REASONS FOR DECISION

Fair Work Act 2009
s.424—Industrial action

Essential Energy
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2016/559 and B2016/560)

Termination of protected industrial action

[1] This decision provides my reasons for orders 1 I made on Monday 23 May 2016 under s.424 of the Fair Work Act 2009 (the FW Act). The orders followed an application by Essential Energy seeking the suspension of protected industrial action which had been notified by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), acting as a bargaining representative for its members. The orders terminated the protected industrial action with effect from 10pm 23 May 2016.

[2] Following receipt of the application, a hearing was held in Sydney on 23 May 2016. Essential Energy was represented by Mr H J Dixon SC and Mr S R Meehan of counsel. Mr I Taylor, appeared for the CEPU (as well as the Australian, Municipal, Administrative, Clerical & Services Union New South Wales United Services Branch (ASU) and Association of Professional, Engineers, Scientists & Managers, Australia New South Wales Branch (APESMA) who were granted leave to intervene) and Ms L Doust of counsel. Written statements were tendered on behalf of Essential Energy by Mr G Burgess (Manager System Control) and Mr P Smith (Industrial Relations Manager). Mr Smith was cross-examined. A written statement was given by Mr S Butler (NSW Branch Secretary) on behalf of the CEPU. Mr Butler was also cross examined.

The relevant provisions of the Fair Work Act 2009

[3] Section 424 of the FW Act is in Division 6 of Part 3-3 of the FW Act and is titled ‘Suspension or termination of protected industrial action by the FWC’. Part 3-3 of the Act, titled ‘Industrial Action’, contains provisions dealing with protected industrial action and the requirements for industrial action to attract that protected status, orders stopping industrial action (other than protected industrial action), the suspension or termination of protected industrial action, applications for protected action ballot orders and the conduct of such ballots and provisions relating to employee payments during periods of protected and unprotected industrial action. For present purposes, it is only necessary to reproduce s.424. That section 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.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.”

Background

[4] The Essential Energy electricity distribution network covers approximately 95% of the state of New South Wales and parts of Southern Queensland with the exception of a region on the east coast that covers the wider Sydney basin, Newcastle and the Hunter, Wollongong and Shoalhaven. It is Australia’s largest electricity network, delivering network services to more than 844,000 homes and businesses in 1500 regional, rural and remote communities. Essential Energy also provides water and sewerage services to approximately 20,000 customers in far west New South Wales.

[5] The CEPU has about 2000 members employed by Essential Energy throughout the network in roles as line workers, electricians, plant operators, engineering offices and the like. The union has members employed in most classifications under the Essential Energy Enterprise Agreement 2013 (the 2013 agreement). The ASU and APESMA also have members employed under the 2013 agreement.

[6] The 2013 agreement was approved by the Commission on 9 July 2014. It has a nominal expiry date of 30 June 2015. Clause 1.8 of the 2013 agreement provides as follows:

“At least three months before the nominal expiry of this Agreement the parties will commence negotiations for a replacement Enterprise Agreement.”

[7] Despite the terms of Clause 1.8 it appears that negotiations for a replacement to the 2013 agreement did not commence until July 2015. During that month the CEPU presented Essential Energy with a log of claims, and the latter provided a presentation to the unions outlining the areas it wished to discuss in the negotiations for a replacement agreement. On 17 July 2015, Essential Energy sent a broadcast to employees which identified changes it was seeking to the 2013 agreement.

[8] A number of bargaining meetings were held between late July and October 2015. In November 2015 the Commission facilitated a week of intensive ‘interest-based’ negotiations.

