1
Fair Work Act 2009
s.604 - Appeal of decisions
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
NSW Electricity Networks Operations Pty Limited As Trustee For NSW
Electricity Networks Operations Trust T/A Transgrid
(C2024/5297)
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT WRIGHT
COMMISSIONER MATHESON
SYDNEY, 9 AUGUST 2024
Appeal against decision [2024] FWC 1914 of Deputy President Cross at Sydney on 2 August
2024 in matter number B2024/925 – industrial action – application for order suspending
protected industrial action under s 424(1)(d) of the Fair Work Act 2009 (Cth) – undertaking
not to take particular forms of protected action –whether open to find that protected industrial
action threatening to endanger the life, the personal safety or health, or the welfare, of the
population or of part of it – whether the Deputy President correctly addressed the question
posed by s 424(1) – short period of suspension order – whether in the public interest to grant
permission to appeal granted – permission to appeal refused.
Introduction
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia (CEPU or the appellant) has filed an appeal, for which
permission is required, in relation to a decision of Deputy President Cross of the Fair Work
Commission (the Commission) handed down on 24 July 2024.
[2] The decision concerned an application under s 424 of the Fair Work Act 2009 (Cth) (the
Act) by NSW Electricity Networks Operations Pty Limited as Trustee For NSW Electricity
Networks Operations Trust T/A Transgrid (Transgrid or the respondent) filed on 19 July
2024. The application sought an order terminating protected industrial action or, in the
alternative, that protected industrial action be suspended for at least 3 months. Transgrid relied
on s 424(1)(c) and (d) of the Act, namely, that protected industrial action has threatened, is
threatening, or would threaten to endanger the life, the personal safety or health, or the welfare,
of the population or of part of it and/or cause significant damage to the Australian economy or
an important part of it.
[2024] FWCFB 333
REASONS FOR DECISION
AUSTRALIA FairWork Commission
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftribunalsearch.fwc.gov.au%2Fdocument-search%2Fview%2F1%2FaHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZGVjaXNpb25zLzIwMjQvMDgvVHJhbnNncmlkcy40MjREZWNpc2lvbjQ1Nzc3Mjg3MzI0NzI2OTMtYWJlNC00Mjc3LWE0ZjYtMTdhNzZjODliNjVkMWQ1MGE1OGEtZmVlZi00YWE5LTkyNjUtZTY3MDg4ZDI2OTlkLnBkZg2%3Fsid%3D%26q%3D%255B2024%255D%2524%2524FWC%2524%25241914&data=05%7C02%7Cchambers.gibian.vp%40fwc.gov.au%7C0a064b6adaf44917605208dcb525ebf5%7C7f039f5b4e124790af98c9f21a9f2603%7C0%7C0%7C638584421692413944%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=ZFWJ%2BUada3EBmo7kMVWaB6q9PrL6PegWyrPAvGk%2BRjE%3D&reserved=0
[2024] FWCFB 333
2
[3] The application was heard by the Deputy President on 24 July 2024. At the conclusion
of the hearing on that day, the Deputy President announced his decision and made orders
suspending particular protected industrial action for a period of 3 weeks. The Deputy
President’s short reasons given orally at the conclusion of the hearing were as follows:1
THE DEPUTY PRESIDENT: All right. Well, noting the undertakings provided by the
respondent union, I nonetheless find that pursuant to section 424(1)(c) that the requisite
jurisdictional hurdle has been met in relation to the threat to persons and the public and the like.
I intend to order that protected action in relation to the work defined in the required safety
commitment declared as - as a declared incident or emergency work and declared as such by
the CEO of Transgrid be suspended for a period of three weeks effective from the date of this
order.
That will be the terms - the first terms - or the first term of the order. Effectively, what that puts
in place is the breathing space within which the parties can, what seems to be, resolve issues of
undertakings between themselves. Let me be abundantly clear, as I think I was with my
questioning of the applicant, and not so much with the respondent, but I thought I'd said enough.
I consider the extended safety commitment urged at page 325 of the digital court book to be
something that would be productive in the further conduct between the parties.
