18 June 2024. The parties are also apart on numerous conditions of employment including overtime, working from home, contracting out and income protection. These positions appear to be entrenched, absolute and diametrically opposed. By way of example, the Union Parties seek that all overtime on Saturdays be paid at 200% and Transgrid will not agree to any increase at all and has maintained this position during negotiations. The Union Parties seek that clauses regarding income protection and working from home should be included in the Proposed Agreement, and Transgrid has steadfastly refused to include any clause in the Proposed Agreement dealing with these employment conditions.

1. These positions have been fixed for a considerable period of time, despite an extended campaign of protected industrial action and the repeated assistance of the Commission. The position of the parties has remained entrenched even after documents were recently produced by Transgrid pursuant to the bargaining orders made by Deputy President Slevin.[23]

1. There is no indication that either Transgrid or the Union Parties are willing to change their position in relation to the claims that remain unagreed. The employees likely to be covered by a Proposed Agreement have repeatedly voted against the agreements put to vote by Transgrid. Given these matters, it is clear that bargaining has become deadlocked and there is no reasonable prospect of agreement being reached if the Commission does not make the declaration.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? — s.235(2)(c)

Joint Submissions

1. Transgrid and the Union Parties submit that it is reasonable to make the declaration given the matters canvassed in the preceding paragraphs. Mr Moroney has not expressed a view as to whether it is reasonable in all the circumstances to make the declaration.

Findings

1. I am satisfied that it is reasonable in the circumstances to make the declaration given that the parties are at an impasse, over 30 meetings have been held since July 2023 and where a protracted campaign of industrial action, resulting in Transgrid considering it necessary to file s.418 and s.424 applications, has not been able to procure an outcome. In reaching this conclusion, I have also taken into account the views of all of the bargaining representatives.

Conclusion regarding intractable bargaining declaration

1. Transgrid and the Union Parties submit that I should exercise my discretion to make the declaration. I have found that the preconditions for the making of an intractable bargaining declaration pursuant to s.235(1) are satisfied. In the exercise of my residual discretion, there is no matter which I can identify which would weigh against making an intractable bargaining declaration. Accordingly, I make the declaration applied for by Transgrid.

Post-declaration negotiating period — s.235A

Joint submissions

1. Transgrid and the Union Parties jointly submit that a post-declaration negotiating period of seven days commencing on 14 October 2024 ought to be ordered and submit that the parties would be assisted by conciliation being conducted during this period, to be conducted by me. The Chief Executive Officer of Transgrid, Mr Redman, will attend any conciliation during this period as directed by the Commission. The NSW Secretary of the CEPU, Mr Hicks will also attend any conciliations convened by the Commission during this period. To date, Mr Redman has not attended any bargaining meetings held between the parties.

Findings

1. Where an intractable bargaining declaration is made pursuant to s. 235, s. 235A confers upon the Commission the power to specify a ‘post-declaration negotiating period’:

235A  Post‑declaration negotiating period

(1)    The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post‑declaration negotiating period) that:

(a)    starts on the day the declaration is made; and

(b)    ends on:

(i)the day specified by the FWC in the declaration; or

(ii)any later day determined under subsection (2).

Note: The FWC cannot make an intractable bargaining workplace determination during any post‑declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation.

(2)    The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii).

1. It was acknowledged by the Full Bench in United Firefighters’ Union of Australia v Fire Rescue Victoria[24] (UFU v FRV) that:

   On one view, it would be counter-intuitive to specify a post-declaration negotiating period where the Commission must have already…satisfied itself pursuant to s.235(2)(b) that there is no reasonable prospect of agreement being reached if a declaration is not made. Notwithstanding this, there may be circumstances which justify the specification of a post-declaration negotiating period…[25]

1. As outlined above, the Commission cannot make an intractable bargaining workplace determination during any post-declaration negotiating period[26] but may still provide other assistance during the period, such as conciliation.

1. If the Commission makes an intractable bargaining declaration, s.269 of the Act requires a Full Bench of the Commission to make an ‘intractable bargaining workplace determination’ as quickly as possible after the end of the post-declaration negotiating period, if one is specified, or otherwise after making the declaration.