[9] Further bargaining meetings occurred between the parties on 25 November 2015, 9 December 2015 and 28 January 2016. On 4 February 2016, Essential Energy issued a draft enterprise agreement for consideration by the unions. The key proposed changes from the 2013 agreement were summarised in a broadcast to employees on that day. Those key changes were:

(a) a three year term;

(b) no wage increases for the first two years and a wage increase in the third year on 1 July 2017 of 2.5%;

(c) consultation to be completed within a reasonable time, or 28 days maximum if no agreement reached;

(d) removal of existing disputes procedure with status quo clause and replacement with the model procedure in the FW Act;

(e) minimum payment on recall to work reduced from four hours at overtime rates to two hours at overtime rates;

(f) up to 800 involuntary redundancies during the nominal term of the agreement, with no restriction on the number of redundancies after that date;

(g) an additional 13 weeks severance payment for employees who elect to take an early redundancy offer in addition to an eight weeks early acceptance payment if the employee elects this option within two weeks of notification that their position is redundant and leave within four weeks of notification (providing a maximum redundancy payment of 65 weeks);

(h) employees who do not choose to accept an early redundancy offer would enter a 26 week retention period. At the end of this retention period, employment would terminate unless the employee had been successful in obtaining redeployment. The redundancy payment in such circumstances would not include the 13 weeks additional severance payment or the eight weeks early acceptance payment;

(i) A training payment of $3000 for excess employees to undertake training to assist them in finding a new role during the 26 week retention period;

(j) the abolition of the existing redeployment and salary maintenance policies; and

(k) time limits placed on consultation in relation to outsourcing proposals.

[10] Essential Energy sought a response to the proposed enterprise agreement by 19 February 2016.

[11] On 11 February 2016 a meeting of CEPU, ASU and APESMA delegates rejected Essential Energy’s proposed enterprise agreement. The unions indicated that they would consider proposals for involuntary redundancy subject to a number of conditions including a limit on the number of forced redundancies that may be implemented in any year, and a provision that any terms in relation to redundancy be for the life of the agreement until it is terminated by agreement or replaced by a new agreement. The unions also indicated that they did not agree to any of the other proposed changes, in particular those relating to the contracting out clause and the dispute settlement procedure.

[12] On 23 February the CEPU applied to the Commission for a protected action ballot order. The ballot order was made on 25 February 2016. The ballot was conducted and the results declared by the Australian Electoral Commission on 22 March 2016. The ballot authorised the following kinds of protected industrial action:

● Stoppages of work for a range of periods from one hour to 72 hours, to be taken either separately, concurrently or consecutively;

● Indefinite or periodic bans on a range of work activities; and

● Certain changes in the way work is performed.

[13] On 7 March 2016 Essential Energy made an application under s.225 of the FW Act to terminate the 2013 agreement.

[14] On 4 April 2016, the CEPU wrote to Essential Energy indicating on a without prejudice basis the possible elements of a new agreement. On the same day the CEPU gave Essential Energy notices under the FW Act advising of the following protected action:

(a) a 24 hour ban on completing paperwork other than that required to be completed for workplace health and safety reasons in all of the depots that responded to the Northern Control Room on 14 April 2016;

(b) 24 hour ban on assisting contractors in all of the depots that responded to the Northern Control Room on 14 April 2016;

(c) a four hour stoppage of work in all of the depots that responded to the Northern Control Room on 14 April 2016;

(d) a 24 hour ban on completing paperwork other than that required to be completed for workplace health and safety reasons in all of the depots that responded to the Southern Control Room on 20 April 2016;

(e) a 24 hour ban on assisting contractors in all of the depots that responded to the Southern Control Room on 20 April 2016;

(f) a four hour stoppage of work in all of the depots that responded to the Southern Control Room on 20 April 2016.

[15] The CEPU subsequently gave assurances that members would make themselves available for emergency response.

[16] The Acting CEO of Essential Energy, Mr Humphreys, responded to the unions’ latest proposals in a letter dated 14 April 2016. The letter included the following:

“Whilst your letter does provide some broad propositions outlining the Unions’ positions, I look forward to hearing the details of your propositions at the bargaining meeting on 15 April 2016 and your consideration as to whether the Unions can meet the fundamental requirements of Essential Energy which we have articulated during previous meetings and included in the revised draft agreement tabled on 4 February.

