FEDERAL COURT OF AUSTRALIA
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480
INDUSTRIAL – interlocutory injunctions sought to restrain hearing of charges against members of the United Firefighters’ Union of Australia – disciplinary charges laid for breach of s 78B of the Metropolitan Fire Brigades Act 1958 (Cth) – refusal to obey lawful order to remove “scab” appellation – use of work email system to circulate emails unrelated to duties as an officer – assault on fellow firefighter – whether serious questions to be tried – whether breach of a term of a certified agreement – whether certified agreement could also constitute a common law agreement – requirements of a common law agreement not met – whether laying and hearing of charges contravened s 298K(1) of the Workplace Relations Act 1996 (Cth) – whether “prohibited reason” for purposes of s 298L(1)(l) of the Workplace Relations Act 1996 (Cth) – whether breach of s 298K(1) of the Workplace Relations Act 1996 (Cth) could constitute a conspiracy to harm by unlawful means.
Metropolitan Fire Brigades Act 1958 (Vic): s 78B
Workplace Relations Act 1996 (Cth): ss 298K(1), 298L(1)(l)
Construction, Forestry, Mining and Energy, Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437, referred to
Australasian Meat Industry Employees’ Union v G&K O’Connor Pty Ltd (2000) 104 FCR 80, referred to
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645, considered
Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235, considered
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2001] FCA 1600, considered
ACTEW Corporation Limited v Pangallo [2002] FCAFC 325, considered
Australian Meat Industry Employees’ Union v Frugalis Pty Ltd (1989) 30 IR 149, referred to
Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93, applied
Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352, applied
Major v State of South Australia [1999] FCA 1684, distinguished
Heidt v Chrysler Australia Limited (1976) 26 FLR 257, referred to
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA & ORS v METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD & ORS
V 270 of 2003
GOLDBERG J
16 MAY 2003
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
V 270 of 2003 |
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BETWEEN: |
THE UNITED FIREFIGHTERS’ UNION OF AUSTRALIA First Applicant
GREGORY CASS Second Applicant
GLEN CAVANAGH Third Applicant
KEVIN CASSIDY Fourth Applicant
PHILIP McGRATH Fifth Applicant
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD First Respondent
DAVID K DAVIES Second Respondent
GARY MARTIN Third Respondent
TERRY HUNTER Fourth Respondent
GEOFFREY GIBSON Fifth Respondent
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GOLDBERG J |
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DATE OF ORDER: |
16 MAY 2003 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application for interlocutory injunctions be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
V 270 of 2003 |
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BETWEEN: |
THE UNITED FIREFIGHTERS’ UNION OF AUSTRALIA First Applicant
GREGORY CASS Second Applicant
GLEN CAVANAGH Third Applicant
KEVIN CASSIDY Fourth Applicant
PHILIP McGRATH Fifth Applicant
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD First Respondent
DAVID K DAVIES Second Respondent
GARY MARTIN Third Respondent
TERRY HUNTER Fourth Respondent
GEOFFREY GIBSON Fifth Respondent
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JUDGE: |
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DATE: |
16 MAY 2003 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
2 The charges against the second applicant (“Station Officer Cass”) are in the following terms:
“I, Acting Commander D.K.Davies, being a member of senior operational staff, following an investigation and pursuant to Section 78B of the Metropolitan Fire Brigades Act 1958 (ACT) hereby charge you, Station Officer Kenneth Cass Registered No 3350, with the following offences which will be heard by the Chief Executive Officer or his delegate appointed under section 30 of the Act at 9.30am on Thursday, 13 March 2003 in the Boardroom at MFESB Headquarters at 456 Albert Street, East Melbourne:
1. That on or before 23 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(b) of the Act in that you committed an act of misconduct by allowing material to be displayed on Metropolitan Fire and Emergency Services Board property being a fire station while you were the Officer in Charge of the station that was offensive and contained negative imputations about the persons it concerned (Offensive Material).
Particulars:
At Fire Station 27 at approximately 9.09am on 23 December 2002 and at approximately 3.08pm on 24 December 2002 the Offensive Material was displayed that consisted of:
(a) a green paper sign adhered to the glass door on which was printed with the words ‘NO MFB SCABS’ in black text;
(b) the word ‘scab’ written on a whiteboard under the names of four Southern Zone Inspectors that appeared on the whiteboard in the station officers office, which is an operational telephone contact list; and
(c) white paper adhered to the wall on which was written the word ‘scab’ and pictured 17 animals and in connection with each picture was written the names of 17 Inspectors of the Metropolitan Fire and Emergency Services Board.
2. That on or about the 23 December 2002 and on or about 24 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 26(f) of the Metropolitan Fire Brigades (General) Regulations 1994 (Regulations) you acted in a manner likely to bring discredit on the reputation of the Board and/or diminish public confidence in it by allowing part of the Offensive Material displayed on Metropolitan Fire and Emergency Services Board property to be visible to the public while you were the Officer in Charge of the station.
Particulars:
At Fire Station 27 at approximately 9.09am on 23 December 2002 and at approximately 3.08pm on 24 December 2002:
(a) the Offensive Material particularised in Charge 1(a) was visible to members of the public who used the footpath outside the station; and
(b) the Offensive Material particularised in Charge 1 was visible to members of public who entered the station from time to time.
3. That on or about the 23 December 2002 and on or about 24 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 26(c) of the Regulations you wilfully caused injury to Inspector McCall, Registered Number 3252.
Particulars:
During a station inspection at Fire Station 27 conducted by Inspector McCall on 23 December 2002 and during a station visit at Fire Station 27 by Inspector McCall and Commander Terry Hunter on 24 December 2002 you deliberately and knowingly exposed Inspector McCall to the Offensive Material particularised in Charge 1 which was designed to cause and did cause injury to Inspector McCall in the form of mental stress and/or physical illness.
4. That on or about the 23 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 26(a) of the Regulations failed to carry out a lawful order issued by Inspector McCall in the course of his duty.
Particulars:
You were ordered to remove the Offensive Material particularised in Charge 1(a) and (b) by Inspector McCall and you refused to obey the order which order was given:
(a) verbally 3 times on 23 December 2002 and during a station inspection at Fire Station 27 conducted by Inspector McCall; and
(b) in writing on 24 December 2002 and during a station visit at Fire Station 27 by Inspector McCall and Commander Terry Hunter confirming the verbal order that was given on 23 December 2002.
5. That on or about the 23 December 2002 and on or about 24 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 25(2) of the Regulations you failed to comply with clause 3.2(o) of General Order No 3 dated 1st September 1997 in that you committed an act which may harm or is likely to cause harm to the discipline of the Metropolitan Fire and Emergency Services in that you allowed the Offensive Material to be displayed on Metropolitan Fire and Emergency Services Board property being a fire station while you were the Officer in Charge of the station and refused to remove that Offensive Material when lawfully ordered to do so by Inspector McCall in the course of his duty in the presence of and/or to the knowledge of officers and/or firefighters on duty at the fire station.
Particulars:
On 23 December you allowed the Offensive Material particularised in Charge 1 to be displayed at Fire Station 27 and on 23 and 24 December 2002 you refused to remove the offensive material when verbally ordered to do so by Inspector McCall on 23 December 2002 and when the order by Inspector McCall was confirmed in writing on 24 December 2002 as particularised in Charge 4 at which times officers and/or firefighters were present at the fire station.”
3 The charges against the third applicant (“Station Officer Cavanagh”) are in the following terms:
“I, Acting Commander D.K.Davies, being a member of senior operational staff, following an investigation and pursuant to Section 78B of the Metropolitan Fire Brigades Act 1958 (Act) hereby charge you, Station Officer Glendon Cavanagh Registered No 3712, with the following offences which will be heard by the Chief Executive Officer or his delegate appointed under section 30 of the Act at 9.30am on Thursday, 13 March 2003 in the Boardroom at MFESB Headquarters at 456 Albert Street, East Melbourne:
1. That on or about the 23 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 26(a) of the Metropolitan Fire Brigades (General) Regulations 1994 (Regulations) failed to carry out a lawful order issued by Inspector McCall, Registered No. 3252 in the course of his duty.
Particulars:
You were ordered by Inspector McCall to remove material that consisted of:
(a) a green paper sign adhered to the glass door on which was printed with the words ‘NO MFB SCABS’ in black text;
(b) the word ‘scab’ written on a whiteboard under the names of four Southern Zone Inspectors that appeared on the whiteboard in the station officers office, which is an operational telephone contact list;
(Offensive Material),
and you refused to obey the order which order was given:
(a) verbally 3 times on 23 December 2002 during a station inspection at Fire Station 27 conducted by Inspector McCall; and
(b) in writing on 24 December 2002 and during a station visit at Fire Station 27 conducted by Inspector McCall and Commander Terry Hunter confirming the verbal order that was given on 23 December 2002.
2. That on or about the 23 December 2002 and on or about 24 December 2002 you, being a member of operational staff, committed an offence contrary to Section 78A(a) of the Act in that contrary to Regulation 25(2) of the Regulations you failed to comply with clause 3.2(o) of General Order No 3 dated 1 September 1997 in that you committed an act which may harm or is likely to cause harm to the discipline of the Metropolitan Fire and Emergency Services in that you refused to remove that Offensive Material when lawfully ordered to do so by Inspector McCall in the course of his duty in the presence of and/or to the knowledge of officers and/or firefighters on duty at the fire station.
Particulars:
On 23 and 24 December 2002 you refused to remove the Offensive Material particularised in Charge 1 when verbally ordered to do so by Inspector McCall on 23 December 2002 and when the order by Inspector McCall was confirmed in writing on 24 December 2002 as particularised in Charge 1 at which times officers and/or firefighters were present at the fire station.”
4 The charges against the fourth applicant (“Mr Cassidy”) are in the following terms:
“I, Commander Garry Martin, being a member of senior operational staff, following an investigation and pursuant to section 78B of the Metropolitan Fire Brigades Act 1958 (the Act) charge you KEVIN CASSIDY with the following offences which will be heard by the Chief Executive Officer or his delegate appointed under section 30 of the Metropolitan Fire Brigades Act 1958 (as amended) at 08:30 hours on the 19 December 2001 at 2nd Floor Boardroom Eastern Hill Fire Station 456 Albert Street, East Melbourne:
1. That during the week of Monday 3rd – Friday 7th December 2001 you, being a member of operational staff, committed an offence contrary to section 78A(a) of the Act in that contrary to regulation 26(f) of the Metropolitan Fire Brigades (General) Regulations you wilfully caused the attached inappropriate electronic mail containing material totally unrelated to your duties concerning Mr. Brett Morton and Sunbury Self Storage to be circulated from the MFESB Information Technology system to some or all of the list of electronic mail addresses attached and thereby acted in a manner likely to bring discredit on the reputation of the Board.
