REASONS FOR DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

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; B2015/312; B2015/314; B2015/315; B2015/316)

Termination or suspension of protected industrial action - whether action threatens to endanger welfare, health or safety - suspension order made.

[1] This decision provides my reasons for orders I made on 27 February 2015 pursuant to s.424 of the Fair Work Act 2009 (the Act). 1 The orders were made upon the applications of Ausgrid, Endeavour Energy (Endeavour) and the Minister for Industrial Relations (NSW) (the Minister) seeking the termination or the suspension of protected industrial action which two unions, acting as bargaining representatives for their members, had notified. The unions are 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). The order I issued on the applications of Ausgrid and the Minister was directed to the CEPU and the ASU. The order I issued on the applications of Endeavour and the Minister was directed to the CEPU.

[2] At the time I issued the orders, I also issued a brief decision. 2 In it, I indicated that I had decided to make orders suspending the protected industrial action. I did so by reference to the provisions of s.424(1)(c). The protected industrial action was suspended until 5pm, Wednesday, 4 March 2015. In the decision, I also indicated that applications pursuant to s.418 of the Act had also been lodged by Ausgrid and Endeavour. I had heard those applications prior to the hearing of the s.424 applications. At the completion of the s.418 hearings, I indicated that each of those applications was dismissed and that my reasons for that decision would be issued as soon as practicable. Those reasons for decision are to be published at the same time as these reasons.3

[3] In the proceedings before me, Ausgrid and Endeavour were represented by Mr B Hodgkinson SC and Mr G Phillips, the CEPU and ASU by Mr O Fagir, counsel, and the Minister by its counsel, Mr M Easton. At the commencement of the hearing, the Australian Manufacturing Workers’ Union (AMWU) also appeared, represented by Mr Lavelle Wilson. Shortly after the matters commenced, the applications issued against the AMWU were withdrawn. 4 Unless I indicate otherwise I will refer to the CEPU and ASU, together, as the unions.

The Fair Work Act 2009

[4] Section 424 of the Act is in Division 6 of Part 3-3 of the 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 I reproduce the whole of s.424. It is in these terms:

“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

[5] On 12 January 2015, I issued protected action ballot orders for a number of unions, two of which were the CEPU and ASU. Orders were issued as sought by those unions acting as bargaining representatives for their members who were employees of Ausgrid and Endeavour. In each of the orders that were issued, I identified a number of questions that would be put to employees in the relevant ballots. Each contained a question of members as to whether they supported the taking of protected industrial action which may involve the taking “separately, concurrently and/or consecutively” of a number of types of action that were set out. The types of action were divided into categories being stoppages of work, strikes, bans, changes to the performance of work and the distribution of union and industrial campaign-related material. Only the stoppages of work category was referred to in this matter. For the purposes of this decision, I need only identify that one type of action was "Stoppages of work for 4 hour periods".

[6] On 19 February 2015, notices of intention to take industrial action were given to Ausgrid. These notices were issued under s.414 of the Act by the CEPU and ASU, acting as bargaining representatives for their members. On that same day, a similar notice of intention to take industrial action was given to Endeavour by the CEPU, again acting in its capacity as a bargaining representative for its members. Each of the notices describes the purpose of the industrial action as being employee claim action in support of, or advancing, employee claims made in respect of the proposed collective agreement. Each of the notices is in similar terms. It is sufficient for me to reproduce the relevant terms of the CEPU notice given to Ausgrid as an example:

“Nature of intended industrial action

A four (4) hour stoppage of work by CEPU members to apply to the last four (4) hours of their ordinary hours. This action will apply to working hours which commence from Tuesday, 3 March 2015.

Date on which industrial action will begin:-

Tuesday, 3 March 2015”

[7] I note in the statements of Mr Pengilly at paragraph 16, and Mr Christopher at paragraph 31, that each reproduces the terms of the s.414 notice provided to them by the CEPU. In each case, in the second sentence, the word “work” appears, rather than "working”, which appears in the above extract. I note that an annexure to Mr Pengilly's statement contains a copy of the notice provided by the CEPU to Ausgrid and that it contains the word “working”. I will proceed on the basis that the notice contains the word “working” in the second sentence.

[8] It is to be noted that “Stoppages of work for 4 hour periods” is a kind of action which was approved by the relevant protected action ballots conducted by the Australian Electrical Commission in respect of the CEPU and ASU.

[9] On 24 February 2015, Ausgrid and Endeavour filed in the Fair Work Commission (FWC or Commission) their s.424 applications. On that same day, the s.418 applications, referred to earlier, were also filed.

The manner in which the hearing proceeded

[10] I ruled that I should proceed to hear each of the applications brought under s.424 of the Act together. This was not opposed. With one exception, the evidence and submissions in one matter were also admitted in the other matters. The only exception is that the statement of Mr Pengilly in the Ausgrid applications was not tendered in the Endeavour application and the statement of Mr Christopher in the Endeavour application was not tendered in the Ausgrid applications.

[11] In each case where it was sought, I granted the party permission to be legally represented. It was apparent to me from the terms of the applications made, and the documents filed, that issues of some complexity were likely to arise and that the matters would proceed more efficiently if permission was granted.

[12] I also ruled that Ausgrid, Endeavour and the Minister could be heard in each matter in which they were not an applicant. 5 In effect, I granted them the right to intervene in those matters. I took into account the fact the evidence of the employers was relevant to, and formed the basis for, the Minister’s application. In so ruling, I accepted that evidence specific to the operations of Ausgrid and Endeavour would be considered by reference to the particular application made by each of them. In doing so, however, I noted the employers’ and the Minister’s submissions that the protected industrial action was to take place at the same time across each of the networks thus, potentially, impacting a very wide geographic area. The employers’ and the Minister’s applications were interlinked in that the employers’ addressed the nature of the action to be taken and the impact for their operations, and the Minister’s evidence addressed the particular potential impact on certain hospitals and road and rail transport services.

[13] The following witness statements were tendered by the applicants:

● Mr Pengilly - General Manager – Network Operations, Ausgrid;

● Mr Christopher - General Manager Network Development, Endeavour Energy;

● Mr Wainwright – Principal Manager Transport Operations, Traffic Control, Transport NSW;

● Mr O’Connor – Chief Executive, Western Sydney Local Health District; and

● Mr Eid - Director of Operations, Sydney Trains.

[14] The only witness called to give oral evidence was Mr Pengilly. The Unions did not cross-examine Mr Pengilly, nor did they seek to cross-examine any deponents of the statements I have referred to above.