An order will issue with the associated notations as to notification to the parties and it will be -
commence operation at 11.59 pm tonight. A decision will be published as soon as possible
thereafter giving reasons. I thank the parties for their prompt attendance to this matter today.
Anything further?
[4] The Deputy President published an order giving effect to his decision later that evening
in the following terms:2
[1] Pursuant to section 424(1)(c) of the Fair Work Act 2009 (the Act) the Fair Work Commission
orders that protected industrial action in relation to the work defined in the Revised Safety
Commitment as a declared incident or emergency work, and declared as such by the CEO of
Transgrid, be suspended for a period of three (3) weeks effective from the date of this Order.
[2] This Order is binding on:
(a) NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity
Networks Operations Trust T/A Transgrid;
(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia; (CEPU)
(c) all employees who will be covered by the classifications covering CEPU members
in the proposed agreement to replace the Transgrid Enterprise Agreement 2020.
[3] The CEPU is ordered to distribute a copy of this Order to their respective members who will
be covered by the Order, and advise members of the effect of this Order, by using the most
expeditious mean(s) possible, including by electronic means.
[4] NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity
Networks Operations Trust T/A Transgrid is ordered to distribute a copy of this Order to all
employees who will be covered by the Order and advise the employees of the effect of this
Order, by using the most expeditious mean(s) possible, including electronic means.
[2024] FWCFB 333
3
[5] This Order comes into operation at 11:59PM on 24 July 2024.
[5] As will be apparent, the order suspended particular protected industrial action identified
by the Deputy President as being “protected industrial action in relation to the work defined in
the Revised Safety Commitment as a declared incident or emergency work, and declared as
such by the CEO of Transgrid”. The effect of the order, however, is that all protected action in
relation to the proposed agreement ceases to have protection. That is because the common
requirements that apply in order for industrial action to be protected action include that an order
suspending or terminating protected industrial action is not in operation.3
[6] As is set out in the transcript, the Deputy President indicated at the conclusion of the
hearing that he would publish reasons as soon as possible. The CEPU did not immediately seek
permission to appeal from the Deputy President’s decision. It appears that it was waiting for
more detailed reasons to be provided. Whilst that may be understandable, the delay is relevant
to the disposition of the appeal and, in particular, the question of permission to appeal. The
Deputy President subsequently published his reasons for decision on 2 August 2024.
[7] The CEPU filed a notice of appeal on 5 August 2024 and communicated to the
Commission that it sought an urgent hearing of the appeal as well as a stay pending
determination of the appeal. The application for a stay was listed for hearing on Tuesday, 6
August 2024 before Vice President Gibian. During the hearing of the stay application, the
Commission indicated that the appeal could be listed for an urgent hearing on Thursday, 8
August 2024. As a result of that indication, the CEPU did not press for a stay pending hearing
of the appeal but reserved its position should the Full Bench need to reserve its decision after
hearing the appeal.
[8] The application for permission to appeal was heard before the Full Bench on 8 August
2024. The Full Bench announced its decision at the conclusion of the hearing of the appeal and
ordered that permission to appeal be refused. The Full Bench provided oral reasons at that time.
These are the more detailed reasons of the Full Bench.
Decision of the Deputy President
[9] Relevant Transgrid employees are covered by the Transgrid Employees Agreement
2020 (the 2020 Agreement). The 2020 Agreement passed its normal expiry date on 1
December 2023 and Transgrid has been negotiating a new enterprise agreement since July 2023.
There have been approximately 30 bargaining meetings since the negotiations commenced, but
the bargaining remains unresolved.
[10] In the decision, the Deputy President recorded that protected industrial action has been
taking place since December 2023. On 27 December 2023, the CEPU served notice of protected
industrial action in relation to the control room. The notice prompted an application by
Transgrid under s 424 of the Act to suspend or terminate the protected action. That application
was resolved on the basis that the CEPU would give an amended “safety commitment” to be
incorporated into future notices of protected action. The extended safety commitment is in the
following terms:4
Safety Commitment
[2024] FWCFB 333
4
1. An employee will temporarily suspend industrial action to perform Emergency Work, where
such an employee is directed in writing to perform Emergency Work or where suspending the
action is necessary to perform work affected by and during a “Declared Incident”.