2. That during the week of Monday 3rd – Friday 7th December 2001 you, being a member of operational staff, committed an offence contrary to section 78A(b) of the Act in that you wilfully caused the attached inappropriate electronic mail containing material totally unrelated to your duties concerning Mr. Brett Morton and Sunbury Self Storage to be circulated from the MFESB Information Technology System to some or all of the list of electronic mail addresses attached and thereby committed misconduct.
3. That during the week of Monday 3rd – Friday 7th December 2001 you, being a member of operational staff, committed an offence contrary to section 78A(e) of the Act in that you wilfully caused the attached inappropriate electronic mail containing material totally unrelated to your duties concerning Mr. Brett Morton and Sunbury Self Storage to be circulated from the MFESB Information Technology system to some or all of the list of electronic mail addresses attached and thereby engaged in improper conduct.”
5 The charges against the fifth applicant (“Mr McGrath”) are in the following terms:
“I, Commander Terry Hunter, being a member of senior operational staff, following an investigation and pursuant to section 78B of the Metropolitan Fire Brigades Act 1958 (‘the Act’) charge you PHILIP McGRATH with the following offences which will be heard by the Chief Executive Officer or his delegate appointed under section 30 of the Metropolitan Fire Brigades Act 1958 (as amended) at 0930 hours on the Monday 16 July 2001 at MFESB Headquarters Board Room:
1. That on or about 15 January 2001 you, being a member of the operational staff, committed an offence contrary to section 78A(a) of the Metropolitan Fire Brigades Act 1958in that contrary to regulation 26(c) of the Metropolitan Fire Brigades (General) Regulations 1994 you wilfully caused or allowed injury to occur to any person, being QFF Stephen Pallot (Reg No. 4361).
Inparticular: atapproximately0730 hours at 25 Stationon15 January 2001 you headbutted QFF Pallot adjacent to a basin in the 25 Station bathroom, making contact with the left side of his face, resulting in QFF Pallot sustaining injury being a fractured left zygoma.
2. That on or about 15 January 2001 you, being a member of the operational staff, committed an offence contrary to section 78A(b) of the Metropolitan Fire Brigades Act 1958in that you committed an act of misconduct by headbutting QFF Stephen Pallot (Reg No. 4361).
Inparticular: atapproximately0730 hours at 25 Stationon15 January 2001 you headbutted QFF Pallot adjacent to a basin in the 25 Station bathroom, making contact with the left side of his face, resulting in QFF Pallot sustaining injury being a fractured left zygoma.
3. That on or about 15 January 2001 you, being a member of the operational staff, committed an offence contrary to section 78A(e) of the Metropolitan Fire Brigades Act 1958in that you engaged in disgraceful or improper conduct by headbutting QFF Stephen Pallot (Reg No. 4361).
Inparticular: atapproximately0730 hours at 25 Stationon15 January 2001 you headbutted QFF Pallot adjacent to a basin in the 25 Station bathroom, making contact with the left side of his face, resulting in QFF Pallot sustaining injury being a fractured left zygoma.”
6 On 28 March 2003 the Delegate heard submissions from Station Officer Cass, Station Officer Cavanagh and Mr Cassidy as to whether he had jurisdiction to hear and determine the charges against them. On 31 March 2003 the Delegate published his decision and held that he did have jurisdiction.
7 The Union sought to invoke the dispute and grievance procedure set out in cl 12 of the Metropolitan Fire Brigade and Emergency Services Board, United Firefighters Union of Australia Operations Staff Agreement 2002 (“the 2002 Agreement”). The Board informed the Union that it did not believe that the dispute and grievance procedure applied to disciplinary proceedings and said that the hearing of the charges would continue. On 11 March 2003 the Union applied to the Australian Industrial Relations Commission (“the Commission”) under s 170LW of the Workplace Relations Act 1996 (Cth) (“the WRA”) seeking resolution of the dispute involving the charges against Station Officer Cass and Station Officer Cavanagh.
8 The Union also invoked the dispute and grievance resolution procedure in relation to the charges laid against Mr Cassidy and received the same reply from the Board, namely that the dispute resolution procedure in cl 12 did not operate to interfere with the statutory disciplinary procedures. On 14 March 2003 the Union applied to the Commission under s 170LW of the WRA seeking resolution of the dispute which had arisen in relation to the charges laid against Mr Cassidy.
9 A similar sequence of events occurred in relation to the charges laid against Mr McGrath and on 26 March 2003 the Union applied to the Commission under s 170LW of the WRA seeking resolution of the dispute which had arisen in relation to the charges laid against Mr McGrath.
10 Commissioner Simmonds heard submissions from the parties on 2 and 3 April 2003 in relation to whether the Commission had jurisdiction to hear and determine the applications notified by the Union pursuant to s 170LW of the WRA. On 10 April 2003 Commissioner Simmonds published his decision holding that the disciplinary procedure prescribed in the MFB Act was not displaced by the terms of the 2002 Agreement. The Commissioner did not agree that cl 12 of the 2002 Agreement enabled an employee to raise a dispute under that clause about a decision to charge an employee or about any action taken under the procedure to charge.
11 Although the attack on the charges varied from personal applicant to personal applicant, there was an underlying submission common to all charges. Put shortly, this submission was that in the late 1980s and early 1990s issues and decisions relating to the laying and hearing of disciplinary charges were excluded from the operation and ambit of industrial awards binding the Union and the Board made by the Victorian State Industrial Tribunal and thereafter by the Commission. It was then said that the exemption of the hearing of disciplinary charges from the dispute resolution procedures provided for in such awards was removed so that disciplinary charges thereafter fell within the ambit and scope of the dispute resolution procedures provided for in later industrial instruments. It was said that these industrial instruments recorded not only an agreement, certified pursuant to the provisions of Pt VIB of the WRA, but also an agreement enforceable at common law which provided a basis for the grant of interlocutory injunctive relief to restrain breaches or contraventions of such common law agreement.
12 The statutory basis for the laying and the hearing of the disciplinary charges is found in ss 78A‑78E of the MFB Act in the following terms:
“78A. Offences by officers or members
A member of the operational staff who is –
(a) guilty of any breach of the regulations;
(b) guilty of any misconduct;
(c) negligent or careless in the discharge of his duties;
(d) inefficientorincompetentandsuch inefficiency or incompetence arises from causes within his own control; or
(e) guilty of any disgraceful or improper conduct –
shall be guilty of an offence.
78B. Laying of charges
(1) A member of the senior operational staff may, after an investigation, lay a charge for an offence under section 78A.
(2) The Chief Executive Officer may suspend from duty with pay any person charged under sub‑section (1) until the charge is dealt with under section 78D.
78C. Hearing of charges
(1) The Chief Executive Officer must hear a charge laid under section 78B.
(2) A member of the operational staff and any other party to the hearing is entitled to be represented at the hearing of the charge by a legal practitioner or other person.
(3) The representative of a party may examine witnesses and address the Chief Executive Officer on behalf of the party.
(4) If the member of the operational staff does not attend in person or by a representative at the time and place fixed for the hearing, the Chief Executive Officer may proceed in his or her absence.
78D. Decision of Chief Executive Officer
(1) If, after hearing the charge, the Chief Executive Officer is satisfied that the offence was committed, he or she may do any one or more of the following –
(a) reprimand the member concerned; or
(b) reduce the position of the member concerned for such period as Chief Executive Officer thinks fit; or
(c) impose a fine of not more than 40 penalty units; or
(d) suspend the member from duty with or without pay for a period not exceeding 6 months; or
(e) dismiss the member concerned.
(2) If a fine is imposed under this section, the amount of the fine may be deducted from the pay of the member fined but not more than ½of a penalty unit may be deducted from the pay attributable to any one week.
78E. Pay while suspended
(1) A member of the operational staff who has been suspended from duty without pay under section 78D may engage in paid employment during the term of the suspension.
(2) All pay which accrues to a member during any period of suspension without pay must be withheld.
(3) If the Appeals Commission upholds an appeal by the member in respect of the charge for which he or she has been suspended, all pay withheld under sub‑section (2) must be immediately paid to the member, less any earnings received by the member during the period of suspension.
(4) If an appeal by the member is not upheld by the Appeals Commission in respect of the charge for which he or she has been suspended or no appeal is lodged within the prescribed time, all pay withheld under sub‑section (2) is forfeited unless the Appeals Commission orders otherwise.”
13 The hearings of the charges before the Delegate have been adjourned from the initial hearing dates on a number of occasions and were ultimately set down for hearing in relation to Station Officer Cass and Station Officer Cavanagh on 23 April 2003, in relation to Mr Cassidy on 28 April 2003 and in relation to Mr McGrath on 7 or 8 May 2003. On 17 April 2003 the applicants initiated this proceeding challenging the continuation and the hearing of the charges by the Delegate and they sought an interlocutory injunction restraining the Delegate from hearing the charges and restraining the respondents from continuing to present the charges until the determination of the proceeding. On 22 April 2003 Weinberg J gave directions for the hearing of the application for interlocutory relief and he restrained the Delegate from hearing the charges pending the hearing and determination of the application for interlocutory relief.
14 The applicants accepted that the Court had no power to grant injunctive relief to prevent a breach of the contravention of an agreement certified pursuant to the provisions of Pt VIB of the WRA: see Construction, Forestry, Mining, and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437; Australasian Meat Industry Employees’ Union v G&K O’Connor Pty Ltd (2000) 104 FCR 80. However, the applicants relied upon the documents constituting the certified agreements as evidencing or constituting a common law agreement not the subject of certification and it was the contravention of such common law agreements which they were seeking to restrain by way of interlocutory injunction.
