FEDERAL COURT OF AUSTRALIA
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The proceeding is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 370 of 2012 |
BETWEEN: | PHILIP KLEIN Applicant
|
AND: | METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD Respondent
|
JUDGE: | GORDON J |
DATE: | 10 December 2012 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INTRODUCTION
1 Philip Klein is a career firefighter employed by the Metropolitan Fire and Emergency Services Board (MFESB), previously known as the Metropolitan Fire Brigade. Mr Klein alleges that the MFESB has taken adverse action against him because he is not a member of the relevant union, the United Firefighters Union of Australia (UFU), and because of industrial activity engaged in by him. Mr Klein brings three claims under the Fair Work Act 2009 (Cth) (FW Act):
1. a series of claims alleging that the MFESB has contravened the general protections provisions in Pt 3-1 of the FW Act (the Adverse Action Claims);
2. a claim that the MFESB has breached s 50 of the FW Act by failing to preserve the status quo in accordance with the grievance procedure in cl 19.4 of the Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2010 (the 2010 Agreement) (the Status Quo Claim); and
3. a claim that the consultation provisions of the 2010 Agreement are “objectionable terms” and, by reason of s 356 of the FW Act, have no effect (the Objectionable Terms Claim).
2 The MFESB rejects each claim. The UFU sought to intervene in the proceeding. The UFU filed written submissions and made short oral submissions in relation to the Objectionable Terms Claim. The UFU supported the MFESB’s position on that issue.
3 For the reasons that follow, the proceeding is dismissed.
4 The balance of these reasons for judgment are structured as follows:
Content | Para(s) | |
A | The FW Act | [5]-[14] |
B | Facts | [15]-[63] |
(1) 1981 – Sept 2001: Klein’s Employment with the MFESB (and its predecessors) | [15]-[17] | |
(2) Sept 2001 – Dec 2001: Klein’s Application for and Appointment as Inspector | [18]-[21] | |
(3) Klein’s Expulsion from the UFU | [22]-[24] | |
(4) Subsequent Events | [25]-[30] | |
(5) Negotiations for the 2010 Agreement | [31]-[63] | |
C | Adverse Action Claims | [64]-[208] |
(1) Introduction | [64] | |
(2) Was there industrial activity? | [65]-[81] | |
(3) Adverse action | [82]-[102] | |
(a) Injury or prejudicial alteration | [84]-[87] | |
(b) Discrimination between employees | [88]-[102] | |
(4) Conduct | [103]-[208] | |
(a) First Category of Claims – Arising from the MFESB’s agreement to consultative provisions in the 2010 Agreement | [107]-[125] | |
(I) Exclusion from consultation | [126] | |
(II) Nomination for the Consultative Committee | [127]-[129] | |
(III) Discriminatory consultation processes | [130]-[136] | |
(IV) MLO position description | [137]-[151] | |
(V) Structural Firefighting Protective Clothing technical specification changes | [152]-[158] | |
(b) Second Category of Claims | [159]-[160] | |
(I) Exclusion from negotiations for 2010 Agreement | [161]-[169] | |
(II) Acting up guidelines grievance and failure to maintain status quo | [170]-[182] | |
(III) No consultation about the Realignment Project | [183]-[196] | |
(IV) Discriminatory selection process for Acting Assistant Chief Fire Officer Positions | [197]-[208] | |
D | Status Quo Claim | [209]-[214] |
E | Objectionable Terms Claim | [215]-[225] |
F | Relief | [226]-[227] |
A THE FW ACT
5 The object of the FW Act, as set out in s 3, is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by, amongst other things:
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms.
6 Part 3-1 of the FW Act provides general workplace protections: s 334 of the FW Act.
7 The objects of Pt 3-1 are set out in s 336 of the FW Act:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised, or otherwise adversely affected as a result of contraventions of this Part.
8 Division 3 of Pt 3-1 of the FW Act is entitled “Workplace rights”. Section 340(1) in Div 3, entitled “Protection”, provides that:
A person must not take adverse action against another person:
(a) because the other person;
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
(Emphasis added.)
9 “Workplace right” is defined in s 341 of the FW Act. “Adverse action” is defined in s 342(1) of the FW Act. Item 1 of the table in s 342(1) provides that adverse action is taken by an employer against an employee if the employer, relevantly:
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
10 Division 4 of Pt 3-1 of the FW Act is entitled “Industrial activities”. Section 346 in Div 4 of the FW Act is entitled “Protection”. It provides that:
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
(Emphasis added.)
11 “Engages in industrial activity” is defined in s 347 of the FW Act. It provides that a person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
…
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
…
(f) takes part in industrial action; …
(Emphasis added.)
12 “Industrial action” is defined in s 19(1) of the FW Act to mean, among other things:
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee.
13 Sections 360 and 361 of the FW Act contain provisions which assist an applicant to establish a contravention of the operative provisions of Pt 3-1 of the FW Act. They provide:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
14 The applicable principles are well established and include that:
1. adverse action may comprise specific action taken against an individual employee, or general action that is adverse to an unidentified, but ascertainable, group of employees: Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 at [21];
2. the applicant bears the onus of proving each element of each alleged statutory contravention: May v O’Sullivan (1955) 92 CLR 654 at 657. Therefore, in the present case, Mr Klein must establish that:
2.1 the conduct complained about in fact occurred;
2.2 that conduct constitutes “adverse action” as defined in s 342(1) of the FW Act; and
2.3 the alleged proscribed reason for that conduct is proved and within one or more of the relevant categories in ss 346 and 347 of the FW Act;
3. the civil standard of proof applies but, in applying that standard, the court is required to take into account the nature of the cause of action, the defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged: s 140(2) of the Evidence Act 1995 (Cth);
4. the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is to be proved. In the present case, the claims are in the nature of civil penalty proceedings: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 and Hadgkiss v Sunland Constructions Pty Ltd (2007) 158 FCR 193 at [9]-[11].
B FACTS
(1) 1981 – Sept 2001: Klein’s Employment with the MFESB (and its predecessors)
15 Mr Klein was first employed by the MFESB as an operational firefighter in April 1981. At that time, it was a requirement for employment to become a member of the UFU. Mr Klein joined the UFU in April 1981 and remained a member until his expulsion in early 2002.
16 In 1985, Mr Klein was promoted to the rank of Senior Firefighter, a rank now known as Leading Firefighter. In 1986, he was further promoted to the rank of Station Officer Grade 2, a rank now known as Station Officer. In 1988, he was further promoted to the rank of Station Officer Grade 1, a rank now known as Senior Station Officer. Each promotion was through merit based examination.