I would also like to take this opportunity to correct the implication in your letter that any of these propositions were accepted or agreed by Essential Energy in conciliation. As you are aware, many options were discussed and no agreement reached during conciliation. Any discussions were held on a without prejudice basis and we reject any suggestion that positions of agreement reached on any issue.”

[17] The bans and stoppages which had been notified by the CEPU on 4 April 2016 proceeded on 14 April 2016 and 20 April 2016.

[18] Mr Butler, in his written statement, said the following:

“Essential Energy did not indicate any willingness to make any concessions in the bargaining process as a consequence of the industrial action taken on those days. I formed the view that the union should escalate the action being taken to apply further pressure in support of its claims in the bargaining. In my view, Essential Energy had room to move and may move in response to further action.”

[19] On 22 April 2016, Mr Butler wrote to Essential Energy inviting it to consider the potential for a consent arbitration on the issues which were said to be outstanding by Essential Energy in the evidence it had filed in its application to terminate the 2013 agreement. Mr Humphreys responded on 26 April 2016. This included the following:

“Now that written detail has been provided by the unions, it has become clear that the parties are further apart than Essential Energy understood from the unions’ positions throughout recent meetings and in discussions. The unions’ letters 22 and 26 April 2016 remark that the parties are ‘not too far from reaching an agreement’. Furthermore, Essential Energy does not agree with the unions’ proposal that any matters that cannot be resolved by further discussion be determined by consent arbitration by the Fair Work Commission. Essential Energy continues to press its application to terminate the current agreement.

…

Whilst Essential Energy is encouraged by the fact that the unions have provided the Proposed Clauses it is Essential Energy’s view that the parties are still a significant distance apart, and that without significant change the Proposed Clauses will not meet Essential Energy’s fundamental requirements.”

[20] Mr Butler met with Mr Humphreys on 27 April 2016 and canvassed areas where the two parties were apart.

[21] On 29 April 2016, the CEPU gave Essential Energy six notices advising of the taking of protected industrial action in the form of stoppages during the 24-hour period between 6 am on 11 May 2016 and 6 am on 12 May 2016. The notices were given in respect of the six sequential four hour periods over that 24-hour period. The notices included some exemptions intended to provide sufficient coverage for Essential Energy to operate without risk to safety. Further commitments were given by the CEPU about emergency coverage. The industrial action was duly taken on 11 May 2016.

[22] Mr Humphreys wrote to Mr Butler on 10 May 2016. His letter included the following:

“Having been briefed on the bargaining committee meeting and hearing from those present about the discussions I simply cannot agree with the proposition which keeps getting repeated by the Unions that we are very close to an agreement.

This is because there is still a fundamental divide between what is being proposed on key items by the unions and what we have stated on many occasions are the requirements of Essential Energy. There are only a limited number of items in dispute but this needs to be viewed in the context that Essential Energy has only asked for 6 items in total in these negotiations since at least November last year. That is:

1. precision around limited timeframe for consultation with respect to outsourcing;

2. modernisation of the consultation clause to allow for an efficient and sensible process;

3. modernisation of the dispute resolution clause to provide time limits and the removal of the status quo requirement;

4. one 12.5% wage increase over the life of the Agreement;

5. the reduction in the rates payable for call-outs;

6. a modern redundancy clause including:

(a) the ability for Essential Energy to determine redundant roles and maintain absolute discretion on any offer of voluntary redundancy and mix and match processes as the first step whenever redundancies are required;

(b) the application of a cap on redundancies during the nominal term of the Agreement of 800 positions including the right for Essential Energy to utilise involuntary redundancies;

(c) the application of standard redundancy terms (that is, a right for Essential Energy to make positions redundant) post the nominal expiry date of the new Agreement;

(d) the critical requirement for precise timeframes around each step in the redundancy process.

To attempt to use the fact that there are only a small number of items in dispute as an indicator that we are close to agreement is misleading as since November last year there has only been these items in dispute and they remain in dispute.