[15] The CEPU and ASU tendered a bundle of documents comprising correspondence between the CEPU and Ausgrid and the CEPU and Endeavour. The correspondence from the CEPU was signed by Mr Steve Butler, the Secretary of the CEPU, Electrical Division, New South Wales. Mr Butler gave oral evidence. He was cross-examined by counsel for Ausgrid/Endeavour.

The evidence and my findings based on it

[16] I will go into some detail in my summary of the witness evidence. Given the nature of the operations involved, I think it appropriate I do so. The Ausgrid and Endeavour evidence was not challenged by the unions and, as I have earlier noted, none of their witnesses were cross-examined. Unless I indicate otherwise, the evidence also constitutes my findings as to the facts in these applications.

Ausgrid’s evidence
[17] The evidence below is taken from the affidavit of Mr Pengilly.

i. Ausgrid's electricity network covers about 22,275 square kilometres from Waterfall in the South, to Auburn in Sydney’s western suburbs and north to Barry in the Upper Hunter (supply area). This includes Newcastle and also covers the majority of metropolitan Sydney, including the Sydney CBD.
ii. Ausgrid is responsible for the safe and reliable supply of electricity to 1.64 million customers, which include residential, large and small businesses, as well as major industry including mining, shipping, tourism, manufacturing and agriculture. All businesses within Sydney's CBD are within the supply area.
iii. In the 2013/2014 year, it had 5,388 employees across approximately 47 depots and offices.
iv. Within the supply area there are approximately:
(a) 30 major hospitals;
(b) 200 Sydney Water pumping stations;
(c) 300 nursing homes;
(d) 100 essential telecommunications hubs, which occur in most suburbs to enable the phone and internet networks in these local areas; and
(e) 20,600 life support customers.
v. Ausgrid's understanding is that the intended action will result in all of the CEPU and ASU members engaging in the 4 hour stoppage.
vi. A report showing outage response times for the period from March to June 2014 was in evidence. It provides information which is comparable to current levels of outages and response times.
vii. In the context of the intended action, Ausgrid can be considered to cover five key areas:

(a) the Control Room and Despatch;
(b) Field Operations;
(c) the Network Only Contact Centre (NOCC);
(d) administration; and
(e) engineering.

