Tasmanian Networks Pty Ltd T/A TasNetworks v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2024] FWC 2384
•17 SEPTEMBER 2024
| [2024] FWC 2384 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Tasmanian Networks Pty Ltd T/A TasNetworks
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2024/1137)
| COMMISSIONER WILSON | MELBOURNE, 17 SEPTEMBER 2024 |
Application for an order to suspend or terminate protected industrial action pursuant to s.424.
These are my reasons for decision, made at the conclusion of the hearing on Tuesday, 3 September 2024 to issue an order suspending certain protected industrial action in the workplace of Tasmanian Networks Pty Ltd (TasNetworks).[1] The suspended protected industrial action is in relation to bargaining for a proposed agreement replacing the TasNetworks Enterprise Agreement 2020 – 2024 and is being taken by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
INTRODUCTION
An application was made to the Fair Work Commission by TasNetworks, on Tuesday 3 September 2024, seeking an order pursuant to s.424 of the Fair Work Act2009 (the FW Act) that would terminate or suspend protected industrial action being taken by members of the CEPU.
The application was the subject of an urgent hearing before me the same day, Tuesday 3 September 2024.
TasNetworks’ application sought that the Commission urgently list the matter for an expedited hearing or in the alternative, issue an interim order suspending the protected industrial action until the application could be finally determined. As the application was the subject of a hearing and determination the same day it was lodged with the Commission, the Applicant did not press the issuing of an interim order.
The Order issued by me on 3 September 2024 was in the following terms;
“[1] Pursuant to s 424(1)(c) of the Fair Work Act 2009 (Cth), the Fair Work Commission orders that all protected action in relation to the proposed agreement replacing the TasNetworks Enterprise Agreement 2020 – 2024 (Proposed Agreement) be suspended for a period of one month effective from the date of this Order.
[2] This Order is binding on:
a.TasNetworks;
b.the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
c.officers, delegates, employees and agents of the CEPU who come into contact with, or have any responsibility for CEPU members who are employees of TasNetworks;
d.all employees of TasNetworks who:
i. will be covered by the Proposed Agreement; and
ii. are a member of the CEPU.
[3] This Order commences at 11:59 PM, 3 September 2024.”[2]
APPLICABLE LEGISLATION
An order for suspension or termination of protected industrial action may be made upon application by the persons identified in s.424(2), which includes a bargaining representative, which in this case is TasNetworks. Section 424(1) which deals with the making of an order, provides as follows:
“424 FWC must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.”
Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before the Commission.
BACKGROUND
TasNetworks’ role and function is to provide electricity to all customers in Tasmanian. It’s head of network operations, Jason King, gave this evidence about his company’s pivotal position in the electricity supply chain;
“9. TasNetworks’ role in Tasmania’s electricity supply system is to deliver safe and reliable electricity to customers. There are approximately 295,000 customers who are supplied electricity through the Tasmanian electricity supply system. 32% of the demand for electricity comes from industry (being major industrial customers, such as aluminium smelters, zinc processing plants and mines).
10. Electricity in Tasmania is generated by a combination of hydroelectric, wind, and thermal power stations. The majority of these stations are hydroelectric, owned and operated by Hydro Tasmania.
11. Once electricity is generated at these power stations, it is transmitted from the power stations through extra high voltage transmission lines to substations (Transmission Network). The Transmission Network is owned and operated by TasNetworks and covers approximately 3,326 km of lines.
12. Once power has been delivered to the high voltage substations in the Transmission Network, it is then transmitted at a lower voltage through distribution power lines to distribution customers through additional smaller and even lower voltage substations (Distribution Network). The majority of customers receive their electricity directly through the Distribution Network. The Distribution Network is owned and operated by TasNetworks and comprises approximately 22,704 km of lines.
13. In Tasmania, TasNetworks’ Transmission and Distribution Networks service:
(a) 11 hospitals;
(b) over 600 wastewater pumping stations;
(c) around 79 residential care facilities;
(d) around 35 essential telecommunications hubs;
(e) over 8,500 life support customers. Life support customers are individuals who use life support equipment at home, whose details are included on a special register. Life support equipment includes dialysis machines, oxygen concentrators and ventilators. During an unplanned blackout, life support customers may have back-up batteries or generators, however these may not be sustainable for long periods or may not always be available;
(f) around 250 traffic lights;
(g) around 55,000 streetlights;
(h) 5 airports; and
(i) 5 ports.”[3]
Bargaining for a replacement enterprise agreement has been taking place between TasNetworks, the CEPU and other involved unions for some time. A protected action ballot order in relation to bargaining by the CEPU was issued by the Commission on 25 June 2024. The order was issued over objections made by TasNetworks.[4]
After the ballot took place, and was declared in the CEPU’s favour, the CEPU commenced giving notification from 8 August of protected industrial action to take place from 20 August 2024 onwards. Since then, numerous notifications have been given by the CEPU under two categories: (1) those relating to the performance of work other than in the Transmission and Distribution Control Room and (2) those relating to work in the Transmission and Distribution Control Room.
The notices have been comprehensive and structured in such a way as to require response action to be similarly comprehensive. A copy of one notification for each of the two categories is attached to this decision (see ATTACHMENTS 1 and 2). The notifications and the protected action ballot orders which preceded them do not make the notified action subject to agreed safety commitments.
Along with other parts of southern Australia, Tasmania was forecast to experience severe storms in the last week of August. The severe nature of the predicted storms caused TasNetworks to be concerned that its networks may be severely degraded if the storms impacted the state in the predicted manner and it issued a notification of a “Declared Incident”. The meaning and significance of that term in relation to protected industrial action is dealt with in a document entitled “Provisions for Continuity of Work” negotiated between the parties to this matter, also known as the “Safety Commitments”.