17 In August 1990, the UFU was registered as an organisation of employees under the Industrial Relations Act 1988 (Cth).
(2) Sept 2001 – Dec 2001: Klein’s Application for and Appointment as Inspector
18 In early September, the UFU called a special general meeting of members. Mr Klein attended that special general meeting of UFU members on 18 September 2001. A motion that “[n]o member shall apply for an Inspector or equivalent position until such time as the Certified Agreement for this position is finalised to the satisfaction of the membership” was carried unanimously.
19 After the meeting on 18 September 2001, Mr Klein received a number of communications from the UFU urging members to observe the ban on applying for an Inspector position. The communications were in the form of UFU Bulletins and were dated 8 October, 9 October, 14 November and 21 December 2001.
20 In October 2001, the MFESB invited employees to apply for appointment to Inspector. Mr Klein applied for that position in November 2001. At that time, the UFU and the MFESB were in negotiations for a certified agreement to cover Inspectors. The negotiations had been deadlocked for months.
21 On 21 December 2001, Mr Klein was appointed to the rank of Inspector, a rank now known as Commander. Shortly after appointment as an Inspector, Mr Peter Akers (the Chief Executive Officer of the MFESB) sent an email to all MFESB employees announcing the appointment of Mr Klein, and others, as Inspectors. In the days that followed, Mr Klein received a number of broadcast emails through the MFESB email system that were strongly critical of those who had applied for and been promoted to Inspector.
(3) Klein’s Expulsion from the UFU
22 In late January 2002, Mr Klein was summoned to attend a meeting of the UFU Branch Committee of Management at 10:30 am on 28 February 2002 at 410 Brunswick Street, Fitzroy. The summons called on Mr Klein to attend the meeting to show cause why he should not be found guilty of a charge of acting in breach of the rules of the UFU and, in the event that he was found guilty, why he should not be reprimanded, fined or expelled from the UFU.
23 In response to the summons, Mr Klein attended the UFU office at 410 Brunswick Street, Fitzroy on 28 February 2002. The other UFU members who had been promoted to the rank of Inspector in December 2001 also attended. None of the newly appointed Inspectors were allowed into the building. Mr Klein’s evidence was that David Youssef, or another UFU delegate, came out of the UFU office and told them that the Branch Committee of Management had found each of the newly appointed Inspectors guilty, expelled each of them from the UFU and fined each of them $100.
24 Later in March 2002, Mr Klein received a letter dated 8 March 2002 from the UFU, advising him of his expulsion. Members of the UFU were also informed of the decision of the Branch Committee of Management in a UFU Bulletin dated 14 March 2002.
(4) Subsequent events
25 Mr Klein’s evidence was that, since his promotion to Inspector, he has been ostracised by UFU members throughout the MFESB. His evidence was that the ostracism took the form of refusal to acknowledge him, refusal to shake his hand when it was offered and refusal to speak to him other than when required to do so operationally. So, for example, his evidence was that, more often than not, when attending a fire station he was ignored by operational staff, with any conversation the result of his direct questions.
26 Mr Klein’s evidence included examples of other ways in which he said he was ostracised. Other than one example addressed in further detail below, the evidence was general in nature. It did not identify particular fire stations or particular dates. The examples identified by Mr Klein were:
(a) “NO SCABS” signage or other material denigrating “scabs” displayed at fire stations;
(b) lists of the names of those who were promoted to Inspector in December 2001 and early 2002 being placed on noticeboards in fire stations and remaining there for months and in some cases years;
(c) hearing radio transmissions calling “scab” after he had transmitted information over the MFESB radio system. These incidents were said to have occurred whilst he held the position of Inspector, Operations Western Zone, and took place between December 2001 and August 2003 before the introduction of a digital caller identification system. Mr Klein said he was therefore unable to identify who was calling “scab” over the radio system; and
(d) emails being sent through the MFESB email system in which Mr Klein and other Inspectors were labelled scabs or in which adverse comments were made about scabs.
27 In his evidence, Mr Klein did provide more detailed evidence about one of these incidents. Mr Klein said that in about April 2002, he attended Spotswood Fire Station on management business and was confronted with “scab” signs on walls and external windows to the station. The signs read “scab” surrounded by a red circle with a red line through it. Mr Klein said he directed the officer in charge of the station to have the signs removed. Subsequently, on 18 April 2002, Mr Klein received an email from Peter Marshall, UFU Branch Secretary, accusing him of attempting to intimidate or chastise members who had sought to pursue their legal right of union representation.
28 The hostility between the UFU and the Inspectors promoted in December 2001 and early 2002 has been raised in a previous decision of this Court (United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 at [30]-[39]) and in internal MFESB reviews dated August 2003 and November 2005.
29 Between August 2003 and September 2007, Mr Klein was seconded to the Australasian Fire Authorities Council where he worked as the Manager, Operational Services Strategy Group. He returned to the MFESB in September 2007 and was appointed to the position of Commander, Training Quality Assurance in Central Zone.
30 Mr Klein also gave evidence about an incident in about October 2007 when t-shirts were on sale at the Pascoe Vale Fire Station. His evidence was that he believes the t-shirts were being sold as a fundraiser for the UFU. On the back of the t-shirts was printed “GONE ... BUT NEVER FORGOTTEN” above the names of those who were promoted to Inspector in December 2001 and early 2002. Mr Klein’s name was included in the list.
(5) Negotiations for the 2010 Agreement
31 Mr Klein remained in the position of Commander, Training Quality Assurance in Central Zone until March 2009, when he was approached by the Chief Fire Officer, Tony Murphy, to work on the MFESB’s negotiating team for a new enterprise agreement to cover operational firefighters. Mr Murphy told Mr Klein that Leigh Hocking had been contracted by the MFESB to conduct the negotiations on its behalf and had been given the title of “Visiting Director”. Mr Klein agreed to assume the position as negotiator on the MFESB negotiating team and joined the team in March or April 2009.
32 In May 2009, Mr Hocking approached Mr Klein and asked him to assume the role of MFESB spokesperson in the enterprise agreement negotiations. Mr Klein told Mr Hocking that he was surprised at this request as the position was usually occupied by an MFESB Director. Mr Hocking told Mr Klein that “Ken” did not want to subject the Directors to “that kind of abuse”. Mr Klein’s evidence was that he understood “Ken” to be a reference to the then Chief Executive Officer of the MFESB, Ken Latta. Mr Klein said that after further discussion with Mr Hocking, he was persuaded to assume this role of spokesperson for the MFESB.
