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 genuinely trying to reach agreement – whether bargaining ceased – whether a proposed agreement existed – whether proposed action constitutes industrial action – whether notification time should be extended – orders to be made

[1] This matter concerns 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] Section 441 of the FW Act requires such applications to be determined within two working days so far as practicable.

[3] On 23 February 2021 the employer advised that it opposed the orders being made.

[4] I issued directions on 23 February 2021 (amended 24 February) for the filing of materials in advance of the hearing. Despite constricted timeframes, all parties substantially complied with the directions.

[5] I heard the matter by phone on 25 February 2021. Notwithstanding objection by the Unions, permission was granted for SA Power Networks to be represented. I directed the three applications to be dealt with together, under section 442 of the FW Act. I took oral evidence from SA Power Networks (Mr Jake Goodwin, Workplace Relations Manager) and from the CEPU (Mr Benjamin Jewell, Organiser).

[6] Following submissions, I reserved my decision.

[7] Leave was provided for the late filing of authorities, and, by consent on 26 February 2021, I admitted a further document from the CEPU. 1

Facts

[8] SA Power Network operates the distribution network for electrical power to all South Australian domestic consumers and most commercial and industrial consumers in the State.

[9] SA Power Networks employs persons who construct, maintain and repair electricity distribution assets. It employs those persons under the Utilities Management Pty Ltd Enterprise Agreement 2018 (the current Agreement).

[10] The CEPU, ASU and PA are each employee associations covered by the current Agreement. 2

[11] The current Agreement was approved by the Commission on 28 August 2018 and took effect on 4 September 2018. 3 It reached its nominal expiry date on 31 December 2020. It continues to operate since that date by force of law.

[12] Bargaining for a new Agreement commenced in 2020.

[13] SA Power Networks issued a Notice of Employee Representational Rights (NERR) on 5 June 2020.

[14] Formal negotiations were conducted via a single bargaining unit, comprising the employer and the Unions. From time to time, SA Power Networks also liaised directly with one or other of the Unions and its employees.

[15] Seven bargaining meetings in total have been held. The form and nature of those meetings is summarised in the largely uncontested evidence of Mr Goodwin. 4

[16] Four bargaining meetings were held on 26 June, 14 July, 4 August and 17 September 2020 respectively. At the first three of these meetings SA Power Networks suggested certain positions for a new one year Agreement, but no agreement was reached. The Unions submitted a log of claims at the 17 September 2020 meeting. Included in the Union log were a range of claims including a claim for an agreement with a three year term. 5

[17] On 28 September 2020, via correspondence, SA Power Networks advised the Unions that its log of claims was rejected; that it considered it unlikely that agreement on an acceptable replacement Agreement would be achieved; and that it intended to submit its proposal for a replacement Agreement to employees for a vote.

[18] Voting on the SA Power Networks proposal occurred between 9 and 14 October 2020. Employees did not approve the proposed Agreement.

[19] Two further bargaining meetings were held on 2 and 17 November 2020. Neither SA Power Networks nor the Unions altered their position in material ways.

[20] On 1 December 2020, via correspondence, SA Power Networks advised the Unions that it considered it unlikely that agreement on an acceptable replacement Agreement would be achieved and that it intended to re-submit its proposal for a replacement Agreement to employees for a vote.

[21] Voting for the second time on the SA Power Networks proposal occurred between 11 and 16 December 2020. Employees again did not approve the proposed Agreement.

[22] On 17 December 2020 SA Power Networks advised the Unions that in light of the two ‘no’ votes, it was withdrawing its proposed new Agreement. It also advised the Unions that it intended to revisit its bargaining position and would be in contact with respect to a revised position. 6

[23] On 17 December 2020 the State Secretary of the CEPU, Mr Adley wrote to the employer on behalf of the Unions. The Unions expressed the view that SA Power Networks had held to a fixed position and had not bargained in good faith.

[24] The following day, 18 December 2020, SA Power Networks responded. 7 Its correspondence included the following:

“…SA Power Networks remains committed to achieving an enterprise agreement that meets our imperatives. On this basis, and in considering availability to meet to conduct negotiation meetings, we will be in a position to confirm a date and time to meet during the week commencing 4th January 2021. We will endeavour to accommodate one of your below requested dates…

We look forward to meeting with the Bargaining Representatives in 2021 in respect to negotiating a new enterprise agreement.”