The full text of the operative Safety Commitments is attached to this decision as ATTACHMENT 3. Noting that a declared incident “will be declared by the Chief Executive Officer of TasNetworks and covers major emergency situations such as storms, bushfires, and IT breakdown”, TasNetworks argues that the implication of the Safety Commitments is that, upon declaration of a declared incident, protected industrial action in the form of employee claim action should be temporarily suspended, in order to allow the applicable “major emergency situation” to pass.
On Sunday, 25 August 2024 TasNetworks’ Chief Executive Officer Seán Mc Goldrick notified staff and issued a media release advising he had determined a declared incident should be invoked. His communication to employees included the following, in an email with the subject line “TasNetworks CEO: Declared Event - Pause Protected Industrial Action”;
“Good afternoon,
This morning the Bureau of Meteorology advised of a vigorous weather front with prolonged high winds (up to and exceeding 110kh) and significant rain is forecast for Tasmania. It is forecast that this front will arrive by Monday evening and persist for the next week and a half. As per standard procedure the business has moved into a Pre ICS standing to allow us to commence preparing accordingly.
The IM Team and the Executive teams met at 12 noon today to discuss. As a result, I have taken the decision to invoke the CEPU’s safety provisions; determining this current situation is a ‘declared event’.
This means that I am directing CEPU members to pause their protected industrial action from 4:00pm today, Sunday 25th August 2024, and for this pause to continue for the duration of this weather event for all impacted outages to be restored.
I feel it prudent to make the Declaration today so that we can mobilise the business and associated fault crews to undertake all outage restorations prior to the imminent weather. This will enable the protection of the network and the safety of life support customers as well as the Tasmanians affected by outages to have power reinstated without delay.
Amid our current differences, we are all Tasmanians. Our fellow Tasmanians need TasNetworks and relevant unions united in serving and supporting them at this moment of severe imminent weather.
I haven’t declared this event lightly. We respect our people’s right to take lawful protected industrial action. But the incoming weather is considered severe enough to take pre-emptive steps and return our people to full normal duties as soon as possible.
Thank you
Seán”[5]
A forerunner to the application now before me, also an application for the termination or suspension of protected industrial action, was made to the Commission by TasNetworks on 26 August 2024. That matter was also allocated to me to be dealt with. However, after the matter was listed for hearing on 26 August, the application was discontinued shortly before the hearing was to commence when parties came to an agreement about certain modifications to the Safety Commitments.
Throughout the process of its decision making, TasNetworks was reliant upon notifications given to it by the Bureau of Meteorology (BOM). On 23 August, TasNetworks received an initial warning from the BOM that there was a high likelihood of a severe storm in the following days. On 25 August 2024, the BOM advised that “a vigorous weather front with prolonged high winds (up to and exceeding 110 km/h) and significant rain was forecast for Tasmania”.[6] This was expected to arrive in the evening of 26 August 2024 and persist for the following week and a half. TasNetworks assessed the likely storm to be a level 2 incident and responded by standing up “a pre—ICS (incident command system); to make decisions to prepare for the event”.[7] Mr King gave the following evidence both about preparations for the storm, as well as its actual consequences;
“22. In my experience, whilst this storm is categorised as a Level 2 incident, its severity and prolonged nature makes it unique. By way of comparison, my estimation is that a storm of this severity can occur around 5 times per year, but are usually contained and last only a short period of time (a few days). From my experience, the last time that Tasmania experienced a storm of this severity and duration was 10 years ago in 2014. During that storm in 2014, approximately 50,000 – 60,000 customers of TasNetworks’ network were without power, with the peak being approximately 10,000 without power at one time. The effects of the current storm in Tasmania have already far exceeded that, which I return to below.
23. The current storm has already been raging across Tasmania for one week now. As of Monday 2 September 2024, the advice from the BOM is that this storm has broken a number of records in Tasmania. The key observations from the BOM include the following:
• Maximum wind gusts recorded in the last 24 hours included new station records of 157 km/h at King Island and a 130 km/h gust at Launceston Airport.
• Destructive gusts in excess of 125 km/h were also recorded at Mt Read, kunanyi/Mt Wellington, Cape Grim, Luncheon Hill and Low Rocky Point.
• Damaging winds, greater than 100 km/h, were recorded at multiple locations including Cape Sorell, Burnie, Eddystone Point, Low Head, Devonport, Flinders Island, Strahan, Smithton, Scottsdale and Wynyard.
• Accumulated rainfall totals over the past five to seven days about the west of the state has been in excess of 200 mm, with some isolated locations recording over 250 mm over the multiday period.
• Damaging surf and abnormally high tides have eased with the cancellation of the Coastal Hazard Warning this morning. Minor impacts were reported in Macquarie Harbour near Strahan, whilst Midway Point, the Bridgewater Bridge and around New Norfolk saw impressive tides and sea states at times over the weekend. Tides inundated the Tamar Marine carpark in Launceston, but water levels didn't quite spill on the West Tamar Highway.”[8]
The Safety Commitments commence by stating;
“1. An employee will temporarily suspend industrial action to perform:
a. Emergency Work, where the employee is directed by TasNetworks to perform Emergency Work (Emergency Work Direction); or
b. work necessary to respond to the impacts of a Declared Incident or to facilitate Emergency Work during a Declared Incident (Declared Incident Direction) subject to the conditions outlined below.
2. “Emergency Work” is work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury.
