FEDERAL COURT OF AUSTRALIA
Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia [2005] FCA 621
INDUSTRIAL LAW – application for injunction in respect of actual or threatened contravention of an order of Australian Industrial Relations Commission under s 127(1) of the Workplace Relations Act 1996 – whether order of Commission valid – order of Commission based on earlier decision of Commission said to have been made without jurisdiction – interpretation of dispute resolution clause in certified agreement – whether provision that “determination includes access to appeal” precludes final determination by Commission while proceedings pending in High Court and Federal Court – injunction under s 127(6) of the Act – whether evidence of contravention of Commission’s order by union and union secretary – effect of failure to withdraw bulletin to members – inference available in light of secretary’s silence and failure to give evidence – exercise of Court’s discretion – need for injunction to reflect Commissioner’s original decision – whether mandatory order should be made for issue of corrective or overriding bulletin.
Workplace Relations Act 1996 (Cth)ss 4, 45, 111(1)(g), 127, 170LJ, 170ML, 178 and 413A
Federal Court of Australia Act 1976 (Cth) s 24(1)(a)
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 19
Kucks v CSR Limited (1996) 66 IR 182
Ansett Australia Ltd v Australian Licensed Aircraft Engineers Association [2003] FCAFC 209
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10
Fencott v Muller (1983) 152 CLR 570
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board [2004] FCA 627
Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia v Commissioner Laing (1998) 86 IR 142
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employers’ Union (No 2) (1987) 15 FCR 64
Australia Paper Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia (1998) 81 IR 15
Weingarten Bros v G & R Wills & Co [1906] SALR 34
Jones v Dunkel (1959) 101 CLR 298
Dilosa v Latec Finance Pty Ltd (1966) 84 W.N (Pt.1) (NSW) 557
Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Transfield Constructions Pty Ltd v Automotive Food, Metal, Engineering, Printing & Kindred Industries Union [2002] FCA 1413
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD v.
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA and PETER MARSHALL
VID 384 of 2005
RYAN J
17 MAY 2005
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | VID 384 of 2005 |
| BETWEEN: | METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD Applicant
|
| AND: | UNITED FIREFIGHTERS’ UNION OF AUSTRALIA First Respondent
|
| and | PETER MARSHALL Second Respondent
|
| RYAN J | |
| DATE OF ORDER: | 17 MAY 2005 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The application stand over to 18 May 2005 at a time to be fixed to enable the parties to bring in minutes of proposed orders reflecting the reasons for judgment published this day.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | VID 384 of 2005 |
| BETWEEN: | METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD Applicant
|
| AND: | UNITED FIREFIGHTERS’ UNION OF AUSTRALIA First Respondent
|
| and | PETER MARSHALL Second Respondent
|
| JUDGE: | RYAN J |
| DATE: | 17 MAY 2005 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 There is before the Court an application for the imposition of penalties on the respondents for breaches of cll 4(a) and 4(d) of the MFESB Industrial Action Order (No 1) of 2005 (“the Order”) and injunctions restraining the respondents from engaging in contravention of the Order. The applicant (“the MFESB”) also seeks interlocutory injunctions restraining the respondents from commencing, continuing, engaging in or threatening to engage in, industrial action or any ban on the performance of work by members of the first respondent (“the UFU”) employed by the MFESB. Other interlocutory orders sought are for an interlocutory injunction restraining the respondents from directing, counselling or procuring members of the UFU employed by the MFESB to engage in industrial action. It seems to be accepted on both sides that the hearing of the MFESB’s motion for interlocutory relief is to be treated as the trial of the action.
2 The MFESB and the UFU are both parties to the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia Operational Staff Agreement 2002 (“the Certified Agreement”) certified under s 170LJ of the Workplace Relations Act 1996 (Cth) (“the Act”). The Certified Agreement has a nominal expiry date of 1 August 2005.
‘9.1 Definitions
Consultation
Consultation means the full, meaningful and frank discussion of issues / proposals and the consideration of each party's views, prior to any decision.
Change
Change includes, but is not limited to, any change that will have an impact on employees regarding work practices or location, job security, remuneration, training or new technology or equipment or in matters pertaining to the employment relationship or in the way work is or would be carried out by an employee in any of the classifications of this agreement or any claim in relation to a matter contained in Appendix B.
9.2 Enterprise Bargaining Implementation Committee
9.2.1 The parties are committed to effective consultation and communication throughout the MFESB. As a demonstration of that commitment the parties have undertaken to continue to operate the Enterprise Bargaining Implementation Committee (EBIC) to facilitate the implementation of this agreement. The EBIC will consider all matters relating to ongoing workplace reform and introduction of change.
9.2.2 The EBIC will comprise equal numbers of management and employee representatives as determined by the respective parties, and decision making will be by consensus
9.2.3 There is an obligation on EBIC members to cooperate positively to consider matters that will increase efficiency, productivity, competitiveness, training, career opportunities and job security.
9.2.4 The EBIC will program meetings on a regular basis (at least monthly) and the UFU will communicate the outcomes of meetings to employees covered by this agreement.
9.2.5 The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No change or proposals for change arising from or relating to matters dealt with in this Agreement or in matters pertaining to the employment relationship or in the way work is carried out shall be implemented without referral to, the Enterprise Bargaining Implementation Committee.
9.3 Process
Prior to the introduction of any proposed change the following will take place:
9.3.1 Proposals for change
Any proposals relating to change from either party will be provided in writing to EBIC.
9.3.2 Alternative proposals
The parties will have the opportunity to submit alternative proposals which must be submitted in a timely manner so as not to lead to an unreasonable delay.
9.3.3 Response to alternative proposals
The party proposing the change will be required to respond to any alternative proposals, indicating which amendments to the original proposal, if any, it accepts. Where the proposal has been altered, a revised proposal will be submitted for further consideration. Written reasons for the rejection of any alternative proposals will be provided by the MFESB to the Committee.
9.3.3 Disputes resolution
Any dispute concerning either party under this clause shall be dealt with in accordance with the Disputes and Grievance clause of this Agreement.’
4 The Disputes and Grievances clause of the Certified Agreement contains the following provisions;
‘12. DISPUTE RESOLUTION
12.1. 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 procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:
12.2 Step 1 The dispute shall be submitted by the employee representative and/or employee(s) to the employee's immediate supervisor.
12.3 Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.
12.4 Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.
12.5 Steps 1 – 3 Must be concluded within a period of ten (10) consecutive days.
12.6 Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the parties within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
12.7 Step 5 If the matter is not settled following progression through the disputes procedure it shall be referred by any party, to an agreed arbitrator. If there is no agreed arbitrator within 4 weeks, the matter will be referred directly to the Australian Industrial Relations Commission for decision or determination of change; or other body or court for conciliation/mediation and if necessary for determination. Any determination includes access to appeal.