[25] On 12 January 2021 SA Power Networks advised the Unions: 8

“Pursuant to our previous correspondence in respect to the confirming the next negotiation meeting, SA Power Networks will not be in a position to meet with the bargaining representatives until February 2021.

We will be in contact with the Bargaining Representatives in the next few weeks with proposed dates and times.”

[26] A (seventh) bargaining meeting was subsequently scheduled for 5 February 2021, and took place on that day (by video conference).

[27] The 5 February 2021 meeting was short, a few minutes only. It commenced at 1.00pm and concluded at 1.06pm. The meeting commenced by SA Power Networks advising the Unions of its revised position. It advised that whilst it remained committed to collective bargaining, it had carefully considered the impact of the two ‘no’ votes; the “unlikely” prospect of the position of the bargaining representatives being reconciled and reaching agreement; and that accordingly “it had decided to formally cease bargaining via the letters dated 5 February 2021.” 9

[28] Within minutes of the meeting concluding, SA Power Networks sent an email to its employees containing the following: 10

“This afternoon we met with the Bargaining Representatives to advise them that we have decided to formally cease the current Enterprise Agreement bargaining process that commenced with the issuing of the notice of employee representational rights on 5 June 2020.”

[29] Later that afternoon, 5 February 2021, Mr Adley, on behalf of the Unions, wrote to SA Power Networks as follows: 11

“The SBU advises that, despite SAPN/Enerven’s comments at today’s meeting and the CEO update emailed to employees 10 minutes later, the SBU remains committed to negotiating a new enterprise agreement to replace the current Utilities Management agreement.

We do not agree or accept that bargaining has ceased.”

[30] A letter dated 5 February 2021 was also sent to the Unions. It advised, in part: 12

“Bargaining for an enterprise agreement to replace the 2018 Agreement has now ceased. We have explained the background below…”

[31] On 8 February 2021 the Unions followed up their position rejecting the employer’s stance by letter to SA Power Networks and claiming that it was not bargaining in good faith.

[32] SA Power Networks responded to the Unions by letter dated 12 February 2021 rejecting the assertions.

[33] On 15 February 2021 the CEPU made an application to the Commission for a bargaining order. That application is listed for conference on 3 March 2021.

[34] On 22 February 2021 the Unions made these applications for protected action ballot orders.

[35] On 23 February 2021 SA Power Networks made available to employees a video message. In it, it advised employees that “it is currently focussing on developing a multi-year agreement and working through the potential changes to it.” 13

Submissions

The Unions

[36] The Unions submit that each has complied with the formal requirements in the FW Act concerning the making of applications for a protected action ballot order. They say that each is and has been genuinely trying to reach an agreement with the employer over a prolonged period of time.

[37] The Unions submit that the statutory scheme in Part 3-3 Division 8 of the FW Act requires the making of an order irrespective of whether the employer opposes that course.

[38] The Unions submit that SA Power Networks unilaterally declared bargaining to have ceased, and that such a unilateral declaration cannot mean that bargaining has in fact ceased, and that in fact it has not ceased as the Union log of claims remains live.

[39] The Unions submit that if a unilateral declaration of bargaining having ceased can be made by an employer, it would have the effect of improperly denying employees their statutory right to take collective protected action in support of bargaining claims, and other statutory rights to compel good faith bargaining.

[40] The Unions further submit that none of its forms of action proposed in its applications are contrary to the FW Act or incapable of being the subject of a protected action ballot.

SA Power Networks

[41] SA Power Networks submit that preconditions for a protected action ballot order do not exist.

[42] It submits that no bargaining over a proposed enterprise agreement was occurring at the time the applications were made. It says that the notification it gave to Unions on 5 February 2021 that bargaining had ceased was a statement of fact, not a declaration of a state of affairs that did not exist.

[43] As a consequence of there being no bargaining, SA Power Networks submit that the Commission cannot be satisfied that the Unions were “genuinely trying to reach an agreement” at the time the applications were made – that being a statutory precondition to the making of the orders sought.

[44] In the alternative, SA Power Networks submit that two of the questions sought to be the subject of the order are impermissible as they would not constitute industrial action as defined by the FW Act.

[45] In the further alternative, SA Power Networks submit that there are exceptional circumstances so as to extend the notification time of any protected action from 3 days to 5 days.

Consideration

Statutory requirements

[46] Part 3-3 Division 8 of the FW Act establishes a detailed scheme concerning protected action in support of bargaining. 14 That scheme prescribes formal obligations on an applicant including the form and content of its application (section 437), when an application may be made (section 438) and notice and service requirements (section 440).