3. A “Declared Incident” will be declared by the Chief Executive Officer of TasNetworks and covers major emergency situations such as storms, bushfires, and IT breakdown.”[9]
Mr King giving this evidence about the effect of the Declared Incident and directions given under it;
“Whilst the Declared Incident has been in force, members of the CEPU have continued to take protected industrial action. There have been a number of instances where TasNetworks has sought to issue an employee with a Declared Incident Direction to complete certain work in accordance with the Provisions, and that Declared Incident Direction has not been followed by the employee or met with considerable resistance. In the paragraphs that follow, I identify several examples where this has occurred.”[10]
Mr King then gives 5 examples in support of these contentions.
Example 1. Life support customers
The first example is a matter now resolved in substance and affecting people with life support equipment, referred to as Life Support Customers. As may be expected TasNetworks puts in place special measures to ensure the needs of such customers are met as swiftly as possible in the event of outages, etc.
In summary, Mr King’s evidence is that on 26 August 2024, after entering the control room, he overheard a conversation involving a number of people including Mr Austin, who appeared in these proceedings as the national industrial officer of the CEPU and Mr Clark, CEPU Organiser. Mr King heard that the control room operators would not be restoring power to life support customers. Mr King later issued a direction to the control room operators to restore power to life support customers, which was refused. Discussion ensued and;
“31. It was only after 30 or so minutes of discussion and deliberation that Mr Crouch conceded that he should restore power to life support customers. He took steps for this to occur (noting that, given the length of time that such customers had been without power, there were some issues in being able to restore power immediately to these customers). I understand that power was restored to these customers over the course of that evening and into the next day.
32. I consider it very fortunate that I happened to enter into the Control Room at this time. If I had not been there and witnessed this conversation occurring, I expect that the operators would have made the decision to not turn on such life support customers, therefore leaving such vulnerable customers without power supply for an even longer period of time. This would have likely remained the case until such time that TasNetworks received feedback from other teams or members of the public (and escalated to me) that their power had not been restored.”
Example 2. New Norfolk
This example concerns fallen transmission lines at New Norfolk. The fallen transmission lines are part of a major transmission line carrying power into Hobart. TasNetworks became aware of the issue at or around 12:28AM on 30 August 2024. Mr King’s evidence is that standard practice in such cases is to direct a field crew to the sites because “due to a parallel circuit being in operation nearby, this had the potential to induce electrical current and cause a risk to any person nearby. Furthermore, as the line was left out of service, this created a risk to the community which it supplied”.[11]
Mr King’s evidence later that morning was that, at about 11:00AM, Mr Cunningham, the company’s Head of Operational Systems, issued a Declared Incident Direction to the control room to restore power:
“The Control Room refused, stating that they would only restore power if there was a subsequent event (for example, another failure/outage), and that, if TasNetworks continued to press for compliance with the Direction, they would walk out until they could speak with Mr Crouch (who was sleeping after working night shift). This meant that the whole township of New Norfolk was at risk of being without power, being more than 5,000 customers, including nursing homes, medical facilities and Hobart’s main water supply”[12]
The direction was reiterated at 5:15PM, but this time was accepted after Mr Cunningham called the Control Room;
“During this call, Mr Cunningham reiterated the Declared Incident Direction that had been issued earlier that day, and noted that due to the possibility of flood risk in the area, this had increased the potential risk that leaving the area as is would pose. It was only after flagging the potential flood risk that the Control Room agreed to comply with the direction.”[13]
Example 3. Grange Mine
This incident involves a loss of power to the Grange Resources magnetite iron ore mine at Savage River in north-west Tasmania. The power outage occurred at about 3:18AM, with Grange Resources notifying the TasNetworks control room of the outage at about that time. Mr King’s evidence is that the control room “acknowledged the outage but refused to perform any switching to reconnect power to the Grange Mine, citing the taking of industrial action”.[14] After no action was taken, Grange Resources took further action to have power restored;
“This was escalated through executives for Grange Resources (the owners of the Grange Mine) and TasNetworks. At approximately 10:57am, Mr Chetcuti spoke with Gilbert Charles (Senior Operations Manager at Grange Mine). Mr Charles is the Site Senior Officer for Grange Mine and has statutory responsibility for the safe administration of the mine. He advised Mr Chetcuti that the lack of power to Grange Mine created an imminent threat to human life or serious and imminent risk of personal illness or injury because they did not have adequate electrical resources to deal with any fires or other incidents that may occur at the mine, and also did not have power to operate pumps to transfer water from their increasingly full dams (due to substantial rainfall) and mitigate the risk of floods to the mine and surrounding area. This was because the Grange Mine had redeployed some generators around the site to mitigate the effect of its power outage, but this was not sufficient to mitigate the serious safety issues that could arise if there was a fire or other serious incident. This was also validated by Mr Chetcuti, who directly spoke to Grange Mine’s Senior Electrical Engineer (being the person who was in charge on site at the time).”[15]
Subsequently, Mr King issued the control room a declared incident direction at about 11:10AM to restore power, which was refused. Mr King escalated the matter further at 11:15AM, with a discussion with Mr Clark of the CEPU and Mr Chetcuti, TasNetworks’ Head of Health, Safety and Environment;
“During this discussion, Mr Clark made clear that he was maintaining his direction to CEPU members to not follow TasNetworks’ Declared Incident Direction because, in his view, there was no safety risk posed by the lack of power to Grange Mine. He was maintaining this on the basis that he had spoken to some of his CEPU members at the Grange Mine and they had formed the view that there were adequate measures in place to mitigate the risk. He demanded that TasNetworks provide him with information in writing from Grange Resources that demonstrated the safety risk, and he would independently verify this to be accurate before he would permit any restoration work to occur. Mr Chetcuti and I made it clear to Mr Clark that this was inconsistent with the Provisions – they do not authorise the CEPU to independently verify or decide what work will be done and by whom – and in any case, TasNetworks was obtaining this information directly from the senior management of Grange Mine who had the statutory responsibility for the safe administration of the mine (as distinct from, as I understand it, some lower level employees to which Mr Clark was obtaining his information, who do not have the same statutory duties and responsibilities).”[16]
A short time later at about 11:30AM, the CEPU accepted the direction and power was restored to the mine at around 11:49AM. Mr King notes that Saturday, 31 August 2024 was “particularly chaotic” for himself and others.[17] Mr King was concerned that it had taken from 3:18 AM to 10:57 AM for the mine’s circumstances to be escalated to him.[18] He explained that the nature of the safety concern was that the mine relied on power for its operations and that the absence of power compromised its safe operation. Its operations are very dangerous and the power is also required for pumps used by the adjacent town.