33 One of the major changes sought by the MFESB in negotiating a new agreement was to streamline the “consultation” and “status quo” provisions in the MFESB and UFU Operational Staff Agreement 2005 (the 2005 Staff Agreement). From April 2006, the 2005 Staff Agreement covered Inspectors and Commanders as well as operational firefighters. The 2005 Staff Agreement expired in April 2009. Negotiations for a new agreement started in April 2009. The MFESB and the UFU each served a log of claims. Each was different in content and structure.
34 Under the 2005 Staff Agreement, employer / employee consultation was conducted via the Enterprise Bargaining Implementation Committee (EBIC). Representation on the EBIC was equally split between management and employee representatives. The employee representatives were nominated by the UFU. Under the 2005 Staff Agreement, all proposals for change were required to be presented to the EBIC for consultation and agreement: cll 9 and 11 (see Annexure A). The 2005 Staff Agreement defined “change” to mean:
… 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 [the 2005 Staff Agreement] or any claim in relation to a matter contained in Appendix B.
The 2005 Staff Agreement contained a clause which required the status quo to be maintained during the resolution of a dispute: cl 12.9. In its initial log of claims for the new agreement, the MFESB sought new consultation and dispute resolution clauses.
35 From June 2009, numerous meetings were held. Not a single item was agreed. Two principal issues were which log of claims was to be negotiated and whether the new agreement would extend to the ranks of Commander (formerly known as Inspector) and Assistant Chief Fire Officer (ACFO).
36 The UFU published reports to its members about the negotiations. On 26 May 2009, the UFU published Bulletin No 129 which included the following passage:
The face of the MFB EBA 2009 Campaign, Commander Phil Klein will be appearing on Fire Vision to state the MFB’s position regarding Enterprise Bargaining. For newer members Commander Klein is not a UFU member and was expelled from the Union under its rules for a number of reasons. We provide this information so that Commander Klein’s comments, although they may be of a professional nature, can be placed in full context as to his views on Unions and collective negotiation and agreements.
37 A further UFU Bulletin was published on 4 July 2009. It contained the following passage:
On Friday the 3rd [of] July the UFU and the MFB representatives met again to continue negotiations.
At the initial meeting on the 12th of June, the MFB committed to providing their claims in relation to the Commanders by the 25th of June and the ACFO claims as soon as possible (hopefully by June 25). The MFB failed to do so. At the Negotiation meeting on the 25th of June the MFB said they are hopeful to provide such claims by the end of the next week (Friday 3 July). Again the MFB have failed to meet their commitments, and are leaving the Commanders and ACFOs in nowhere land (Members will be aware that even though the UFU tabled their claims a couple of weeks after the MFB [as continually mentioned in MFB EB updates] the UFU has never gone back on their commitments).
MFESB CREWING PROPOSAL EXPOSED
However much of today’s meeting revolved around the MFB crewing proposals? Under the MFB[’]s proposals, the MFB are not required to maintain rostered crewing numbers in the instance that personnel cannot attend work. The UFU has communicated the impact of this in previous bulletins with regard to the effective reduction of your work conditions.
Today the UFU pressed the MFB representatives on the implications of their proposal for the fire cover of the community. After much discussion, Commander Klein conceded that under the MFB proposal, on a given day less Firefighter[s] will be available and ready to respond, fewer Appliances will be in commission, and the effect of this is the increase in response times.
The MFB representatives thought that this was ok, and provided reasoning that it would assist the MFB to address a number of issues, including personnel taking too many sick days on weekends and also that recalls are disproportionately shared amongst the ranks. In the same spiel, Commander Klein tried to couch these matters as related to Risk Management. Clearly the MFB is purely trying to save money.
While Melbourne gets bigger and as we are coming off the back of one of the worst fire seasons ever in Victoria, the MFB wants to pull the bottom out of the longstanding safe and minimum crewing provisions.
Following these concerning statements, rather than discuss any of the implications of the UFU proposed crewing chart on Community and Firefighter safety, or ask questions of the UFU claims, the MFB were only interested in discussing money.
FIRE SERVICE MONEY SHOULD BE SPENT ON EMPLOYING MORE FIREFIGHTERS NOT ON HIGHLY PAID CONSULTANTS OR MFESB EXECUTIVE BONUSES
Commander Klein asked several questions allegedly so that he could better understand the UFU Crewing claims. Following this it turned out that in fact the questions were rhetorical, and Commander Klein pointed out that the UFU crewing claims were going to cost X amount of money. Yes the UFU knew it would cost some money. But we are sure the public would rather have their fire service money spent on employing more firefighters, as opposed to having it spent on highly paid consultants and executive bonuses.
On this line, Mr Garcia and Mr Hocking then took the conversation onto the UFU proposed clauses regarding maintenance of classifications. Specifically they drew attention to clause 75.6 of the UFU claims regarding work being contracted out or performed by other personnel. The MFB pointed out that should [be] the MFB contract out, this would cost the MFB $300,000,000.00 plus. The UFU is yet to check these figures; however this matter was very concerning to the UFU as we thought the chance of this occurring is very small, and would have considered it in fact nonexistent.
Considering this the UFU asked Mr Hocking that since the MFB has made these calculations, does this mean the MFB are considering that contracting out might happen in the future, to which Mr Hocking answered that it “could happen.” (In fact it was happening as we spoke: the MFB minute taker was not employed by the MFB, and in fact Mr Hocking[’]s Employment arrangement as ‘Visiting Director’ is very unclear, a matter the UFU is still not entirely across since the MFB have continually been rejecting our FOI request on the matter.)
Despite the UFU concern, the MFB most likely brought up this matter so that they could wave around this figure and say look how much money the UFU want (note that the MFB have not provided the UFU with any costing for their own claims, yet consider it appropriate to provide the costing for ours!).
The truth is that the UFU values your conditions highly; in fact it is the UFU’s reason for being is to fight for your conditions, and obviously contracting out your jobs is low on the UFU to do list. The MFB are gearing up to try and discredit the UFU and at the same time attempt to drive wedges between the ranks. This was seen above in their justification that removing reliable minimum crewing will be a good way to address the issue of different ranks having different recall opportunities. Obviously the MFB will try to set the ranks off against each other and polarize members.