[47] The statutory scheme also imposes requirements on the Commission including the content of an order (section 443(3)), time in dealing with applications (section 441) and giving notice of a protected action ballot order where one is made (section 445).

[48] The substantive provision governing the determination of such applications is set out in section 443 of the FW Act. Section 443(1) provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note:          Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[49] Section 443 does not confer a broad discretion on the Commission. A protected action ballot order “must” be made if an application is made in proper form and “if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.” 15

[50] The onus is on an applicant Union to establish, on the evidence, that it has met the requirements of section 443. 16

Formal requirements

[51] I am satisfied that each of the Union applications are made under section 437 and that each Union has complied with the formalities required by the FW Act.

[52] In particular, I am satisfied that:

•  each Union is a bargaining representative of employees who will be covered by the proposed Agreement;

•  that bargaining had commenced and there is thus a notification time;

•  that each application specifies the group of employees to be balloted, and the questions to be put;

•  that each application was accompanied by a statutory declaration in the prescribed form as required by the Fair Work Regulations 2009 and Fair Work Commission Rules 2013; and

•  that each Union did, within 24 hours after making the application, give a copy to the employer and to the proposed ballot agent (the Australian Election Company).

Genuinely trying to reach agreement

[53] The substantive issue requiring determination is whether each Union has been and was (at the time of filing the applications and making this determination) genuinely trying to reach an agreement within the meaning of section 443(1)(b).

[54] Section 443(1)(b) requires the Commission to be satisfied that an applicant is genuinely trying to reach an agreement in two temporal contexts: the recent past and the present:

“The temporal elements in s.443(1)(b) require that an applicant is trying to reach agreement at the time of determination (reflecting the evidence at the time of hearing) and that the applicant had been trying to reach an agreement before that time, determined by the application of the approach set out in Swire and JJ Richards. That gives purpose to the two temporal requirements within s.443(1)(b) of the Act.” 17

[55] It is not contended by SA Power Networks that the Unions had, at some time in the past, been trying to reach an agreement. The employer’s case is that the Unions were not genuinely trying to reach an agreement when the applications were filed or since because:

•  there was and is no bargaining; and

•  there was and is no proposed agreement.

Bargaining

[56] In posing the question ‘was there bargaining occurring’ SA Power risk requiring the wrong question to be answered.

[57] The jurisdictional fact required by section 43(1)(b) is that an applicant Union is “genuinely trying to reach an agreement”.

[58] The sub-section does not use the word “bargaining’ though the overall scheme of Part 3-3 concerns itself with industrial action in support of collective bargaining for a proposed enterprise agreement. More particularly, section 409 of the FW Act identifies “employee claim action” for a proposed enterprise agreement to be action that “is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement…”. It is this industrial action that can be protected by a protected action ballot under Part 3-3 Division 8 of the FW Act.

[59] Genuinely trying to reach an agreement is a related concept to the statutory concept of “bargaining” and “good faith bargaining”, but not identical.

[60] Moreover, the subject matter of the inquiry under section 443(1)(b) is the conduct of the applicant for the order, not the conduct of the responding entity. For example, it is conceivable that an employer may not be bargaining in good faith but that an applicant union may be genuinely trying to reach agreement, and thereby able to satisfy the requirements of section 443(1)(b) for a protected action ballot order.

[61] Whether a union is “genuinely trying to reach agreement” is a jurisdictional fact. It is a matter to be determined objectively, having regard to all relevant circumstances. 18

[62] A mere assertion by a party that a union is not doing so, much less a declaration by an employer that bargaining has ceased, does not establish a basis to make the finding.

[63] On the evidence, I am satisfied for the following reasons that each of the Unions had been and is at the relevant time “genuinely trying to reach an agreement”.

[64] Firstly, a process for trying to agree a new Agreement with SA Power Networks to replace the current Agreement has been occurring since June 2020.

[65] Secondly, each Union has participated actively in that process since June 2020, has remained in that process and has not withdrawn from that process. Each Union has attended seven bargaining meetings in that time, the most recent being on 5 February 2021.

[66] Thirdly, as recently as 5 February 2021 and 8 February 2021 (two weeks prior to making these applications) the Unions informed SA Power Networks that they: 19

•  seek to continue bargaining;

•  proposed a bargaining meeting on 15 February 2021; and

•  invited the employer “to give genuine consideration to the bargaining representatives proposals and reasons for your responses to our proposals”.