2. A “Declared Incident” will be declared by the Chief Executive Officer of Transgrid and
covers major emergency situations such as storms, bushfires, IT breakdown and major
equipment failures.
3. “Emergency Work” is 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.
[11] Protected industrial has been taking place throughout 2024. The Deputy President
described the industrial action as follows:5
Throughout 2024, the CEPU has notified and taken protected industrial action. There are several
forms of protected industrial action notified by the CEPU that prevent field maintenance work.
There is a “Locking Ban” (effectively a ban on locking or unlocking anything, be it a mobile
phone, a laptop, a gate lock) which precludes the performance of any switching tasks necessary
to safely isolate or de-isolate apparatus. There are other bans on issuing certificates required for
safe work and bans on issuing changes or commissioning new apparatus, being “Switching
Bans”. If an employee applies any of these bans, it means that the maintenance and/or
emergency work to which they and other employees have been assigned cannot be undertaken.
[12] The Deputy President described a number of incidents that had occurred in which it was
said that protected industrial action had threatened blackouts and/or load shedding with
particular emphasis on two incidents: an incident in the Bega area on 4 May 2024 and a “First
Forecast Lack of Reserve Level 2 Condition” on 18 May 2024.6 It is sufficient for present
purposes to note that both incidents involved disagreement between Transgrid and the CEPU
as to whether emergency work was required or the circumstances giving rise to a “Declared
Incident” existed for the purposes of the Extended Safety Commitment. Transgrid contended
that, as a result of the protected industrial action, the network was not secure for periods of time
and there was a risk that customers would be deprived of power, including life support
customers, hospitals and nursing homes. The Deputy President also recorded that Transgrid
indicated it was behind on its maintenance program as a result of the protected industrial action.7
[13] During its closing submissions and after the evidence had been received by the Deputy
President, the CEPU proffered an undertaking in relation to future protected industrial action in
the following terms:8
The ETU undertakes until 30 September 2024 not to engage or organise to engage in the
following actions authorised by the protection action ballot order of 11 December 2023 being
an unlimited number of indefinite and/or periodic gains on the completion of field staff and
control room staff writing and carrying out field staff switching for work groups, client,
contractors, accredited (indistinct) risks.
An unlimited number of indefinite and/or periodic bans on using physical or digital locking
systems including but not limited to locking or unlocking of phones, iPads, tablets, computers,
switchboard, switch rooms, electrical cabinets, access gates, air brake switches, circuit breakers,
switching stations and substations (being the switching or locking bans).
[2024] FWCFB 333
5
[14] The undertaking was to the effect that the CEPU and its members would not take
protected industrial action in the form of the locking ban or the switching ban at least until 30
September 2024. The locking ban and the switching ban had been subject of considerable focus
in the evidence and submissions. However, other forms of protected industrial action had been
approved and notified, including bans on overtime, certification of certain works, execution of
various types of instructions and undertaking training among others.
[15] The Deputy President recorded that Transgrid’s response to the undertaking was that, if
an undertaking from the CEPU was to be accepted, it would need to be in the terms that
Transgrid had previously sought. Transgrid suggested that the Commission could exercise its
power to suspend action for a period of a few weeks and give the parties the opportunity to see
if they could reach agreement in relation to what undertaking the CEPU might give.9
[16] The Deputy President’s reasons for decision were then set out as follows:10
The evidence regarding the six incidents that have occurred where protected industrial action
has threatened blackout and/or load shedding was compelling, and clearly established that
protected industrial action engaged in has threatened to endanger the life, the personal safety or
health, or the welfare, of the population or of part of it. The most severe example would involve
persons on life support equipment but would also involve multiple hospitals and nursing homes
left with an electricity network that was not secure.
The actions of the CEPU in the two particular examples of such incidents, and the balance of
the six incidents, disclosed impermissible attempts to block and/or delay Declared Incidents and
Emergency Work sought to be dealt with by Transgrid pursuant to the Extended Safety
Commitment.
