DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Utilities Management Pty Ltd T/A SA Power Networks
(B2021/101)

Australian Municipal, Administrative, Clerical and Services Union
v
Utilities Management Pty Ltd T/A SA Power Networks
(B2021/102)

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Utilities Management Pty Ltd T/A SA Power Networks
(B2021/103)

Proposed protected action ballot of employees of Utilities Management Pty Ltd T/A SA Power Networks – whether proposed action constitutes industrial action – orders made

[1] This decision is further to the Decision of 1 March 2021 1 concerning three applications made to the Commission on 22 February 2021 by the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Association of Professional Engineers, Scientists and Managers Association (PA) (collectively the Unions) under section 437 of the Fair Work Act 2009 (the FW Act) for protected action ballot orders in relation to certain employees of Utilities Management Pty Ltd trading as SA Power Networks (SA Power Networks or the Employer).

[2] In the Decision of 1 March 2021, the Commission determined:

“[106] For these reasons, I conclude that the CEPU, the ASU and the PA have met the formal requirements of the FW Act for making protected action ballot orders and that each applicant Union has been and is, at the relevant time, genuinely trying to reach an agreement.

[107] Accordingly, I am required by section 443(1) of the FW Act to make the protected action ballot orders.

[108] I consider it appropriate that the time for written notification to SA Power Networks of any proposed industrial action that may be authorised and intended to be taken be extended under section 443(5) of the FW Act to five working days.”

[3] Orders were not made at that time pending determination of a final issue concerning two of the questions (Questions 8 and 9) proposed by the applicant Unions.

[4] I issued directions in conjunction with the Decision for the filing of submissions on this final issue. Submissions have been received by SA Power Networks and by the applicant Unions. 2

[5] The background to the determination of this final issue is set out in the Decision and need not be repeated. 3 Suffice to say that in the Decision,4 the Commission concluded that questions 8 and 9 as proposed in the originating applications could not clearly be said to be questions concerning industrial action and, as such, could not be included in the proposed orders.

[6] The Unions have applied to amend their applications by seeking questions 8 and 9 in an amended form.

[7] The issues for determination in this decision are two-fold:

● whether leave should be granted to the Unions to amend proposed questions 8 and 9 of the orders sought; and

● whether the amended questions (if leave is granted) are permissible to include in an order; that is, whether they contemplate conduct that would be industrial action as defined by the FW Act.

Leave to amend

[8] Leave to amend is not opposed.

[9] Although the Unions made the application to amend after the hearing and in a final written submission on authorities and without leave, I now grant leave to amend each application in the manner sought. I do so for four reasons:

[10] Firstly, the amendments to questions 8 and 9 are in response to the evidence and submissions by SA Power Networks. In the constrained time frames pre-hearing, it is not unreasonable for the Unions to have reflected further on the objections put by the Employer at the hearing.

[11] Secondly, the amendments do not introduce new subject matters. They reframe questions concerning the same subject matters.

[12] Thirdly, there is no prejudice to SA Power Networks in granting leave. I have provided an opportunity for SA Power Networks to put its view on both the amendment and on the permissibility of the questions as reframed.

[13] Fourthly, it would be inefficient to the conduct of the ballot to make final orders on the applications in their unamended form only to then find fresh applications being made by the Unions for further orders with respect to the same ballot.

Are the amended questions permissible?

[14] The questions in the amended form are:

“Question 8: The amending and issuing of work related emails with the link to the website www.sapowerworkers.com.au; and

Question 9: An indefinite or periodic ban on the performance of work in clothes worn at work to which stickers, badges or other campaign material displaying logos, slogans and messages is/are not attached, within the boundaries of workplace safety.”

[15] Do both of these questions propose a restriction or limitation on, or a delay in, the performance of the relevant work?

[16] SA Power Networks submit that the questions in the amended form do not cure the defects in the original questions. It says that the amended questions would still result in the same performance of work occurring albeit with a sticker, badge or (in the case of emails) additional link being displayed.

[17] The Unions submit that each question, as amended, contemplates, on its face, action of a type that is not customarily performed that would interrupt or stop work, and is thereby industrial action.

[18] In these amended forms, I am satisfied that both questions contemplate action that is industrial action within the meaning of section 19 of the FW Act.