12.8 Notwithstanding the words contained in clause 12.2, the steps of the procedure apply equally to a dispute raised by an employee or Officer in Charge.
12.9 While the above procedures are being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.
12.10 This clause shall not apply to a dispute on a Health and Safety issue.’
5 The changes sought by the MFESB have been ascribed the following shorthand titles which I shall use for convenience in these reasons;
· Operational Support Group
· No 2 Station
· Skills Maintenance
· Community Safety Log
· Fire Safety Inspection Course.
I shall refer to those changes collectively as “the Workplace Changes”.
7 In the course of his decision, Commissioner Simmonds, after identifying the various matters or disputes which had been referred to him, considered first whether any of those matters involved an “extra claim” within the meaning of cl 49 of the Certified Agreement which is set out at [34] below. In the course of his reasoning on that point, the Commissioner referred to cl 9.3 of the Certified agreement which has been reproduced at [3] above. After rehearsing the competing submissions of the parties, Commissioner Simmonds concluded that none of the matters or disputes before him constituted an “extra claim”. He drew, in support of that conclusion, on cll 3, 14, 19 and 20 of the Certified Agreement which respectively provide;
‘3. OBJECTIVES
The objectives of this agreement are to develop a harmonious relationship between the parties including:
· gains in productivity, efficiency and cost effective delivery of services;
· establishment of more varied and fulfilling jobs for employees, including agreed wage outcomes
· job security for current and future employees
· provision of a healthy and safe working environment, with due regard to the safety of employees and the public
· achieving a safer community
… … …
14. CONTINUOUS IMPROVEMENT
Subject to this agreement, the parties agree to continue to work towards making improvements in efficiency and productivity and providing safe, satisfying and rewarding employment for employees covered by this agreement. Such improvements will not be at the expense of maintaining a safe working environment or reducing public safety in any way.
… … … …
19. COMMUNITY SAFETY
19.1 The parties acknowledge the role of MFESB staff has been demonstrated in the delivery of programs that have enhanced community awareness and safety.
19.2 Strategies include delivery of appropriate community safety programs identified in Appendix A in accordance with the risk identified.
19.3 The parties will review any other initiatives as they arise pursuant to Clause 9 with the purpose of ensuring the possible implementation of the these new initiatives is undertaken in a consultative and pro-active manner ensuring existing resources and delivery standards are maintained.
20 TECHNOLOGICAL CHANGE
The parties recognise the speed and diversity of changes to technology and that the best results for the MFESB and its employees are achieved when technological change occurs through a cooperative and consultative process subject to this Agreement.’
8 The Commissioner next identified in more detail each of the matters in dispute. As to the Operational Support Group or “OSG”, he noted that, at a meeting of the Enterprise Bargaining Implementation Committee (“the EBIC”), the MFESB had proposed that some employees in the OSG could be assigned to certain positions within the minimum staffing requirements set out in cl 16 of the Certified Agreement and that;
‘To be assigned to a position within the minimum staffing requirement would be subject to them having been medically cleared to perform the functions of the relevant position by the Brigade Medical Officer. Six positions within the minimum staffing requirements have been identified as being suitable.’
9 It was then noted that a member of the OSG had been directed to carry out the duties of one of the positions on the minimum staffing requirement which he had refused and the resultant refusal had become the subject of a grievance processed under cl 12 of the Certified Agreement.
‘In those circumstances, it was necessary for the MFESB to provide its proposal for change in writing (see clause 9.3.1 set out earlier in this decision). It did not do so in November 2003, and before the EBIC could consider the written proposal, it introduced the change. It would appear that the UFU have approached the matter on the basis that the proposal constitutes an extra claim. In view of my conclusions on that aspect, it is appropriate that the matter be referred back to EBIC for the UFU to put forward any alternative proposal in accordance with clause 9.3.2 and for the matter then to be processed in accordance with the Agreement. If it remains in dispute it can be dealt with as a new matter. The specific grievance concerning the officer directed to perform duties as part of the minimum staffing requirements should be adjourned pending the outcome of that process.’
No 2 Station
‘[40] It is to be noted that the main concern of Mr Scully is the effect of the change on response times. This issue is primarily the responsibility of the MFESB's Chief Officer, a responsibility he has delegated to Mr Murphy. Mr Murphy's evidence on the matter was to the effect that it was important that the MFESB be able to use all appliances as operational demands require, and that the move up workload be shared equally amongst all stations.
[41] I am satisfied that there is no justification for the Commission to interfere with the operational decision taken by Mr Murphy. Nothing that has been put forward in respect of this matter suggests that the decision is harsh, unjust or unreasonable in its impact on the employees. Matters of risk are matters for the MFESB's Chief Officer or his delegate, and I am satisfied that the concerns expressed by Mr Scully have been taken into account.
[42] I therefore determine that the MFESB decision be implemented.’
Skills Maintenance
12 This dispute concerned a proposed change from the manual recording on a card system of skills acquired or maintained by firefighters to their recording on a computerised record using the MFESB’s internal intranet.
‘[48] In the circumstances, I consider the apparent failure of the MFESB to put forward a written proposal to the EBIC to be a technical breach of the requirements of clause 9, but, in the light of the extensive consultation in respect of the matter, it is of little consequence. I do not consider the proposal to be an extra claim, as it does not change the employees' conditions of employment, as the requirement to record the maintenance of skills has existed for some time. What is proposed alters the way in which the record is made.
[49] In the course of proceedings, the MFESB indicated that, if it was determined that it could proceed with the implementation of the system, it would undertake to carry out an evaluation of the database in consultation with representatives of the UFU after twelve months following implementation. During the twelve month period, the MFESB would continue to progressively develop it and consult with the UFU about improvements[Transcript, PN3254-3263]. Additionally, the MFESB had previously given an undertaking that the introduction of the program would be undertaken by operational employees [Attachment J to Exhibit D5].
[50] Subject to those undertakings being implemented, I consider that the MFESB should be permitted to extend the computerised system of skills maintenance recording to all zones.’
Community Safety Log
14 This issue concerned a claim by the MFESB that it be allowed to implement a pilot community safety program at four specified stations for a period of six months and that the program be evaluated within three months of its completion. The program involved the completion, to a varying extent, by firefighters of written records of community safety activities such as fire education programs, observed evacuations, safety campaigns and smoke alarm campaigns. It seems that the UFU perceived that the implementation of the programs afforded a means of logging “time and motion studies regarding the performance of Community Education activities by MFESB personnel.” The Commissioner observed at [56]-[57] of his reasons;
‘[56] I am satisfied therefore that the proposed pilot community safety log does not represent an extra claim, both because it is an initiative envisaged by the Agreement and because it does not represent a change to an existing entitlement or obligation.