[67] Fourthly, the log of claims advanced by the Unions on 17 September 2020 remains the current Union position and has not been withdrawn.

[68] Fifthly, between the sixth bargaining meeting (17 November 2021) and the seventh meeting (5 February 2021) the Unions maintained communication with the employer and awaited the employer’s advice of its foreshadowed revised position in light of the second unsuccessful vote on the employer’s proposed replacement Agreement.

[69] I do not accept the employer submission that the Unions are not genuinely trying to reach an agreement because bargaining may have reached a stalemate and that those circumstances led the employer to notify that bargaining had ceased. The concept of genuinely trying to reach agreement in collective bargaining is one which recognises that positions and strategies ebb and flow. 20 This may be particularly so in a somewhat complex situation such as the present bargaining context where a single bargaining unit of multiple Unions each responding to a diverse membership within the employer’s business is the bargaining vehicle.

[70] In the context of this matter, the fact that the Union log of claims is unaltered since 17 September 2020 is not evidence of the Unions not genuinely trying to reach agreement. In circumstances where, over the months following 17 September 2020, the Union position remained unacceptable and the employer twice preferred to put its own proposal to a vote (as was its right) it is not remarkable that the Union position was somewhat on the side-lines. As noted by the Commission in considering an earlier but similar bargaining regime, the notion of “genuinely trying to reach agreement” does not automatically imply continuous movement of position by a negotiating party: 21

“[38] Secondly, the notion of “genuinely trying to reach agreement” does not automatically imply continual movement in the same direction by a negotiating party. Depending upon the circumstances, a negotiating party can withdraw a concession or offer on a particular issue in the negotiation, or renew a previously abandoned position, and still be genuinely trying to seek agreement. Such changes of position can legitimately arise for any number of reasons. For example changed trading conditions may provide an entirely reasonable basis for an employer to withdraw or reduce an offer to increase wages by a particular amount without detracting from the genuineness with which the employer is negotiating.”

[71] Nor do I accept the employer submission that the Unions could not be genuinely trying to reach an agreement because bargaining had ceased. There are three problems with this proposition.

[72] Firstly, it presupposes that the relevant jurisdictional fact is whether bargaining exists, which, as noted above, is not the test under section 443(1)(b).

[73] Secondly, the notification by SA Power Networks on 5 February 2021 that bargaining had ceased was no more than a notification of its opinion. A unilateral notification by an employer of that nature cannot be sufficient to establish a jurisdictional fact. To do so would be allow a self-serving strategy, whether reasonably based or not, to derail statutory rights.

[74] Thirdly, I am not satisfied that bargaining had ceased as a jurisdictional fact. The Unions proposed a bargaining meeting on 15 February 2021, invited the employer to give genuine consideration to its proposals, had not withdrawn its claims, the NERR remained extant, and the employer itself had continued to express a commitment to a replacement Agreement, albeit (it would appear) not via the existing collective bargaining vehicle. At least insofar as the employer appears to be contemplating the option of a multi-year agreement, the Union proposal for a multi-year agreement might not be as dead in the water as made out.

[75] SA Power Networks submit that an employer cannot be chained to a bargaining table indefinitely, and that at some time bargaining is capable of having objectively ceased. It also submits that an employer must be entitled to withdraw from bargaining in certain circumstances. I agree. As noted by the Commission in Re Woolworths Group 22 such circumstances can exist – for example, where an employer believes on reasonable grounds that continued bargaining would be unlawful if an initiating NERR fails to comply with the FW Act. That is a clearly distinguishable circumstance from the present.

[76] SA Power Networks also submit that inactivity by a union over a prolonged period can constitute a circumstance where the union can be said to have withdrawn from bargaining or at the very least no longer be genuinely trying to reach an agreement. Such a proposition is well founded. 23 However, for reasons expressed above, the mere fact that the Union log of claims on SA Power Networks has not varied since 17 September 2020, given the circumstances, does not lend itself to a conclusion that the Unions have been inactive or their position is so stale that they are, in any objective sense, failing to genuinely try to reach an agreement.

Proposed enterprise agreement

[77] The subject of the genuine effort being required of the applicant Unions is, as identified in the chapeau to section 443(1)(b), “a proposed enterprise agreement”.