The applicants’ grounds for seeking interlocutory relief
15 The causes of action relied upon by the applicants to restrain the continuation and hearing of the charges may be summarised as follows:
(a) In relation to Station Officer Cass and Station Officer Cavanagh:
· failure to follow the dispute resolution procedure found in cl 12 of the 2002 Agreement which came into operation on 28 November 2002;
· failure to follow the consultation procedure provided for in cl 9 of the 1999 Agreement by changing the Board’s policy regarding disciplinary action without going through an Enterprise Bargaining Implementation Committee (“EBIC”);
· contravention of ss 298K(1)(b) and (c) of the WRA in conjunction with s 298L(1)(l);
· conspiracy to harm Station Officer Cass and Station Officer Cavanagh by unlawful means, namely the breach of ss 298K(1)(b) and (c) of the WRA.
(b) In relation to Mr Cassidy:
· breach of the 1999 Agreement in relation to the Board’s proposed new email policy not to lay any charges for breach of it until the educational process was completed and consultation in relation to the policy was implemented;
· breach of cl 12 of the 1999 common law agreement (par [64] below), namely failure to maintain settlement of the 21 July 2001 settlement agreement (par [42] below) in relation to the implementation of the Board’s proposed new email policy;
· breach of the 21 July 2001 settlement agreement (par [42] below) in relation to the email policy;
· breach of the June/July 2002 settlement agreement (par [44] below) between the Board and the Union not to charge Mr Cassidy if he settled the defamation action which had been brought against him on suitable terms;
· breach of the June/July 2002 settlement agreement between Mr Cassidy and the Board (par [44] below) not to charge Mr Cassidy if he settled the defamation action which had been brought against him on suitable terms;
· breach of the 2002 common law agreement by failing to submit the dispute to the procedure provided for in cl 12 and in particular steps 4 and 5.
(c) In relation to Mr McGrath:
· breach of the 2002 common law agreement by failing to submit the dispute to the procedure provided for in cl 12 and in particular steps 4 and 5.
The background of the dispute resolution clause
16 In order to understand the context in which the challenge to the charges against Station Officer Cass and Station Officer Cavanagh arises, and, in particular, the contention by the Union that disciplinary matters are subject to the dispute resolution procedure and process contained in various industrial instruments which are relied upon in evidencing and constituting common law agreements, it is necessary to refer to earlier industrial awards and industrial agreements and to an issue which has arisen as a result of the Board appointing certain of its officers, who accepted individual contracts of employment, to the position of Inspector.
17 The applicants contended that an analysis of the history of industrial regulation relating to the discipline of fire fighting operational staff in Victoria demonstrated that disputes or issues arising in relation to discipline and the laying of charges relating to disciplinary offences were subject to the dispute resolution procedure and process found in agreements which were certified in 1999 and 2002.
18 It is convenient to commence the analysis by reference to the Fire Brigades Operational Staff Award (Number 1 of 1988) (“the 1988 Award”) which was made by the Industrial Relations Commission of Victoria. It applied to the Union, the Board and all firefighting operational staff up to and including the rank of Chief Fire Officer. Clause 30 of the 1988 Award provided that any dispute or grievance that might arise in the course of the employment relationship between employees subject to the Award and the Board should be settled by direct negotiation and consultation in accordance with the procedure and steps therein set out. However, cl 30(b) of the 1998 Award provided that the dispute and grievance procedure did not apply “to any matter to which section 78A of the MFB Act ‘Discipline’ is applicable”.
19 A similar exclusion was found in cl 31 of the 1988 Award which related to shop stewards.
20 On 8 September 1992 the Fire Brigades Operational Staff Award (Number 2 of 1992) (“the 1992 Award”) was made by the Industrial Relations Commission of Victoria. It applied to the same ranks of firefighting operational staff as the 1988 Award and it contained a similar exclusion from dispute and grievance procedures for disciplinary matters as were contained in the 1988 Award.
21 In November 1993 the Union sought federal award coverage for its members and the Victorian Firefighting Industry Employees Interim Award 1993 (“the 1993 Award”) was made by the Commission on 9 March 1994. The 1993 Award applied to and was binding upon the Union, its members, the Board and the Country Fire Authority. In the division which contained the provisions applicable to the Board, cl 3(a)(iv) provided that:
“The discipline of employees covered by this Division shall be governed by the provisions of Section 78A – ‘Discipline’ – Metropolitan Fire Brigades Act 1958 (Vic).”
Clause 38 of the 1993 Award provided for the procedure to be adopted when an employee was charged.
22 Clause 48 of the 1993 Award set out a detailed procedure for the settlement of disputes and grievances that might arise in the course of the employment relationship between the employees and the Board. Such disputes and grievances were to be settled by direct negotiation and consultation in accordance with the procedure and steps therein set out. Clause 48(a)(ii) provided that:
“This clause shall not apply to claims which seek to vary this Schedule or to any matter to which section 78A of the Metropolitan Fire Brigades Act 1958 (Vic) ‘Discipline’ is applicable; including clause 37 Adverse Reports and clause 38 Procedure on Charge of Section V of this Schedule.”
23 Clause 49(b) of the 1993 Award which related to shop stewards provided that:
“This clause shall not apply to any matter to which Section 78A of the Metropolitan Fire Brigade Act 1958 (Vic) ‘Discipline’ is applicable.”
24 Put shortly, the 1988 Award, the 1992 Award and the 1993 Award contained similar clauses which prevented the Union from utilising the dispute and grievance procedures contained in them in relation to disputes involving disciplinary matters which arose within the Board.
25 In May 1996 the Union gave notice to the Commission and to the Board of the initiation of a bargaining period pursuant to Div 4 of Pt VIB of the Industrial Relations Act 1988 (Cth). This notification was intended as a means of reaching agreement with the Board in respect of the Union claim that the Board should not take any disciplinary action against any employee for a period of five years. The Commission, through Commissioner Hingley, concluded that the initiation of the bargaining period was probably not a valid initiation of a bargaining period.
26 On 9 June 1999 the Metropolitan Fire and Emergency Services Board, The United Firefighters Union of Australia, Operational Staff Agreement 1999 (“the 1999 Agreement”) was certified pursuant to the provisions of s 170LT of the WRA. The 1999 Agreement contained a dispute resolution procedure in cl 12 but there was no specific exclusion of disciplinary matters from that procedure, as had occurred in previous awards. However, cl 14 included a procedure to be adopted when an employee was charged and there was evidence that that clause was identical to cl 33 in the 1993 Award.
27 In March 2000 Commissioner Hingley conducted the Award simplification process in relation to the 1993 Award and, inter alia, he concluded that the exclusion of disciplinary matters from the 1993 Award was not an allowable matter. As a consequence, the 1993 Award was varied on 26 October 2000 in accordance with the decision of Commissioner Hingley so as to set out a dispute and grievance procedure, in respect of which there was no exclusion in relation to disciplinary matters.
28 Negotiations had commenced in relation to a new proposed agreement in early 2002. The Union’s proposed agreement contained provisions for dispute resolution but did not provide for any exclusion therefrom of matters arising under the disciplinary provisions of the MFB Act. The Board’s proposed agreement contained a clause relating to dispute resolution which provided that the clause would not apply to any disciplinary matter including, but not limited to, matters arising under ss 78A‑78E of the MFB Act and Div 5 Pt 3 of the Metropolitan Fire Brigades (General) Regulations 1994 (“the Regulations”). According to Mr Peter Marshall, the Secretary of the Victorian Branch of the Union, the issue of the use of disciplinary procedures and the operation of the proposed agreement were discussed in negotiations between the parties. The Board sought a provision in the proposed dispute resolution clause that excluded the dispute resolution process from applying to disciplinary matters under the MFB Act. The Union opposed such a provision. Ultimately the Board’s proposal was not included in the dispute resolution clause contained in the agreement as certified.
29 On 28 November 2002 the 2002 Agreement was certified. The dispute resolution clause, cl 12, did not exclude disciplinary matters from its coverage and operation.
The background to the creation of the position of Inspector
30 I turn to the background which has given rise to what has been called the “Inspector dispute” or the “Inspector issue”. According to Mr Marshall, it has long been the situation that former members of the Union who act contrary to Union positions in industrial disputes are called “scabs”, an expression said to be used by both firefighters and Board management. In more recent times the term has been used in relation to former members of the Union who applied for the position of “Inspector” contrary to the Union’s direction. Since about mid‑2002 signs reading “No MFB Scabs” have been displayed visibly in a number of fire stations. This was apparently a reference to former members of the Union who applied for and accepted the position of “Inspector”. The position of Inspector was created in the early 1990s when the Board abolished the classification of District Officer and created the classification of Inspector. Inspectors were asked by the Board to accept individual contracts of employment under industrial legislation introduced in the early 1990s. The Board proposed the making of an award for firefighters by the Commission which did not apply to Inspectors. This course was opposed by the Union but the award was made which regulated the terms and conditions of operational staff up to and including the rank of Senior Station Officer but not Inspectors. The Inspectors who were appointed accepted individual contracts of employment.
31 According to the Union, this situation resulted in industrial disharmony between Union members and the Inspectors who were subsequently labelled as scabs by the Union members.
32 Towards the end of 2001 the Union was involved in a dispute with the Board about the terms and conditions of employment for Inspectors. The Union sought to obtain an agreement between it and the Board which would apply to Inspectors and the Union wanted this agreement certified pursuant to the provisions of the WRA. The members of the Union voted to impose a ban on members applying for vacant positions of Inspector. However, a number of firefighting operational staff applied for, and were appointed to, the position of Inspector. It was from about this time that the signs reading “No MFB Scabs” began to be displayed by Union members at a number of fire stations. No Inspector is a member of the Union.
33 The Union has been opposed to Inspectors having supervisory authority over its members, who are operational staff of the Board. The Union has sought to remove Inspectors from any role in supervising operational staff and has sought the creation of a new rank to supervise operational staff instead of Inspectors. The members of the Union are ready to cooperate with Inspectors on operational firefighting matters but they are unhappy about being supervised by the Inspectors.
The charges against Station Officer Cass and Station Officer Cavanagh
34 The background to the disciplinary charges laid against Station Officer Cass and Station Officer Cavanagh is as follows. From at least September 2002 a number of signs were displayed at the Nunawading Fire Station. One sign said “No MFB Scabs”. Another sign comprised a list of names of Inspectors with the word “scab” written above them and there was also a drawing with the nicknames of Inspectors on it and the word “scab”.