Example 4. Woolnorth/Musselroe windfarm
Mr King gives a further example of a power outage at the Woolnorth/Musselroe Windfarm, with those events also taking place on Saturday, 31 August 2024. Mr King’s evidence on the matter includes the following;
“50. On 31 August 2024 at approximately 3.46am, the Transmission line which feeds power into the Woolnorth Wind Farm (WWF) experienced an outage. At approximately 6.30am, the Transmission line which feeds power into the Musselroe Wind Farm (MWF) experienced an outage (together, Wind Farms). The Wind Farms are both owned and operated by Woolnorth Renewables. The fault was recorded in TasNetworks’ system, but the Control Room refused to restore power due to industrial action.
51. At approximately 10.58am, TasNetworks received advice from Woolnorth Renewables that the lack of power to the location raised significant safety and structural damage concerns. In particular, in circumstances where a wind farm loses power, it is necessary to shut down the wind turbines. This is because, if such wind turbines are left to spin with the natural wind without internal electrical regulation, they would effectively increase in speed and momentum (particularly given the significant gust winds in the area) in an unregulated way, which had the potential for them to break off and fall (known as a ‘runaway’ event), potentially causing life threatening harm to any person nearby. The Wind Farms were not in a position to manually shut down the turbines safely before this risk materialised – this is because:
(a) the Wind Farms have a total of 117 turbines between WWF and MWF, and it takes approximately 2.5-3 hours per turbine to shut it down safely – Woolnorth Renewables advised that with access to two teams per site, this would take 9 days to complete; and
(b) in any case, in order to shut down the turbines, it is necessary for a person to physically climb the turbine, which was not possible to do given the severe weather and high wind speeds that were occurring in the area.”[19]
The customer further escalated the matter at 4:05PM. Mr King responded by issuing a second Declared Incident Direction to the control room at around 4:09PM, which was again refused, followed by a third direction at around 5:15PM, emphasising TasNetworks’ safety concerns;
“This direction was issued by Mr Cunningham and Mr Chetcuti, again reiterating the information that had been shared by the Wind Farms and emphasising the serious and significant risk of harm that the lack of power posed. It was only after this third Direction that the Control Room agreed to restore power to the Wind Farms.”[20]
Example 5. 2 September 2024 directions
As final examples, Mr King relies on three further directions issued for the restoration of power on Monday, 2 September 2024, at about 11:55AM;
“(a) Hampshire/Surry Hills: This direction was issued with respect to the Hampshire/Surry Hills line which services the Forico wood chipping facility in Kings Meadow.
(b) Grange Mine: This direction was issued with respect to a separate feeder that is connected to Grange Mine, and provides a secondary source of electricity to that mine.
(c) Georgetown: This direction was issued with respect to the Georgetown line which services TimberLink’s wood manufacturing plant.”[21]
Mr King’s evidence is that the directions, in each of these examples, were refused, with the control room “questioning the basis on which the respective outages were creating a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury when the respective businesses had not specifically asked TasNetworks to restore their power for safety reasons”. Mr King’s response in each case was to say that, while TasNetworks did not know the intricacies of each business, he “had formed the view that in order to discharge our duty of care to these customers knowing the potential risks and issues that could arise very quickly, it was justifiable to direct that their power be restored”.[22] At the time of the hearing, none of these directions had been complied with.[23]
CEPU SUBMISSIONS
The CEPU submitted to the Commission that the Safety Commitments achieve three things: first is that there is a minimum guaranteed staffing of the control room and fault centre; the second is that employees will suspend their industrial action to respond to directions from the company to perform work that, if not performed immediately, would create a serious and imminent threat to human life or serious risk of personal injury or illness; and thirdly, that the CEO may declare an incident. Where an incident is declared, “employees must comply with directions given by the company to perform work necessary to respond to the impacts of the declared incident; and that is the declared incident direction”.[24]
The CEPU further submitted that control room operators were in a position to assess and control risks arising from operations of the network;
“… if an employee were to take a different view, and were to interpret these conditions as requiring them to form a view about whether or not, on the information available to them, there is a serious and imminent threat to persons, or, indeed, a threat of endangering life, personal safety, health, or welfare, of the kind captured by section 44 (sic), we submit that, at least in relation to control room operators, it is the normal part of their duties, and, indeed, within their competence and responsibility, to receive information that is relevant about threats within the network, and respond to those threats appropriately. And so at least in relation to control room operators, if they were merely operating within the bounds of their assessment of whether or not a relevant risk arose, they would still not offend the provisions of section 424, and give rise to a threat to the life, personal safety, health, or welfare.
