1 Fair Work Act 2009 s.604—Appeal of decision Endeavour Energy Network Management Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2024/5641) JUSTICE HATCHER, PRESIDENT SYDNEY, 20 AUGUST 2024 Appeal against decision [2024] FWC 2133 of Deputy President Slevin at Sydney on 12 August 2024 in matter number B2024/1007 – request for expedited hearing denied. [1] On 16 August 2024, Endeavour Energy Network Management Pty Ltd (Endeavour Energy) lodged an appeal against a decision made by Deputy President Slevin on 12 August 20241 to dismiss Endeavour Energy’s application for an order under s 424 of the Fair Work Act 2009 (Cth) (FW Act). The Deputy President has yet to issue reasons for his decision. Endeavour Energy has applied for an expedited hearing of its appeal. This is opposed by the respondent to the appeal, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). This decision concerns the expedition application. [2] Endeavour Energy is an electricity distributor principally operating in Western Sydney. It has been engaged in bargaining with the CEPU for a new enterprise agreement for some time, and the CEPU’s members have been undertaking protected industrial action in various forms since February 2024. Endeavour Energy lodged its application for an order under s 424 on 7 August 2024. The application alleged that protected industrial action being undertaken, or threatened to be undertaken, by its employees for whom the CEPU was the bargaining representative was threatening to endanger the life, the personal safety and health, and the welfare of the population or of part of it. In his decision, the Deputy President found that he was not satisfied that the requirements under s 424(1) for the making of an order were met. [3] The expedition application was the subject of a hearing before me on 19 August 2024. At this hearing, Endeavour Energy submitted that expedition should be granted because: (1) Section 424(3) requires that an application for an order under s 424 be determined, so far as practicable, within five days after it is made. This approach should be applied to the timeframe for the hearing of the appeal. [2024] FWC 2232 DECISION [2024] FWC 2232 2 (2) The protected industrial action which formed the basis of Endeavour Energy’s case before the Deputy President that there was a threat to the life, safety and welfare of the population or of part of it was continuing. [4] For the following reasons, I am not satisfied that an expedited hearing, at least in the timeframe contemplated by Endeavour Energy, is warranted. First, the statutory requirement in s 424(3) plainly does not apply to appeals and there is no basis to read it as if it did. [5] Second, during the proceedings before the Deputy President, the CEPU gave an undertaking which addressed what appears to have been the primary basis of Endeavour Energy’s case below, namely the failure to repair electricity ‘feeders’ in several areas of the network because of industrial action and the potential consequences thereof. Endeavour Energy accepted that the undertaking had been effective in addressing this issue and that the necessary repairs had been or were being conducted. [6] Third, the industrial action identified in the currently-applicable protected action ballot order (PR774683) and subsequently authorised by the relevant employees is subject to a ‘Safety Commitment’ which requires the temporary suspension of industrial action to perform ‘Emergency Work’ where suspending the action is (1) necessary to perform Emergency Work and (2) the employee is directed in writing to perform Emergency Work. ‘Emergency Work’ is defined as meaning ‘work that if not performed imminently, would create a serious and imminent threat to human life or a serious and imminent risk of personal illness or injury’. Additionally, the Safety Commitment requires the temporary suspension of industrial action where the performance of work is necessary in respect of a ‘Declared Incident’. Such an incident is ‘declared’ by the CEO of Endeavour Energy in accordance with the Endeavour Energy Enterprise Agreement 20212 and ‘generally cover[s] major emergency situations such as storms, bushfires, IT breakdown and major equipment failures’. The effect of the Safety Commitment is that, where it operates to require the suspension of industrial action and the performance of work, any continuation of industrial action in those circumstances is not authorised by the protected action ballot, is not protected, and is amenable to an order under s 418 of the FW Act. That gives Endeavour Energy effective protection in the circumstances of a serious and imminent threat to human life, a serious and imminent risk of personal illness or injury or a major emergency. Endeavour Energy submitted before me that it had experienced difficulty in securing the CEPU’s agreement as to the operation of the Safety Commitment, but it is clear from the terms of the protected action ballot order that the CEPU’s agreement is not required. [7] Fourth, Endeavour Energy took four days to lodge its appeal. That is not consistent with the degree of expedition it now seeks. [8] Fifth, the appeal will be able to be heard in the Commission’s October appeals roster (14–18 October 2024), approximately eight weeks away. In the context where the industrial action undertaken by the CEPU’s members has been ongoing since February 2024 and did not lead to any application under s 424 being made until 7 August 2024, that is not a significant delay. [9] Directions and a listing for the hearing of the appeal will be issued in due course. [2024] FWC 2232 3 PRESIDENT Appearances: P Willink, solicitor, with S Thirukumar for Endeavour Energy Network Management Pty Ltd. M Castles, solicitor, with R Braganza, solicitor, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Hearing details: 2024. Sydney and Melbourne by video link using Microsoft Teams: 19 August. <PR778505> 1 [2024] FWC 2133. 2 AE513579.