35 Inspector Stuart McCall, now Commander of the Board’s Southern Zone, attended the Nunawading Fire Station on 23 December 2002 for the purposes of an inspection of the station. At that time he held the rank of Inspector and subsequently became Commander on 7 April 2003. Evidence has been given as to what occurred during his visit from Inspector McCall, Station Officer Cavanagh and Station Officer Cass. There are differences in the versions given as to what occurred but it is not necessary for present purposes to make specific findings about what occurred or to resolve those differences. It is sufficient for present purposes to note the following. Inspector McCall asked Station Officer Cavanagh and Station Officer Cass to remove the sign “No MFB Scabs” attached to the foyer door. Inspector McCall also pointed to a whiteboard at the back of the Station Officers’ office and asked Station Officer Cass and Station Officer Cavanagh to remove the references to Inspectors’ which were written on the whiteboard. The whiteboard had Inspectors names on it and the word “scab” was written against the names. Station Officer Cass and Station Officer Cavanagh refused to remove the sign or the writing on the whiteboard. There may be in issue as to whether they specifically refused but, in any event, they did not remove the sign or the writing on the whiteboard.
36 Inspector McCall returned to Southern Zone headquarters and told Mr Terrence Hunter, who was then a Commander but is now Assistant Chief Fire Officer of the Southern Zone, what had occurred. On the next day, 24 December 2002, Inspector McCall, Mr Hunter and Mr Murphy, Acting Director of Operations, decided that Inspector McCall should provide a written order to Station Officer Cass and Station Officer Cavanagh giving them another opportunity to comply with his order. Later that day Inspector McCall and Mr Hunter went to the Nunawading Fire Station and gave Station Officer Cass and Station Officer Cavanagh a copy of the written order. The written order stated:
“The purpose of this memorandum is to confirm in writing the order given to you both yesterday by me in relation to the offensive material displayed at Nunawading Fire Station. That order was that you take action to remove the offensive material displayed at Nunawading Fire Station. This order was given to both of you at which time you both refused to comply.
I also confirm that failure to comply with this order may result in disciplinary action pursuant to the MFB Act and also consideration relevant to your non‑compliance with the EEO Act and the MFB Workplace Violence and Harassment Policy.”
The document was signed by Inspector McCall. Station Officer Cass and Station Officer Cavanagh read the document and Mr Hunter asked them whether they had any comment. They had no comment.
37 Inspector McCall prepared a report of what had occurred on 23 December 2002 and gave a copy of it to Mr David Davies who was then an Inspector but between 27 December 2002 and approximately 3 February 2003 was Acting Commander. Mr Hunter gave Mr Davies a report of what had occurred on 24 December 2002. According to Inspector McCall and Mr Hunter, they did not instruct Mr Davies to lay charges against Station Officer Cass or Station Officer Cavanagh.
38 After Mr Davies reviewed the report from Inspector McCall and Mr Hunter he concluded that Station Officer Cass and Station Officer Cavanagh had wilfully refused to comply with a direction of a senior officer. On or about 22 January 2003 he determined that it was appropriate to charge Station Officer Cass and Station Officer Cavanagh and said that he was not instructed or encouraged by any other person to lay charges against Station Officer Cass and Station Officer Cavanagh. Mr Davies said that his decision to charge them was made solely on the basis that they had wilfully refused to comply with an order and that they did not provide any explanation for their failure to comply with the order. There is an issue as to whether Station Officer Cass or Station Officer Cavanagh were given any opportunity to provide an explanation but it is not necessary for present purposes to resolve that issue.
39 Relevantly for the purposes of s 298V of the WRA, Mr Davies denied that the charges were laid against Station Officer Cass and Station Officer Cavanagh because they were Union members expressing solidarity with other members in order to advance their terms and conditions. Mr Davies also said that there was no evidence to suggest that Station Officer Cass and Station Officer Cavanagh had refused to comply with the orders because they had been instructed to do so by the Union or that they were participating in an industrial campaign.
The charges against Mr Cassidy
40 The disciplinary charges against Mr Cassidy arose out of an email he had sent to approximately 120 recipients through the medium of the Board’s computer system which related to an incident on 13 July 2001 in which Mr Cassidy had engaged the services of a self storage company. On 7 December 2001 the Board received a letter from Mr Ron Morton of the self storage company complaining that the emails by Mr Cassidy had caused damage to the reputation of Mr Morton and his organisation.
41 On 11 December 2001 the Board charged Mr Cassidy pursuant to s 78B of the MFB Act with three offences arising from Mr Cassidy circulating material unrelated to his duties as an officer.
43 The Board took the view that in respect of matters of discipline for breaches of legislation, the disciplinary process was not a matter covered by the 1999 Agreement. The Union referred the dispute about that matter to the Commission and, after discussions, the hearing of the charges against Mr Cassidy were adjourned by consent and were later relisted for hearing on 10 April 2002, which hearing did not proceed on that date.
“The terms of this agreement were that if Cassidy settled the defamation action, indemnified the MFESB in respect of the alleged defamation and agreed to undergo counselling, charges against him would not be pursued by the MFESB. The agreement was reached in discussions in or about June or July 2002 between myself, Ms Burrow and Mr Bertolus of the MFESB. Ms Burrow and myself were representing Cassidy and the UFU.”
47 On or about 7 February 2003 the Board reactivated the charges against Mr Cassidy. There was no evidence that Mr Cassidy had agreed to undergo counselling or had in fact undergone counselling or that he had provided an indemnity to the Board in respect of the alleged defamation of Mr Morton and his company. However, I note that in the terms of settlement between Mr Cassidy and Mr Morton and his company, Mr Morton and his company undertook that they would not bring any proceeding arising out of the alleged defamation against the Board.
The charges against Mr McGrath
Do disciplinary matters fall within the dispute and grievance procedures in cl 12 of the 1999 Agreement and the 2002 Agreement?
50 The principal submission of the applicants was that “discipline” issues fall within the purview of the dispute and grievance resolution procedure of the 1999 Agreement and the 2002 Agreement. These procedures are principally found in cl 12.1 of the 2002 Agreement which provides:
“To ensure effective consultation between the employer, its employee(s) and the union on all matters pertaining to the employment relationship, including the application of this agreement, the following procedures shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance: …”
The expressions “dispute” and “grievance” are not defined in the Agreement. Clause 12.1 of the 1999 Agreement is in similar terms.
51 The procedures contemplated by cl 12 provide for a number of steps to be followed which culminate in a final decision being made by the Commission on an arbitration.
52 The applicants’ submissions were put on the basis of the proper construction of the Agreements having regard to the sequence of awards and agreements which preceded them. In the course of submissions counsel for the applicants referred to s 170LZ(1) of the WRA which provides that:
“Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.”
This matter was not raised in the application or statement of claim. The applicants indicated that they proposed to amend the application to seek a declaration that the requirements in cl 12 of the 2002 Agreement prevailed over s 78B of the MFB Act. The respondents said that they would oppose the amendment. The issue was not developed further before me. Even if I were to decide that there was a serious question to be tried on this issue, the consequence would only be that the laying and proceeding with the charges was arguably a breach of the certified agreement. In those circumstances, the relevant interlocutory relief to be granted would be an interlocutory injunction restraining the continuation of that breach pending trial. However, as I have noted earlier, and as the applicants accepted, the Court has no power to grant injunctive relief to prevent a contravention or breach of a certified agreement. The applicants’ further or alternative argument that they can rely upon the 2002 Agreement as a common law agreement for the purposes of obtaining injunctive relief does not engage s 170LZ(1) of the WRA.
53 The applicants submitted that the issues they had raised in relation to the charges related to the employment relationship between the Board and the personal applicants and therefore fell within cl 12.1. The Board did not develop any submission on this issue as it submitted that the 2002 Agreement, as well as the 1999 Agreement, could not be characterised in any way as a common law agreement as well as a certified agreement. The Board submitted that if this argument was accepted, then it was not necessary to resolve the issue whether matters of discipline were excluded from the dispute and grievance resolution procedures in cl 12.1 of the 1999 Agreement and the 2002 Agreement. I took the Board’s submission to be that cl 12.1 did not operate to bring the subject matter of discipline within the scope of the dispute and grievance resolution procedures in the 1999 Agreement and the 2002 Agreement.
54 My initial view was that the scheme and procedure for discipline found in ss 78A‑78E of the MFB Act do not constitute one of the terms and conditions of employment of the employees of the Board and that the discipline procedure under the MFB Act stands apart from the 1999 Agreement and the 2002 Agreement. Ultimately, whether issues of discipline contemplated by ss 78A‑78E of the MFB Act are brought within purview of the dispute and grievance resolution procedures in cl 12.1 of the 1999 Agreement and the 2002 Agreement depends upon the proper interpretation of the Agreements. It is also strongly arguable that the procedure for settlement found in cl 12 is ill‑suited to a situation of, and not congruent with, the laying and hearing of charges for breach of disciplinary provisions.
55 Both the Delegate and Commissioner Simmonds have decided this point adversely to the applicants. In his decision on 10 April 2003, Commissioner Simmonds was satisfied that the disciplinary procedure prescribed in the MFB Act was not, in its terms, displaced by the 2002 Agreement. Commissioner Simmonds did not agree that cl 12 of the 2002 Agreement enabled an employee to raise a dispute under cl 12 about a decision to charge an employee or about any action taken under that procedure. Ultimately, this issue is to be determined by the proper construction of the 2002 Agreement. As Commissioner Simmonds noted, apart from the reference to adverse reports in cl 13, there is nothing else in the 2002 Agreement which deals with the discipline process. Further, it does not follow that because the Board proposed to include a clause specifically excluding discipline from the scope of the 2002 Agreement, which proposal was not agreed to, that it should be inferred that discipline is not excluded from the Agreement. However, as I only have to decide that there is a serious question to be tried on this issue I am prepared to do so for present purposes having regard to the fact that the matter was not fully argued before me. Having regard to the conclusion I have reached below as to whether the 1999 Agreement and the 2002 Agreement can be considered as enforceable common law agreements other than as certified agreements, the issue of whether there is a serious question to be tried whether discipline issues fall within cl 12.1 of the 1999 Agreement and 2002 Agreement does not have to be determined at this stage.