Now, we say, Commissioner, we don't need to get there because the undertaking does the work regardless. But where an employee mistakenly believes that this undertaking gives them the discretion to decide, or to question, the existence of a safety concern, we say, at least in relation to control room operators, they are competent to make that assessment, and we say they had made that assessment correctly in the incidents raised by the applicant in its application.”[25]
The CEPU submitted, in relation to the examples given by Mr King, that suitable undertakings had been given by it to protect life support customers;[26] that there is insufficient evidence to suggest the New Norfolk situation is within the category of risk captured by s.424(1);[27] and that the Grange Mine example presented “a fairly remote risk in circumstances where there's nothing to indicate when or how such an event would occur, and in circumstances where we would expect Grange Mine would take steps to evacuate in either circumstance”.[28] In respect of the Woolnorth/Musselroe windfarm, the CEPU argued that in any event, power was restored;
“We say that, for a start, the power was restored. We accept, and we've addressed this previously, Commissioner, that there was some delay in restoration of that power. But it was restored in circumstances where the CEPU took steps to remind its members of the need to comply with these undertakings. Commissioner, we submit that, in circumstances where the control room has now received and acted upon those directions, it is not an assumption that can be readily made that the control room operators would, in future, refuse to put the same practice into effect, and restore power in similar circumstances.”[29]
The CEPU further argued that the fifth example given by Mr King, being examples of three further direction refusals, suffers from a lack of evidence about the safety or additional risks stemming from the subject matters.[30]
Finally, the CEPU distinguishes between the risks from actions of the control room operators, working on the transmission side of the business and those working in the power distribution part of the business. It argues that none of Mr King’s evidence addresses TasNetworks’ distribution business. The CEPU also submits that consideration of whether the Safety Commitments will be complied with in the future is not a matter that arises on the facts and that the evidence shows consistent attempts by Mr Clark “to find a position that protects people from harm. And in any case, Mr Clark has given his statement in paragraph 35 that his commitment is that TasNetworks, should it direct any of the members to reinstate power because of imminent risk to health and safety, should expect that the members will do that”.[31]
With that in mind, the CEPU concludes by submitting that the discretion for the making of orders under s.424 does not arise, especially relying upon the Safety Commitments and related undertakings given.
OPERATION OF SECTION 424
Deputy President Slevin recently summarised the operation of s.424 and the considerations to be taken into account in Endeavour Energy Network Management v CEPU, an analysis with which I concur;
“[35] Section 424(1) requires the Commission to consider two things. First, whether protected industrial action is being engaged in or is threatened, impending or probable. Second, if it is, whether it is satisfied that the industrial action had threatened, is threatening or would threaten to have the effects set out in s 424(1)(c) or (d).
[36] A recent Full Bench of the Commission in CEPU v Transgrid[2024] FWCFB 333 (Transgrid) described s. 424(1) as calling for an exercise of discretion in the broad sense in that the threat as to which the Commission must be satisfied for the purposes of s 424(1)(c) involves a degree of subjectivity or value judgment. The Full Bench went on to observe that s.424(1) requires the Commission to initially identify whether particular protected industrial action is being engaged in or is threatened, impending or probable. If so, the Commission must then determine if it is satisfied that the particular protected industrial action has threatened, is threatening or would threaten to have consequences of the type set out in s 424(1)(c) or (d).
[37] Subsection 424(1) requires that the Commission must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population. As the Full Bench in Victorian Hospitals' Industrial Association v Australian Nursing Federation[2011] FWAFB 8165 (ANF) said:
[49] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC in considering somewhat similar provisions in the Workplace Relations Act 1996:
“... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the Act involves a measure of subjectivity or value judgment... [A] decision under s 170MW(3)(b) that industrial action is ‘threatening... to cause significant damage to the Australian economy or an important part of it’... is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question”.
[38] As to endangerment, the Full Bench in ANF said:
[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s.424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community, and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment – or that materially hinders or prevents improvement in a person’s poor physical or mental state – may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned – it must be such as to expose them to danger.
[39] In Re Svitzer Australia Pty Limited[2022] FWCFB 213 the Full Bench said:
[29] The terms “endanger” and “welfare” used in s 424(1)(c) are not defined in the FW Act, however they bear their ordinary meaning, and it is a matter for the Commission, in each case before it, to determine whether or not it is satisfied that industrial action is threatening to endanger the welfare of the population, or a part of it.”[32] (endnotes omitted)
CONSIDERATION
Suspension or termination of protected industrial action requires the Commission be satisfied of the matters in s.424(1) and, particularly relevant to this matter, that the protected industrial action has threatened, is threatening or would threaten to endanger the life, the personal safety or health of the welfare of the population or a part of it.
For the purpose of brevity, I refer to the test “endanger the life, the personal safety or health of the welfare of the population or a part of it” as being a matter of “community safety”.
The evidence provided by TasNetworks traverses each of these matters of temporal connection and, most particularly, puts forward that there has been an endangerment to the community by the protected industrial action and that without an order, there would be a future endangerment.
Examples 1, 2, 3 and 4 are each examples of protected industrial action which threatened the community safety at the time the matters arose. Example 5 though, referring to unresolved directions given on 2 September 2024 transcends each of the temporal points of status: that is, protected industrial action which is either threatened, is threatening or would threaten community safety.
Emerging from the evidence is the absolutely pivotal role of the TasNetworks’ control room when it comes to initiating, controlling or ending activities across the network. In the case of protected industrial action, the control room became the gatekeeper for decisions in respect of the operation, performance and safety of the network.