[78] SA Power Networks submit that this jurisdictional fact requires something tangible to be in existence at the relevant time which has or will have the characteristics of an enterprise agreement as defined by section 172 of the FW Act.

[79] It has been noted by the courts that “a proposed enterprise agreement” is a “generic term that allows for a variety of possibilities”. 24 A full bench of the Commission has observed:25

“the content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act.”

[80] The Explanatory Memorandum to the Fair Work Bill 2008, which is an aide to the statutory construction of the FW Act, provided: 26

“A proposed enterprise agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer…”

[81] The guidance given by this decision, and the Explanatory Memorandum, is that the phrase “a proposed enterprise agreement” is not to be read in an unduly narrow fashion.

[82] Whilst I agree that something of a tangible nature is required to exist for there to be a “proposed enterprise agreement”, in this matter that requirement is well met by three facts: the fact that each Union considers it appropriate for there to be a new Agreement to replace the current Agreement; the fact that each Union has participated in a collective bargaining process to date with that objective in mind; and the fact that a collective log of claims has been submitted by the Unions and that that log remains a live position of the Unions.

[83] For these reasons I conclude that each of the Unions has been and was at the relevant time genuinely trying to agree a proposed enterprise agreement.

Are impermissible forms of industrial action sought?

[84] SA Power Networks submit that the following two questions sought to be the subject of the order are impermissible as they would not constitute industrial action as defined by the FW Act:

“Question 8: Workers who use e-mail to add a link to the www.sapowerworkers.com.au website into their e-mail signature; and

Question 9: Workers to wear clothes, stickers, badges or other promotional products displaying logos, slogans and messages relating to the SBU campaign as they see fit, within the boundaries of workplace safety.”

[85] Following the hearing, the Unions indicated 27 that should the questions as worded not be industrial action as defined, they would seek to amend the questions to read, or substitute a later application, in amended terms:

“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.”

[86] Section 19(1) of the FW Act provides:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[87] The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of section 19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action. 28

[88] The forms of employee conduct that constitute “industrial action” within the meaning of the FW Act are not unlimited and outer boundaries exist. Neither question in its current form is particularly well worded.

[89] Question 8 in its current form contemplates an action, if it were to take place, that may but does not necessarily involve a minor interruption to work in order for the stated action to occur - adding content to a work email sign off. Moreover, if the amendment to the email signature is a saved change appearing automatically on subsequent emails, as appears contemplated, no further interruption to work would occur.

[90] Question 9 in its current form could involve no interruption to work if an employee attended for work in the clothing as branded and then made no further change or addition to their clothing once at work. No interruption to work would occur in that circumstance.

[91] For these reasons, I am not satisfied that questions 8 or 9 in their current form clearly constitute conduct that would be industrial action as defined and be permissible to be included in the orders sought.

[92] The amendments to questions 8 and 9 foreshadowed by the Unions appear designed to cure those problems. I have not heard from the employer on those further matters. Given that the application to amend was made once the hearing concluded, and given the need to ensure procedural fairness in advance of determining such matters (should I need to do so), I will not make orders that include questions 8 or 9 in their current form.

[93] Whilst these section 437 applications need to be determined expeditiously, it is not consistent with their efficient determination to issue orders with finality without having dealt with the Unions’ application to amend questions 8 and 9.

[94] I will direct that SA Power Networks file a written submission by 12 noon (ACST) 2 March 2021 on whether leave should be given to the Unions to amend proposed questions 8 and 9 in the orders sought, and the employer’s view on whether the amended questions (if leave is granted) contemplate conduct that would be industrial action as defined.

[95] I will further direct that the Unions file a written submission in response by close of business (5.00pm ACST) 2 March 2021.

[96] I will then determine a concluded view on questions 8 and 9 in advance of making orders on the Union applications in light of this decision and that further determination.

[97] For the sake of completeness, I add that I do not accept the employer’s submission that the questions asked (all of them) are impermissible because there is no employee “claim”. This submission is a reworking of the earlier submission that no bargaining is occurring because there is no active claim underfoot by the Unions.

[98] As noted, section 409 of the FW Act identifies “employee claim action” for a proposed enterprise agreement to be action that “is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement…”. For reasons expressed above, the Union log of claims remains on foot and the industrial action proposed is sought for the purpose of pursuing those ends.

Notification period

[99] SA Power Networks submit that the Commission should exercise discretion to specify a longer period of notice for any protected industrial action than the statutory default of three working days. SA Power Networks submit that the period should be extended to five days.