[57] A major concern of the UFU about the pilot program is the use to be made of the information gained from the log by the MFESB. In particular, it is concerned that the information can be used to denigrate the work of firefighters, or that it can be used in disciplinary proceedings. The MFESB, writing on 13 February 2004 to the UFU, confirmed that the information obtained would not be used for industrial purposes. [Attachment M to Exhibit D5]’
15 However, the Commissioner observed that the UFU’s concern should be allayed because;
‘… at this stage what is being proposed is a pilot program, and the parties will no doubt be evaluating the outcome of the pilot in a manner consistent with their obligations under the Agreement.’
16 Accordingly, the Commissioner concluded;
‘… It is therefore appropriate that the alternative position advanced by the MFESB be adopted, namely that it be entitled to implement the community safety log pilot program, but that:
“Data recorded on the Community Safety log in the course of the pilot will be destroyed at the conclusion of the evaluation following the pilot. The question of the use of Community Safety Log data will be further considered at such evaluation stage.”[Exhibit D14, paragraph 14 (as amended)]’
Fire Safety Inspection Course
17 This matter concerned a course of training which qualified accredited station officers to inspect premises and issue “essential services” advisory notices to owners in respect of identified fire safety deficiencies. The inspections were to be undertaken by Station Officers who had volunteered to undergo special training “after legalities have been completed.” The Commissioner recorded the positions occupied by the parties on this issue and noted that they had agreed on an accredited course for the officers involved which had been completed by some twenty officers and completed as to the off-shift component by a further thirty officers. The Commissioner pointed out that participation in the course is voluntary. He went on to say that at least part of the dispute related to the form of legal indemnity to be given to officers who undertake inspection duties but he did not consider;
‘that the dispute concerning indemnity should be a barrier to officers undertaking or completing the course in view of the fact that others had completed the course, apparently without problem.’
‘[67] As the Fire Safety Inspection Course comes within the scope of Community Safety, it does not represent an extra claim, as it amounts to an initiative within the scope of clause 19.3, with the additional feature that it was identified as a potential initiative at the time. There is no requirement for such initiatives to be agreed. Moreover, the proposal does not amount to a change to an existing entitlement or obligation.
[68] In respect to the dispute concerning the indemnity, I am satisfied that the proposal by the MFESB to refer the form of the indemnity to a senior member of the Victorian Bar for settlement is appropriate, and I so determine. Whether or not the final form should be included as an amendment to the Agreement is a matter that should await the outcome of the reference. As to the other matters raised by the UFU, I consider that the detail of those objections should be reduced to writing and provided to the MFESB within seven days. In its turn the MFESB should produce a written response within seven days. The parties should then meet with a view to resolving any remaining differences. In the event that they are unable to reach an agreement I will convene a conference of the parties at the earliest possible date with a view to conciliation. Leave is reserved to the MFESB to further pursue this matter for determination should it be necessary.
[69] While the above steps are being taken the UFU should withdraw its advice to its members not to undertake or complete the agreed training.’
‘3. Parties Bound
This Order is binding upon:
(a) Metropolitan Fire and Emergency Services Board (MFESB);
(b) United Firefighters' Union of Australia (UFU);
(c) Officials, delegates, employees and agents of the UFU; and
(d) Employees of MFESB whose employment is subject to the Agreement and/or the Award.
4. Direction that Industrial Action to Stop or Not Occur
Subject to clause 5 below, every person and organisation listed in paragraphs (b) to (d) of clause 3 above must not -
(a) impose, continue, implement, give effect to or comply with any ban, limitation or restriction upon the performance of work on or in relation to the approved changes or any of them;
(b) fail or refuse, when required or directed by the MFESB, to perform work on or in relation to the approved changes or any of them;
(c) when working on or in relation to the approved changes or any of them, adopt any practice which has the result of restricting, limiting or delaying the performance of that work or the work of any other person;
(d) direct, advise, induce or procure any other person to do any thing covered by (a), (b) and/or (c) of this clause.
The prohibition in clause 4 above does not apply to -
(a) protected action within the meaning of s.170ML of the Workplace Relations Act 1996;
(b) action or conduct by a person that is authorised or agreed to by the MFESB;
(c) action by an employee if -
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of the MFESB to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
5. Definition
In this Order, "approved changes" means the changes proposed to be introduced by the MFESB and which were the subject of the decision by Commissioner Simmonds given on 16 August 2004 [PR950883], namely changes with respect to:
(a) the Operational Support Group;
(b) the No. 2 Station;
(c) Skills Maintenance;
(d) the Community Safety Log;
(e) the Fire Safety Inspection Course.’
22 In the meantime, the UFU had, on 7 April 2005, applied to the High Court for prerogative writs to be issued to Commissioner Simmonds and the three members of the Commission who had constituted the Full Bench referred to at [20] above. The formulation of the relief claimed from the High Court is;
‘1. an order that the Defendants show cause why a WRIT OF PROHIBITION or an order in the nature of Prohibition should not issue out of this Court or be made by this Court directed to the Defendants prohibiting them from making any further determination, decision or order giving effect to or in consequence of the decisions and determinations of the First Defendant, Commissioner James William Leslie Simmonds, dated 16 August 2004, and the decision by the First Defendants, the Honourable Vice President Iain James Kerr Ross, the Honourable Deputy President Reginald Sydney Hamilton, Commissioner John Raymond George Tolley, on 10 March 2005 to dismiss the Plaintiff's appeal.
2. an order that the Defendants show cause why a WRIT OF CERTIORARI or an order in the nature of Certiorari should not issue out of this Court or be made by this Court directed to the Defendants removing into this Court to be quashed the decisions and determinations of the First Defendant, Commissioner James William Leslie Simmonds, dated 16 August 2004, and the decision of the First Defendants, the Honourable Vice President Iain James Kerr Ross, the Honourable Deputy President Reginald Sydney Hamilton, Commissioner John Raymond George Tolley, on 10 March 2005 to dismiss the Plaintiff's appeal.
3. an order that the Defendants show cause why a WRIT OF MANDAMUS or an order in the nature of Mandamus should not issue out of this Court or be made by this Court directed to the First Defendant, Commissioner James William Leslie Simmonds, commanding him to proceed to deal, in accordance with law, with the referral by the Metropolitan Fire and Emergency Services Board to the Australian Industrial Relations Commission dated 17 March 2004 for settlement of a dispute pursuant to the provisions of section 170LW of the Workplace Relations Act 1996 (Cth) ("the Act").’