viii. The Control Room is the most critical area of the network’s business. It operates 24 hours per day, seven days per week, and is responsible for the overall control and monitoring of the electricity network. The Control Room electronically monitors all field operations, including monitoring the operation of the electricity network to determine whether assets are operating within their engineered capacity, directly controlling electrical access to the network, including de-energising the network (switching power off) where necessary to provide safe access or for the safety of the general public, and responding to unplanned events such as vehicle impacts, equipment failures and storms.
ix. The Control Room is also responsible for diagnosing events reported through the Supervisory Control and Data Acquisition system (SCADA) and directly to the Control Room and determining the appropriate action.
x. The Control Room roster is a 24 hour roster covered by three daily shifts with no overlap. The notified industrial action of a work stoppage to the last half of an employee’s shift in the Control Room will, in fact, impact all three shifts. There could be 12 hours of no employees working in the Control Room.
xi. Despatch is responsible for diagnosing events reported through the NOCC and determining the appropriate action. Despatch also manages the response to single customer events and is responsible for telephone contact with customers during the period 11pm to 7am.
xii. Field Operations are responsible for the physical delivery of field-based activities which include maintenance of the electricity network, construction and reconstruction works, switching the network, response to unplanned and emergency events, such as vehicle impacts and storms, and disconnection and reconnection of customers.
xiii. The NOCC is responsible for telephone contact with customers during the period from 7am to 11pm. This is often the first and prime means of interaction with customers where Ausgrid is able to ascertain the needs of those customers and whether a reported situation constitutes an emergency.
xiv. Administration is responsible for the daily support of all business functions.
xv. Engineering is responsible for setting the direction of the organisation from an asset management perspective.
xvi. A usual day for Ausgrid involves both planned work and unplanned events which require immediate response. It schedules its planned work to ensure that there are crews capable of responding to unplanned events across its supply area. In normal operating conditions, unplanned events occur every day. Examples of unplanned events include fuse/protection operation, a car or truck hitting a power pole, a tree or tree branches falling onto mains, excavating machinery interfering with overhead or underground power, and wires coming down as a result of weather conditions.
xvii. There are two main ways in which Ausgrid is notified of an unplanned event/emergency. The first method is that SCADA identifies that there is a loss of network connectivity (equipment or protection operation). This method of notification happens in relation to an issue with a high voltage connection, that is 11kV and above. This will typically mean that the outage affects a large number of customers, usually more than 500 customers. The second method of notification is where a customer contacts Ausgrid directly. This usually involves the customer calling the NOCC and providing information about the issue. This may relate to a wider power outage or may involve an isolated power outage or observation of a fallen power pole or wires. Relevant information from that call is entered into the outage management system (OMS) or related systems. A job code is assigned to the call which allows the prioritisation of emergency response. In a case where, for example, more than three customers have lost power in close vicinity to each other, OMS will predict that the local substation is affected.
xviii. The NOCC is staffed by approximately 50 people and operates 7 am – 11 pm, seven days a week with staggered shifts of between four – 8.5 hours. It receives an average of 583 Network Response Calls, or 36 per hour. Network Response Calls are high-priority calls and often relate to emergency situations. It also receives General Response Calls which have a low risk rating and include general enquiries. If the NOCC is not staffed, customers will not be able to contact Ausgrid and inform it about supply or safety issues. The employees who staff the NOCC are specifically trained on the OMS system and in the script for responding to such calls. It would be very difficult for the NOCC to be staffed by employees or contractors not trained specifically for this role.
xix. If Ausgrid has been notified of an issue, it is entered into OMS with a job code related to the issue reported. If the call is related to a single-customer issue, this job is automatically sent to the computer-aided service system (CASS) from OMS. Despatch then issues the job out to the field and to an Emergency Services Officer (EMSO) using CASS. Despatch is staffed by a total of approximately 10 employees who are classified as Despatch Coordinators. Despatch work shifts with coverage of 24 hours, seven days a week. EMSOs are electrically qualified. They are typically field-based people who do not work from a specific depot. EMSOs receive and process jobs on a vehicle-based computer system. They usually work in a specific area and do jobs confined to that area. EMSOs interact with the customers and the customer’s connection, as opposed to working on Ausgrid's network. The EMSO travels to a job and evaluates what they find. An EMSO’s foremost priority is to make safe. This would involve standing by fallen wires, fixing arcing service wires and providing advice and isolation of dangerous customer installations. The EMSO then carries out the work required.
xx. If it is a network-related issue (loss of a single phase, for example, of a Low Voltage distributor), the EMSO will report this back to Despatch which will inform the Control Room to send a District Operator and / or field crew to deal with the issue. The usual numbers of rostered EMSO’s in each region was in evidence. The Outage Report identified the numbers of outage and hazard jobs per weekday and time of the day and the average time taken to restore power. EMSOs predominantly respond to incidents where there is customer interaction. A 4 hour stoppage may delay the response times for urgent or emergency calls regarding a single-customer issue and no capacity to respond to genuine emergencies.
xxi. If Ausgrid has been notified of a network issue via OMS, a number of responses are triggered. A network issue is anything not associated with a connection to an individual customer. It includes an event where a wire has come off an insulator, wires are on the ground, a tree has fallen on wires, wires have broken from fatigue, a car has a hit pole, an asset failure, underground cable faults and substation fire or flooding. The Control Room is notified of every network issue and manages the response. An Area Operator (responsible for monitoring of a specific region) will diagnose the fault indications (alarms) and decide on the appropriate action. The Control Room may interrupt supply for hazardous situations where isolation in the field cannot occur in a timely manner.
xxii. A District Operator is the field-based arms and legs of the Control Room. They are highly mobile, vehicle-based, work individually and the most electrically-trained of all field workers. District Operators are authorised to switch the network in the field and there are certain tasks that only a District Operator can perform, as per Ausgrid's Electrical Safety Rules. They are first responders to supply interruptions but also events related to substation fires, network security issues (from a loading perspective), and hazardous network events (such as car-hit poles). With most network issues, the Control Room liaises with the closest available District Operator. Generally, the Control Room will send a District Operator to identify the location of the fault and isolate it to allow the un-faulted remaining sections of the feeder to be restored, thus re-supplying customers. In all cases of high voltage network issues and in some cases of low voltage network issues, the Control Room sends the District Operator to the site to diagnose issues and restore supply to as many customers as possible. Once tripped, and proven to be so by the District Operator, the District Operator then isolates the relevant wires/feeder and makes sure it cannot be re-energised by mistake. The District Operator makes safe by locking the feeder at the substation and earthing the wires at the scene. Clearance is provided for police, ambulance or an Ausgrid crew. The District Operator talks directly to the Control Room about what is happening and what they are going to do so that the Control Room ensures they understand the way in which the system is about to be modified. There is no paperwork for this and all of the communication happens over the phone.
xxiii. When the emergency relates to a network issue, Despatch or the Control Room will also issue the job to a depot in the area (as opposed to a specific crew). In the depot, the relevant Supervisor receives information on the emergency and determines which field crew can respond the quickest. If a field crew is on a planned job, they are instructed to pack up and make safe and go to the emergency. There is no dedicated field crew waiting at a depot for an emergency. The field crew will make the site safe and fix the problem so as to restore power. The average jobs per day the field crew respond to was in evidence.
xxiv. With a reduced number of people in the Control Room, the ability to manage network hazards or occurrences would be restricted. With a reduced number of District Operators and field crews during a four hour stoppage, emergencies regarding a network issue may have an extended response time. This could delay the time power is restored. With no District Operators or field crews during a four hour stoppage there would no capacity to respond to genuine emergencies and no ability to make safe.
xxv. The statistics show there is a probability of a hazard or outage job occurring at anytime which requires a response by the Control Room, District Operator or field crew.
xxvi. In the event of an unplanned event, the first priority is that the physical site must be made safe. The term "made safe" can be understood to mean physically making a particular incident site safe and without risk to the lives, health and safety of persons in the immediate vicinity of the incident. The nature of work required to be done to make a site safe depends on the nature of the incident. In the case of electricity mains on the ground (for example as a result of a car hitting a power pole), this involves switching off and isolating the power at the power pole, coiling up the wires, tying the wires off at the top of the pole and ensuring the pole and wires are left de-energised. Making safe is critical because, although emergency personnel on the ground (for example Police or Ambulance services) are trained to ensure that persons in the immediate vicinity keep a safe distance from the live wires, the wires still pose a significant safety risk until de-energised. This risk is particularly apparent, for example, in the circumstance where a car hits a power pole and the mains wires fall onto the car with the driver trapped inside. In cases such as this, Ambulance officers and Fire and Rescue are unable to assist the trapped driver until the wires are de-energised by Ausgrid personnel. The four hour stoppage by the CEPU will impact Ausgrid's ability to respond to an emergency.
xxvii. After the site is made safe, Ausgrid's second priority is to restore power. In the event of a four hour stoppage by the CEPU, there is a significant risk to public health and safety due to the increased response times that would result from having significantly less crews on the ground, and in the Control Room, to reconnect supply.
xxviii. Ausgrid is unaware of which employees are CEPU members and who will not be working during the proposed four hour stoppage. However, it is aware there are CEPU members who respond to notifications of emergencies, work to make scenes safe and restore power. There are members in the NOCC, Area Operators and System Operators in the Control Room, Despatch Coordinators, EMSOs, District Operators, Field Supervisors and employees in field crews.
xxix. Ausgrid has a list of key customers who are treated with higher priority due to their reliance on electricity and the higher risks associated with a loss of supply. Key customers include hospitals, nursing homes, emergency service establishments (Police, Fire Brigade, and Ambulance), Sydney Water pumping stations, Telstra Telephone Exchanges, various Internet Service Provider establishments, major industrial customers and major retail centres. It knows which feeders each key customer is connected to. If there is a loss of supply it will contact the key customer and ask for their disaster recovery plan and question them on the impact of the lack of supply. The disaster recovery plan will usually be dependent on factors such as Ausgrid's proposed restoration time, the time of day and the weather. The number of key customers who were affected by a sustained interruption in supply for the period from March – June 2014 was in evidence. Ausgrid also has registered life support customers who rely on some form of life support equipment that requires continuous and essential supply of electricity. There are approximately 20,600 of these customers (a figure that does not include people in hospitals and nursing homes). If there is a loss of supply on the feeder to such a customer, Ausgrid knows which feeders they are connected to but not the form of life support equipment each is reliant on. The aim is to restore power as quickly as possible. The longer it takes to restore power, the more risk there is to key customers and life support customers.
xxx. Other impacts that a loss, and then delay in the restoration, of power will have on customers include people trapped in lifts, an inability to use air-conditioning which, in severe heat, can affect the elderly, an inability to use communication devices such as landline telephones, radio and television which communicate information in an emergency, an inability to operate fridges and freezers which will significantly impact businesses in the food industry, security systems and building fire mitigation systems.
xxxi. An example of what may occur was a recent emergency in the Sydney CBD when Ausgrid detected faults in two of the three 11kV cables supplying power to the blocks between King and Goulburn streets and decided to interrupt all power at 9.40am to avoid an electrical overload. Power was cut to 1101 customers which included hundreds of businesses, the Local Court and the Sydney Westfield centre. At 10.40am, emergency crews managed to restore supply via the third cable using an alternative part of the network. If this incident had occurred during a four hour stoppage, the response time would have been significantly delayed. Another example occurred on 16 March 2014, when lightning storms impacted the Upper Hunter, Port Stephens and Sydney Networks. There were extended outages triggered by this storm.