The protected industrial action insofar as it affected maintenance within Transgrid did not on
the evidence before the Commission, however, threaten to endanger the life, the personal safety
or health, or the welfare, of the population or of part of it. That it has resulted in mounting delays
in maintenance is undoubted, but such an effect is not proscribed, and is in reality a usual
consequence of protracted industrial action.
Upon my conclusion that the s.424(1)(c) criterion has been satisfied in some, but not all,
respects, I was required by the Act to make an order suspending or terminating protected
industrial action. The only protected industrial action to which the required order could apply
was that which I found satisfied the s.424(1)(c) criterion relating to Declared Incidents and
Emergency Work, and the operation of the Extended Safety Commitment. 6
As to the discretion as to whether to make a suspension or termination order, I determined to
make a suspension order as, notwithstanding submissions by Transgrid that bargaining was at
an impasse, I considered that, particularly where the parties would not be able to access the
intractable bargaining provisions of the Act until September 2024, termination would be
premature.
Regarding the issue of the duration of the order that I was required by s.427 to specify, I
considered, as is apparent from the decision on transcript, that a three-week suspension would
allow the parties to resolve issues surrounding the application of the Extended Safety
Commitment and the CEPU’s undertakings. That was particularly so where once such an order
was made, any other industrial action notified ceased to be protected by reason of s.413(7) whilst
such order is in operation.
[2024] FWCFB 333
6
[17] The order made by the Deputy President as a consequence of the decision came into
operation at 11:59pm on 24 July 2024 and will cease to operate at 11:59pm on 14 August 2024.
Legislative Framework
[18] Section 424 of the Act provides as follows:
424 FWC must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial
action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable.
if the FWC is satisfied that the protected industrial action has threatened, is
threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the
population or of part of it; or
(d) to cause significant damage to the Australian economy or an important
part of it.
(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
[2024] FWCFB 333
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industrial action to which the application relates until the application is
determined.
(5) An interim order continues in operation until the application is determined.
[19] The assessment the Deputy President was required to make under s 424(1) required
consideration of two matters: firstly, whether protected industrial action for a proposed
enterprise agreement was being engaged in or was threatened, impending or probable and, if
so, whether the Deputy President was satisfied that the protected industrial action had
threatened, is threatening or would threaten to have the effects set out in s 424(1)(c) or (d).
Although Transgrid’s application relied on both s 424(1)(c) and (d), the Deputy President
concentrated on s 424(1)(c), namely, whether he was satisfied that protected industrial action
has threatened, is threatening, or would threaten to endanger the life, the personal safety or
health, or the welfare, of the population or of part of it.
[20] The High Court has indicated, by reference to an equivalent historical provision, that
the determination of the Deputy President involved an exercise of discretion in the broad sense
in that the threat as to which the Commission must be satisfied for the purposes of s 424(1)(c)
involves a degree of subjectivity or value judgment.11 As such, error of the type described in
House v The King (1936) 55 CLR 499 is required to be demonstrated, at least in relation to the
second part of the consideration required by s 424(1) as to whether the Commission is satisfied
that protected industrial action has threatened, is threatening or would threaten to have
consequences described in s 424(1)(c) or (d). For example, a decision under that sub-section
would involve appealable error if regard was had to irrelevant material, relevant material was
disregarded, or, although there was some factual material by reference to which the decision-
maker might be satisfied, he or she mistook those facts.12 In this matter, the CEPU raised a
novel question as to whether that approach ought be applied to a determination that protected
industrial action is being engaged in or is threatened, impending or probable.
Grounds of appeal
[21] The CEPU sought permission to appeal on the basis that the decision of the Deputy
President is attended by appealable error and should not be permitted to stand and causes
substantial injustice to the members of the CEPU employed by the respondent by denying them
the right to take protected industrial action. The notice of appeal contains a single ground of
appeal as follows:
The Deputy President erred in issuing the order pursuant to s.424 of the FW Act, as he could
not have been satisfied, within the meaning of s.424(1), that the industrial action he found had
threatened to endanger the life, personal safety or health, or welfare of the population, of part
of it was either:
a. being engaged in; or
b. threatened, impending or probable;
as contemplated in s.424(1)(a) and (b), in circumstances where the appellant had given an
undertaking to the FWC until 30 September 2024, not to engage or organize to engage in the
locking ban, and the Deputy President had made no finding that the undertaking could not be
accepted.