23 The ground for seeking relief from the decision of Commissioner Simmonds was that it had been made without jurisdiction because;
‘(a) clause 12.7 of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia Operational Staff Agreement 2002 ('the agreement') enables the parties to that agreement to refer certain disputes to an agreed arbitrator, the Australian Industrial Relations Commission, another body or. court;
(b) on 17 February 2004, by filing an application in the Federal Court of Australia numbered V151/2004, the Plaintiff referred certain disputes to the Federal Court of Australia in the exercise of its entitlement under clause 12.7 of the agreement ("the Court application");
(c) the same disputes were purportedly referred to the Australian Industrial Relations Commission by the Second Defendant on 17 March 2004 ("the AIRC referral") under clause 12.7 of the agreement;
(d further, the matters in the AIRC referral were matters that were extra claims or matters of change, as defined in clause 9 of the agreement, outside the scope of the agreement;
(e) the AIRC referral came before Commissioner Simmonds and he proceeded to hear and determine it;
(f) Commissioner Simmonds did not have jurisdiction to deal with the AIRC referral because:
i. by operation of clause 12.7 of the agreement, once the Plaintiff issued the Court application in respect of the disputes referred to therein, the Second Defendant was precluded from referring those disputes to another body or person identified clause 12.7, as it purported to do by the AIRC referral;
ii. the AIRC referral sought the determination by Commissioner Simmonds of the matters that were extra claims or matters of change, as defined in clause 9 of the agreement, outside the scope of the agreement.
24 The ground for seeking prerogative relief against the members of the Full Bench is that it dismissed the UFU’s appeal from the said decisions and determinations of Commissioner Simmonds.
‘Further to the recent Bulletin from the UFU and email from Michelle Salmon, the MFESB made application before Commissioner Foggo for orders against the union and its members.
Commissioner Foggo granted the orders which require the union and its members to comply with the matters contained.
The union regards Commissioner Foggo's decision as flawed and wrong and proposes to challenge it in order to protect the previous status quo.
As stated previously, the union will do everything in its power to protect your wages and condition and in this regard we will continue to defend this matter until a satisfactory resolution is achieved on your behalf.
BCOM will be having an urgent meeting and will consider calling a special general meting of members regarding this matter.
If you have any queries please contact Peter Marshall on 0419 127004’
26 Shortly after the issue of the UFU bulletin which I have just quoted, the MFESB issued its own bulletin to employees which, again omitting formal parts, recited;
‘The MFB made application to the Australian Industrial Relations Commission to have an order given by the Commission to stop industrial action by the UFU in regard to the following matters:
1. OSG personnel
2. Use of Pumper 2B
3. Recording of Skills Maintenance
4. Community Safety Log
5. Fire Safety Inspection Program
Today in the AIRC, Comm Foggo granted the MFB's order which states that from 9am 21 April 2005, there can be no industrial action to hinder these initiatives.
The status quo is the determination by Commissioner Simmonds made on 16 August 2004.
The MFB will continue to implement these initiatives
It should be understood that these disputes were not about employment conditions or entitlements but rather about the implementation of change in the organisation.
The changes proposed were to ensure that the MFB can retain its reputation of providing our community with a world class fire service.’ (original emphasis)
‘Commissioner Foggo made Orders on April 20 in relation to disputes concerning the following matter:
- The Operational Support Group
- 2 Station
- Skills Maintenance
- Community Safety Log
- Fire Safety Inspections Course
The disputes concerning the above matters are the subject of a High Court case recently commenced by the UFU.
Advice has been received by the UFU that because the above matters are before the High Court pending determination, the dispute resolution procedure as set out at clause 12 of the Certified Agreement is not at an end. Therefore, the "Status Quo" applied and MFESB is under a legal obligation to refrain from implementing the matters in dispute referred to above.
The UFU remains committed to challenging any attempt by the MFESB to depart from the Status Quo.
If any members have queries in relation to this bulletin they should contact Peter J. Marshall on 0419 127004.’
· ‘comply with and continue to comply with the Order;
· issue a fresh Bulletin by 4pm today to all UFU members employed by the MFESB, informing them of the withdrawal of the Second Bulletin and instructing them to comply with the terms of the Order;
· not re-issue the Second Bulletin; and
· not issue any other Bulletin or direction in the same or similar terms.’
29 No positive response was made to that letter and, on the same day, the MFESB instituted the present proceedings in this Court.
The Legislation
30 The relevant provisions of s 127 of the Act are in these terms;
‘(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:
(a) an industrial dispute; or
(b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or
(c) work that is regulated by an award or a certified agreement;
……
(5) A person or organisation to whom an order under subsection (1) or (3A) is expressed to apply must comply with the order.
(5A) An order under subsection (1) or (3A) does not apply to protected action.
(6) The Court may, on the application of a person or organisation affected by an order under subsection (1) or (3A), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a) has engaged in conduct that constitutes a contravention of subsection (5); or
(b) is proposing to engage in conduct that would constitute such a contravention.
……
(8) In this section:
protected action means industrial action that is protected action for the purposes of Division 8 of Part VIB.’
The issues between the parties
31 The MFESB contended that this is a proper case for the making of an order under s 127(6) of the Act because the conduct of the UFU in issuing the bulletin described at [27] above amounted to continuation of a ban on the performance of work in relation to the Workplace Changes or constituted directing, advising, inducing or procuring members of the UFU to continue, implement or give effect to such a ban.
32 The UFU, on the other hand, contended that the Order by Commissioner Foggo under s 127 of the Act is invalid because it did not recognise that the decision and orders of Commissioner Simmonds of 16 August 2004 were subject to an “appeal” within the meaning of cl 12(9) of the Certified Agreement. The “appeal” on which the UFU relies is the proceeding which it commenced in the High Court on 7 April 2005.
33 In the second place, it was contended on behalf of the UFU that there was no basis in the evidence for a finding that either of the named respondents, the UFU or Mr Marshall, had contravened or threatened to contravene the Order of Commissioner Foggo of 20 April 2005. The MFESB’s response to that contention was to point to the bulletins issued by the UFU, particularly that of 26 April 2005, and contend that the failure by the UFU and Mr Marshall to withdraw, or override, the bulletin of 26 April 2005 involved a continuing of a ban, limitation or restriction on the performance of work or their advising or inducing employees to continue the ban, limitation or restriction.
‘49. NO EXTRA CLAIMS
49.1 The union will make no extra claims prior to the nominal expiry date of the Agreement.
49.2 The MFESB will make no extra claim prior to the nominal expiry date of the Agreement.
49.3. The power of the Commission to arbitrate, granted by this agreement, does not extend to matters that are extra claims, or, to change defined at Clause 9 about a matter outside the scope of this agreement.’