The Safety Commitments were drafted it seems from the perspective of being a neutral regulator of the practical effects of protected industrial action, allowing appropriate temporary releases to be made from industrial action which had the potential – at the time of consideration of a request for release – to otherwise harm employees or the community.
The opening clause of the Safety Commitments is drafted as a mandatory obligation: employees “will temporarily suspend industrial action” in the cases therein defined. In the case of emergency works, defined as “work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury”, protected industrial action by an employee will be temporarily suspended upon a direction from TasNetworks to perform those works.
The Safety Commitments also provide, more generally, the obligation in respect of a declared incident direction arising in the case of “major emergency situations such as storms, bushfires, and IT breakdown”. Once an incident has been declared in this way by the CEO, employees will “temporarily suspend employee claim action to be available to receive a Declared Incident Direction given within 12 hours before of the expected impact of the storm, and throughout the duration of the storm, until the Declared Incident is rescinded, or all rectification is completed following the storm in the region and all jobs commenced during the storm are restored to normal operations”
What flows from the evidence is that interpretation and performance of the Safety Commitments in the field was caried out by the CEPU and its members, who made their own value judgements as to employee and community safety. While the commitments were drafted with TasNetworks as the determiner, the way the Safety Commitments operated in the evidence before me is that protected industrial action would only be temporarily suspended if such a suspension was concurred with by the CEPU and its members.
There is, of course, no obligation for the CEPU or its members to negotiate and put in place safety commitments or other constraints however described to the taking of duly authorised and notified protected industrial action. For that reason, the parties are to be commended in seeing a need for negotiating the Safety Commitments, however the evidence before me about the five case examples identified by Mr King is that the commitments have been ineffective; leaving open the likelihood that protected industrial action has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population. If the purpose of the Safety Commitments was to swiftly ensure temporary suspension of protected industrial action in identified cases so as to avoid or overcome threats to community safety, then plainly that has not been achieved.
In the evidence before me about each of the five examples, TasNetworks’ formed a view on the available information that there were community safety threats, or was informed by its customers that there were such threats. On the basis of these assessments, Mr King and others issued directions to the control room operators, which in each case were initially refused.
With respect to life support customers, while it can be accepted that such customers need to have backup power supply systems which can maintain power in the case of an outage, by the time Mr King issued the direction to restore power to those people, some had been without power for 60 hours – that is 2 ½ days – which would surely be a challenge to any domestic backup power supply. While the debate about restoration of the power to the customers took only about 30 or so minutes of discussion, the fact that it required such discussion and diverted both management and control room operator resources from other pressing activities is obviously a matter to be deprecated. Steps to restore these customers’ power may well have not even occurred, had Mr King not entered the control room at the time that he did. I accept that at the time of this discussion, the protected industrial action had threatened and was threatening to endanger the life, the personal safety or health, or the welfare of the population or part of it.
In respect of the New Norfolk example, the transmission line carried power to Hobart and the line was left out of service. The failure to return the line to service further exacerbated the problem in respect of the township of New Norfolk. Both those matters, as well as the time taken to accept TasNetworks’ direction also presented a risk to community safety. The longer the outage lasted, the more the effects of the protected industrial action threatened the safety of the town. This too was a circumstance in which community safety was threatened by the protected industrial action.
The risks associated with the Grange Mine example were referred to by the CEPU as being fairly remote.[33] Whereas the mine reported that it did not have adequate electrical resources to deal with any fires, possible flooding or other incidents that may occur at the mine, especially since some generators had been deployed around the site to mitigate the effects of the power outage, the CEPU put forward that there were no such events occurring at the time the directions were given and being discussed. While the risks may be seen by the union as remote, that was not the report to TasNetworks from the operator itself with Mr King being told the lack of power to Grange Mine created an imminent threat to human life or serious and imminent risk of personal illness or injury. At the time the report was made, and in the absence of contradictory information, TasNetworks and the control room operators were in no position to simply reject what was said about the mine’s safety. What had been reported to TasNetworks was more than a matter of inconvenience and was not a generalised prediction; instead it was a report from a duty-holder in a dangerous industry. Consequently, a finding may be made that the protected industrial action had threatened and was threatening to endanger the life, the personal safety or health, or the welfare of the population or part of it.
The example given by Mr King in respect of the Woolnorth/Musselroe Windfarm is also plainly an example of community safety, which at the time the customer’s notification was made to TasNetworks, was being compromised because of the protected industrial action. The customer reported to TasNetworks that it required power to shut down the wind turbines as, if it did not do so, there was a risk in the event of significant wind of a runaway event “potentially causing life threatening harm to any person nearby”. The example establishes that at the time the first direction was given and refused, the protected industrial action was threatening to endanger life, personal safety or health, or the welfare of the population or part of it.
The evidence in respect of the directions given on 2 September 2024, which were refused, do not directly allow a finding that community safety was being compromised because of the failure to observe the directions given by TasNetworks. While such evidence may be available, the short summary given to the Commission in these proceedings does not itself allow that finding.
At the time the application was made to the Commission on Tuesday, 3 September 2024 at 9:33AM, and at the time the order was issued, at 11:59PM that same day, the storms in Tasmania had not ended. Further, the power network was clearly already degraded as a result of the previous week’s storms. At that point it was foreseeable that there would be further storm events impacting the network, with the likelihood of further risk to community safety. It was also likely that, should further directions be given by TasNetworks’ management to the control room, the operators would again refuse to restore power or to instruct other remedial works. In that scenario, TasNetworks would have – short of a further application to the Commission – no means for the safety risks to be abated. Those future safety risks would arise from natural events, which may be predictable but not certain. The control of those risks is, on the evidence, to be dealt with through the control room, which is pivotal in issuing instructions to remedy reported problems.