I do acknowledge that there are matters in your letter and outlined in the bargaining meeting on 3 May 2015 which represent a shift in your union’s previous position. I have set out Essential Energy’s responses to your list of items below:

1. Consultation: Your proposal does not provide the certainty around a restricted period for consultation and is linked to status quo. This is not accepted by Essential Energy and repress our clauses as provided on 4 February 2016 which as I understand it, was agreed by the Unions previously. On this issue, the parties are further apart than ever.

2. Outsourcing: I note that we do appear to be close to agreement on this clause however this is contingent on status quo remaining in the dispute resolution procedure. As we do not accept status quo remaining in the dispute resolution procedure we are not agreed on this clause.

3. On-Call: I note your union’s in principle agreement to our proposed changes to the on-call minimum payments however, I also note that you withdrew this offer during this bargaining meeting.

4. Wages: I note your union’s in principle agreement to the proposition of one 2.5% increase over the life of the agreement.

5. Dispute resolution: We do not accept that status quo can remain in the dispute resolution clause and press our proposed clause as provided on 4 February 2016 (that is, the model clause).

6. Redundancy: I note that the Union’s proposal has shifted somewhat from the earlier clauses provided by you. However it still does not address Essential Energy’s needs. In particular we reject:

(a) the principle that an organisational wide called for voluntary redundancy be made prior to any redundancies being actioned;

(b) the principle that Essential Energy retainer floor of 2500 employees below which involuntary redundancy could not be applied;

(c) the principle that a 26 week additional redundancy payment could be made to employees up to a maximum of 87 weeks in total;

(d) the principle that the balance of a 26 week retention period would be paid out to employees who elect to leave during that period;

(e) the principle that current redeployees are entitled to take part in a further period of mix and match opportunities prior to leaving the organisation;

(f) the principle that any role made redundant while ever there is a job being done by a contractor/labour hire which the employee has the skills to performed (sic). I understand that you have clarified that the ETU’s position is that this is not what the ETU is seeking, but that position is not reflected in the draft clauses you tabled at the 15 April 2016 bargaining meeting;

(g) the principle that the salary maintenance would apply to new redeployees;

(h) the principle that normal rights to involuntary redundancy would not apply after the nominal expiry date of the new agreement.

Consequently, we reject the redundancy proposal put by the unions and press for the clause in the draft agreement sent to you on 4 February 2016.

…

In addition to the comments above, a number of matters contained in Essential Energy’s 4 February 2016 draft agreement were not addressed during the 3 May 2016 bargaining meeting, including the ETU’s position on:

(a) directing excess employees to take annual or long service leave;

(b) directing excess employees not to attend work;

(c) redundancy payments for employees who have already been notified as being excess employees at the date of the proposed new agreement is made; and

(d) criteria for the company determining whether a mix and match is appropriate.

Again I would like to make it clear that there was no ambit in the draft agreement sent by Essential Energy on 4 February 2016. That was a significantly compromised offer that abandoned many changes that we had previously sought. We compromised in this manner in a genuine attempt to get agreement from the bargaining representatives. The small number of items that we are seeking is the bare minimum Essential Energy needs to modernise into an efficient and cost-effective business.

Since that time, it seems that the bargaining representatives have not moved to any significant degree from the positions taken last year. Instead of responding to our draft agreement, you have put a series of alternate clauses which moved us further apart and now a series of principles put verbally which do not address the fundamental changes we require. We have considered all of your proposals in a genuine and detailed manner with the exception of the wage increase (as I understand the on-call allowance concession may be off the table), we do not think that the position of the Unions is close to being acceptable.

I understand that you proposed a small “drafting committee” be established during the bargaining meeting. I do not think this would be of any utility. The parties cannot agree on drafting if we have no agreement on the fundamental issues outlined above.

…”

[23] On 11 May 2016, the CEPU gave Essential Energy notices advising of the taking of protected industrial action over a period of 80 hours, constituted by 20 stoppages of four hours duration, between 10 pm 23 May 2016 and 6 am on 27 May 2016. Unlike with previous stoppages, the CEPU indicated it would not provide a skeleton staff to deal with emergencies.