35 In response to this third argument, the MFESB has pointed to the fact that Commissioner Simmonds had, on 21 May 2004, determined that he had jurisdiction to enter the application which had been made by the MFESB and the UFU had, on the same day, lodged an appeal against that decision. That appeal was later withdrawn on 16 June 2004 before Commissioner Simmonds embarked on a hearing of the merits of the MFESB’s application. Leave to appeal from the Commissioner’s resultant decision was refused by a Full Bench of the Commission on 10 March 2005. It was further said on behalf of the MFESB that neither the proceedings in the High Court nor those in this Court would be rendered nugatory by the grant of an injunction under s 127(6) of the Act. On the other hand, if no such injunction were granted, the Order of Commissioner Foggo which is expressed to expire on 1 August 2005 would be rendered nugatory because it is highly unlikely that either of the curial proceedings would be determined before that date.
36 Finally, Counsel for the UFU contended that the terms of the injunction sought are too wide and would prohibit the taking of industrial action in respect of some Workplace Changes which have not been fully approved by Commissioner Simmonds. In a related way, it was contended that it would be inappropriate to require the respondents to issue a bulletin or other document requesting the discontinuance of industrial action which contained an expression of a belief to which neither the UFU nor Mr Marshall subscribes. Similarly, it was said that any such requirement could operate detrimentally on the UFU’s continued prosecutions of its proceedings in the High Court and in this Court.
37 For the MFESB the response was made that the terms of the proposed injunction are intelligible and properly protective of the MFESB’s right to implement the “approved changes” which are identified with sufficient certainty in the draft orders which the MFESB has proposed, in terms similar to those used by the UFU itself in its bulletin of 26 April 2005.
Resolution of the issues
(a) Validity of Commissioner Foggo’s order; are the High Court proceedings an “appeal” within the meaning of cl 12 of the Certified Agreement?
38 It is clear that the word “appeal” can have a variety of meanings and can include a proceeding to obtain judicial review of a decision of an inferior tribunal or an administrative decision-maker. Thus, in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA at 297 identified, as the first of six species of litigious processes to which the term “appeal” can be applied;
‘(a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.’
39 However, his Honour’s observations there were by way of explaining the nature of an “appeal” to the Supreme Court afforded by s 26 of the Medical Practitioners Act 1938. At issue in that case was whether the appeal was by way of a rehearing of an inquiry into the guilt or innocence of a medical practitioner on a charge of infamous misconduct in a professional respect. It was held that the Court was not bound, in entertaining the appeal, to grant the plaintiff a hearing de novo of the charges which had been brought against him in Tasmania.
40 In Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 in which extensive references were made to Turnbull v New South Wales Medical Board, it was held that an appeal to a Full Bench of the Commission under s 45 of the Act is by way of rehearing so that, in the absence of error on the part of the primary decision-maker or relevant change in the law, the Full Bench has no power to hear the appeal.
41 It is clear, I consider, that the meaning, as well as the content, of the word “appeal” depends on the context in which the word is used. The issue in the present case therefore has to be resolved by the application of general principles governing the construction of industrial instruments. Those principles have been identified in these terms by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184;
‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’
See also Ansett Australia Ltd v Australian Licensed Aircraft Engineers Association [2003] FCAFC 209 and Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 per Kirby J at [96] and per Callinan J at [145]-[146].
42 In the present case, the word “appeal” finds its context in a clause of a certified agreement framed to provide a procedure for the resolution of any dispute or grievance. It is contemplated by cl 12.1 that the procedure shall be as part of “effective consultation” between the MFESB, its employees and the UFU “on all matters pertaining to the employment relationship including the application of this agreement.” Some disputes or grievances, particularly those to which Steps 1 – 3 are directed, will concern only local issues affecting one or a few employees and are regarded as appropriate for attempted speedy resolution between the employee or employees and a more or less immediate supervisor.
45 Once the mechanism for dispute resolution in cl 12 is understood as predicated on a “matter” in that sense, the meaning of “access to appeal” in cl 12.7 becomes clearer. It recognises, in my view, that a determination by the Commission or “other body or court” to which the matter has been referred will not resolve the “matter” until each party has exhausted his, her or its rights of appeal from the determination. Because the relevant “matter”, by force of cl 12.1, may include the application of the Certified Agreement to a given set of facts, it may be appropriate for an affected party to “refer” it to this Court eg by making an application for an interpretation under s 413A of the Act or for the imposition of a penalty under s 178 for contravention of a provision of the Certified Agreement as has been done by the UFU in the pending application to this Court in proceedings VID151/2004.
46 Section 413A of the Act provides;
‘(1) The Court may give an interpretation of a certified agreement on application by:
(a) the Minister; or
(b) an organisation or person bound by the certified agreement; or
(c) an employee whose employment is subject to the agreement.
(2) The decision of the Court is final and conclusive and is binding on:
(a) the organisations and persons bound by the agreement; and
(b) the employees whose employment is subject to the agreement;
who have been given an opportunity of being heard by the Court.’
47 Of course, if the jurisdiction of this Court under s 178 or s 413A is exercised, as it usually is, by a single Judge, each party has a right to appeal to a Full Court of this Court from any orders of that Judge. That right is recognised by s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) which provides;
‘(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single Judge;’
48 It follows that, if the “reference” for determination contemplated by cl 12 is to this Court, the “access to appeal” which that sub-clause requires will ordinarily be taken to have been exercised by the institution of an appeal in accordance with O 52 r 13 of the Rules of this Court or after the expiration of the 21 days from the date of the judgment below which is allowed by O 52 r 15 for the filing of a notice of appeal.
49 On the other hand, if the “reference” for determination is to the Commission the relevant “access to appeal” is afforded by s 45(1)(b) of the Act which provides;
‘Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
………
(b) an award or order made by a member of the Commission, other than an award or order made by consent of the parties to an industrial dispute;’
‘It was put on behalf of the respondent that parties cannot by private agreement confer non-judicial power on the Federal Court. That seems clear beyond argument. As Gaudron J in Gould v Brown (1998) 193 CLR 346 at [59]:
“It is settled constitutional doctrine that provisions of Chapter III of the Constitution, particularly section 71, prevent the Commonwealth from conferring any power other than judicial power and powers incidental or ancillary to the exercise of judicial power on federal courts established by or under Chapter III of the Constitution.”
If Parliament cannot do this, still less can private parties. This incidentally disposes of one argument advanced by the applicant that the certified agreement had some particular statutory standing because it was enforceable directly under the Act.’
(b) Is there evidence that the respondents have contravened, or threatened to contravene, the Order of Commissioner Foggo?
55 The UFU’s bulletin of 20 April 2005 reproduced at [25] above appeared to accept that Commissioner Foggo’s Order had displaced “the previous status quo”. Although it criticised the Commissioner’s decision as “flawed and wrong” and reaffirmed the UFU’s determination to “continue to defend the matter”, it did not, expressly or by implication, call on members of the UFU to take or continue industrial action to resist the implementation of any of the five “approved changes” identified in cl 5 of the Commissioner’s Order of 20 April 2005.