We cannot let this happen, the UFU is strong because the membership is unified. Therefore, if you have a question regarding any matters that the MFB disseminate in their propaganda, do not hesitate; in fact we insist that you contact your Shop Steward, WOC MEMBER, BCOM or the UFU staff to discuss.
(Emphasis in original.)
38 On 31 July 2009, Mr Klein nominated the Commander’s Representative Group (CRG), led by Col Bibby, Ross Trimboli and Lou Mele, to be his bargaining agent in the negotiations for the new agreement. The CRG was the bargaining agent for a number of Commanders who were not members of the UFU.
39 In early September 2009, the MFESB applied to Fair Work Australia (FWA) for a scope order, seeking endorsement of the MFESB’s position that there should be a separate agreement for Commanders and ACFOs. The MFESB wanted to exclude Commanders and ACFOs from the scope of the proposed agreement for operational staff. At around the same time, the UFU also applied to FWA for an order that all ranks including Commander and ACFO should be included in the scope of the new agreement. At least one area of dispute was clearly defined.
40 The Commanders represented by the CRG met in early September 2009. Mr Klein attended that meeting. Their decision was to support the UFU in relation to the scope of the proposed agreement. The consensus of that meeting was to reduce the ongoing victimisation of non-UFU Commanders by negotiating with the UFU to reaffirm a harmonisation between UFU and non-UFU Commanders. Mr Klein decided to support the MFESB’s application for separate agreements. As a consequence of the CRG decision to support the UFU’s application, on 15 September 2009, Mr Klein withdrew his nomination of the CRG as his bargaining agent and nominated himself as his own bargaining agent. Mr Klein took the view that his nomination of himself as his own bargaining agent made his position as an MFESB spokesperson and negotiator untenable. Mr Klein approached Mr Hocking to have his position on the team reviewed. As a result, in September 2009, Mr Klein ceased representing the MFESB in negotiations and commenced working on shift as Commander Operations in Southern Zone, then Western Zone and finally in Northern Zone.
41 Between mid September 2009 and February 2010, Mr Klein attended negotiating meetings as his own bargaining agent. He attended five or six negotiating meetings. The meetings were held approximately monthly. The last meeting he was invited to attend was held in January or February 2010. The meetings were held in locations nominated alternately by the MFESB and the UFU. The MFESB generally nominated the Metropole in Brunswick Street, Fitzroy, and the UFU nominated various UFU board rooms.
42 At these meetings, the MFESB was represented by some or all of Mr Hocking, Arnold Garcia (MFESB Industrial Officer), Gary Patterson, Mark Dalrymple, Andrew Zammit and Phil Patterson. The UFU representatives at the meetings were some or all of Peter Marshall (Secretary), David Hamilton (President), Ken Brown (Branch Committee of Management), Casey Lee (Industrial Officer) and Paul Mullett (external consultant). One or more of Mr Mele, Mr Trimboli and Mr Bibby represented the non-UFU Commanders who had appointed the CRG as their bargaining agent.
43 At two negotiating meetings, Mr Klein set out his main objectives for the new agreement which were changes to the consultation process to achieve fair and equitable consultation and engagement and changes to the status quo provisions to more efficiently implement health and safety initiatives. Mr Klein’s evidence was that he supported the CRG in their attempts to have the UFU reaffirm harmonisation between UFU and non-UFU Commanders, for example by removing the references to “Commanders previously known as Inspectors” from the UFU log of claims.
44 The hearing of the applications by the MFESB and the UFU for scope orders was heard by a Full Bench of FWA in December 2009. A decision was handed down on 14 April 2010. The Full Bench granted the MFESB’s application and made an order excluding Commanders and ACFOs from the scope of the proposed agreement for operational staff.
45 Mr Klein’s evidence was that from that time onwards he was excluded from negotiations for the proposed agreement to cover Commanders. Mr Klein assumed that, because the Full Bench had made the order sought by the MFESB, the MFESB would seek to negotiate a separate agreement to cover Commanders. Mr Klein was aware that negotiations were taking place between the MFESB and the UFU, facilitated by a Victorian Government appointed conciliator, former National Union of Workers secretary Greg Sword. However, he assumed that the negotiations were for an agreement for operational staff up to the rank of Senior Station Officer, consistent with the scope order of the Full Bench.
46 Following the Full Bench’s scope order, the negotiations did not proceed as Mr Klein had assumed. In April 2010 Mr Graham Fountain, the newly appointed CEO of the MFESB, asked Mr Shane Wright, Chief Officer and Executive Director, Emergency Management, to join the MFESB’s negotiation team.
47 Mr Wright gave evidence and was cross-examined regarding the negotiation of the new agreement. Mr Wright’s evidence was that, following the Full Bench’s scope order, the UFU did not concede that there should be two agreements, one for operational staff and one for ACFOs and Commanders. Instead, the UFU adopted the position that there would be no negotiation of an agreement to cover operational staff (whether or not that included Commanders) until an agreement covering ACFOs had been concluded. Mr Wright gave evidence that his view was that, following the Full Bench’s scope order, the CRG had aligned itself with the UFU and “they didn’t want their own agreement”. Mr Wright conceded that he made no enquiries of the CRG or of Mr Klein after the Full Bench’s scope order to ascertain their position.
48 Between April and June 2010, Mr Sword facilitated a number of negotiation meetings between the MFESB and the UFU. Mr Hocking was still the lead negotiator for the MFESB. Mr Hocking did not give evidence. Mr Wright did give evidence but he did not attend all of the meetings. Mr Wright’s evidence was that as a member of the MFESB negotiating team, he would be provided with updates. Mr Wright was cross-examined regarding the content of those updates. In his update for the week ending 28 May 2010, Mr Hocking wrote that:
… While Sword has made every effort to broker an agreement, the talks have featured the following characteristics:
● an almost exclusive focus on a proposed agreement for 11 executive managers [some of whom have declined to be represented by the UFU].
…
● a refusal to acknowledge the legitimacy of the decision of Fair Work Australia in the scope matter.
…
This configuration of the negotiations is becoming increasingly untenable given that bargaining representatives other than the UFU are excluded. Approximately half of the combined ACFO and Commander group have appointed bargaining representatives other than the UFU. The mediator will not acknowledge this as an issue.
…
Mr Wright accepted that no steps were taken to include Mr Klein or other non-UFU bargaining representatives in the negotiations. Negotiations did not progress.