[18] Mr Pengilly was called to give oral evidence. He was called to address his understanding of where the ASU had membership within Ausgrid. I had earlier indicated that Mr Pengilly was not cross-examined. I make the following findings based on his evidence:

i. The ASU has membership in the NOCC which he described as being, ostensibly, a call centre. It receives calls from customers and external agencies and records details in the outage management system (OMS). Notification to the NOCC is one of the methods by which Ausgrid is notified of any interruption to electricity supply and any emergency situation. It is also the conduit through which advice of interruption of supply is provided to other areas of Ausgrid operations.
ii. There are ASU members in field crew classifications. These classifications include ESOs described as, primarily, being in labouring classifications and plant operators.

Endeavour’s evidence
[19] This evidence is taken from the affidavit of Mr Christopher.

i. Endeavour’s network covers about 24,500 square kilometres across Sydney's Greater West, Blue Mountains, South Highlands, the Illawarra and the South Coast. It is responsible for the safe and reliable supply of electricity to approximately 926,800 customers in households and businesses.
ii. In the 2013/2014 year, it had 2,533 employees. Endeavour’s work sites comprise 13 communication offices, 24 depots, 220 substations and 30,000 distribution substations.
iii. Within its supply area there are approximately:
(a) 54 hospitals, not including nursing homes and retirement villages, which may not have back-up generators for life support;
(b) over 100 essential telecommunications hubs which enable phone and internet networks; and
(c) 17,707 life support customers.
iv. Endeavour must also provide continuation of supply following vehicle impacts, natural disasters including storms, flooding and other emergency response call outs.
v. Endeavour staff cover five key areas potentially affected by the proposed industrial action:

(a) the Control Room;
(b) field operations;
(c) the Call Centre;
(d) administration; and
(e) engineering.

vi. The Control Room is the most critical area of the business. It operates 24 hours per day, seven days per week, and is responsible for the overall control and monitoring of the electricity network. The Control Room operates in a similar way to that of Ausgrid and has similar responsibilities.

vii. The Control Room roster is a 24 hour roster, covered by three daily shifts. A proposed work stoppage to the last half of an employee’s shift in the Control Room branch will impact two of the three shifts. The three shifts overlap in terms of their start and finish times, but only by one hour. This means that the system control branch will be unmanned for a period of three hours commencing at 11:30am on the day of the proposed action. A further consequence is that there will be no handover to the incoming shift.

viii. Field operations have the same responsibilities as described for the comparable group at Ausgrid.

ix. The Call Centre is responsible for telephone contact with customers. Administration is responsible for the daily support of all business functions. Engineering is responsible for setting the direction of the organisation from an asset management perspective.

x. Endeavour will schedule its planned work to ensure that, where necessary, there are crews capable of responding to unplanned events working across the supply area. The Control Room is aware of each crew’s work location and what work they are carrying out so they can despatch to the closest available crew.

xi. An analysis of unplanned emergency incidents for the period from January to March 2014 shows that, during the 11:30am to 3.30pm time of day, Endeavour experienced on average 4.4 emergency incidents. There was no indication exactly what these events were.

xii. Examples of unplanned events include a vehicle hitting a power pole and impacting the lines, a damaged fuse, a tree or tree branches falling onto mains, excavating machinery interfering with overhead or underground power, and wires coming down as a result of weather conditions. An emergency event is basically anything that affects supply and could threaten the health and safety of those involved. In normal operating conditions, Endeavour can respond to most of these unplanned events and restore power to the majority of affected premises within approximately two to four hours.

xiii. One of the usual types of unplanned events is when a vehicle hits a power pole and brings down the pole and/or the network wires. This event cannot be predicted but it is a regular occurrence. The feeder supported by the power pole would trip, which would send an alert to the computer terminals in the Control Room. Members of the public would usually telephone the Call Centre to report the incident. A System Operator in the Control Room would despatch an emergency crew to the location of the incident. This crew would usually comprise of a District Operator and/or a work crew. The work crew could be up to five staff with their associated vehicles such as utilities and/or an elevated work platform.

xiv. The District Operator and/or crew assesses the situation and take necessary measures to preserve the safety of themselves and the public in the immediate vicinity of the network. If necessary, they will provide access to the site and work in coordination with other emergency services personnel such as Police, Fire and Rescue and Ambulance officers. At all times, the Control Room would be in close contact with staff on site and be ready to switch off power to provide a safe work area.

xv. Switching off the electricity network at the lowest levels of the network, such as individual streets or sections of streets, is achieved by manual operation of switches in the field by District Operators or other staff under the direction of the Control Room. In the event of a power pole going down, the Control Room is often unable to isolate power from that particular pole (or poles in the vicinity). The Control Room has the capability of isolating power from a larger control area, such as an entire suburb, but it is most often in the best interests of customers to minimise the size of the network isolation. In those circumstances power must be isolated manually by the District Operator or work crew on the ground.

xvi. Endeavour is not set up to operate like an emergency service. It does not have crews waiting at a depot for emergency work. Even crews whose role is to act as a first response are tasked with scheduled work that can be quickly halted in order to respond to unplanned work. Only outside the standard day shift time of 7:00am to 3:30pm is staff at home and on call-out if needed.

xvii. Some depots have an increased exposure to unplanned events. For example, Hoxton Park and Kings Park cover geographically smaller areas than other depots but have a higher density of customers and higher traffic density.

xviii. In the event of an unplanned event, the physical site must be made safe and then supply to affected customers is required to be re-connected. The greatest risk will be due to the increased response times that would result from having significantly less crews on the ground, and in the Control Room, to reconnect supply. This will inevitably lengthen response times.

xix. The evidence about “making safe” was the same as that detailed above in the Ausgrid evidence.

xx. If the intended action is implemented, Endeavour’s opinion is that its ability to respond to emergency situations, such as vehicle impacts, life support customers without supply and critical customer interruptions (hospitals and emergency services), will be significantly impaired. This would mean that an unplanned interruption to a customer on dialysis or an oxygen concentrator would be without power for an extended period of time, as opposed to having power restored in a few hours. Similar consequences apply to other critical customers such as hospitals and emergency services. This would occur as a result of the intended action by staff working in the Control Room, in the Call Centre and in the field.

xxi. The Endeavour supply area includes hospitals, nursing homes and retirement homes, which require continued electricity supply in order to ensure the life, safety, health or wellbeing of their patients and residents. The supply area includes approximately 17,000 customers on life support. Customers on life support are dependent on a reliable supply of electricity for their ongoing health, wellbeing and, in some cases, survival.

xxii. The majority of nursing homes, retirement homes and life support customers do not have backup generators to ensure continuity of supply in the event that electricity supply is lost to their premises.

xxiii. The usual restoration time under normal operating conditions to a no-supply situation is two to four hours. Endeavour assesses that the intended action could increase this restoration time to approximately eight hours. This increased recovery time poses a significant risk to the health and safety of vulnerable customers. Details in support of this assessment are in the statement of Mr Christopher and I do not repeat them. Details about care facility and hospital generators are also in his statement and were the subject of an order under s.593(3)(d) of the Act.

