DECISION

Fair Work Act 2009
s.424—Industrial action

Ausgrid; Endeavour Energy; Minister for Industrial Relations (New South Wales)
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union
(B2015/309; B2015/310; B2015/311; B2015/314; B2015/316; C2015/1798; C2015/1804; C2015/1805; C2015/1806)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 27 FEBRUARY 2015

Suspension of protected industrial action.

[1] This decision concerns applications made by Ausgrid, Endeavour Energy and the Minister for Industrial Relations (New South Wales) (the Minister) for orders under s.424 of the Fair Work Act 2009 (the Act). The particular orders sought are for the termination or the suspension of protected industrial action which two unions (being the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU)), acting as bargaining representatives for their members, have notified. That protected industrial action is to occur next Tuesday, 3 March 2015. 1 Under the Act, the type of protected industrial action proposed is described as employee claim action.2

[2] The relevant provisions of s.424 are 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.

...”

[3] I have decided that protected industrial action is threatened and/or impending. I am satisfied that the protected industrial action would threaten to endanger the personal safety or health, or the welfare of certain persons in that part of the population of New South Wales in the coverage of the Ausgrid and Endeavour Energy networks.

[4] Having made the finding I have in the previous paragraph, I must make an order either suspending or terminating the protected industrial action. I am not satisfied that an order terminating the action should be made. I have decided to suspend protected industrial action for the proposed enterprise agreements being negotiated with both Ausgrid and Endeavour Energy.

[5] Section 427 of the Act provides that if I issue an order suspending protected industrial action, then I must specify the period for which the protected industrial action is suspended. I have decided it will be suspended until 5:00pm, Wednesday, 4 March 2015. Orders [PR561484 and PR561489] in these terms will be issued at the same time as this decision is published.

[6] I will issue reasons for my decision with respect to these s.424 applications as soon as practicable.

[7] I should also note that applications under s.418 of the Act were lodged by Ausgrid and Endeavour Energy, 3 and I heard those matters prior to the hearing of these s.424 applications. At the completion of those hearings, I dismissed each of those applications and said that my reasons for doing so would be published as soon as practicable. Orders dismissing those applications will be issued on Monday, 2 March 2015.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B Hodgkinson SC and Mr G Phillips on behalf of Ausgrid and Endeavour Energy.

Mr M Easton, counsel, on behalf of the Minister for Industrial Relations (New South Wales).

Mr O Fagir, counsel, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union.

Mr J Lavelle Wilson on behalf of the Australian Manufacturing Workers' Union.

Hearing details:

Sydney.

2015.

February 25, 26.

1 For the purposes of this decision and the s.418 applications to which I refer in [7], I do not address the protected industrial action that was to take place during the early hours of Wednesday 4 March 2015.

2 Fair Work Act 2009 (Cth) s.409.

3 Matter nos. C2015/1798 (Ausgrid v CEPU), C2015/1804 (Endeavour Energy v CEPU), C2015/1805 (Ausgrid v ASU) and C2015/1806 (Ausgrid v AMWU).

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