[2024] FWCFB 333
8
[22] The assertion that the Deputy President “could not have been satisfied” of the
jurisdictional requirements in s 424(1) of the Act is to be understood as a contention that the
findings were not reasonably open and appears to be a reference to the approach of detecting
error in the final limb identified in House v The King which is as follows:13
It may not appear how the primary judge has reached the result embodied in his order, but, if
upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some
way there has been a failure properly to exercise the discretion which the law reposes in the
court of first instance. In such a case, although the nature of the error may not be discoverable,
the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact
occurred.
[23] The CEPU maintained that ground in its submissions. In short, its contention is that
there was no reasonable basis for concluding that there was protected industrial action that was
threatened, impending or probable that would have the impact referred to in s 424(1)(c) of the
Act given its undertaking with respect to the locking ban and the switching ban.
[24] In addition, in written and oral submissions, the CEPU raised a more specific error said
to be found in the Deputy President’s decision. With particular reference to paragraphs [55] and
[56] of the decision, the CEPU submitted that the Deputy President misconstrued the
requirements of s 424(1) by considering that he was required to make an order under the section
if satisfied that protected industrial action had been taken in the past and had given rise to a
threat of the type described in s 424(1)(c) of the Act. It submitted that s 424(1) requires that the
Commission to identify if particular protected industrial action is presently being taken or is
threatened, impending or probable at the time of determining the application and whether that
protected industrial action poses a threat of a type referred to in s 424(1)(c) or (d).
Permission to appeal
[25] The Full Bench is satisfied that the CEPU has established arguable grounds for error in
the decision of the Deputy President. An application under s 424(1) of the Act requires the
Commission to initially identify whether particular protected industrial action is being engaged
in or is threatened, impending or probable at the time of determining the application. If so, the
Commission must then determine if it is satisfied that the particular protected industrial action
has threatened, is threatening or would threaten to have consequences of the type set out in s
424(1)(c) or (d). In Australian and International Pilots Association v Fair Work Australia
[2012] FCAFC 65; (2012) 202 FCR 200, Buchanan J said (at [128]):14
There remains one further matter to be addressed. Section 424 empowers FWA to make an order
terminating or suspending “protected industrial action” as identified in s 408. Necessarily, that
imports a limitation which confines attention to the particular protected industrial action in
question. That is because protected industrial action must satisfy s 409, s 410 or s 411, and also
the common requirements in s 413. Those requirements include notice of the nature of the action
and when the action will commence (s 414(6)). It follows, in my view, that separate
consideration must be given to each of the protected industrial actions which is to be terminated
or suspended – i.e. each which has been notified. That may not mean that each must be
considered in isolation but that is a question for another day.
[2024] FWCFB 333
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[26] Without being critical of any party, as a result of the manner in which the proceedings
progressed before the Deputy President, that is not what happened. Given the undertaking
proffered by the CEPU in closing oral submissions in relation to the locking ban and the
switching ban, s 424(1) required identification of what forms of protected industrial action
remained that were being engaged in or threatened, impending or probable and whether the
remaining forms of protected industrial action posed a threat for the purposes of s 424(1)(c).
With respect to the Deputy President, it is not apparent from the decision that this was the course
of the reasoning adopted. The reasoning at paragraphs [55] and [56], which are set out above,
suggest that the Deputy President concluded that a threat existed for the purposes of s 424(1)(c)
without identifying the particular form or forms of protected industrial action posed the threat
and by reference to forms of action which included those subject of the undertaking.
[27] In saying that, we are not critical of the manner in which the Deputy President dealt with
the matter. The Deputy President dealt with the proceedings swiftly and consistently with his
statutory obligation. The Parliament has dictated that an application of this type is required to
be heard and determined in a confined timeframe.15 In addition, the fact that the undertaking
proffered by the CEPU was given only in closing submissions meant that the evidence was not
necessarily presented in a manner that allowed easy disaggregation of the impact of different
forms of protected industrial action which had been taken by employees or which had been
notified. Those circumstances presented real practical difficulties in correctly applying s 424(1)
in light of the cases presented by the parties.
