Fair Work Act 2009
Section 240 – Application to deal with a bargaining dispute

Application by Utilities Management Pty Ltd T/A SA Power Networks
(B2022/541)

Bargaining dispute

Background

[1] On 7 June 2022 a bargaining dispute was notified by Utilities Management Pty Ltd (UM) trading as SA Power Networks (SAPN). UM claims that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has published misleading and incorrect statements about UM’s stance on bargaining following a Commission full bench decision on 25 March 2022.

[2] This current dispute arises in the context of protracted bargaining for a new agreement between UM and its employees. Employee interests are represented by the Unions and other bargaining representatives. This is the latest in a series of bargaining disputes.

[3] The Commission conducted conferences on 17, 22 and 28 June 2022. The Commission also heard from the Australian Services Union (ASU) and Professionals Australia (PA) which, with the CEPU, form part of a three-union Single Bargaining Unit (SBU).

[4] Although many disagreements exist between UM and the Unions, what is agreed is that a statement should be issued by the Commission and made available to at least all bargaining representatives. The purpose of the statement is to guide future bargaining in the wake of the Commission decision.

[5] The parties to the dispute have agreed that the statement should be expressed in plain English. I have done so, noting that simplicity in language sometimes oversimplifies legal provisions. Ultimately, rights and obligations are drawn from the Fair Work Act 2009 (FW Act).

[6] Whilst the parties agreed that a statement be issued, this is the Commission’s statement. It is not a joint statement.

Disputed issues

[7] I have reviewed the material which UM believes contains misleading and incorrect statements about its stance on bargaining following the Commission decision.

[8] I agree with UM that some aspects of the published material do not correctly state the effect of the Commission decision and may mislead a reader into believing that UM is ignoring that decision. However, some of the other material objected to by UM simply represents opinions by the CEPU or SBU and are not contrary to the FW Act or the decision.

[9] UM ask that the CEPU publish corrective material. I will not require that for two reasons.

[10] Firstly, this Statement expresses an independent view that some but not all of the material objected to by UM is incorrect and may mislead.

[11] Secondly, as this Statement is intended to assist future bargaining, it is forward-looking. Recommending corrections of material already published is necessarily looking in the rear vision mirror. UM has other avenues to pursue rights over past events if it wishes to do so.

[12] I note that in the course of conferences on the dispute, the CEPU countered that UM had, in its view, made misleading statements during bargaining. I have not been asked to rule on those matters and have not done so. However, the guidance I provide below is directed to all parties.

Commission decision

[13] On 25 March 2022, a Commission full bench made what is known as a scope order under the FW Act. A scope order is an order that a proposed agreement cover a particular group of employees. In its decision, the Commission ordered that a proposed agreement arising from current bargaining include all persons covered by the currently operating Enterprise Agreement.

[14] The order was made in the context of UM having sought (in 2021) to establish a separate bargaining process with representatives of one of its businesses, Enerven. That separate bargaining process was challenged by the Unions. The Unions succeeded in that challenge.

[15] The following guidance is provided on future bargaining over coverage.

1. The Commission decision was that a new agreement, if made, must (unless otherwise agreed by UM and a majority of employees) cover the same group of employees covered by the current Agreement (SAPN and Enerven).

2. The Commission decision required all bargaining to occur only through the bargaining process established in 2020 (not the separate 2021 process).

3. However, the Commission decision did not rule out continued bargaining over coverage or over separate terms and conditions in the two businesses.

4. Subject to the condition at point 5 below:

a. it is consistent with the Commission decision for the Unions to advance or maintain a view that a single agreement covering all SAPN and Enerven employees should be the bargaining outcome;

b. it is consistent with the Commission decision for UM to continue to try to persuade the Unions and bargaining representatives that separate agreements for SAPN and Enerven should be made or that a single agreement should be made with separate terms and conditions, provided UM does so inside the original bargaining process; and

c. it is consistent with the Commission decision for the Unions to disagree with UM if UM continues to seek separate agreements or separate terms and conditions in these businesses.

5. UM, the Unions and bargaining representatives must, when advancing or disagreeing with proposals, give genuine consideration to proposals by others and communicate reasons for agreement or disagreement in a respectful way. This is a part of ‘good faith bargaining’.

6. Where bargaining disagreements (including disagreements over coverage) become entrenched a stalemate arises. A bargaining stalemate is not unlawful but prolongs the dispute.

7. Both an agreement in the terms of the scope order in the Commission decision or an agreement (or agreements) covering a different scope are capable of future approval by the Commission but only if approval requirements in the FW Act are met. These include that the agreement was bargained for in good faith, is consistent with Commission decisions and is supported by a majority of employees.

Communication

[16] Views expressed by UM and the Unions need to be respectful and accurate. However, there is no rule against expressing opinions about bargaining claims or bargaining conduct provided they are not inaccurate.

[17] Communication will not be inaccurate if consistent with the FW Act, with decisions of the Commission and with this explanation of the Full Bench decision.

Concluding observation

[18] The Commission is an independent body with functions under the FW Act. The Commission oversees collective bargaining to ensure it is conducted in good faith. The Commission can approve but does not make agreements or (except in very rare cases) determine bargaining outcomes. Only employers and employees do that.

[19] Bargaining between UM and its employees for a new agreement has been protracted and heavily contested since 2020. The Commission continues to encourage UM, the Unions, and bargaining representatives to find pathways towards a bargaining outcome that ultimately has the support of the employer and its employees.

DEPUTY PRESIDENT

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