Evidence called by the Minister.
[20] The following is a summary of the evidence of Mr Eid in respect of Sydney Trains.

i. Sydney Trains has procedures and protocols in place to deal with loss of power. This includes response, recovery and maintaining safety.  An electrical control centre located at Central station deals with all power supply to the network. The centre is manned on a 24 hour basis, seven days a week.  Any interruption to power supplies will trigger an alarm and the electrical controllers would then action and manage/coordinate with the responsible supplier until the source is rectified. In most cases, power supply is provided by an external provider, such as Energy Australia, Ausgrid and Endeavour.

ii. Where there has been a break in the power supply, it is usually the case that the supply will trip, causing a momentary loss of supply, and then restore. This would cause delays of up to 10 minutes while the network resets.  However, if the supply trips and does not restore, and the fault is sustained, then this will result in service cancellation. If this occurs, buses will be called in to replace trains.  A recent example of this occurred on the Richmond line in February 2015 where Ausgrid power was lost and the power could not be restored.  Customers travelling to work experienced delays of up to an hour and buses replaced trains between Mulgrave and Riverstone.  If this was during a stop-work meeting and no one could attend, then services would remain suspended and delays to customers would be prolonged until they get back to work and sort out the issue.  

iii. A loss of power to all or part of the network is rare and it normally affects an area or specific line. However, when this occurs, it would likely result in significant disruption for the period of the power loss. The impact could result in additional time to recover the planned timetable, impact on station lighting, ticket machines, lifts and escalators (even with back-up power) which, on some occasions, will fail to come into effect. The Airport line may, in some circumstances, cease to run.

iv. The primary risk is a loss of power supply to the overhead wires (and the fault being sustained). This would mean that trains would stop and would not necessarily be at a platform. Customers would need to be evacuated, causing significant difficulties for passengers, generally, but it would be particularly distressing to those with physical disabilities.

[21] The following is a summary of the evidence of Mr O’Connor in respect of hospitals in the Western Sydney Local Health District.

i. The hospitals in the Western Sydney Local Health District have risk management strategy and implementation plans. They were listed in his statement and I do not reproduce them here.

ii. Each strategy/plan has a component that deals with the interruption of, or break in, supply of electricity (short term and longer than eight hours). He identified some particular hospitals which lack back-up generator power to in-patient units and others which have arrangements with a supplier to deliver diesel to the facilities for replenishing tanks.

iii. There are significant consequences for hospitals should there be an interruption to the supply of electricity. The consequences for Westmead, Cumberland, Auburn Blacktown and Mt Druitt hospitals were identified, though the nature of those consequences differs from hospital to hospital. I will give examples only. They include loss of air conditioning and ventilation, loss of non-essential lighting, loss of Radiology services and possible damage to MRI and other imaging equipment, food supplies needing to be brought in from off-site, and, if a back-up generator fails, there will be no back-up power for essential lighting and certain equipment.
iv. In the event of the above consequences, the impact, depending on the hospital, would be the cancellation of surgery, risk to the security and safety of patients and staff in acute in-patient units and loss of general power to offices, public areas and grounds of the hospitals.

v. Evidence was given about the primary risks there would be to patients and hospital activities. The evidence was subject to an order made under s.593(3)(d) of the Act.

[22] The following is a summary of the evidence of Mr Wainwright in respect of transport operations and traffic control in the Ausgrid and Endeavour network coverage areas. He said that interruptions to the supply of electricity, either localised or by a major network failure, were likely to have the following consequences for transport operations:

i. Road tunnels - lighting, ventilation, control systems would be compromised. If so most likely tunnels would need to close;

ii. Traffic Signals - traffic signals are arranged in “groups” of up to 50 sets. An interruption to any particular group could compromise road safety;

iii. Roads - street lighting, variable message signs and changeable message signs would be compromised and affect street safety;

iv. Road Bridges - Sydney Harbour Bridge operations are likely to be affected is there is an interruption to lighting, cranes, hoists, electronic lane change system. Some opening bridges such as the Spit Bridge may not be able to be opened or closed;

v. Buses - Bus Depot operations and workshops interruption to lighting may affect passenger and pedestrian safety;

vi. The Transport Management Centre and potentially the back-up centre would all be impacted; and

vii. Rail Network - power (overhead mains), signalling and communications may be affected. Station operations such as lighting, PA systems, indicator boards. escalators, fire detection and suppression systems could all be affected, as could city underground rail stations and ventilation systems.

The evidence called by the CEPU and ASU.
[23] I have earlier indicated that the unions tendered a bundle of correspondence between both the CEPU and Ausgrid, and the CEPU and Endeavour. 6 I will summarise the exchanges contained in that correspondence. I note that the correspondence was signed by Mr Butler on behalf of the CEPU, Mr Armstrong, the Chief Operating Officer, on behalf of Ausgrid, and Mr Howard, the Chief Operating Officer, on behalf of Endeavour. I will, however, in this summary, only refer to the union and the two companies as the authors of the correspondence.

[24] On 20 February 2015, Ausgrid sent a letter to the CEPU. It referred to the notice of members of the CEPU engaging in a four hour stoppage commencing Tuesday, 3 March. It referred to comments that had been attributed to Mr Butler which had been reported in the media and had indicated the action was “not about inconveniencing the public”. He had said that CEPU members would respond to all supply interruptions “regardless of circumstances” to ensure customers are not caught up in the middle of the dispute. Ausgrid enquired as to how it was that members of the CEPU intended to “respond to all supply interruptions regardless of circumstances during the period of the notified four hour stoppage.” Although a letter from Endeavour to the CEPU of 20 February 2015 was not in the bundle tendered, it seems from later exchanges it is likely that a letter in similar terms was also sent to Endeavour.