Can a certified agreement also constitute a common law agreement enforceable as such other than pursuant to the WRA?
56 The applicants submitted that a certified agreement can constitute a common law contract enforceable as such otherwise than pursuant to the WRA. They relied on dicta in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645. The Board submitted that an agreement certified pursuant to the provisions of the WRA did not have the character of, nor was it enforceable as, a private contractual agreement. The Board relied upon Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235. However, the Board submitted that in any event, even if this dual character of a certified agreement and a common law agreement could exist, it did not exist in relation to the 1999 Agreement or the 2002 Agreement.
57 In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (supra) the High Court considered whether the Commission could proceed to determine issues between an employer and a union where the relevant certified agreement contained a provision that in the event of a dispute where resolution could not be achieved without the assistance of the Commission, the parties to the agreement agreed to abide by any decision determined by the Commission. The issue which arose was whether relevant clauses of the certified agreement conferred on the Commission the power to decide matters beyond those found in s 89A of the WRA.
58 The High Court said at 658:
“The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.”
The applicants placed particular emphasis on the sentence, “If their agreement is certified, it also has effect as an award”.
59 In Electrolux Home Products Pty Ltd v Australian Workers’ Union [2001] FCA 1600, the possibility of the duality of characterisation of a certified agreement was recognised by Merkel J. In that case the parties were negotiating a new certified agreement which it was proposed would be certified under s 170LT of the WRA. The question for the court was whether certain action taken by the unions was protected action and was taken with intent to coerce Electrolux to make a new certified agreement in breach of s 170NC(1) of the WRA. One of the issues before the court was whether the action taken by the unions was for the purpose of supporting or advancing claims made in respect of an agreement about matters pertaining to the requisite relationship. Merkel J considered whether s 170LI of the WRA required that all of the terms of the proposed agreement must pertain to the requisite relationship. His Honour answered this question in the negative and said at [50]:
“Thus, an agreement may be about the requisite matters notwithstanding that some of its terms may not, strictly, be about such matters. However, if the term relates to a subject matter that does not pertain to the requisite relationship then the agreement might not be an agreement about the requisite matters. Of course, to the extent the agreement is not about the requisite matters it may have effect according to the general law but, if it does not meet the requirements of ss 170LI and 170LT, it cannot be certified and have effect as an award: see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 178 ALR 61 at [33]‑[35].”
60 A different approach appears to have been taken by a Full Court of the Federal Court in ACTEW Corporation Limited v Pangallo [2002] FCAFC 325. The question for determination was whether the Supreme Court of the Australian Capital Territory had jurisdiction to make declarations of right in relation to a certified agreement within the meaning of the WRA. The Supreme Court had answered that question “Yes”. The Full Court allowed the appeal and answered that question “No”.
61 The Board submitted that this decision supported the proposition that a certified agreement could not also have the characterisation of a common law agreement outside the provisions of the WRA. Whitlam and Gyles JJ said at [33]:
“A certified agreement now may be rather more like an award was at the time of that decision [Byrne v Australian Airlines Limited (1995) 185 CLR 410] than it might be now. However, the trend towards consensual arrangements has not resulted in any fundamental change to the nature and effect of a certified agreement. The submission for the appellant that a certified agreement is solely a creature of statute having force by virtue of the statute remains correct. In a sense, the term ‘agreement’ is a misnomer because it will bind individuals whether or not they authorise it or are in favour of it. There is no scope for private law concepts of contract or equity in such circumstances.”
The Board relied upon this passage to support the proposition that the dual characterisation of a certified agreement relied upon by the applicants was not tenable. However, I doubt that their Honours were addressing the issue whether a certified agreement may also be characterised as an enforceable common law agreement. Rather, they were addressing only the characterisation of an agreement certified pursuant to the provisions of the WRA.
62 Having regard to the dicta of the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (supra), I am satisfied that there is a serious question to be tried that a document constituting an agreement certified pursuant to the provisions of Pt VIB of the WRA may also be characterised as a common law contract enforceable as such.
63 Whether there is a serious question to be tried that the 1999 Agreement and the 2002 Agreement bear that characterisation is the next issue to be addressed.
Are the 1999 Agreement and the 2002 Agreement enforceable common law agreements outside the WRA?
65 In Ryan, two companies entered into agreements with a number of unions in which the companies agreed to pay employees certain benefits in the event of the termination of their employment on the ground of redundancy. Meetings of members of the unions who were employees of the companies had approved of the proposed agreements. The agreements were not registered under any Commonwealth or State industrial relations legislation. The companies went into receivership and thereafter employees were dismissed. The receivers paid the employees redundancy benefits to which they were entitled under industrial awards but refused to pay them the benefits otherwise provided for in the agreements. Section 556(1)(h) of the Corporations Law accorded a particular priority for payment of a “retrenchment payment” which was defined as an amount payable by the company to an employee by virtue of an “industrial instrument”. The term “industrial instrument” was defined as a contract of employment or a law, award, determination or agreement relating to terms and conditions of employment. The receivers applied to the Supreme Court for a determination of questions relating to the employees’ disputed priority claim.
66 The Court of Appeal held that the agreements were not binding on the receivers and were not industrial instruments for the purposes of the Corporations Law. One of the principal issues addressed by the Court of Appeal was whether there was any consideration moving from the unions to support the agreements with the companies. The Court of Appeal could find no such consideration as would support an enforceable agreement at common law. Brooking JA also saw the fact that the agreements were not expressed to be limited in point of duration as a problem for enforceability. His Honour examined the issue of duration of the agreement, the identity of the parties to the agreement and the question of consideration and concluded at 251 that the agreements:
“unsupported by consideration, were intended by the unions and the company to have practical industrial, as opposed to legal, consequences.”
67 Hayne JA, with whom Tadgell JA agreed, examined a number of issues bearing upon the issue of enforceability. Hayne JA said at 266:
“Further, that question (whether the parties intended to be legally bound by the arrangement that they made) cannot be answered in isolation. In particular it cannot be answered without identifying the parties to the arrangement and cannot be answered without identifying what the arrangement was. As I have said earlier, there is no doubt that those who participated in the process leading up to the signing of the documents said to operate from 16 September 1991 believed (and are to be taken by their words and deeds as believing) that they had reached consensus upon an important matter. Nothing in the various subjects under discussion (redundancy payments, payment of wages, redundancy procedures or shift arrangements) and nothing in the way in which the parties acted or spoke suggests that they did not intend a result that would inure to the benefit of at least some (if not all) employees of Homfray. But in deciding whether parties were to be bound in a way that would permit the opposite party to enforce rights at law, and not be confined to securing performance of the opposite party’s promises only by industrial means, much may turn upon who are the parties and what it was that was agreed.”
68 The trial judge had found that the union officials who signed the agreement did so as agent for the union employees who had approved the agreement at the meeting and did not do so as principal on behalf of the unions. Hayne JA disagreed. His Honour noted that the arrangement was one which would operate in the future and that the parties negotiated the arrangement without confining their attention to any particular employee who was about to be made redundant. His Honour noted that it was intended that the redundancy arrangements agreed would be applied not only to present but to future employees of the company.
69 The applicants submitted that care should be taken in applying the observations in Ryan to the present circumstances as the Court of Appeal was concerned with determining whether the unions had entered into the agreement as agent for the employees whereas in the present case no agency point was raised by the applicants. However, I consider that the observations of the Court of Appeal, and Hayne JA in particular, are not to be restricted within an agency framework. Rather, they identify the problems involved in establishing an intention by the parties to an agreement regulating industrial issues to be legally bound otherwise than under a certified agreement where the agreement is, on its face, for the benefit of future parties and other parties who are not signatories to the agreement or otherwise bound by it.
70 Hayne JA then considered the argument that the unions, as principals, made an agreement with the companies. Such an argument overcame the difficulty of identifying the parties to the agreement but raised the issue as to the consideration for the employers’ promise to pay redundancy benefits. Hayne JA said at 269:
“In no case did the union give any express promise to the employer and in my view it is not possible to imply in any of the four agreements that were reached any promise by the union concerned. I say that the union gave no express promise to the employer notwithstanding what is said in the second part of the agreement. Two aspects of the matter lead me to that conclusion. First, if consideration is to be found in some promise by the union, it must be a promise sufficiently certain to admit of enforcement before a contract can be found to exist and, secondly, if the consideration is to be found in a promise, it must be a promise by the union, not by some third party.”
His Honour was unable to identify any executory or executed consideration moving from the unions for the promise of the employer.
71 Hayne JA concluded at 273:
“It is desirable to draw together the three questions of intention to create legal relations, parties and consideration for, as I have said, I do not think that they can be considered as three separate and isolated questions. In my opinion the true analysis of what was said and done in relation to Homfray is that the arrangement that was struck was struck between union and employer and, the union having provided no consideration for the employer’s promise no contract was made. Because the union gave no consideration for the promise of the employer, the parties did not make a bargain of the kind that could be enforced in a court and in my view their conduct is to be taken as demonstrating that they did not intend to do so.”
72 The Board submitted that the 1999 Agreement and the 2002 Agreement showed that at the time they were entered into, the intention of the parties was that they be a precursor to the attaining of certification for the respective documents pursuant to the provisions of the WRA. The Board pointed to the statutory declaration made on behalf of the Union which was filed with the Commission pursuant to the provisions of reg 48 of the Australian Industrial Relations Commission Regulations in support of the application for certification.
73 The applicants relied upon a number of submissions in support of their contention that the 1999 Agreement and the 2002 Agreement were legally binding agreements at common law enforceable outside the provisions of the WRA. They submitted that the Agreements were intended to be binding and they referred to cl 6 which was headed “Application of Agreement and Parties Bound”. This clause raises difficulties for the applicants. It provides that the agreement applies to, and is binding on, the Board and the Victorian Branch of the Union. But it also provides that the Agreement applies to and is binding on persons who were not members of the Union or employees of the Board at the time the Agreements were entered into. Clause 6.2 of the 1999 Agreement provides that the agreement applies to and is binding on the Union and its members and “those employees eligible to be members who are engaged in any of the occupations specified in” the 1993 Award and the Firefighting Services – Wages – Firefighters and Firefighting Officers – Victorian – Award 1996. Clause 6.2 of the 2002 Agreement provides that the agreement applies to and is binding upon the Victorian Branch of the Union, its members and “those employees eligible to be members who perform work that is or may be performed by an employee engaged in any of the occupations specified in” the Victorian Firefighting Industry Employees Interim Award 2000 or in the Agreement.