49 On 18 June 2010, Mr Wright, Mr Fountain and Mr Hocking received an email from Mr Garcia, the Acting Manager Employee Relations for the MFESB, which relevantly stated that:
I would just like to raise my concerns with the Greg Sword process in particular this afternoon’s events.
In regard to the [MFESB’s] non-negotiable matters I was surprised that Greg was so confident that these are all resolvable.
He seems to put the big issues aside as if they will just go away.
…
Consultation and Dispute Resolution – Greg is trying to force the [MFESB] to accept an inferior and worse consultative clause than we currently have. During discussion Greg suggested that the [MFESB] had already agreed to an alternative consultative clause. When I rejected this he “spat the dummy” … Greg has either forgotten earlier discussion about this same issue when the [MFESB] rejected UFU claims, or he has ignored these discussions and simply attempting to force the [MFESB] to accept the UFU position. I clearly remember the discussion regarding the consultation clause where Arnie was very definite that we had problems with the proposed clause although there was progress. It is even less suitable for ACFOs!
…
As to the Operational Staff Agreement, Greg said that there will be a “roll over” and that this means Commanders will be covered by the same agreement. I cannot see how we can agree to this. Just reading the scope order decision reminds one of how damaging that would be. This is the problem with having discussion on such matters without all of the Commander representatives present. The Scope order sayas [sic] that they are part of management – by agreeing put them in the firefighters’ award we would be sayin [sic] “oh no they’re not!” …
When Greg was speaking of a “roll over” agreement I had an uneasy feeling that Greg’s version of roll over was the UFU Log which the UFU sent to Greg in the last few days. …
It is obvious that Greg’s intentions are to force us to accept an ACFO and Operational Staff Agreement at any cost and to the [MFESB’s] detriment.
… I believe we will be pressured to accept:
• An unacceptable ACFO Agreement
• Commanders in the firefighters’ EBA
…
• Pay increases for ACFO’s tied to the firefighters’ increments
…
50 At the end of June 2010, Mr Wright was again called into Mr Fountain’s office. Mr Fountain directed him to resume negotiations and to make two enterprise agreements – one for the ACFOs and one for all other ranks (recruit to Commander). Mr Wright was also directed to conduct the negotiations with Kirstie Schroder, the Executive Manager, Employment and Professional Development for the MFESB.
51 At about this time, Mr Sword withdrew from facilitating meetings between the MFESB and the UFU. Mr Wright asked Mr Fountain whether he should negotiate with the other bargaining representatives. Mr Fountain’s response was that Mr Wright did not need to “as he would deal with them”.
52 In the period up to 20 July 2010, Mr Wright and Ms Schroeder met with the UFU. A number of meetings were held. The UFU were insistent upon reaching agreement in relation to the ACFOs first. The UFU refused to negotiate an agreement for operational staff until the agreement in relation to the ACFOs was concluded. For most of the first three weeks of July, negotiations focussed solely on ACFOs. The only exception was some discussion about consultation. Mr Wright’s evidence was that in the period from 14 April 2010 to about 20 July 2010, there were no discussions or negotiations that concerned Commanders or any other operational staff. I accept that evidence.
53 Negotiations for an enterprise agreement covering operational staff resumed on about 20 July 2010. Mr Wright’s evidence was that in connection with the proposed operational staff agreement, it was not until approximately 28 July 2010 that there were any material discussions concerning Commanders. Mr Wright produced internal memoranda he sent to Mr Fountain on each of 21 July, 22 July, 23 July, 26 July and 28 July 2010. Each memorandum was entitled “Issues discussed at EB Negotiations on [insert date]”. Each memorandum was divided into sections “Key Issues”, “Issues Discussed”, “Issues Unresolved” and “Issues drafted into Agreement” or like headings. The only references to Commanders were indirect. They are set out below:
1. 21 July 2010 – under the heading “Issues discussed” – “Number of Commanders currently 58 agreed”;
2. 22 July 2010 – under the heading “Other matters to be discussed” – “Sector vacancy list and locations of Commanders”;
3. 23 July 2010 – under the heading “Issues discussed” – “Career Paths – agreed (clauses inserted in relation to minimum qualifying time prior to promotion and minimum 2 years day work prior to promotion to Commander). Sector vacancy list for Commanders removed” – under the heading “Summary Overview of MFB Benefits” – “Requirement for officers to have completed 2 years on a day work assignment prior to promotion to Commander”;
4. 26 July 2010 – as for the 23 July 2010 memorandum;
5. 28 July 2010 – under the heading “Issues discussed” – “Commander PD - to be reviewed”.
54 In fact, on 28 July 2010, Mr Wright received an email in the following terms from Mr Marshall, at that time the UFU’s National and Victorian Branch Secretary:
As you would be aware the UFU have held membership meetings on 28 July 2010 to discuss the current situation regarding our meetings for the classification of recruit Firefighter up to ACFO with the exception of the Commander classification.
…
We have now got in principle support for our position regarding all classifications other than Commanders which are yet to be finalised.
As such could you please convene a meeting so we can negotiate the final matter being the classification of Commander.
I suggest the meeting be held at the UFU office as soon as possible. We are available tomorrow, Thursday afternoon and Friday morning for this meeting.
The matters we seek to raise with you relate to Commander’s [sic] only and therefore you would be aware of the UFU’s claims regarding this classification. It is our view we could resolve those expeditiously.
We have also been advised that there are two matters relating to another party’s claim which they request that the UFU raise that being the issue of blue plated cars for Commander’s [sic] and a Pager Allowance.
However, we are happy to raise these matters on their behalf as advised but they are matters that are separate to the UFU’s log of claims.
(Emphasis added.)
It was common ground that the reference to “another party” was a reference to the CRG: see [38] above.
55 Mr Wright’s evidence was that on about 29 July 2010, the UFU and the MFESB agreed on terms to be included in an enterprise agreement covering operational ranks recruit to Commander. However, at this time, the Board of the MFESB had not approved the terms. Mr Wright’s evidence was that “this issue [the agreement in relation to Commanders] was resolved by 30 July 2010”.
56 What then had happened to Mr Klein? Mr Klein’s evidence was that at least once a week between April 2010 and July 2010 he had asked one of Mr Hocking, Mr Dalrymple, Mr Garcia and Mr Patterson for an update on the negotiations and the time and place of further meetings. Mr Klein’s evidence was that he was routinely informed that all ongoing discussions and meetings were being conducted in relation to one or both of the ACFO agreement and the Recruit Firefighter to Senior Station Officer agreement and that the Commander agreement was yet to be discussed. On 6 and 19 July 2010, Mr Klein sent emails to Mr Hocking expressing his concern about the lack of progress in the negotiations for an agreement for Commanders and seeking reassurance that negotiations were not being conducted without his knowledge. Mr Hocking did not respond.