[25] On 23 February 2015, the CEPU wrote to both Ausgrid and Endeavour. The letter was in the same terms. It confirmed that CEPU members had chosen to exercise their right to take protected industrial action. It indicated that, on 20 February 2015, Mr Butler had contacted each company to discuss a “proposed emergency response solution that could be implemented if supply interruptions were to occur”. He noted that the companies had refused to advise what type of emergency response would be required. He recorded that the union had in mind something “along the lines of implementing a skeleton staffing arrangement, which historically have been in place on picnic day/public holidays and where those employees chose to remain available for direction.” The letter observed that employees could choose not to participate in the action that is notified and to attend for work.

[26] On 23 and 24 February 2015, respectively, Ausgrid and Endeavour wrote to the CEPU. The letters were in the same terms. They noted that the union’s entire membership was to take protected action industrial action “either on or from Tuesday 3 March next”, that the correspondence from the CEPU had not answered the companies’ question, but had made reference to “some historical practice in vague terms”. The union had given no indication of what the members would do in this instance. The companies asked to be advised specifically on how the union members intended to respond to all supply interruptions, regardless of circumstances, during the period of the four hour stoppage.

[27] On 24 February 2015, the CEPU wrote to Ausgrid. The letter referred to the correspondence on the same day, as well as the applications that had been filed in the Commission on that day. It indicated that the union had attempted to contact Ausgrid earlier that day to discuss the company's concerns, however Ausgrid had not returned the union’s call. The letter refers to a refusal by Ausgrid to discuss the type of emergency response that would be required. It records that the union had contacted Ausgrid to discuss a response solution that the union saw as being suitable “to be implemented to ensure no danger to life from supply interruptions occurring.” It noted that it had been, and still was, the union and its members’ intention to ensure emergency response to a supply interruption. It indicated that the union had intended to discuss with Ausgrid the implementation of a skeleton staffing arrangement in a form similar to a table which was attached to the letter as a solution. These were staffing arrangements which had historically been sought by Ausgrid and put in place on picnic days or public holidays. Also, the union was to discuss members making themselves available in a serious storm event to rectify outages. The table annexed to the letter was titled “Suggestion for Skeleton Crew-Ausgrid Picnic day/Public Holiday structure.” It contained a number of columns referring to work groups, the area in which they were situated and the relevant shift (day, afternoon, night).

[28] On 24 February 2015, the CEPU wrote to Endeavour. The letter was in similar terms to the one sent to Ausgrid, except for the proposed staffing arrangements. It indicated that the union had hoped to discuss with Endeavour the implementation of a skeleton staffing arrangement in a form described in the letter. It referred to a number of areas of operation and employee classifications and proposed the make up of a team.

[29] I turn to the evidence of Mr Butler. He referred to the telephone conversation he had with Mr Howard from Endeavour on 20 February 2015. Mr Howard had asked Mr Butler to just respond to the e-mail telling the company what coverage the union was going to provide. Mr Butler asked Mr Howard what it was the company wanted to provide and said he thought something could be worked out. It seems from the correspondence that the conversation went backwards and forwards along those lines. He referred to the conversation he had with Mr Armstrong of 23 February 2015. It seemed it was in similar terms to that which he had with Mr Howard. 7 He confirmed that he had issued a press release which had been reported in the Sydney Morning Herald and it was an extract from that press release which the companies had referred to in their correspondence to him. He accepted that emergency response was only one aspect of work that is performed by CEPU members on any given, ordinary day. He said he was not putting a concrete proposal from the union as he was waiting for the companies to tell the union what they wanted. He said that the proposal, which had historically applied on public holidays and picnic days, was of a skeleton crew made up in accordance with a management determination as to what was necessary to address emergency situations on those days. He accepted that those crews were supplemented on those days by employees who were either on call, or recalled, to work.8

The approach to be taken to application of s.424 to the facts - the principles

[30] Mr Hodgkinson tendered written submissions in which he summarised what was described as the applicable principles that could be extracted from several decisions where the scope and effect of s.424(1)(c) had been considered. The unions did not take issue with the principles to the extent they were set out in paragraph 3.5, but submitted that additional principles could be extracted from cases or decisions not there referred to. I start by indicating that, subject to some observations I make below, I accept the principles in paragraph 3.5 of the employers’ submissions as being appropriate to take into account in s.424 applications and I have applied them when reaching my decision in this matter. I later refer to principles identified by the unions that I should take into account. In relation to the principles as set out in paragraph 3.5 of the employer's submissions, I make the following observations.

[31] I note in the principles there are references to the Full Bench decision in Coal and Allied Operations Pty Ltd v Construction Forestry Mining and Energy Union. 9 (Coal and Allied). I also note that a subsequent appeal from the Federal Court to the High Court in respect of this decision, and which bears the same decision name, is said to have endorsed the approach that had been taken by Justice Giudice and Commissioner Larkin. The section there under consideration was s.170MW(3) of the then Workplace Relations Act 1996 (WR Act). A number of terms used in that section are the same as are now contained in s.424. I do note, however, that there appears to be some differences, possibly important ones, which should be borne in mind when considering the application of Coal and Allied to any application under s.424. I note the following:

● Section 170MW(1) provided that if the Commission was satisfied that any of the circumstances that were set out in the subsequent subsections (2) to (7) “exists or existed” then “the Commission may” make an order suspending or terminating the bargaining period. Section 170MW(3) provided that “a circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening” to endanger the life, personal safety, etcetera. Consideration was to be given to whether the circumstances exist or existed. That is, whether they were presently in existence or had been. Section 424 contains an additional consideration that is to industrial action that is threatened, impending or probable.
● Section 170MW(3) referred to circumstances when the industrial action “is threatening.” This is to be contrasted with the provisions of s.424 which extend to industrial action that “would threaten” to endanger, etcetera.
● Section 170MW(1) gave the Commission a discretion to make an order if satisfied of one of the relevant circumstances. Here, s.424(1) gives no such discretion. If satisfied of the relevant circumstances, the Commission must make an order.

[32] I note in the principles set out in paragraph 3.5 of the employers’ written submissions there is a reference to the powers of termination and suspension being intended to only be used in exceptional circumstances. If, by that, it is intended to be a test I should apply, I doubt it to be correct. About applying a test of “exceptional circumstances”, the Full Bench in Monash University v National Tertiary Education Industry Union 10 said:

“[20] In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions "exceptional circumstances" and "significant harm" in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition.”

[33] I now refer to additional principles the unions submit should guide me. They first rely on extracts from the Full Bench decision in CFMEU v Woodside Burrup Pty Ltd and Another (Woodside Burrup). 11 Although that Full Bench was dealing with an appeal against an order made by a single member under s.426 of the Act, it is nonetheless submitted it sets out considerations I should take into account. It was submitted that the decision makes it clear that employees have a right to take protected industrial action provided, of course, that the relevant preliminary steps required by the Act are complied with.