74 It can therefore be seen that both Agreements intend present and future employees of the Board to be subject to, and bound by, the provisions of the agreement. When the agreement is certified no problem arises in this respect. However, outside the process of certification it is difficult to say that an agreement is binding upon and enforceable against persons who have not assented to its terms and who are not yet identified.
75 Put shortly, it may have been the intention of the Board, the Union and the members of the Union who voted in favour of the agreement that the 1999 Agreement and the 2002 Agreement were intended to be binding under the provisions of the WRA. It is quite another matter to say that those Agreements were either intended to be binding or could be binding on persons yet to be identified.
76 The applicants then submitted that the parties intended to seek and did seek and obtain certification under the WRA which evidenced an intention to create legal relations. That submission begs the question. I have no doubt there was an intention to create the legal relationship contemplated by the certification provisions of the WRA and an intention to create an agreement capable of being, in fact being, certified. In support of this submission the applicants relied upon the observation of Hayne JA in Ryan at 272:
“Considerations of the kind I have just described [benefits obtained and obligations to be incurred under the agreements], in the end, amount to no more than bare assertion: the agreement is enforceable because the parties want it so. They are considerations that are to be judged in light of the important fact that if the parties had wished to ensure that the agreements were enforceable at law, they could have registered them under the appropriate industrial legislation.”
This passage does not support the applicants’ submission that there was an intention to create legal relations at common law rather than pursuant to a certified agreement. The reference by Hayne JA to ensuring that the agreements “were enforceable at law” is not a reference to common law provisions, but rather a reference to the provisions appropriate to industrial legislation.
77 The applicants relied upon a number of provisions in the 1999 Agreement, most of which are also found in the 2002 Agreement, as demonstrating that there was consideration moving from the Union which supported the enforceability of the agreement at common law. They referred to the following clauses:
· clause 9.2.1 which contained a commitment to effective consultation and communication throughout the Board;
· clause 9.2.2 which provided that EBIC would comprise equal numbers of management and employee representatives and decision‑making would be by consensus;
· clause 9.2.3 which imposed an obligation on EBIC members to cooperate positively;
· clause 12 in which a dispute resolution procedure was set out;
· clause 18 which provided a commitment to the successful negotiation of a revised management structure within the zones;
· clause 21.1.3 which contained a commitment to the progressive implementation of a number of specified activities;
· clause 27.2 which expressed the intention of the parties that the emergency medical response role would be extended across the Metropolitan fire district;
· clause 29 which contained an agreement to investigate the feasibility of salary packaging.
The applicants also included within the consideration moving from the Union the fact that by entering into the agreement and having it certified the Union gave up, by virtue of s 170MN of the WRA, the statutory right it had under s 170ML to organise protected industrial action.
78 I doubt that some of these matters can be regarded as sufficient consideration, and I am not referring to adequate consideration; see JW Carter and DJ Harland, Contract Law in Australia, 4th ed, 2002, pp 113‑114. I refer, for example, to cl 9.2.1 and cl 9.2.2 in relation to the commitment to establish an EBIC where decision‑making will be by consensus. Such a provision is no more than an agreement to agree which is no agreement at all. Nevertheless, the Board accepted, for the purpose of the argument, that there was consideration moving from the Union.
79 The Union also relied upon the decision of the Full Court of the Supreme Court of Queensland in Australian Meat Industry Employees’ Union v Frugalis Pty Ltd (1989) 30 IR 149. The Union submitted that in that case the court treated a company – union agreement as a contract without any detailed analysis of this issue. I do not consider that the reasoning is of any assistance to the applicants. In that case there was an issue as to which award applied to particular worksites. An agreement was entered into between the parties but that agreement was entered into otherwise than as part of the award making procedure. The case is no authority for the proposition that an agreement entered into and certified under industrial legislation is also to be considered and regarded as an agreement at common law enforceable outside the provisions of the relevant industrial legislation.
80 Notwithstanding the submissions made by the applicants, and in particular their submission that there is sufficient consideration in the 1999 Agreement and the 2002 Agreement to support an enforceable agreement, I am not satisfied that there is a serious question to be tried that the 1999 Agreement and the 2002 Agreement record or evidence an agreement at common law enforceable outside the terms and provisions of the WRA. Although the issue revolves around a consideration of the intention of the parties at the time the agreements were entered into, I consider that all the indicia tell against the characterisation submitted by the applicants. I refer in particular to the content of the agreements, the identification of the parties to whom the agreements were to apply and who were to be bound by them, the undertaking and commitment to courses of conduct which would not be enforceable at common law and the process and procedure of certification. I do not consider that there is a serious question to be tried that the parties to the two agreements intended to create legal relations enforceable otherwise than under the provisions of the WRA.
Should an injunction be granted on the grounds of a failure to follow the dispute resolution procedure provided for in the 2002 Agreement?
81 I turn to the grounds upon which injunctions are sought restraining the continuation and hearing of the particular charges. The first ground, namely failure to follow the dispute resolution procedure in the 2002 Agreement, cannot be sustained. There is no serious question to be tried in relation to it. As I have noted earlier, the applicants accepted that the Court has no power to grant injunctive relief to prevent the breach or contravention of a certified agreement. I have found further that there is no serious question to be tried that the 2002 Agreement constitutes an agreement at common law capable of being enforced outside the provisions of the WRA.
Should an injunction be granted on the grounds of failure to follow the EBIC consultation process provided for in the 1999 Agreement?
82 The applicants submitted that, prior to February 2002, a policy existed that the Board would not take disciplinary action regarding the “Inspector issue”. This policy was changed, according to the applicants, at a meeting on 11 February 2002 (see par [102] below). Such a change in policy was said to be contrary to the terms of the 1999 Agreement which required reference to an EBIC for any substantial change in policy, and in this instance the policy was changed in a substantial way without any reference to an EBIC.
83 Even if I were to be satisfied that a policy in the terms contended for by the applicants actually existed and that the meeting on 11 February 2002 signalled a change in that policy, and I make no findings on these issues, the fact remains that the Court cannot grant injunctive relief to prevent the breach or contravention of a certified agreement and I have found that there is no serious question to be tried that the 1999 Agreement constituted an enforceable common law agreement.
Has there been a contravention of s 298K(1) of the WRA?
84 The applicants submitted that the laying of the charges against Station Officer Cass and Station Officer Cavanagh were made for a purpose which contravened s 298K(1) of the WRA. Section 298K(1) provides:
“An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s prejudice;
…”
The prohibited reason relied upon is that found in s 298L(1)(l) which provides:
“Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions;
…”
The Court has power under s 298U(e) to grant interim injunctions restraining a contravention of s 298K.
85 The dissatisfaction with industrial conditions relied upon is that Station Officer Cass and Station Officer Cavanagh are dissatisfied with the condition that they are subject to the supervision of Inspectors who have acted contrary to the Union and its members’ policies.
86 The provisions of s 298V of the WRA must be borne in mind. Section 298V provides:
“If:
(a) in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.”
87 Both Station Officer Cass and Station Officer Cavanagh have been well aware of the industrial issue which has been simmering for some time in relation to Inspectors who have signed individual contracts of employment being supervisors of operational staff. Both Officers are opposed to being supervised by such Inspectors although they are both ready to cooperate with Inspectors on operational firefighting matters.
88 The Board submitted that the laying of the charges and the hearing of them did not injure Station Officer Cass and Station Officer Cavanagh in their employment or alter their position to their prejudice. The Board submitted that what s 298K(1)(b) and (c) required was not just injury to a person personally but an injury which focussed on his or her employment. It was also said that any alteration to the position of an employee, to be a contravention of s 298K(1)(c), had to be an alteration to the employee in their capacity as an employee.
89 I am satisfied that there is a serious question to be tried on this integer of a contravention of s 298K. The laying of the charges imposes a burden on the persons charged to respond to allegations relating to their conduct as employees of the Board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee’s employment by the Board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven.
90 That there is a serious question to be tried on this issue is demonstrated by reference to the observations of the Full Court of the Federal Court in Community and Public Sector Union v Telstra Corporation Limited (2001) 107 FCR 93 at 100:
“The question is whether, by sending the e‑mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers ‘not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question’. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being ‘extremely tenuous’ with the ‘security of the employees’ employment [being] consequentially altered to their prejudice’. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).”
Although the laying of the charges and the hearing of them of itself does not result in a permanent injury to an employee or an alteration of the employees’ position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in s 78D of the MFB Act (par [12]).
91 There is support for this view in Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 in which Wilcox J considered, inter alia, whether actions of a bank in counselling and formally warning an employee were actions which altered the position of the employee to the employee’s prejudice. It was said by the bank that the counselling was a stage in the bank’s disciplinary procedures. Wilcox J said at 378:
“I accept the relevant ‘disciplinary action’ might be demotion rather than dismissal. However, demotion from the position of branch manager would itself be a significant detriment. To take a step that had the effect of ‘using up’ Ms Buckland’s chance to be first warned about any future unsatisfactory conduct, rather than be immediately dismissed or demoted, was to alter her position to her prejudice. The point was made by Branson J in CFMEU at par 95:
‘Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment. In a sense, written warnings under the respondent’s disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences’”.
92 The Board submitted that the laying and hearing of the charges in the present case was not analogous to what had been considered by Wilcox J as no warnings or the imposition of demerit points was involved. That distinction may be a valid distinction but I am satisfied that there is, nevertheless, a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.