57 On 28 July 2010, Mr Klein (together with Mr Mele and Mr Bibby) was asked to meet Mr Fountain. At the meeting, Mr Fountain told them that an agreement covering ranks from Recruit Firefighters to Commanders was close to agreement between the UFU and the MFESB. Mr Fountain was unable to provide them with a copy of the agreement. He referred them to Mr Wright. Mr Wright was unavailable on 28 July.
58 The next day, 29 July 2010, Mr Klein was contacted by Mr Bibby. Mr Bibby told him that Mr Wright was not allowed to provide them with a copy of the agreement and that in order to access it, he and Mr Klein would have to attend the UFU office in Brunswick Street, Fitzroy at 10:00am on Friday 30 July 2010. Mr Wright did not recall any specific conversation with Mr Klein, Mr Bibby or Mr Mele. However, Mr Wright’s evidence was that the response attributed to him would have been his response to any request from any employee for a copy of the document. The reason he gave for adopting that course was “because during the negotiations, the document was being controlled by the UFU and changes discussed were incorporated by the UFU into this master document”.
59 The next day, 30 July 2010, Mr Klein, Mr Bibby, Mr Mele and Mr Trimboli attended the UFU office. Mr Marshall arrived 40 minutes late. Mr Marshall refused to provide them with a copy of the agreement. Instead, he projected the document onto a large screen and, while quickly scrolling through the document, he detailed the changes. When Mr Marshall referred to the consultation clause, Mr Klein raised the issue of continued inequality in the process caused, as he saw it, by the continuation of the UFU’s role in advocacy and representation and the exclusion of non-UFU members. There was then a heated discussion which ended with Mr Marshall suggesting to Mr Klein that he should go and get his own agreement.
60 Mr Klein’s evidence was that:
[He] was aware that the [FW] Act provided avenues to appeal and object to a lack of good faith bargaining on the part of an employer, but [he] decided not to go down that path. [He] felt physically sick at the MFESB’s betrayal of [him] and the other non-[UFU] Commanders. [He] also felt that any action taken by [him] to object to the new agreement would almost certainly have exposed [him] to further victimisation and abuse.
61 In August 2010, the negotiations for the new agreement concluded when the MFESB and the UFU made an agreement (the 2010 Agreement). The scope of the 2010 Agreement included Commanders.
62 In September 2010, the MFESB applied to FWA for approval of the 2010 Agreement as an enterprise agreement under Div 4 of Pt 2-4 of the FW Act. Mr Klein did not attend the hearing before FWA. On 23 September 2010, FWA approved the 2010 Agreement, which commenced on 30 September 2010 and replaced the 2005 Staff Agreement.
63 In November 2011, the MFESB transitioned to a new ACFO and Commander structure as part of the Realignment Project (see [183] below). As a result of that transition, Mr Klein was allocated to the position of Commander, Research and Development, the position he currently holds.
C ADVERSE ACTION CLAIMs
(1) Introduction
64 This section of the reasons for judgment addresses the legal principles to be applied in considering whether the conduct alleged by Mr Klein may constitute adverse action and then considers the specific conduct.
(2) Was there industrial activity?
65 The MFESB accepted that Mr Klein was not a member of the UFU for the purposes of s 346(a) of the FW Act. But did he engage in “industrial activity” for the purposes of s 347(a) of the FW Act?
66 As noted earlier (see [11] above), “engages in industrial activity” is defined in s 347 of the FW Act. It provides that a person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
…
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
…
(f) takes part in industrial action; …
(Emphasis added.)
67 Had Mr Klein “engage[d] in industrial activity”? Mr Klein’s first contention was that he engaged in industrial activity by reason of his expulsion from the UFU. The MFESB rejected that contention. The position adopted by the MFESB was that Mr Klein did not do anything; it was the UFU that expelled him. The MFESB submitted that to “engage in industrial activity”, Mr Klein must have taken some step to cease to be a member of the UFU and that did not happen. Mr Klein did not agree. He submitted that “on being expelled from the UFU he ceased to be a member of that industrial association, thereby engaging in industrial activity as defined in s 347(a) of the FW Act”.
68 Is s 347(a) of the FW Act intended to cover expulsion from a union? Or, to put the issue in terms of the relevant provision (s 347(a)), did Mr Klein “[cease] to be … [a] member of an industrial association” for the purposes of s 347(a) when he was expelled by the UFU? Neither party was able to refer to any relevant authority.
69 Section 347 of the FW Act lists activities or non-activities that constitute when a person may be taken to have engaged in industrial activity. Each subsection refers to or identifies a conscious decision or act by a person. Mr Klein did not make any conscious decision or take any conscious action to cease to be a member – it was done by the UFU. For those reasons, Mr Klein’s submission that on being expelled from the UFU he ceased to be a member of that industrial association and thereby engaged in industrial activity as defined in s 347(a) of the FW Act is rejected.
70 But that does not mean that Mr Klein did not otherwise engage in industrial activity. Mr Klein also relied on his failure to observe the UFU ban, imposed on 18 September 2001, which banned UFU members from applying for vacant Inspector positions (see [18]-[21] above).
71 Two important facts were not in dispute: on 18 September 2001, the UFU banned its members from applying for vacant Inspector positions during a dispute between the MFESB and the UFU about the terms and conditions of employment of Inspectors (see [18] above), and, contrary to the ban, Mr Klein applied for a position as an Inspector and was appointed as an Inspector (see [20]-[21] above).
72 Mr Klein relies on the ban and his response in two ways. First, he contends that by applying to be promoted to Inspector he did “not … represent or advance the views, claims or interests of an industrial organisation” (the UFU) as provided for in s 347(b)(v) of the FW Act. The MFESB accepts that by making the application for the Inspector role Mr Klein did engage in industrial activity within the meaning of s 347(b)(v) of the FW Act. In light of that concession, it is unnecessary to address whether that conduct also satisfied the requirements of s 347(b)(iii) and / or (iv) of the FW Act.
73 The MFESB accepts that no issue arises from the fact that the relevant conduct of Mr Klein took place prior to the commencement of the FW Act. That concession is not surprising because s 346 of the FW Act extends to a person who has “at any time” engaged in industrial activity within the meaning of s 347(a) or (b): see also Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [260] and [280].