[100] The Unions, whilst not conceding that such a course is necessary or warranted, 29 do not oppose the exercise of discretion by the Commission to provide for five days.

[101] Section 443(5) of the FW Act provides:

“(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”

[102] Are there exceptional circumstances warranting an extension?

[103] The evidence before me is that SA Power Network operates the distribution network for electrical power to all South Australian domestic consumers (approximately 900,000 citizens) and most commercial and industrial consumers in the State.

[104] Further, the persons SA Power Networks employs under the proposed Agreement would be those who construct, maintain and repair electricity distribution assets. Industrial action taken by such persons has the potential to cause profound disruption to the economic wellbeing and social activity of hundreds of thousands of South Australians and tens of thousands of businesses, particularly in cases of an emergency arising from electricity distribution assets being damaged by fire, climate or accident. Such impacts could extend to material risks to the safety, health and wellbeing of persons and property should there be a failure of power supply.

[105] These constitute exceptional circumstances associated with the proposed protected action. It is reasonable to exercise the discretion to require greater than the minimum period of notice of protected industrial action. A period of five days is sought. That is reasonable. The Commission’s order will be in those terms. It is not opposed. The order will refer to working days, not calendar days. That is what the FW Act requires.

Conclusion

[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.

[109] I direct SA Power Networks to file a written submission by 12 noon (ACST) 2 March 2021 on whether leave should be given to the Unions to amend proposed questions 8 and 9 in the orders sought, and the employer’s view on whether the amended questions (if leave is granted) contemplate conduct that would be industrial action as defined.

[110] I further direct that the Unions file a written submission in response by close of business (5.00pm ACST) 2 March 2021.

[111] Orders with respect to each application 30 consistent with this decision and the final determination of questions 8 and 9 will be issued following receipt of these further submissions.

DEPUTY PRESIDENT

Appearances:

J Rodgers and B Jewel, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

S Cowen, of the Australian Municipal, Administrative, Clerical and Services Union

J Baulch and S Andrews, of The Association of Professional Engineers, Scientists and Managers, Australia

A Denton and J Love, with permission, for Utilities Management Pty Ltd T/A SA Power Networks

Hearing details:

2020
Adelaide (by telephone)
25 February

Written authorities:

The Unions – 26 February 2021
Utilities Management Pty Ltd T/A SA Power Networks – 25 and 26 February 2021

Printed by authority of the Commonwealth Government Printer

<PR727358>

 1   Marked as CEPU 2 Email Jake Goodwin to John Adley and others 12 January 2021 3.11pm

 2   The AMWU, which took no part in these proceedings, is also covered

 3   [2018] FWCA 4975

 4   SAP 1 paragraphs 12 to 43

 5   JG10 item 2.1

 6   JG21

 7   JG22

 8   CEPU2

 9   SAP1 paragraph 43

 10   CEPU1 paragraph 10

 11   JG23

 12   CEPU1 paragraph 12

 13   CEPU1 paragraph 15

 14   JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [29] per Jessup J

 15   Ibid at [56] and [69] per Flick J

 16   John Holland v Automotive Food Metals Engineering Printing and Kindred Union (2010) 191 IR 239 at [27]

 17   Coles v AMIEU [2015] FWCFB 379 at [49]

 18   Esso Australia Pty Ltd v Automotive Food Metals Engineering Printing and Kindred Union (2015) 247 IR 5 at [57]; Total Marine Services v Maritime Union of Australia (2009) 189 IR 407

 19   BJ3

 20   Maritime Union of Australia v Swire Pacific Management (Australia) Pty Ltd [2014] FWCFB 2587 at [73]

 21   Liquor, Hospitality and Miscellaneous Union - Western Australian Branch v CSBP Limited  [2007] AIRC 112

 22   [2019] FWCA 7 at [66] – [68]

 23   Unline Australia Limited [2016] FWCFB 4969

 24   Westfarmers Premier Coal Ltd v Automotive Food Metals Engineering Printing and Kindred Union (No 2) [2004] FCA 1737

 25   Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia [2014] FWCFB 1317 at [42]

 26   Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 643

 27   Benjamin Jewell to Chambers – Anderson DP 25 February 2021 5.27pm

 28   Mornington Peninsula Shire Council v Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 4740 at [24]

 29   Union written submissions paragraph 32

 30   PR727365; PR727366; PR727367