If the control room operators do not follow and issue instructions based on directions given to them or do not stand aside for those who will the directions, the community safety risk will continue and not be abated.
A further consideration in deciding this application is the division of protected industrial action notifications between employee claim action relating to the performance of work, other than in the Transmission and Distribution Control Room and that which related to work in the Transmission and Distribution Control Room. What is asked of the Commission is to suspend all protected industrial action, whether it relates to employee claim action in the control room or elsewhere.
Mr King gave extended evidence in his witness statement about the degraded state of the power network. Amongst other matters he put forward that the severity and duration of the storm is considerable; that the network is currently degraded, “meaning that it is already operating at a sub-standard level with a number of existing outages, primarily due to the industrial action that has been taken by CEPU members to date (both before and during this storm)”.[34] The degraded state of the network has flow-on consequences, including that;
“Given the taking of protected industrial action, TasNetworks did not have available to it its usual personnel and resources that it could deploy to respond to the effects of the storm, including taking appropriate preparatory action to prepare its network for the storm. This is because employees taking protected action are refusing to undertake certain tasks that TasNetworks considers necessary as a response measure.”[35]
In relation to TasNetworks’ response capabilities, Mr King’s evidence included an assessment that the wider industrial action, within as well as beyond the control room, already limited that capability;
“68. Third, the consequences of TasNetworks operating in a ‘degraded’ capacity and only have limited personnel to prepare and manage its response to the storm have implications merely beyond TasNetworks’ infrastructure and assets. Specifically:
(a) TasNetworks is required to ensure the health, safety and wellbeing of its employees, as far as practicable. Even though it has been and will continue to take all steps possible to combat the effects of the storm, it will only ask employees to perform work that it deems to be safe. As is the case with any severe weather event, performing safety and rectification work is inherently limited by severe inclement weather. This risk is compounded by limited personnel resources and existing faults and damaged infrastructure.
(b) In a similar way, TasNetworks cannot simply deploy any person to perform any role. As part of its Level 2 incident response framework, TasNetworks establishes emergency response rooms to ensure that critical communications and technology remains functioning, consider whether there is any critical infrastructure that needs urgent repairs, maintain constant communication with the BOM to receive updates on weather trends, and to ensure that personnel are not unduly interfering with the network whilst the Level 2 categorisation is in effect. These are specialised personnel with specialists skills, qualifications and experience – TasNetworks cannot simply deploy other employees or engage contractors to perform such work at short notice. In any case, it is TasNetworks’ estimation that approximately 80% of its field team members and nearly all members of its Control Room and Fault Centre (who are responsible for receiving information from the public about faults and incidents, assessing it, and determining the appropriate response) are undertaking some form of industrial action. Even if TasNetworks is in a position to redeploy employees to work in areas it considers critical, this limited pool of staff that can do so will be exhausted very quickly (and unlikely to cover the duration of the forecasted storm).
(c) TasNetworks has a responsibility to the Tasmanian community to ensure the continuation of power wherever possible and to ensure that the public are not subject to undue risk. In any circumstances, fallen power lines or poles present a significant risk to members of the community. When this is a once-off and singular occurrence, members of the public are generally receptive to accepting the consequences of that risk and awaiting for it to be rectified by a qualified person. However, in circumstances where members of the public have already been subject to impacts (noting that some customers have now been without power for several days), it is not uncommon for members of the public to start to take greater risks in response. For example, a person who may have been subject to a power outage for several days already and who then experiences a fallen pole that prevents ingress and egress to their property might be minded to attempt to move that pole or electrical wires out of frustration.
(d) As noted earlier, TasNetworks has a responsibility as part of Tasmania’s emergency framework to respond to emergency situations. Where TasNetworks is not able to deploy its staff to respond accordingly, because it has limited team members available who are performing work on other jobs or for other reasons, it is often the case that other emergency services will need to respond accordingly to mitigate the risks to the public. For example, Tasmania Police or the SES may be called out to section off a part of a road that has fallen wires, or to direct traffic if traffic lights in an intersection are nonoperational, whilst TasNetworks can allocate a resource to respond. This takes time away from those emergency management bodies to deal with other matters that they may be required to as part of the overall emergency response. Indeed, TasNetworks has had several reports of this being the case. ”[36]
I am satisfied that these matters show that the continuation of protected industrial action in all parts of TasNetwork’s business threatens to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
It follows, from all the evidence before me, that I am satisfied that the protected industrial action being engaged in at the time of the hearing has “threatened, is threatening, or would threaten …to endanger the life, the personal safety or health, or the welfare, of the population or of part of it”.
Taking into account the need for an exercise of discretion about potential orders in light of this finding I consider that in this case there are potentially three considerations as to an outcome for the application made by TasNetworks. In particular, it may be appropriate to refuse the issue of an order; it may be appropriate to refuse on the basis that suitable changes should be made to the Safety Commitments; or alternatively, it may be that orders are issued for suspension of the protected industrial action.
Whether the application for orders is not to be granted
The first alternative – to not grant the application for orders suspending protected industrial action - has the significant disadvantage that further protected industrial action could not be easily or swiftly set aside within TasNetworks even for reasons of community safety, including because it might be the subject of heated debate for hours at a time before a consensus is achieved. This has the consequence of leaving untouched potentially significant safety risks.