74 The second way in which Mr Klein sought to rely upon the ban was to contend that his failure to observe the ban constituted “industrial action” for the purposes of s 347(f) of the FW Act. The core of this argument depended upon whether the ban constituted “industrial action”.
75 “Industrial action” is defined in s 19 of the FW Act as follows:
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(Emphasis added.)
76 Mr Klein contended that the ban was a “ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee” within the meaning of s 19(1)(b) of the FW Act. The MFESB accepted that it was a “ban”: see for example Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [89]-[91]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (2010) 201 IR 363 at [96]-[115] and Re Mornington Peninsula Shire Council (2011) 210 IR 419, [21]-[32]. However, the MFESB submitted that it was not a ban on the “performance of work”.
77 An analogous provision was considered by Jessup J in Williams at [89]-[91] as follows:
The first statutory definition of “industrial action” was introduced into the 1904 Act by the Conciliation and Arbitration Amendment Act (No 3) 1977 (Cth). That definition used the very formula now to be found in para (b) of the definition in s 36(1) of the BCII Act, namely, “... a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by ...” various generically-identified forms of industrial instrument. I do not consider that the introduction of the phrase “the terms and conditions prescribed by” after “accordance” altered the meaning attributed to the corresponding provision by Kirby J, ie that “in accordance with” meant “covered by”. Thus the extended statutory phrase introduced in 1977 conveyed the meaning “covered by the terms and conditions prescribed by ....” The same meaning should be given to the same phrase in para (b) of the definition in s 36(1) of the BCII Act.
The next issue which arises under par (b) of the definition of “building industrial action” is whether the workers engaged in a “ban, limitation or restriction” on the performance of their work. In NMHG Distribution Pty Ltd (t/as Yale Asia Pacific) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158, a Full Bench of the Commission said the following of the word “ban” in a statutory context indistinguishable from that with which I am presently concerned (at [11]):
The New Shorter Oxford English Dictionary includes the following meaning for the word “ban”: “a formal or authoritative prohibition (on or against something)”. This meaning accords with the use of the term in industrial relations discourse.
Regarding the contribution made by the words “limitation or restriction” to the composite phrase, in Commonwealth Steel Kirby J said (74 CAR at 94):
The word “ban” seems to me to have been obviously chosen to refer to a total prohibition of all the work described, whilst the draftsman has been careful that his widely spread net should also catch any lesser interference by the addition of the words “limitation or restriction.”
As the Full Bench said, there is something formal or authoritative about the concept of a “ban”. I would add that that the concept involves a prohibition which is absolute or categorical, and not merely a matter of inclination or preference. …
78 What then is the position here? The MFESB’s contrary argument was reduced to a single sentence – “making an application for promotion does not involve the performance of work at all”. The difficulty is that was not Mr Klein’s contention. His contention was that the ban was a “ban, limitation or restriction on the acceptance of or offering for work by an employee”; that is, a ban within the second part of the composite phrase in s 19(1)(b) of the FW Act.
79 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 30-31, French J (as he then was) considered s 127 of the Workplace Relations Act 1996 (Cth) (the WR Act) and stated:
The Australian Industrial Relations Commission is empowered by s 127 of the Act only to make orders relating to “industrial action”. The definition of “industrial action”, in its various aspects, confines it to bans, limitations or restrictions on the performance of work or on acceptance of or offering for work, failure or refusal to attend or perform work and performance of work in a manner different from that in which it is customarily performed.
The conduct which may be stopped or prevented by an order under the section is limited to that which affects the performance, the acceptance of or the offering for work. It may extend to strikes, stopwork meetings, work to rule or go slow practices. It is not confined to stoppages: Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 77 IR 87 at 92 per Marshall J.
The class of conduct to which the section applies is further narrowed by the requirement that as “industrial action” it relate to an industrial dispute, the negotiation or proposed negotiation of an agreement under Div 2 of Pt VIIB or work that is regulated by an award or a certified agreement. That is to say it must have “a relation to the matters specified in subpars (a)-(c)”: Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (1998) 81 IR 15 at 29 per North J.
Notwithstanding these limitations it has been said and in my opinion correctly, that for the purposes of s 127 “industrial action” is widely defined: Coal and Allied Operations Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 321 (AIRC Full Bench). It extends to conduct by way of communication. While par (a) of the definition relates to the “performance of work”, par (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work”. The central meaning of the term “ban” in the industrial, as in its ordinary usage, is to “prohibit or interdict”: the Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed.
In the ordinary course such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work, it is industrial action because of its instrumental character. Notwithstanding that it is communication, it falls within the terms of the definition.
So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee’s perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 applies.
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. ...
80 The provisions of the FW Act are different. However, the analysis is not substantially different. There is a definition of “industrial action”. Relevantly, some important concepts lie at its core. First, there must be action. Next, for there to be industrial action the action must, at least to some extent, involve disputation and bargaining between employer and employee. Third, in that context, the action taken must satisfy one or more of the relevant definitions. Here, relevantly, s 19(1)(b) confines the action to certain conduct – a ban which affects the performance, the acceptance of or the offering for work. As French J said in Laing, s 19(1)(b) is wider than s 19(1)(a) and can involve communication.
81 In this case, the action of the UFU was the ban which was a communication made during a dispute between the MFESB and the UFU about the terms and conditions of employment of Inspectors. There was no evidence of the communications with the MFESB. However, it is apparent that the ban was an action taken by the UFU that was, at the very least, intended to frustrate the “acceptance of … work by an employee”. The UFU’s actions in this case were a “lesser interference” with “the acceptance of … work by an employee”. It was however still a ban in the context of an industrial dispute that was intended to limit the ability of employees to accept work (as an Inspector) that was being offered by the MFESB. Having found that the UFU ban was “industrial action”, Mr Klein “engaged in industrial activity” within the meaning of s 347(f) of the FW Act in failing to adhere to the ban. Given the views formed, it is unnecessary to consider the MFESB’s contention that the ban did not constitute a ban on the “performance of work” and therefore could not constitute “industrial action” within the meaning of s 4 of the FW Act.
(3) Adverse action
82 Next, was there “adverse action”? “Adverse action” is defined in s 342(1). Item 1 of the table in s 342(1) provides that adverse action is taken by an employer against an employee if the employer:
…
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
83 Items 1(b) and (c) will be addressed first.
(a) Injury or prejudicial alteration
84 It was common ground that:
1. the phrase “injures the employee in his or her employment” in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25];
2. the phrase “alters the position of the employee to the employee’s prejudice”, in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and
3. a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32].