57 The bulletin of 26 April was authorised by the second respondent, Mr Marshall, who was identified in it as the UFU official to whom members’ queries should be addressed. Neither he nor the UFU has attempted, after the request referred to at [28] above or after the institution of the present proceedings, to modify the message which, I consider, was clearly conveyed to members by the bulletin of 26 April 2005. That bulletin was, for the reasons I have explained, a communication advising or counselling the continuation of a ban or limitation on the performance of work conducing to the implementation of any of the approved changes. In that sense it was a form of “industrial action” as denoted by par (b) of the definition of that expression in s 4 of the Act; see Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia v Commissioner Laing (1998) 86 IR 142 at 155. Moreover, the Order of Commissioner Foggo required those to whom it was directed, including the UFU and Mr Marshall, not to “continue, implement, give effect to or comply with any ban, limitation or restriction on the performance of work.” That formulation is similar to the order discussed by Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employers’ Union (No 2) (1987) 15 FCR 64 which required the respondent not to maintain, give effect to or enforce any specified ban. In considering a charge of contempt constituted by a contravention of that order, his Honour observed, at 74;
‘It cannot be argued that a negative order is, in principle, incapable of creating an obligation to take positive action. A respondent who is currently carrying out an action proscribed by an order may have to take some positive steps in order to avoid a continuance of the proscribed action. Thus, to take the example of the order in the Walthamstow case, it was necessary for the defendant council to take some positive action if it was, in the future, to comply with the order of the court that it refrain from discharging sewage into Leyton Level Brook, so as to cause a nuisance. Whether a particular order may be complied with by doing nothing at all depends upon the form of the order and the circumstances of the case.
The present order 1 requires the respondent not to maintain, give effect to or enforce any specified ban. The word "maintain" itself indicates a view that the bans were in existence at the date of the order. This was in fact the finding in the interlocutory proceedings in which the orders were made. Moreover, the finding was that the decisions to impose bans at particular job sites stemmed directly from the activity of the Union organisers. I pointed out that, although the ultimate decision to work or not to work lay with individual members, it could not be assumed that the members would maintain their attitude if they were made aware that the Union no longer maintained the bans. I added that, in the case of conduct consisting of decisions to do nothing, that is not to carry out specified work, a reversal of the present situation - that is, maintenance of the bans by the persons prima facie acting in concert - would require a positive decision to that effect. I considered that the delivery of letters, as provided by my order 3, would "maximise the prospect that, pending final hearings, the conduct under s 45D (1) which is now complained of will not continue". This would be because the Union's position would then become known with certainty to the affected Union members.’
58 It is significant that neither Mr Marshall nor any other officer of the UFU has given evidence disavowing the implication which I have drawn from the terms of the bulletin of 26 April 2005 and the subsequent silence of the UFU. I adopt the analysis which led North J in Australia Paper Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services and Union of Australia (1998) 81 IR 15 at 16-17 to conclude that, in conferring the power to grant an injunction which is found in s 127(6) of the Act, Parliament intended that the Court would be guided by the principles established by equity for the grant of an injunction.
59 There may be no obligation on a defendant in an action for an injunction to make full and frank disclosure of all matters relevant to the exercise of the Court’s discretion just as the maxim “he who comes into equity must come with clean hands” has no application to a defendant to a suit in equity; see Weingarten Bros v G & R Wills & Co [1906] SALR 34 at 84. However, where a union official having the carriage of an industrial dispute or negotiation declines to give evidence as to an intention or understanding which he can be taken to have formed on behalf of the union, the inference indicated at [56] of these reasons can more confidently be drawn because it can be assumed that the official’s evidence, if it had been given, would not have advanced the union’s case; see eg Jones v Dunkel (1959) 101 CLR 298 at 308 and 312 and Dilosa v Latec Finance Pty Ltd (1966) 84 W.N (Pt.1) (NSW) 557 at 582.
60 For these reasons, I am satisfied that the evidence, in its present state, is sufficient to establish a contravention by each of the respondents of Commissioner Foggo’s Order.
(c) Should an injunction be deferred until after the determination of the proceedings in the High Court and this Court?
61 I have not been persuaded that the existence of either set of pending proceedings should induce the Court to exercise its discretion by refusing the injunctive relief which the applicant seeks. It was said on behalf of the respondents that Commissioner Simmonds’ decision provided the foundation for the Order of Commissioner Foggo. Accordingly, so the argument went, until the validity of the earlier decision had been authoritatively established, it would be inappropriate to enforce that decision by giving the coercive force of an injunction by this Court to the Order which Commissioner Foggo had made in aid of the earlier decision.
62 The extant challenges to the decision of Commissioner Simmonds rest on two bases. The first is that he should not have proceeded to make a decision on the merits of the dispute because one of the parties had earlier sought a determination by another “body or court” contemplated by cl 12.7 of the Certified Agreement, namely this Court. However, as I have already pointed out at [54] of these reasons, if the decision of Commissioner Simmonds were to be set aside, there would be no determination of the substance of the “matter” or matters in dispute between the parties.
63 A second powerful consideration against exercising the discretion in the way sought by the UFU is that it had earlier elected to challenge the jurisdiction of Commissioner Simmonds by instituting an appeal to a Full Bench of the Commission which it withdrew on 16 June 2004. It would be inconsistent, I consider, with equitable principle, to allow a party, which had mounted a jurisdictional challenge and then allowed the matter to proceed to a determination on the merits, to rely on a revival of the jurisdictional challenge in order to resist enforcement of the decision on the merits.
64 A third and related consideration is that I regard the UFU’s prospects of success on the challenge to Commissioner Simmonds’ decision as slight. The proper interpretation of cl 12.7 of the Certified Agreement, which is not easy, does not immediately or inexorably suggest that a reference of a matter to an “other body or court” precludes the possibility of a reference to the Commission proceeding in parallel with the proceedings in the “other body or court.” For the reasons explained at [51] to [53] above, some elements of the “matter” or “matters” in dispute were, in all likelihood, only capable of determination by the Commission or another non-judicial arbitrator. That favours a construction of cl 12.7 which would permit distributive references of different parts of the matter to the Commission on the one hand and a court on the other.
65 This analysis does not preclude the view that Commissioner Simmonds had a discretion, upon being apprised of the pending proceedings in this Court, to defer entertaining the whole or part of the reference to himself until after this Court had indicated which, if any, of the matters involved an “extra claim.” However, that exercise of discretion could not be challenged by an attack on the Commissioner’s jurisdiction. The observations by McHugh JA in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357 which was subsequently approved by Gaudron, Gummow and Callinan JJ in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 445 can be paraphrased to apply with equal force to the power which Commissioner Simmonds purported to exercise. McHugh JA there said;
‘If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.’