93 The Board relied upon the observation of Marshall J in Major v State of South Australia [1999] FCA 1684 in which the State of South Australia refused to accede to the applicant’s request to grant a further period of special leave without pay (which leave had existed since January 1984) to enable the applicant to be employed by the Australian Education Union. The State of South Australia intended to proceed with disciplinary charges against the applicant if he did not resign from the Department of Education Training and Employment. Marshall J said at par [18]:
“The rejection of Mr Major’s application for a further period of special leave without pay was considered in accordance with the administrative instruction of April 1997. That was all the respondent was required to do. It was open to the respondent in so doing to reject the application. The rejection of the application did not result in an injury of any compensable kind nor did it constitute an adverse affection of, or deterioration in an advantage enjoyed by Mr Major. Consequently I do not consider that the respondent engaged in any overt act which fell within s298K(1) of the Act. It is therefore unnecessary to determine whether reasons for the decision included prohibited reasons fitting within s298L(1)(a) or (m) of the Act. It also follows that the respondent’s intention to proceed with disciplinary action against Mr Major, in the event that he does not resign from his employment with the respondent and fails to return to work with the Department, does not constitute a breach of the material provisions of Part XA of the Act. Accordingly the appropriate order to make is that the application be dismissed.”
I consider the circumstances before Marshall J to be distinguishable from the present circumstances as the employee was, in effect, seeking an indulgence as he only had an extension of special leave until 28 February 1999 and was not entitled as of right to any further extension.
94 However, in order for there to be a serious question to be tried that the Board has engaged in conduct in contravention of s 298K(1)(b) or (c) there has to be a serious question that the Board is engaging in that conduct for the prohibited reason set out in subpar (l) of s 298L(1). Such conduct is for a prohibited reason if it is carried out because the employee:
“… who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions.”
The Union and Station Officer Cass and Station Officer Cavanagh accepted that s 298L(1)(l) requires that the subject matter of the conditions being sought by the Union must be contiguous with the conditions in respect of which the employees were dissatisfied. This acknowledgment was an acceptance of the proposition set out by Northrop J in Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at 269‑270:
“One of the chief objectives of any organisation of employees is to seek better industrial conditions for its members. The words ‘an organisation which is seeking better industrial conditions’ contained in s. 5(1)(d) [the predecessor of s 298L(1)(l)] do not refer to this general objective but must refer to identified industrial conditions which the organisation is seeking to better. To come within this paragraph the employee member must be dissatisfied with the same industrial conditions. The paragraph takes as its subject matter the identified industrial conditions which then form the link between the seeking by the organisation to better those conditions and the dissatisfaction by the employee member with those conditions as they then exist.”
95 The industrial conditions in respect of which Station Officer Cass and Station Officer Cavanagh were and are dissatisfied is that employees of the Board who are members of the Union are subject to the supervisory authority of officers of the Board with the rank of Inspector. The relevant industrial condition was put by counsel for the applicants in the following terms:
“the Union has been seeking a better industrial condition in respect of persons appointed as Inspectors whom the membership have call ‘scabs’ and the better industrial condition they have been pursuing and are still pursuing was to bring about a situation where the Inspectors who are considered to be scabs do not have supervisory authority over ranks of firefighters which takes one up to the level of Senior Station Officer.”
It was said that the dissatisfaction related to the supervision of employees who are union members by Inspectors who had acted contrary to the Union and the policy of its members by accepting the position of Inspector under an individual contract of employment. There was also an issue that this supervision by the Inspectors had involved attending at fire stations and standing down firefighters who would not take a direction to stand by to relieve at another station and would not perform higher duties to cover an absence from a shift. Put shortly, it was the authority of the Inspectors to supervise the employees who were members of the Union which has been the subject of dissatisfaction.
96 In the present case s 298V of the WRA has the effect that it is presumed that the reason for laying the charges against Station Officer Cass and Station Officer Cavanagh, and the intention to continue with the hearing of them, is that Station Officer Cass and Station Officer Cavanagh are dissatisfied with their industrial conditions which the Union is seeking namely being supervised by Inspectors, unless the Board proves otherwise.
97 I am satisfied that the Board has proved otherwise, for the purposes of s 298V, to the extent that there is no serious question to be tried that the charges have been laid against Station Officer Cass and Station Officer Cavanagh are now being proceeded with for the prohibited reason relied upon.
98 The evidence presented by the Board was that the decision to charge Station Officer Cass and Station Officer Cavanagh was made by Mr Davies and that he was not instructed or encouraged by any other person to lay those charges. Mr Davies said that his decision to charge them was made solely on the basis that they had wilfully refused to comply with an order and that they did not provide any explanation for their failure to comply with the order. Mr Davies specifically denied that the charges were brought against Station Officer Cass and Station Officer Cavanagh because they are Union members who were expressing solidarity with other members in order to advance their terms and conditions.
99 The applicants submitted that there were gaps in Mr Davies’ evidence with the consequence that the Board had not proved “otherwise” for the purposes of rebutting the presumption in s 298V. The applicants relied, in particular, upon a report from Mr Davies to Mr Murphy, the Acting Director of Operations, on 22 January 2003 in relation to Station Officer Cass. In that report Mr Davies set out charges against Station Officer Cass. At the end of that report there appears the notation “Noted. Matter to proceed” and the notation is signed by Mr Murphy and is dated 31 January 2003. The applicants relied upon this notation as demonstrating that the decision to lay the charges was not Mr Davies’ but rather Mr Murphy’s decision in respect of which there was no evidence from Mr Murphy. Put shortly, it was said that there was no evidence from Mr Murphy for the purposes of rebutting the presumption in s 298V. I do not accept this submission.
100 The applicants relied upon a meeting between a number of the Inspectors on 24 December 2002 which resulted in a decision being made to give Station Officer Cass and Station Officer Cavanagh a written direction. However that evidence, of itself, is insufficient to raise a serious question that persons other than Mr Davies made, or were participants in, the decision to lay the charges.
101 I am satisfied that the evidence before the Court is sufficient to establish that the laying of the charges and the hearing of the charges and the decision to lay the charges and proceed with the hearing did not occur and has not occurred for the prohibited reason set out in s 298L(1)(l). I do not consider that there is a serious question to be tried to the contrary. Mr Davies has said that he was the decision‑maker in respect of the charges and I do not consider that the notation by Mr Murphy gainsays that proposition. It does no more than approve the decision already made. Mr Hunter and Inspector McCall also confirmed that the decision to lay the charges was made by Mr Davies.
103 Mr Davies, then an Inspector and now a Commander of the Southern Zone, also attended the workshop on 11 February 2002. He denied that Mr Akers or Mr Carlisle stated that the Board would use discipline and charge someone to scare the rest of the workforce. He said he was not aware of any Board policy that required charges to be laid against someone in order to scare the rest of the workforce.
104 I do not consider that the written summary of what is said to have occurred at the workshop on 11 February 2002 raises a serious question that the charges laid against Station Officer Cass and Station Officer Cavanagh were for a prohibited reason. The words set out in the summary are not attributed to any particular person, let alone a person authorised to speak for and on behalf of the Board or any person involved in the charging of Station Officer Cass and Station Officer Cavanagh. Mr Carlisle denied saying that the Board would use discipline and charge someone to scare the rest of the workforce and he did not recall Mr Akers or anyone else at the meeting making such a statement. Mr Davies who was present at the meeting denied that Mr Akers or Mr Carlisle stated that the Board would use discipline and charge someone to scare the rest of the workforce. In the absence of some evidence as to the identity of the person who might have made the statement referred to in the notes and the context in which it arose, I do not consider that there is a serious question to be tried that the purpose, or a part of the purpose, in laying the charges against Station Officer Cass and Station Officer Cavanagh and proceeding with the hearing of them, is to scare the rest of the Board’s workforce. It is also significant that the statement relied upon was said to have been made over 10 months before the incident giving rise to the charges occurred. That lapse of time and the inability of the applicants to identify who made the statement makes any connection between the statement and the overt act of the laying of the charges speculative and does not raise a serious question to be tried as to a causal connection between the statement and the laying of the charges.
105 As I have noted earlier, there may be an issue as to whether Station Officer Cass and Station Officer Cavanagh were given an opportunity to explain their conduct before the charges were laid but I do not consider that this raises any serious issue as to the reason why the charges were laid.
106 In support of their submission that I could not be satisfied that the evidentiary burden imposed upon the Board by s 298V had been discharged, the applicants referred to Australasian Meat Industry Employees’ Union v G&K O’Connor Pty Ltd (supra) in which Gray J was not satisfied that the person who made the relevant decision to dismiss the employee had given evidence. The facts before Gray J are distinguishable from the circumstances before me as there is evidence that Mr Davies was the sole decision‑maker and as I have noted earlier, I accept that evidence and am satisfied that there is not a serious question to be tried to the contrary.
107 There is also an issue as to whether the threshold required to engage subpar (l) of s 298L(1) has been crossed. Subparagraph (l) requires a finding that the Union “is seeking” better industrial conditions. The phrase is couched in the present tense and the Board submitted that there were no identifiable industrial conditions in the present circumstances which the Union was actively seeking to better. There has been a history of dissatisfaction with the issue of Inspectors supervising employees who are members of the Union but there was no evidence that that situation was actively being pursued by the Union in or about December 2002. Certainly no claim had been made in that respect by the Union which was outstanding and unresolved as at December 2002. In addition to the 2002 Agreement, there was also in existence in December 2002 another certified agreement, the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Inspectors Agreement 2002 which was certified on 27 March 2002 pursuant to Pt VIB of the WRA. The Board relied upon cl 28 of that agreement which provided for the duration of the agreement the parties, namely the Board and the Union, would “make no claims in relation to matters covered under the terms of this agreement and the award”. However, there is nothing in the agreement relating to the issue of Inspectors supervising or not supervising employees of the Board who are members of the Union and I do not consider that cl 28 precludes the raising of the issue which forms the dissatisfaction relied upon.
108 Nevertheless, I consider that in order for s 298L(1)(l) to be activated there must be some current campaign undertaken by the Union, and not necessarily in the context of the bargaining period, in respect of the subject matter of the dissatisfaction. There is no evidence that such a situation was current as at December 2002. The consequence is that the threshold or condition precedent for the activation of s 298L(1)(l) has not occurred.
Is there a conspiracy to injure Station Officer Cass and Station Officer Cavanagh?