1. Section 270 of the Act provides that an intractable bargaining workplace determination must include, amongst other terms, the ‘agreed terms’[27]. Section 274(3) of the Act provides that ‘agreed terms’ are those that were agreed to be included in a proposed agreement at the time that Transgrid’s application was made, at the time of any declaration and at the end of any post-declaration bargaining period. As such, as noted by the Full Bench in UFU v FRV, whether or not a post-declaration negotiating period is specified by the Commission is relevant to the consideration of what might be an ‘agreed term’ for an intractable bargaining workplace determination under s.274(3). In UFU v FRV, the Full Bench considered that the specification of a post-declaration negotiating period would be useful for the purpose of giving the parties an opportunity to resolve, or at least narrow, their differences as to what matters will need to be arbitrated.[28]

1. I consider that there is some possibility that the making of a declaration, the consequential removal of the ability to take protected industrial action[29] and the prospect of an intractable bargaining workplace determination has the potential to affect the approach taken by the parties to negotiations. Upon the making of a declaration, the parties are aware that any post-declaration negotiation period is the very last opportunity to avoid compulsory arbitration. I consider that a bargaining period with intensive conciliation conferences convened by the Commission may act as a ‘circuit breaker’. This view is fortified by the willingness of Mr Redman to attend the Commission for conciliation during the post- declaration negotiating period. To date, Mr Redman has not attended any bargaining meetings and there is nothing before me to suggest that he would do so, absent a declaration.

1. There is currently some dispute about whether matters such as increases to superannuation are agreed. It is possible that the parties’ positions in relation to what terms are agreed will change between the time that the declaration is made and the end of the post-declaration negotiating period. A negotiating period would allow the parties some time to attempt to resolve any disputation about what the agreed terms to be included in any Proposed Agreement are. This may then assist the Full Bench in resolving the question of what terms are agreed terms to be included in any determination.

1. I believe that there is scope for the Commission to assist the parties to narrow their differences in relation to agreed terms. Given the parties’ joint position that a seven-day negotiating period should be ordered, and their shared commitment to involve Mr Redman and Mr Hicks during conciliation, I consider that discussions facilitated by the Commission may be beneficial. If at the end of the post-declaration negotiating period there is agreement between the parties about the agreed terms this may reduce the duration of any subsequent hearing. Furthermore, I do not consider that a short period of seven days would delay the disposition of the matter by the Commission or the constitution of a Full Bench.

1. Taking into account the joint submissions of the parties, I have determined that the circumstances I have outlined justify a short seven-day post-declaration negotiating period commencing from today’s date.

Conclusion

1. I make an intractable bargaining declaration in relation to the proposed Transgrid Enterprise Agreement 2023. A seven-day post-declaration negotiating period will start today, 14 October 2024, and end on 21 October 2024. The declaration is made by a separate order that is published in conjunction with this decision and which, in accordance with s.235(4)(a) of the Act, will operate from the date of this decision.[30] The matter will be set down for conciliation before me during the post-declaration negotiating period.

DEPUTY PRESIDENT

[1] Exhibit 1.

[2] As per Exhibit 1.

[3] Exhibit 1 at [9].

[4] Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 2200.

[5] [2024] FWC  1914 and [2024] FWC 2182. 

[6] [2024] FWCFB 365 and [2024] FWCFB 333. 

[7] The Union Parties' position in relation to matters (a) to (e) is set out in a letter to Transgrid dated 2 August 2024(Attachment A to Exhibit 1). Transgrid's position in relation to matters (a) to (g) above is set out in a letter dated 5 August 2024 (Attachment B to Exhibit 1).

[8] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Sch 1, Part 18.

[9] Application by United Workers’ Union, Australian Education Union and Independent Education Union of Australia [2023] FWCFB 176 at [29].

[10] United Firefighters’ Union of Australia v Fire Rescue Victoria[2023] FWCFB 180 (UFU v FRV) at [25].

[11] Ibid, [26].

[12] Ibid, [28].

[13] Ibid, [29].

[14] Ibid, [30]

[15] Suncoast Scaffold Pty Ltd [2023] FWCFB 105 at [17] cited in UFU v FRV at [30]

[16] UFU v FRV [31].

[17] Ibid, [32].

[18] Section 176(1)(a) of the Act.

[19] Section 235(5) of the Act.

[20] Exhibit 1 [43(b)].

[21] Spencer v Commonwealth [2010] HCA 28, 241 CLR 118 at [52] (Hayne, Crennan, Kiefel and Bell JJ).

[22] United Firefighters’ Union of Australia v Fire Rescue Victoria[2023] FWCFB 180 at [29].

[23] Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 2200.

[24] UFU v FRV.

[25] Ibid [34].

[26] Section 269 of the Act.

[27] Section 270(2) of the Act.

[28] UFU v FRV [46].

[29] Section 413(7)(c) of the Act.

[30] PR780175.

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