[24] On 18 May, the CEPU gave Essential Energy notices advising of the taking of protected industrial action between 6 am 30 May 2016 and 6 am 1 July 2016 constituted by 192 successive stoppages of four hours duration.

[25] Also on 18 May 2016, Essential Energy sent a broadcast to the employees to be covered by the new enterprise agreement that it intends to request employees to vote for the enterprise agreement. The access period is intended to commence on Thursday 26 May 2016 with the ballot expected to conclude on Thursday 9 June 2016.

[26] The proposed agreement is in the same form as the draft enterprise agreement that Essential Energy had put to employees and bargaining representatives on 4 February 2016 except for three changes:

(a) a change to the maximum number of involuntary redundancies that Essential Energy can enact each year of the agreement;

(b) a change to ‘grandfather’ salary maintenance provisions;

(c) an extension of two weeks to a total of four weeks for excess employees to opt to accept a voluntary redundancy.

Consideration

[27] It is not contested that the CEPU has threatened to take protected action. Nor is it contested that the protected action threatens to endanger the life, the personal safety, the health and the welfare of a part of the population of NSW. I am satisfied, based on the uncontested evidence of Mr Burgess, that this is indeed so.

[28] The real issue in contention during the hearing was whether the Commission should suspend or terminate the industrial action. If the Commission terminates the industrial action this brings into operation the provisions of Division 3 of Part 2-5 of the FW Act. These relevantly provide, in summary, that if industrial action has been terminated under s.424, and the bargaining parties have failed to settle all the matters that were at issue during bargaining for the agreement during a post-industrial action negotiating period, then the Commission must make a workplace determination. In effect, the Commission would arbitrate the issues still in dispute.

[29] Mr Dixon submitted that the Commission should suspend the industrial action because:

(a) a negotiated outcome is the desired preference of each of the parties;

(b) termination would remove from the parties the ability of the parties to decide for themselves what terms they can hold out for, with the Commission imposing terms on the parties;

(c) termination would remove the parties’ (including Essential Energy’s) right to take further protected action;

(d) termination would in effect mean that the CEPU (which has indicated a preference for arbitration) was benefitting from its own conduct.

[30] It is clear that once the Commission is satisfied that there is a threat of protected industrial action of the requisite kind, then the decision whether to suspend or alternatively to terminate that action is discretionary.

[31] I have examined the factors to which the Commission has had regard on previous occasions in deciding whether to make an order either suspending or terminating protected action.

[32] In Ambulance Victoria v LHMU Kaufman SDP said:

‘Ambulance Victoria sought an order that I terminate the action. The LHMU opposed the order but did not submit, in the alternative, that I should suspend rather than terminate the proposed protected action. In the circumstances I only considered whether to terminate the action. Aside from the parties’ tacit agreement that that was the question I needed to decide, it seemed to me, in circumstances where negotiations have been going on for so long and various forms of protected industrial action have already been taken, that termination rather than suspension was the appropriate course should I be satisfied as to the relevant endangerment.’ 2

[33] In Victorian Hospitals’ Industrial Association a Full Bench said:

‘In considering whether a termination order or a suspension order should be made we have had particular regard to the stage reached in the negotiations between the parties and to the recently commenced conciliation processes. We note that the negotiations between the parties for the new agreement only commenced in mid-September 2011 and that the s.240 dispute resolution processes before a member of FWA began on 8 November. Although there will undoubtedly be a range of difficult issues to be addressed by the parties, we consider that the negotiations are still at a relatively early stage. We have therefore sought to provide a basis for the parties to continue with the negotiations in a way which is consistent with the bargaining scheme of the Act but without the continued damaging effects of the industrial action. An order suspending the protected industrial action for a period of 90 days will bring to an end the protected industrial action and will allow the discussions and negotiations between the parties to proceed, with the assistance of FWA. It will also allow the parties to focus their efforts on seeking to resolve the differences between them as to the new agreement rather than dealing with the problems associated with the bans and other industrial action. Further, it will provide an opportunity for the ANF to consider ways of giving effect to its stated intention of ensuring that any protected industrial action taken in the course of bargaining does not endanger anyone’s safety, health or welfare. The VHIA also sought that any suspension of the protected industrial action be for at least three months.’ 3