[28] The existence of an arguable, or even strong, case of error does not, however, require
that permission to appeal be granted. For example, in New South Wales Bar Association v
McAuliffe [2014] FWCFB 1663; (2014) 241 IR 177, the Full Bench explained (at [28]):16
Although we have identified two respects in which we consider that the Decision was attended
by error, it does not follow that the grant of permission to appeal necessarily follows. The mere
demonstration of error, without more, may not be sufficient to attract the public interest and
require the grant of permission to appeal. Further, the lack of any useful result which would
follow the upholding of an appeal on the basis of identified appellable error may lead to
permission to appeal being refused. In this appeal, the ATO has positively denied that it was
prejudiced by the Decision, and both the Association and the ATO actively seek to avoid any
order being made by us which would have any impact upon the course of the proceedings before
the Commissioner. In that circumstance, it is clear that there would be no utility in us granting
permission to appeal, upholding the appeal and setting aside the Decision. Indeed, were we to
do so, on one reading of Warrell that would cast doubt upon the jurisdictional foundation for
the substantive decision which the Commissioner will ultimately be required to make. We have
therefore decided to refuse permission to appeal
[29] In all the circumstances of this matter, the Full Bench is not satisfied that it is in the
public interest to grant permission to appeal for the purposes of s 604(2) of the Act or that the
Full Bench should otherwise exercise its discretion to grant permission to appeal. Five
considerations are significant in the assessment of whether permission to appeal should be
granted in this matter.
[30] The first consideration is that the prejudice to the CEPU caused by the decision of the
Deputy President is, at the time of the hearing of the application for permission to appeal,
limited given that the period of the suspension order is short and expires on Wednesday, 14
August 2024. The CEPU contends that the decision to suspend protected industrial action has
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
[2024] FWCFB 333
10
the effect of preventing any protected action and that the CEPU and its members should not be
“shut out from exercising their rights to take action if the Deputy President erred … in making
the order”.
[31] The Full Bench accepts that those submissions are seriously put and should be given
weight. The suspension of protected industrial action may have a significant impact on the
practical ability of a bargaining party to bring pressure to bear on the negotiations. The capacity
to organise and engage in protected industrial action is an important right in collective
bargaining17 and represents, if not the sole means of seeking improved wages and conditions,
at least a very significant aspect of the means by which some employees and their
representatives are able to achieve improved outcomes in bargaining. However, that
consideration must be balanced against the short period remaining in the suspension order and
the fact that the CEPU, by its undertaking, had proposed to deny itself access to two of the most
prominent forms of protected industrial action during that period in any event.
[32] The second consideration is that, if permission to appeal is granted, error found and the
decision and order of the Deputy President quashed, it would likely be necessary to redetermine
Transgrid’s application. Contrary to the CEPU’s submissions, the process of redetermining the
application would not necessarily be straightforward or able to be done immediately. Upon
redetermination, it would be open to Transgrid to reagitate the matters it initially pressed before
the Deputy President, including seeking an order terminating protected action or a longer period
of suspension. In addition, redetermination might require the hearing of further evidence having
regard to the undertaking proffered by the CEPU in relation to the locking ban and switching
ban and the consequent need to identify the threat posed, if any, by the remaining forms of
protected industrial action which were available.
[33] The third consideration is that the Deputy President found that the evidence to the effect
that instances of protected industrial action had threatened blackouts and/or load shedding was
compelling and established that protected industrial action engaged in has threatened to
endanger the life, the personal safety or health, or the welfare, of the population or of part of it.
The Deputy President also found that protected industrial action is threatening or would threaten
to do so in the future. Although the CEPU contended that there was no basis for at least the
second part of those findings, it is relevant to the question of permission to appeal that the
Deputy President formed that view having heard the evidence, including in relation to the
disputation between the parties concerning the safety commitment.