66 I do not accept that to give Commissioner Simmonds’ decision the protection of an injunction under s 127(6) would be to render nugatory either the proceedings in the High Court or those in this Court. The Order of Commissioner Foggo is expressed to enure only until 1 August 2005 whereas the decision of Commissioner Simmonds is framed generally to be of indefinite duration subject, where indicated, to further consultation or evaluation. In those circumstances, a judgment upholding the attack on the Commissioner’s jurisdiction, even if given after 1 August 2005, would not be without utility to the UFU.
67 It is true that the implementation of the Workplace Changes has not been shown to be a matter of pressing urgency for the MFESB. However, the MFESB has succeeded in persuading a member of the Commission to make an order under s 127 of the Act. That Order has a life limited to 1 August 2005 and it is highly probable that neither court proceeding will be determined by that date. The effective result of a refusal now to grant an injunction under s 127(6) will be to deprive the MFESB of the fruits of its success before Commissioner Foggo. In these circumstances, the following observations of Merkel J in Transfield Constructions Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 provide strong support for an exercise of the Court’s discretion in favour of the application, which it must be remembered is for final relief, not an interlocutory injunction which was under consideration by his Honour;
‘30 The present case is a good example of the problem. The s 127 orders obtained by Transfield and Basin Oil only continue for a certain period. The first Transfield order expired without a s 127 order being made by the Court. Notwithstanding the Basin Oil order and the new Transfield order the industrial action has continued. It is clear that the expeditious resolution of the dispute over the industrial action sought to be achieved by s 127(3) would be defeated if enforcement of the AIRC´s orders is delayed.
31 There is substance in the submissions of Transfield and Basin Oil that any delay in the Court´s enforcement of the orders of the AIRC will result in the irretrievable loss to them of the benefits of those orders, probably without any accompanying entitlement to compensation for any loss or damage suffered by reason of any breach of the AIRC´s orders, for each day the industrial action continues. There is, however, also force in the unions´ contention that the making of the interim orders sought by Transfield and Basin Oil effectively determines against the unions the issues which they wish to argue at the final hearing, because the interim orders require them to take positive steps to call off and bring to an end the industrial action which they contend is not being taken by them.
… … …
34 In considering the strength of the claim for interlocutory relief due weight is to be given to the fact that s 127(1) orders have been made by the AIRC and to the reasons given by the AIRC for making those orders. The legislature has reposed in the AIRC, as an expert industrial tribunal, the power to determine whether an order to stop industrial action should be made. While the Court has an undoubted discretion under ss 127(6), its role is essentially intended to be one of enforcement of an order that has been made where there has been a contravention or proposed contravention of that order. While I accept that there is no presumption or pre-disposition in favour of the making of an enforcement order (cf ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256-258 and 267-268), I would expect that, in the usual course, there would have to be good reason not to enforce an order of the AIRC, given that the legislature has reposed in the AIRC, rather than the Court, the question of whether an order under s 127(1) is to be made and has provided that when it has been made the persons to whom the order is expressed to apply “must comply with” it (s 127(5)). Good reason may be shown if, for example, the AIRC erred in law, the order is shown to be invalid for any reason or where subsequent circumstances have arisen that make its enforcement inappropriate or unjust. I doubt, however, that the legislature intended that the Court should be required to embark on a hearing de novo of the s 127(1) application.
35 In that context, while the weight to be given to the reasons of an expert tribunal, such as the AIRC, in a particular case will depend upon the circumstances (see Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 154-155) in a case such as the present there is no reason why substantial weight should not be given to the reasons of the AIRC. The AIRC heard the matter over some six days, received evidence from 8 witnesses, a majority of whom were cross-examined, and prepared two carefully considered reasons for making s 127 orders on 11 October and 6 November.’
68 To the extent that it matters, I have found quite convincing, with respect, the reasoning which led Commissioner Simmonds to conclude that none of the Workplace Changes was an “extra claim” within the meaning of cl 49 of the Certified Agreement. It is true that I have formed that impression without the benefit of full argument which will occur at the hearing listed before Marshall J on 25 July 2005. However, the UFU’s prospects of success on that argument have an obvious bearing on the exercise of the Court’s discretion under s 127(6). I am not persuaded that they are sufficiently strong to allow a provisional finding that Commissioner Foggo’s Order has been infected by an error of law or to warrant, on some other basis, an exercise in favour of the UFU of the discretion discussed by Merkel J in Transfield v AFMEPKIU (supra).
(d) Are the terms of the injunction sought too wide?
69 During the hearing on 9 May 2005 the MFESB proposed an order that;
‘The respondents (whether by themselves, their servants or agents or howsoever otherwise) be restrained until 11.59pm on 1 August 2005 from commencing, continuing, engaging in or threatening to engage in any industrial action.’
70 “Industrial action”, it was suggested, should be defined in the order of the Court to mean;
‘(a) impose, continue, implement, give effect to or comply with any ban, limitation or restriction upon the performance of work on or in relation to the approved changes or any of them;
(b) fail or refuse, when required or directed by the MFESB, to perform work on or in relation to the approved changes or any of them;
(c) when working on or in relation to the approved changes or any of them, adopt any practice which has the result of restricting, limiting or delaying the performance of that work or the work of any other person;
(d) direct, advise, induce or procure any other person to do any thing covered by (a), (b) and/or (c) of this clause;
not including -
(e) protected action within the meaning of s.170ML of the Workplace Relations Act 1996;
(f) action or conduct by a person that is authorised or agreed to by the MFESB;
(g) action by an employee if -
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of the MFESB to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.’
71 The phrase “the approved changes” appearing in the definition of “industrial action” proposed in the MFESB’s draft order was itself defined in the following terms in the same draft;
‘“approved changes” means the changes proposed to be introduced by the MFESB and which were the subject of the decision by Commissioner Simmonds given on 16 August 2004 (PR950883), namely changes with respect to:
(a) the Operational Support Group;
(b) the No. 2 Station;
(c) Skills Maintenance;
(d) the Community Safety Log;
(e) the Fire Safety Inspection Course.’
72 It was further submitted on behalf of the MFESB that an order be directed to the UFU requiring it, by a specified time, to;
‘(a) discontinue and withdraw all authorisation and advice for the taking of industrial action; and
(b) inform its members employed by the applicant of the making of these orders by way of one of its standard bulletins to all UFU members employed by the MFESB’
in the terms of a draft bulletin proposed by the MFESB.