The control room operators, when considering whether to follow directions issued by TasNetworks in relation to the Safety Considerations, purport to exercise a risk assessment while never holding the legal responsibility for doing so and without consulting with those who do hold the legal responsibility for risk assessment and control. One foreseeable consequence of this is that much time is spent by TasNetworks trying to persuade operators about the importance of a matter and why it should be addressed, with the risk that agreement is never reached. Another foreseeable consequence is that TasNetworks may simply give up in issuing further directions, rather than heading to further time-consuming argument.
To not grant the application for orders suspending protected industrial action does not address TasNetworks’ concerns that continued protected industrial action in its field activities will not address, and may prolong, the removal of safety issues associated with fallen poles and wires. At the time the order was issued, it was reasonably foreseeable that further storms were likely to exacerbate the situation. The risk of the nature of protected industrial action simply pivoting from the control room to the field operations meant that the exposure to danger would continue if only the control room industrial action were to be suspended.
None of these consequences should be regarded as acceptable and so, on that basis, consideration of this alternative leans against resolution of the application now before.
Amend the Safety Commitments
The second available alternative would be dependent on making a suitable amendment to the Safety Commitments, so that it makes clear that a direction by TasNetworks must be immediately observed, with there being no expectation that observation of the declared incident direction be contingent on concurrence from those working in the control room.
In the circumstances of a matter such as this, in which there are community safety concerns, the second alternative could only be feasibly implemented if suitable amendments were agreed to by all concerned, then drafted and finalised within a rapid timeframe (perhaps within 12 or 24 hours of an application such as the one before me). I consider that this alternative lacks feasibility. First, there is no apparent capacity under this part of the FW Act to make an order requiring this to be done. Second, delegation to the parties of a change to the Safety Commitments of the envisaged type would, on the basis of the presentation of the parties before me, appear to be somewhat unrealistic. In this regard, it is unlikely that amendments could be either agreed or agreed within a very quick timeframe. Such would not be satisfactory in a case such as this, in which the community safety concerns have present and future temporal connection, as well as connection to past matters.
These matters lean against pursuit of this alternative.
Issuing an order suspending protected industrial action
The third apparent alternative is to issue the order sought by the Applicant, being to suspend protected industrial action for a period of one month. This alternative has the benefit of ensuring community safety is not compromised for the next month because of further storms, as well as ensuring steps are taken to remedy the safety risks already present as a result of storms in the recent past.
This alternative though has the obvious effect of preventing the taking of further protected industrial action, despite the action having been authorised by a ballot of CEPU members and notified in accordance with the FW Act. The purpose of the protected industrial action is to force reconsideration of the employer’s bargaining positions in negotiations for an enterprise agreement. The absence of protected industrial action could potentially prolong bargaining. The Commission does not lightly set aside rights such as protected industrial action and in doing so needs to balance this against the community good that would come from suspension of the industrial action.
Suspension of the protected industrial action has the benefit of reducing, if not eliminating, further risks to community safety. TasNetworks will not be faced with having to give on-the-run community safety directions and will potentially be able to return the power network either to normal or close-to-normal operations.
Suspension, rather than termination of the protected industrial action, and for a confined period such as one month, has the benefit of not stalling enterprise bargaining simply because the pressure of protected industrial action has been taken away. Suspension of industrial action for a month will ensure bargaining can continue during that period, but with the knowledge that, if it does not advance or conclude, then protected industrial action may return.
Suspension of all protected industrial action also has the advantage of addressing the evidence given by Mr King about the degraded nature of the wider power network and the field work now required to recover, as well as to ensure no exacerbation in the event of further storms.
I consider this alternative to be the most viable and least detrimental of the available options.
For the above reasons I was satisfied the statutory criteria for the issuing of an order pursuant to s.424 had been met and that it was appropriate for me to issue an order suspending protected industrial action in the terms set out for a period of one month.
COMMISSIONER
Appearances:
Ms C. Pase, for the Applicant.
Mr D. Austin, for the Respondent.
Hearing details:
3 September.
2024.
ATTACHMENT 1 – Notification of Protected Industrial Action – Non-transmission and Distribution Control Room Employees
ATTACHMENT 2 – Notification of Protected Industrial Action – Transmission and Distribution Control Room Employees
ATTACHMENT 3 – Safety Commitments
[1] PR778927.
[2] PR778927.
[3] Exhibit A2, Jason King Witness Statement.
[4] 2024 FWC 1657.
[5] Exhibit A1, Lisa Wilkins Witness Statement, Attachment LW – 8.
[6] Exhibit A1, Attachment LW – 8.
[7] Exhibit A2, [20] – [21].
[8] Exhibit A2.
[9] Exhibit A2, Attachment JK – 3.
[10] Exhibit A2, [26].
[11] Exhibit A2, [36].
[12] Exhibit A2, [37].
[13] Exhibit A2, [38].
[14] Exhibit A2, [38]
[15] Exhibit A2, [44].
[16] Exhibit A2, [46]
[17] Exhibit A2, [49].
[18] Transcript, PN 315.
[19] Exhibit A2.
[20] Exhibit A2, [55].
[21] Exhibit A2, [58].
[22] Exhibit A2, [59].
[23] Exhibit A2, [60].
[24] Transcript, PN 643 – 644.
[25] Transcript, PN 648 – 649.
[26] Transcript PN 680.
[27] Transcript, PN 679 – 680.
[28] Transcript, PN 686.
[29] Transcript, PN 687.
[30] Transcript, PN 689 – 691.
[31] Transcript, PN 693.
[32] [2024] FWC 2285.
[33] Transcript, PN, 686.
[34] Exhibit A2, [67].
[35] Exhibit A2, [67].
[36] Exhibit A2.
Printed by authority of the Commonwealth Government Printer
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