[34] The members of the Full Bench may or may not have come to the same conclusion on
the evidence before the Deputy President. However, the Deputy President reached the
conclusions that he did having heard the evidence of witnesses called by both parties and having
considered the material relied upon in far greater detail than is possible for the Full Bench in
hearing an application for permission to appeal on an urgent basis. The fact that the Deputy
President concluded that such a threat exists is a factor that militates against a conclusion that
it is in the public interest to grant permission to appeal, particularly when balanced against the
short time remaining in which the suspension order will operate.
[35] The fourth consideration is that the regime established by s 424(3) to (5) of the Act
requires that an application under the section be determined, as far as practicable, within 5 days
after it is made and, if it is unable to be determined in that period, an interim order be made
[2024] FWCFB 333
11
suspending the protected industrial action to which the application relates. The obligation
imposed by s 424(3) was fulfilled by the Deputy President and the obligation to make an interim
order under s 424(4) did not arise. The practical outcome of permission to appeal being now
granted and, if error is found, the decision and order of the Deputy President being quashed,
would be that no suspension order would be in place and an application under s 424(1) would
remain to be determined more than 5 days after it was made.
[36] That is a possible outcome of the availability of the appeal mechanisms provided for in
the Act and, in an appropriate case, may be the necessary outcome of a successful appeal.
However, the regime established by s 424(3) to (5) of the Act envisages that an application will
be determined or an interim suspension order in place within 5 days of an application being
made. That regime is relevant to the question of permission to appeal in the particular
circumstances of this case having regard to the likely scope of the issues which may arise on
redetermination. Parliament did not regard it as desirable that an application remain to be
determined and no suspension order be in place more than 5 days after an application was made.
[37] The fifth consideration is that the CEPU raises a question of law of potential general
importance in relation to whether the first limb of s 424(1) of the Act, namely, the question of
whether protected industrial action is being engaged in or is threatened, impending or probable,
involves a discretionary value judgment or is a jurisdictional fact. Transgrid referred the Full
Bench to obiter remarks made by Perram J in Australian and International Pilots Association
v Fair Work Australia [2012] FCAFC 65; (2012) 202 FCR 200 at [148]-[151] and by the Full
Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union [2018] FWCFB 4120; (2018) 281 IR 147 at [49] that may be relevant
to that question. The question raised is one of significance, but the Full Bench is not satisfied
that this matter presents an appropriate vehicle for the Full Bench to consider the question in
light of the other practical issues which arise with respect to permission to appeal. The question
should be addressed in a case where it is necessary to do so.
Conclusion
[38] For these reasons, permission to appeal is refused. An order reflecting these reasons will
issue concurrently.
VICE PRESIDENT
Appearances:
W Friend KC and L Doust, counsel, appearing for the CEPU
R Dalton KC and A Crocker, counsel, appearing for Transgrid instructed by MinterEllison
WORK COMMISSION THE SEAL OF THE
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[2024] FWCFB 333
12
Hearing details:
2024.
Sydney (in person):
8 August.
Printed by authority of the Commonwealth Government Printer
PR778188
1 Transcript, 24 July 2024, PN1131-1133.
2 Print PR777460.
3 Fair Work Act 2009 (Cth), s 413(7)(a). See explanation provided in Australian and International Pilots Association v Fair
Work Australia [2012] FCAFC 65; (2012) 202 FCR 200 at [72] (Lander J), [130] (Buchanan J) and [182] (Perram J).
4 [2024] FWC 1914 at [19].
5 [2024] FWC 1914 at [20].
6 [2024] FWC 1914 at [25]-[42].
7 [2024] FWC 1914 at [43]-[44].
8 [2024] FWC 1914 at [49].
9 [2024] FWC 1914 at [52]-[53].
10 [2024] FWC 1914 at [55]-[60].
11 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at
[20] and [28] (Gleeson CJ, Gaudron and Hayne JJ) (Coal & Allied (HC)).
12 Ibid at [28] (Gleeson CJ, Gaudron and Hayne JJ).
13 House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTeirnan JJ).
14 See also at [179]-[180] (Perram J).
15 Fair Work Act 2009 (Cth), s 424(3) and (4).
16 See also GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining
Services Pty Ltd (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler
(2011) 192 FCR 78.
17 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [196] (Kirby J).
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