109 The applicants also sought injunctions in equity relying on the accrued jurisdiction of the Court to restrain the Board, in substance, from continuing a conspiracy to injure Station Officer Cass and Station Officer Cavanagh by unlawful means. I am not satisfied that there is a serious question to be tried that there is such a conspiracy or that there is any intention to injure Station Officer Cass and Station Officer Cavanagh by unlawful means. The unlawful means relied upon by the applicants are the refusal by the Board to apply the provisions of cll 9.2 and 9.3 of the 1999 Agreement and the charging of Station Officer Cass and Station Officer Cavanagh for reasons that include the prohibited reason set out in s 298L(1)(l). I have already found that there is no serious question to be tried on the issue of the contravention of s 298K by reference to s 298L(1)(l). The difficulty for the applicants in relying upon the refusal to apply the provision of cll 9.2 and 9.3 of the 1999 Agreement is that such a refusal does not, of itself, give rise to a ground for the grant of an interlocutory injunction. The applicants cannot obtain an interlocutory injunction restraining a breach of the 1999 Agreement insofar as it is a certified agreement and I have already found that the 1999 Agreement is not enforceable as a common law agreement. I do not consider that by pleading a conspiracy to breach the 1999 Agreement it is possible for the applicant to obtain injunctive relief not directly available to them in respect of that breach.
Are there agreements precluding the charges against Mr Cassidy proceeding?
110 To the extent that an injunction is sought restraining the hearing of the charges against Mr Cassidy on the basis of a breach of cl 12 of the 1999 common law agreement and breach of the 2002 common law agreement, no serious question arises having regard to my earlier conclusions that the 1999 Agreement and the 2002 Agreement are not binding and enforceable outside the procedures available under the WRA in respect of certified agreements.
111 Insofar as Mr Cassidy relies on a breach of cl 12 of the 1999 Agreement in that the dispute resolution procedure was not followed because the Board had undertaken not to lay any charges for breach of the email policy until the educational process and the consultative process in respect of the proposed new email policy provided for under cl 9 of the 1999 Agreement was completed, no serious question arises as to whether an injunction should be granted restraining the hearing of the charges against Mr Cassidy. The 1999 Agreement cannot found a basis for the grant of an interlocutory injunction and I have not accepted that there is an enforceable 1999 common law agreement.
112 I am not satisfied that there is a serious question to be tried that there is a breach of the agreement reached on 21 July 2001 between the Union and the Board (par [42]) above). In particular, I do not consider that there is a serious question to be tried that the charges which have been laid against Mr Cassidy relate to an alleged breach of the Board’s proposed new email policy. None of the charges, in their terms, allege, or relate to, a breach of the policy. Rather, the charges alleged are contraventions of the Regulations and the MFB Act. The factual substratum underlying those charges may well warrant action being taken for breach of the proposed email policy. For example, the policy provides, inter alia, that the prohibited use of Metropolitan Fire and Emergency Services Board systems includes “engaging in any illegal activity”. It was claimed by Mr Morton and his company that the email disseminated by Mr Cassidy was defamatory and therefore contrary to law. The fact that Mr Cassidy might have been proceeded against specifically for a breach of the email policy does not create a bar against him being proceeded against for breach of any provision of the MFB Act or the Regulations which existed prior to the propounding of the new email policy.
113 In support of the submission that the charges laid against Mr Cassidy were charges relating to a breach of the email policy, the applicants relied upon the transcript of an interview between Commander Garry J Martin and Mr Cassidy on 9 December 2001. In that interview Commander Martin told Mr Cassidy that the interview was being held in relation to a possible breach of the MFB Act, the Regulation and policies. Commander Martin asked Mr Cassidy what had occurred and what the distribution of the email involved. Mr Cassidy said that it involved an incident with removalists at his home when some damage was done to his property. Commander Martin asked whether he was aware of the Board policy as it related to information technology and Mr Cassidy responded that he had not read every last detail of it but he knew it was a “pretty lengthy document”. Commander Martin referred to the policy and asked Mr Cassidy whether he was aware at the time he sent the email that it might have contravened the policy. I am prepared to accept for present purposes that the sending of the email contravened the Board’s proposed new email policy and that a charge could have been laid against Mr Cassidy for breach of that policy. But that is not what occurred. Mr Cassidy was charged with quite separate and distinct offences.
114 There is a further basis which warrants a conclusion that there is not a serious question to be tried whether the laying and the hearing of the charges against Mr Cassidy were in breach of the 21 July 2001 agreement in relation to the implementation of the proposed new email policy. This is found in the letter from Mr Bertolus to Mr Marshall dated 11 July 2001. In that letter Mr Bertolus confirmed undertakings which had been given by both the Union and the Board at a conference held with Senior Deputy President Kaufman on 9 July 2001. Those undertakings included undertakings not to implement the draft policy until further consultation had occurred between the Board and the Union. There was also an undertaking by the Board not to search for previous breaches of the proposed policy and not to conduct any searches for breaches of the proposed policy. There was also a further provision that, notwithstanding those undertakings, should the Board “receive a complaint relating to a breach of any laws pertaining to the use of Board property, including the e‑mail system, the Board will take appropriate steps under the terms of the appropriate legislation.” Mr Morton had complained to the Board about the email sent by Mr Cassidy. Accordingly, the Board was entitled under the terms of the Agreement to take any steps open to it under the provisions of the MFB Act and the Regulations.
115 The final agreement relied upon by the Union and Mr Cassidy as justifying an injunction restraining the hearing of the charges against him was said to have occurred in June or July 2002. The only evidence referring to or recording this agreement in found in par 62 of an affidavit affirmed by Mr Marshall on 22 April 2003 as follows:
“The hearing of charges against LFF Cassidy listed for 10 April 2002 did not proceed due to LFF Cassidy’s medical condition. The matter was not relisted for hearing after his return t work as a result of a further agreement reached between the UFU, Cassidy and the MFESB. The terms of this agreement were that if Cassidy settled the defamation action, indemnified the MFESB in respect of the alleged defamation and agreed to undergo counselling, charges against him would not be pursued by the MFESB. The agreement was reached in discussions in or about June or July 2002 between myself, Ms Burrow and Mr Bertolus of the MFESB. Ms Burrow and myself were representing Cassidy and the UFU. I subsequently discussed the content of this agreement with Mr Carlisle and he knew about this agreement, but I cannot recall whether I discussed it with him prior to it being finalised.”
As noted at par [48], Mr Marshall also said that a document tabled on or about 12 July 2002 during negotiations between the Union and the Board which related to a number of outstanding industrial matters contained the notation “solicitors” next to the matter involving Mr Cassidy. According to Mr Marshall this referred to the implementation of the agreement being dependent upon advice from the solicitors of the settlement of the civil proceeding and the indemnity of the Board against any legal action. However, that notation and that evidence has no probative weight as to whether an agreement was in fact entered into prior to the making of the notation.
116 As noted at par [45], Mr Bertolus denied that any agreement was reached between the Union and the Board relating to Mr Cassidy’s disciplinary hearing. In particular, Mr Bertolus did not agree that if Mr Cassidy settled the defamation proceeding and indemnified the Board in respect of the defamation, charges against Mr Cassidy would not be pursued by the Board. Mr Bertolus did say that around June 2002 he had an informal discussion with Mr Marshall in which Mr Marshall indicated he would be interested in making an arrangement to settle the proceeding in relation to Mr Cassidy. Mr Bertolus said that he told Mr Marshall that it was beyond his power to influence those proceedings and that he should discuss the matter with Mr Carlisle.
117 The applicants submitted that there was a direct conflict in the evidence that accordingly there was a serious question to be tried as to the existence of the agreement. Although Mr Carlisle, who swore an affidavit, was silent on this issue, it was not suggested by Mr Marshall that Mr Carlisle was a party to the agreement.
118 I am not satisfied that there is a serious question to be tried as to the existence of the agreement alleged by Mr Marshall. Putting on one side Mr Bertolus’ denial, I do not consider that the evidence of Mr Marshall as to the nature and content of the agreement is sufficiently probative or persuasive to warrant the conclusion that there is a serious question to be tried as to its existence. Any probative weight it might have is lessened by the explicit denial by Mr Bertolus.
119 In any event, there was no evidence that Mr Cassidy had indemnified the Board in respect of the alleged defamation or had agreed to undergo counselling. Terms of settlement between Mr Cassidy and Mr Morton and his company were executed on 19 August 2002. In those terms Mr Morton and his company covenanted not to sue the Board in respect of any matter arising out of the relevant emails. The applicants submitted that such a covenant was, in substance, an indemnity of the Board by Mr Cassidy but it does not in fact answer the description. Until such time as Mr Cassidy either performs his part of the alleged agreement or is ready and willing to do so, there is not a serious question to be tried that the agreement, if it exists as alleged by the Union and Mr Cassidy, is such as to justify the grant of an injunction restraining the continuation of the hearing of the charges against Mr Cassidy.
The charges against Mr McGrath
120 The only basis upon which an injunction was sought restraining the hearing of the charges against Mr McGrath was that the hearing of the charges was in breach of the dispute and grievance resolution procedure in the 2002 Agreement. As I have already found, there is no serious question to be tried that the 2002 Agreement constitutes an agreement at common law capable of being enforced outside the provisions of the WRA.
121 For all these reasons I am satisfied that there is not a serious question to be tried on any of the grounds advanced by the applicants as warranting the grant of interlocutory injunctions restraining the hearing of the charges laid.
122 It is not therefore necessary to consider where the balance of convenience lies. Nevertheless as the matter was raised I should deal with it briefly. The applicants submitted that the balance of convenience was in favour of the grant of injunctions as they would be burdened by having to prepare for, and attend the hearing of, the disciplinary charges. The applicants noted that it was not submitted on behalf of the Union that there was any issue relating to the proper functioning and operational effectiveness of the Board whilst the charges were pending. As against that, the Board submitted that it was desirable that the disciplinary charges, as a general rule, should be resolved speedily.
123 I consider that it is in the public interest to have disciplinary charges heard as expeditiously as circumstances will allow. Nevertheless I consider that the balance of convenience would be in favour of the grant of interlocutory injunctive relief if there was a serious question to be tried that the hearings should not continue.
124 The application for interlocutory relief will be dismissed.
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I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 16 May 2003
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Counsel for the Applicants: |
R W Hinkley & D Langmead |
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Solicitor for the Applicants: |
Slater & Gordon |
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Counsel for the First, Second, Third and Fourth Respondents: |
J E Middleton QC & P Wheelahan |
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Solicitor for the First, Second, Third and Fourth Respondents: |
Freehills |
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Date of Hearing: |
5 & 6 May 2003 |
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Date of Judgment: |
16 May 2003 |