[34] In Monash University a Full Bench said:

‘We have a discretion as to whether to make a suspension or termination order. We initially considered making a termination order, on the basis that negotiations have been occurring for about 12 months with little progress and that a suspension order might simply lead to a later recurrence of the Results Ban during Semester 2 examinations. However both parties expressed a strong preference for a suspension order if any order was required to be made, and we accept the submission of the University that the evidence simply did not go to the issue of the future prospects of the parties reaching an agreement should only a suspension order be issued. We have therefore determined to issue a suspension order.’ 4

[35] In Ausgrid Harrison SDP said:

‘Ausgrid, Endeavour and the Minister each sought in their applications, as filed, for the termination of the protected industrial action. I was not persuaded I should make such an order. In final submissions, the Minister did not express a preferred view about one or other of these outcomes. The employers’ submissions, as they were developed, did not press for termination, but rather a suspension. On the facts in these applications, this was an appropriate concession. If I was to terminate the protected industrial action then no further protected industrial action could be taken and the terms of Division 3 of Part 2-5 of the Act would come into operation. These provisions relate to the making of a workplace determination. No persuasive case was established for me to do so. The protected industrial action, as notified, was the first to be taken of those which had been authorised by the protected action ballot. I am aware the parties have been, and still are, negotiating the new enterprise agreements that will cover them. No case was made out warranting the interruption of that process and a requirement for the parties to participate in another process that may see the imposition on them of an arbitrated outcome.’ 5

[36] In Commonwealth, Wilson C indicated some preference for termination because if the protected action was only suspended it was probable that there would be further threats of industrial action that would again endanger the population. However he ultimately decided to suspend the action because none of the parties had sought termination. 6

[37] These decisions indicate that the following factors are relevant:

● the length of time negotiations had been going on;
● the progress that had been made in negotiations;
● whether there had been prior industrial action;
● the views of the parties (especially where both parties agree on the appropriate course of action); and
● the potential for further industrial action that would endanger the general welfare etc.

[38] These are the factors upon which I have based my decision. Taken together, they support a decision to terminate, rather than suspend, the protected industrial action. I have also had regard to the management initiated ballot. Whether the decision is to suspend or terminate the industrial action, this would not prevent the ballot going ahead.

[39] While both parties would, I am satisfied, prefer a negotiated outcome, it must also be recognised that negotiations have been going on for nearly a year, including a week of intensive conciliation by the Commission. Based on the evidence the parties are still far apart on some key issues – indeed Mr Humphreys expressed in his letter to Mr Butler on 10 May 2016 that the parties appeared to be moving further apart. There have already been several rounds of industrial action. There is no agreement between the parties on whether termination or suspension should be ordered. If industrial action were only to be suspended on a temporary basis it is likely that there would be further industrial action once the suspension was lifted, that could once again threaten the welfare of the broader population.

Conclusion

[40] The protected action threatened by the CEPU should be terminated.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr H J Dixon, Senior Counsel, appeared for the Applicant; and with him Mr S R Meehan of counsel

Mr I Taylor, Senior Counsel, appeared for the Respondent; and with him Ms L Doust of counsel and Mr A Neilson of Slater and Gordon Lawyers

Hearing details:

2016

Sydney

May 23

 1  PR580630, PR580631

 2   Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union (2009) 187 IR 119

 3   Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 at [60]

 4   Monash v National Tertiary Education Industry Union [2013] FWCFB 5982 (26 August 2013) at [55]

 5   Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales) v CEPU, ASU and AMWU [2015] FWC 1600 at [59]

 6   Commonwealth of Australia (represented by the Department of Immigration and Border Protection) v CPSU, the Community and Public Sector Union [2016] FWC 2526

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