[34] Next, the unions rely on comments made in the Explanatory Memorandum which accompanied the Fair Work Bill 2009. I note that the part that is referred to is one where comments are being made, generally, as to the range of powers in Division 6 of Part 3-3. I also note the comments later made in the Memorandum, directed specifically to s.424, do no more than summarise the section. The extract referred to by the unions reads:

“1708. The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
1709. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.”

[35] The unions submitted that the powers in relation to suspension or termination of protected industrial action are intended to be used in exceptional circumstances. I have commented on this matter above and do not intend to make any further observations about it here.

[36] Next, the unions referred to extracts from Woodside Burrup which, in turn, refer to the High Court decision in Coal and Allied. 12 They focused, in particular, on comments made by the High Court at paragraph [28]. There, when commenting on the need for a member to be satisfied that the protected industrial action was threatening to cause significant damage to the Australian economy, or an important part of it, the Court said it was not “simply a matter of impression or value judgement.” The words “significant” and “important” were in s.170MW(3)(b) and, about them, the Court said 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. I have made some comments earlier about s.170MW and need not repeat them. For present purposes, I observe that s.424(1)(c) contains neither the word “significant” nor “important”. Those words are contained in s.424(1)(d). I later indicate that I was not persuaded that any case for an order under that subsection has been made out. Nonetheless, I accept that it is necessary for me to be positively satisfied that the protected action here threatened will have the impact as described in s.424(1)(c). In reaching my decision in this case, I rely on the unchallenged evidence about the probable impact of the action, as notified, being taken.

[37] The final issue, not directly addressed in the principles but raised by the unions, concerns what I should take into account when deciding whether I am satisfied the notified action would threaten to have the effect as described in s.424(1)(c). I describe this issue as the mitigation argument. It relates to the proposal the unions put to Ausgrid and Endeavour about certain staffing that may be provided during the period of the protected industrial action. I will address this argument later in this decision.

Consideration

[38] It was not in issue that protected industrial action had been notified by the CEPU and the ASU. It was both threatened and impending. As notified, it was to commence on Tuesday, 3 March 2015. It was largely to be taken on that day, but some protected action would also be taken by members on shifts that commenced late on 3 March 2015 and went into the early hours of Wednesday, 4 March 2015.

[39] I took into account the fact that the stoppage was for a four hour period and would be confined largely to one day. I also took into account the fact that all CEPU and ASU members would participate and the four hour stoppage period would not be taken and completed in one four hour window or one tranche. Stoppages would be spread throughout the day at hours coinciding with the last four hour ordinary hours of CEPU and ASU members’ shifts. I am also aware that there are significant numbers of CEPU and ASU members at both Ausgrid and Endeavour.

[40] The proposed action was to take effect on the same day at both Ausgrid and Endeavour. As such, its potential impact was across a large geographical part of the State of New South Wales, which part included large residential and commercial areas. It included hospitals and nursing homes, as well as the Sydney CBD.

[41] I was satisfied, on the evidence, that it was probable an emergency event or events would occur during the period of the protected industrial action. I accept that there are many types of unplanned power interruptions which may arise and which can range from relatively simple to far more complex incidents. The impact of any power interruption will depend on the nature of the interruption, whether there is one or more, the time they occur, where they may occur, whether they impact single, many, or key customers and/or the network more broadly. Nonetheless, it is established that power interruptions, which may also include emergency interruptions, are sufficiently frequent so as to satisfy me they were probable.

[42] When a power interruption occurs, it is essential that notifications are taken immediately, details are entered into the systems in a timely way and actioned as soon as possible. Notifications are through the NOCC and the SCADA system at Ausgrid and the call centre at Endeavour. Each also has a control centre monitoring the respective networks. I was satisfied, on the evidence, that it was probable the threatened industrial action would result in delays in taking advice or in the receipt of information about power interruptions. I was also satisfied the notified action would likely delay the giving of directions to relevant personnel or crews to attend the site in question, with the consequence being a delay in the restoration of power.

[43] Delays in the restoration of power are such as to threaten to endanger the safety, health and/or welfare of persons impacted by the power interruptions. I accept that a delay in the restoration of power supply to one residential customer, for example, could not be described as impacting a part of the population of New South Wales, but many other interruptions described in the evidence would have the requisite impact on sufficient persons to qualify for that description.

[44] In making these findings, I note that s.424(1)(c) is concerned with action that threatens to endanger persons in the manner described and the section does not require a finding that it will endanger such persons in respect of their welfare, health or safety. It may be that, ultimately, no such adverse impact in fact occurs.

[45] I was particularly concerned about persons in the categories described as vulnerable. The action threatens to endanger patients in hospitals, nursing homes or facilities with no, or inadequate, back-up power. I also include in this category persons described as life support customers.

Extending the order to the ASU

[46] Although more evidence was directed to the probable impact of the CEPU action, Mr Pengilly identified areas in which he understood ASU members were employed. The evidence was that there were ASU members in the NOCC and field crew, being ESO’s and plant operators. That was not challenged by the ASU. I am satisfied in the case of the stoppages here notified, and on the evidence in this matter and the interdependence of the various work divisions, that the outcome in respect of both the CEPU and ASU should be the same.

I turn now to the mitigation argument
[47] I commence by observing that the nature of the service Ausgrid and Endeavour provide cannot be supplied by another service provider. As a general observation, the CEPU and ASU members work in areas of Ausgrid and Endeavour, and in classifications, which cannot be undertaken by non-Ausgrid and non-Endeavour employees. I also note that the s.414 notice that was given did not identify any circumstances that would be exempted from the proposed industrial action. It does not appear to me that the Act recognises circumstances in which a notice, having been given, may be amended.

[48] Unlike other industries, it is not open to the employers in this case to call in contractors to undertake, for example, operations in the NOCC call centre, control rooms, or cover for EMSO’s, District Operators and field crews. The customers of Ausgrid and Endeavour cannot simply ring another service provider to assist to restore power supply in the event of many of the unplanned interruptions.

[49] The unions submit that Ausgrid and Endeavour failed to accept a proposal that would mitigate the potential effects of the protected industrial action. They argue that the employers were unreasonable in not accepting the staffing arrangement proposed by the CEPU. They argue that there was no basis for any suggestion that the skeleton arrangements which had been put in place in the past on public holidays and union picnic days had been anything other than safe. There was no reason why they would not have been safe on 3 March 2015. 13

[50] In support of their argument, the unions rely on the evidence given by Mr Butler and the correspondence contained in Exhibit CEPU/ASU 1. I have referred to this evidence earlier in this decision.