73 Counsel for the UFU have pointed out that the draft order has been couched in terms which suggest that Commissioner Simmonds in his decision had approved for immediate implementation each of the five Workplace Changes. However, it was made clear by the Commissioner in the passage from [33] of his reasons quoted at [10] above that the matter or grievance concerning the Operational Support Group should be referred back to the EBIC for processing in accordance with the Certified Agreement. If it thereafter remained unresolved, it should be dealt with (presumably by the Commission) as a “new matter.”
74 Since Commissioner Foggo’s Order was clearly framed to proscribe industrial action in respect of “approved matters” in the sense of those Workplace Changes which had been approved for immediate implementation by Commissioner Simmonds, it follows that it would be an inappropriate exercise of the Court’s discretion to grant an injunction enforcing that part of Commissioner Foggo’s Order which was directed to the Occupational Support Group.
75 As to the Workplace Change identified as “Skills Maintenance”, it was urged on behalf of the UFU that any injunction should be framed to permit computerised data recording only for the maintenance of a skills base and not for “the broader agenda of [the MFESB] as disclosed in paragraph 42 of the Garcia affidavit.” Paragraph 42 of an affidavit by Arnold Garcia sworn 28 April 2005 and filed in the present proceedings recites;
‘The Skills Maintenance Program involves the electronic recording of all of these matters in a centralised database, which can be easily accessed and searched at any time. It gives the MFESB an ability to easily, quickly and accurately determine from the one centralised source those officers and firefighters that have particular skills and abilities, and distribute these employees across the workforce appropriately. It also allows the identification of those employees that may need extra drills or special training, to bring particular skills up to date.’
76 As I understand it, Commissioner Simmonds approved the extension of a “computerised system of skills maintenance recording” across all zones subject to the MFESB, in consultation with the UFU, monitoring the progressive development of the new system during the first twelve months of its life and subject to a consultative evaluation of the system at the end of that period by the MFESB and the UFU. The UFU’s present complaint appears to be directed to the MFESB’s using the new database for distributing appropriately qualified employees across the workforce as well as keeping it as a progressive record of the skills acquired and maintained by each employee. It does not seem that the complaint which the UFU now raises was agitated before either Commissioner Simmonds or Commissioner Foggo. Accordingly, if the use which it is said the MFESB proposes to make of the Skills Maintenance Record was not contemplated by Commissioner Simmonds’ decision and, if disclosed, would not have been permitted, that is a matter properly to be addressed in an application to Commissioner Simmonds for a variation of his decision. If such a variation is achieved before 1 August 2005, the UFU can apply pursuant to the liberty which I shall reserve, for an appropriate change to be reflected in the order which I propose to make in the light of these reasons.
77 In relation to the fifth Workplace Change, identified as the Fire Safety Inspection Course, the UFU referred to [68] and [69] of Commissioner Simmonds’ decision which have been reproduced at [18] of these reasons. It was pointed out that the draft indemnity settled by a senior member of the Victorian Bar has only recently been furnished to the UFU and the other steps detailed in [68] of the Commissioner’s reasons have yet to be taken. The implication from these references by the UFU seems to be that it should not be shut out from industrial action in respect of the Fire Safety Inspection Course until the attempt by the parties to resolve any remaining differences and, if necessary, the conciliation conference contemplated by Commissioner Simmonds at [68] of his decision, have been completed. However, the Commissioner expressly directed in [69] of his decision that “while the above steps are being taken the UFU should withdraw its advice to its members not to undertake or complete the agreed training.”
78 In the light of that direction, I consider that the preferable interpretation of Commissioner Simmonds’ reasons in respect of the Fire Safety Inspection Course is that he regarded the matter as resolved, subject to any disagreement emerging as to the form of the indemnity or “any remaining differences.” Accordingly, by contrast with the position obtaining in respect of the Occupational Support Group, Commissioner Foggo was entitled to treat the Fire Safety Inspection Course as an “approved change” and, in accordance with Commissioner Simmonds’ direction, which was at least contingent or provisional, to protect it by the Order which she made under s 127(1) of the Act.
79 The final objection taken on behalf of the UFU to the form of injunction proposed by the MFESB was that the draft bulletin which the MFESB claimed should be sent to UFU members contained expressions of beliefs and opinions which neither respondent holds and which could be relied on by the MFESB in either or both the proceedings in the High Court and in this Court as admissions against interest by the UFU. I take leave to doubt whether a statement made under compulsion of a curial order can constitute an admission for the purpose of other proceedings. In any event, I do not discern in a statement that a party has been directed by a court to instruct other persons to discontinue or refrain from industrial action, any expression of opinion or belief by that party. Moreover, the objection by the UFU can safely be overcome by an express proviso in the Court’s order which I propose to include to the effect that the bulletin has been issued solely to comply with the injunction and is without prejudice to any case which the respondents may seek to make in either the High Court proceeding instituted on 7 April 2005 or the proceedings numbered VID151/2004 in this Court. That proviso will be consonant with the stipulation in cl 12.9 of the Certified Agreement that “No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.”
Conclusion
80 For the reasons which I have endeavoured to explain, I consider it an appropriate exercise of the Court’s discretion to grant an injunction restraining each of the respondents, until 1 August 2005 or further order, from imposing, continuing, giving effect to, inducing, counselling or procuring any ban, limitation or restriction upon, or other industrial action directed to, the performance of work by any member of the UFU or other employee of the MFESB in relation to, or by way of implementation of, all or any of the five approved changes identified in the decision of Commissioner Simmonds dated 21 May 2004 other than the change related to the Occupational Support Group. The order shall contain an exclusion in respect of actions described in pars (e), (f) and (g) of the definition of “industrial action” proposed by the MFESB which is reproduced at [70] of these reasons. The order will also require the respondents to communicate by means of a bulletin in the UFU’s usual form to all members employed by the MFESB the effect of the injunction. That communication will contain a proviso to the effect described at [79] above that the bulletin has been issued solely to comply with the injunction and is without prejudice to the proceedings in the High Court or in this Court.
81 There will be liberty to the UFU to apply on not less than 48 hours notice in writing, in the event of materially changed circumstances, for the variation or dissolution of the injunction to be granted in consequence of these reasons. The parties should bring in minutes of a proposed form of order (agreed if possible) at a mutually convenient time tomorrow, 18 May 2005.
| I certify that the preceding eight-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 17 May 2005
| Counsel for the Applicant: | Mr F Parry SC with Mr P Wheelahan |
| | |
| Solicitor for the Applicant: | Freehills |
| | |
| Counsel for the Respondents: | Mr H Borenstein SC with Mr P Rozen |
| | |
| Solicitor for the Respondents: | Slater & Gordon |
| | |
| Date of Hearing: | 9 May 2005 |
| | |
| Date of Judgment: | 17 May 2005 |