[19] Question 8 concerns itself with a variation to a work related email. In its amended form it necessarily involves an interruption to work in order for the stated action to occur – amending and issuing an email with added content. 5

[20] Question 9 concerns itself with banning the performance of work whilst wearing particular attire or attire that does not include certain branding. The question describes the nature of the industrial action – a ban on the performance of work.

[21] Contrary to the submission of SA Power Networks, this is materially distinguishable conduct from that contemplated in the unamended question, which did no more than propose the wearing of certain attire. It is also distinguishable from the question concerning the wearing of clothing considered by a full bench of the Commission in Mornington or the Federal Court in Easy 6.

[22] I accept that there remains some ambiguity in precisely identifying the nature of the intended action in the amended question 9. This arises from the fact that the question contemplates action where the branding “is/are not attached”. It is not clear whether this formulation of words contemplates one singular circumstance or two different circumstances. The banning of work in circumstances where branding is not attached to customarily worn work attire unambiguously describes the nature of the proposed action. As such, banning the performance of work whilst wearing customary (non-branded) attire is industrial action. It falls within the principle expressed by the Court in Easy: 7

“If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work.”

[23] The banning of work in a possible second circumstance, where branding is attached to such attire, would still contemplate a ban on the performance of work by reference to attire though the question is unclear as to whether that second form of action is contemplated. The Unions written submission 8 suggests that only the first of these circumstances is intended (“this is expressed as a refusal to perform work unless the campaign material/stickers/badges is attached”).

[24] I make the observation that using the oblique back-slash (more correctly, virgule) “/” in writing that requires precision and exactitude, such as drafting a question in compliance with a statutory requirement, has the capacity to generate ambiguity and should be avoided. In the abstract, and unlike the certainty of the French equivalent (l’accent aigu “/”) which is simply a pronunciation point, in its English form it is far from precise - capable of suggesting any one of “and’, “or”, “maybe” or even a wistful catch-all.

[25] Nonetheless, I am satisfied that the question as amended is, for the purpose of a protected action ballot order, one which sufficiently identifies “the nature of the proposed industrial action” as required by section 437(3)(b) of the FW Act.

[26] Whether the description in question 9 is adequate for the purposes of a Union subsequently giving notice of “the action” prior to it being taken as required by section 414(4) and (6) of the FW Act is a different question. This distinction was noted by the full bench in Mornington:

“[44] It should immediately be apparent that the specificity with which “the action” is to be described in a notice might not be the same as a requirement that a question in a ballot include “the nature of” the proposed industrial action. Both concern describing action that is industrial action as defined in s.19 of the FW Act. However, the specificity with which the action needs to be described seems to us to be different. It seems to us that the structure of the differing legislative requirements, contemplates that at the time that a member of the Commission comes to consider whether to make a protected action ballot order, the context and manner in which employees might subsequently choose to take proposed industrial action, the nature of which is described in the question, may not be clear. However, different considerations will apply once a ballot has been conducted, the nature of the industrial action has been approved, and a bargaining representative gives notice of the action that will be taken by employees. When the notice is given, greater clarity about the context and manner in which employees will take industrial action, will doubtless be apparent and so greater clarity in describing the action to be taken will be required.”

[27] For these reasons I conclude that question 9 in the amended form is a question which describes industrial action.

[28] As both questions contemplate conduct within the meaning of “industrial action” in section 19(1) of the FW Act, the questions are permissible to be included in a protected action ballot order.

[29] As I am required to make orders for the reasons set out in the Decision and in this further decision, I issue protected ballot orders 9 on each of the three applications (as amended) in conjunction with the publication of this further decision.

DEPUTY PRESIDENT

Final written submissions:

Utilities Management Pty Ltd T/A SA Power Networks – 2 March 2021

The Unions – 2 March 2021

Printed by authority of the Commonwealth Government Printer

<PR727435>

 1   [2021] FWC 1080

 2   SA Power Networks: Email 2 March 2021 12.52pm; The Unions: Submissions in support of the proposed ballot questions 2 March 2021

 3   Ibid [84] – [98]

 4   Ibid [91]

 5   Mornington Peninsula Shire Council v Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 4740 (Mornington)

 6   United Firefighters Union of Australia v Easy [2013] FCA 763 at 154: “wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed”

 7   United Firefighters Union of Australia v Easy [2013] FCA 763 at 157

 8   At paragraph 10

 9   PR727365; PR727366; PR727367