[51] Section 424 requires me to give consideration to the industrial action that is being threatened and to make an assessment about whether I am satisfied that action would threaten to endanger the life, personal safety, etcetera, of relevant persons. It is not immediately apparent from that section whether I must look beyond the nature of the industrial action that is to be taken and the impact of that action. 14 However, I accept that the approach that has been taken generally by members of the Commission is to take into account all of the circumstances of the relevant employer’s activities when assessing the impact of the protected industrial action. The approach is to look beyond considering only the impact of the action as notified, should it be taken, and also consider actions which may be open to the employer to mitigate the effect of the proposed industrial action.15 This argument was not developed in any detail before me but appears to underlie one ground of the unions’ opposition to the orders sought. It seems to me that a consideration of actions open to an employer to mitigate the impact of notified protected action can properly be taken into account when assessing the likely impact of that action. Each case will turn on its own facts but it is not uncommon in many workplaces for members of staff to undertake the activities that the employees taking the industrial action would otherwise do. In some cases, contractors can easily be engaged to undertake the tasks during the period of the industrial action. Taking these considerations into account when deciding whether the requisite level of satisfaction is reached is also consistent with the case law about the function served by a s.414 notice. An employer is given a period of time to take what defensive actions it can to mitigate the impact of the notified action. However, I was not taken to any decision in which it was suggested an employer has some kind of evidentiary onus to establish it has taken every possible step it can to diminish the impact of the notified action. In this case, given the nature of the employers’ operations, the impossibility of knowing in advance what power interruptions will occur and the fact all members of the CEPU and ASU across all of the depots and worksites are to take the action, I would not have been persuaded such an evidentiary onus should be placed on Ausgrid and Endeavour.

[52] The evidence led by the unions was that, in the past, skeleton crews had operated at certain times when the whole of the workforce was not to work as rostered. That evidence did not establish the nature, type, location or constitution of that staffing arrangement with any certainty. The evidence did not amount to an undertaking that particular staff and crew members would not participate in the notified industrial action. It was only that the CEPU was prepared to discuss with the employers the skeleton staffing they may require and, in that context, the staffing historically put in place on public holidays, picnic and EBA days, was suggested. Furthermore, I note that the evidence is that, even on those days, additional employees had been called back to work and/or were on call. The proposal of the union was not concrete or certain enough for it to weigh against the findings I have earlier made about the notified action threatening to endanger the welfare, health and safety of persons constituting part of the population within the Ausgrid and Endeavour supply area.

[53] Assuming the CEPU skeleton staffing proposal was sufficiently concrete and certain, the next issue is what relevance and weight I should place on the employers’ reaction to it. It may be that, in some cases, an employer who refused to accept a union proposal to mitigate the impact on critical or key aspects of the employer’s operations could be said to be unreasonable. It is not unknown for an employer to take such a position, being of the opinion that to do otherwise would compromise the strength of its application for the termination or suspension of protected industrial action. Such an argument seems to have been made in other like applications. 16 On the evidence in this case, however, I do not make any adverse findings about the reaction of Ausgrid and Endeavour to the proposal of the unions. I was not persuaded that the CEPU proposal would have been sufficient to mitigate the probable impact the protected action threatened to have.

[54] Other issues will also have arisen had the skeleton staffing proposals been more certain. The employers’ could properly refuse to adopt the proposal, being of the opinion it would not be adequate to cover the consequences of probable power interruptions. Further, in this case the employers’ say it is relevant that any employees working on a skeleton roster would not be taking protected action as notified and are likely to be working on something different to their rostered shift. Questions would arise as to whether and how, consistent with the provisions of Subdivision A, Division 9 of Part 3-3 of the Act, the employers’ would be required to pay those employees. They may say that, unless employees attend for work as rostered, and worked the whole of their shift, they would not accept something less or different.

The Minister’s evidence

[55] I wish to make some brief comments about the Minister’s evidence. I accept the evidence about the impact of the protected industrial action on vulnerable customers of Ausgrid and Endeavour. It was not challenged and was taken into account when making the findings I have earlier made. I also accept the evidence about the likely interruption to train operations which would occur as a consequence of a loss of power. Indeed, the evidence pointed to an example of a delay on the Richmond line that had occurred two days before the hearing.

[56] However, I should indicate that it is not clear to me that each of the Minister’s witnesses, when preparing their statement, may not have done so on the understanding the industrial action which was notified was to occur beyond the period I have indicated and, in fact, continue into the following days. They were not called or required for cross-examination and the statements do not make clear whether all the likely consequences of loss of power they identify were probable in the case of one four hour stoppage.

[57] A number of the scenarios described in the evidence of Mr Wainwright, in particular, could only be described as speculative or worst-case scenarios and not of sufficient weight to persuade me that, on the occasion of a power interruption during the four hour stoppage, those events were probable. In this respect, no mention was made of alternate power feeds, back-up facilities or generators which I think are likely to exist.

The orders I made

[58] I made the findings I did on the evidence. Being satisfied that the protected industrial action would threaten to endanger the personal safety, health or welfare of part of the population, s.424(1) obliges me to make an order either terminating or suspending the protected industrial action.

[59] 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.

[60] Ausgrid and Endeavour also submitted that, on the evidence, the Commission would be satisfied that the conditions in s.424(1)(d) are met in that it is self-evident the action would threaten to cause significant damage to an important part of the Australian economy, given the magnitude of the respective supply areas and the large number of commercial enterprises they cover. No other submissions about this subsection were made. I was not persuaded such a case was made out.

Conclusion

[61] It was for these reasons that I decided, on 27 February 2015, to make the orders pursuant to s.424(1)(c).

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   PR561484, PR561489.

 2   [2015] FWC 1400.

 3   [2015] FWC 1603.

 4   PN520, PN523-527 on 25 February 2015.

 5   These rulings were made consistent with ss.589 and 590.

 6   CEPU/ASU 1.

 7   PN872-892 on 25 February 2015.

 8   PN895-921 on 25 February 2015.

 9   1998 80 IR 14.

 10   [2013] FWCFB 5982.

 11   [2010] FWAFB 6021.

 12   [2000] CLR 194.

 13   PN355 on 26 February 2015.

 14   A similar observation was made by Senior Deputy President O’Callaghan in Pelican Point Power Limited [2010] FWA 8666 at paras [25] to [27].

 15   An example of such an approach appears to be taken into account in Tyco Australia Pty Ltd trading as Wormald v CEPU [2011] FWAFB 1598.

 16   See for example Victorian Hospitals Industrial Association v Australian Nursing Federation [2011] FWA 8165 at paras. [35] and [36] although I do note in that case it appears that there was a union resolution that there would be some exclusions from the industrial action approved in the ballots and as notified in the s.414 notice.

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