85 The area of dispute concerned identification of the relevant conduct and, in particular, whether the conduct said to constitute the adverse action had to be the action of the MFESB. The MFESB submitted that the relevant conduct had to be action of the MFESB and that therefore:
1. conduct of the UFU is not conduct which can constitute adverse action by the MFESB;
2. approval of an enterprise agreement by a majority of employees cannot constitute adverse action of the MFESB; and
3. approval of an enterprise agreement by FWA cannot constitute adverse action of the MFESB.
86 Put another way, the MFESB submitted that the definition of “adverse action” requires that the conduct must be that of an employer directed to an employee. In support of that contention, the MFESB referred to the use of the singular “employee” in s 342(1) of the FW Act (see [82] above). The MFESB’s particular reliance upon the use of the singular “employee” is misplaced: cf s 23 of the Acts Interpretation Act 1901 (Cth). However, as a matter of statutory construction, s 342(1) of the FW Act does require that:
1. the position is to be examined in the light of the circumstances of an individual employee (or group of similarly treated employees): Community and Public Sector Union v Telstra Corporation Limited at [17]-[21];
2. an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] and Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [25]; and
3. the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct: BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]-[37] and [45]-[48]; Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [52]-[54]; Community and Public Sector Union v Telstra Corporation Limited at [17]-[21] and Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd (2005) 147 FCR 158 at [23]-[30];
4. if the deterioration occurs by operation of the law or an industrial instrument the employer will not have altered the position of the employees individually speaking; the change in the position of the employees individually speaking occurs by operation of the relevant legislation rather than the conduct of the employer in making the enterprise agreement: Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [24]-[26], [30] and [37].
87 It will be necessary to consider separately the relevant conduct relied upon.
(b) Discrimination between employees
88 Before turning to the conduct, it is necessary to consider the discrimination aspect of adverse action referred to in Item 1(d) of s 342(1) of the FW Act. The MFESB submitted that discrimination between an employee and other employees for the purposes of Item 1(d) of the definition of “adverse action” in s 342 is limited to direct discrimination and cannot be constituted by “indirect discrimination”. Mr Klein submitted that it extended to direct and indirect discrimination. That is, he submitted that, in context, “discriminates” bears its ordinary meaning of differential or unequal treatment and encompasses both direct discrimination, involving disparate treatment, and indirect discrimination, involving disparate impact.
89 This aspect of the definition is new; it did not appear in the equivalent provisions of the WR Act or earlier predecessors to the FW Act. The word “discriminate” used in Item 1(d) of s 342(1) is not defined in the FW Act. The MFESB referred the Court to dictionary definitions of the word “discriminate”. The utility of such an exercise is limited: cf XYZ v The Commonwealth (2006) 227 CLR 532 at [19]; R v Campbell (2008) 73 NSWLR 272 at [49] and General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (NSW) [1982] 2 NSWLR 52 in the Privy Council. Of course, the text of Item 1(d) is to be construed in the context of the FW Act and in a manner consistent with the policy and purpose of the legislation, in particular Pt 3-1 (see [7] above): s 15AA of the Acts Interpretation Act 1901 (Cth) and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. The ordinary and natural meaning of the word “discriminate” connotes the making of distinctions: Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [52] and Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [23]-[24]. Of course, here the discrimination must be “between the employee and other employees of the employer” (emphasis added).
90 What then is the content of the word “discriminate” and does it extend to indirect discrimination?
91 Mr Klein referred to the High Court decision in Waters v Public Transport Corporation (1991) 173 CLR 349 at 357ff which considered the Equal Opportunity Act 1984 (Vic) (the EOA (Vic)) and, in particular, s 17. Mason CJ and Gaudron J’s analysis of those sections (at 357-358) as well as their analysis of “discrimination” outside the context of the EOA (Vic) (an analysis adopted by Dawson and Toohey JJ at 392 and Deane J at 382) is instructive:
The subject-matter of s. 17(5) of the Act is usually referred to as “indirect discrimination” or as “adverse effect discrimination”, signifying that some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind.
The notion of “indirect discrimination” or “adverse effect discrimination” derives from the decision of the Supreme Court of the United States in Griggs v. Duke Power Co. [(1971) 401 US 424], which gave rise to the term “disparate impact discrimination”. In that case a general anti-discrimination provision, much like that in s. 17(1) of the [EOA (Vic)], which was directed to the elimination of racial discrimination, was interpreted as prohibiting the use of a selection test which, although not overtly differentiating on the basis of race, had a disparate impact on persons from different racial backgrounds.
Within the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect. …
Sub-section (1) of s. 17 describes what constitutes discrimination by a person against another person in any circumstances relevant for the purposes of a provision of the Act. A person discriminates in the described sense “if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. The sub-section is expressed in general terms apt to apply to both direct and indirect (“adverse effect”) discrimination. Conduct which is “facially neutral” may nevertheless amount to, or result in, “less favourable” treatment. In the United States and Canada anti-discrimination statutes expressed in general terms that do not draw any distinction between direct and indirect discrimination have been consistently construed as applying to both forms of discrimination. This Court has taken the same approach in construing s. 92 of the Constitution.
…
It is implicit in what we have just said that we do not accept the proposition that s. 17(5) is a complete and exhaustive statement of what constitutes indirect discrimination for the purposes of s. 17. Indirect discrimination as described in s. 17(1) may occur otherwise than by means of the imposition of a “requirement or condition” within the meaning of s. 17(5). And the language of the section appears to be inconsistent with the notion that s. 17(5) is a complete and exhaustive prescription for the purposes of s. 17(1). The object of s. 17(5) was to ensure that s. 17(1) extended so far, not to confine its operation.
…
(Emphasis added and footnotes omitted.)
92 As is readily apparent, “indirect discrimination” is not, as the MFESB contended, necessarily a separate “statutory concept”. Indeed, as Mason CJ and Gaudron J made apparent at 358, where a statutory provision uses the ordinary and natural meaning of the word “discriminate” and expresses the obligation or restriction in general terms:
… [it is] apt to apply to both direct and indirect (“adverse effect”) discrimination. Conduct which is “facially neutral” may nevertheless amount to, or result in, “less favourable” treatment.
(Emphasis added.)
93 However, Dawson and Toohey JJ reached a slightly different conclusion at 392-3:
A distinction is often drawn between two forms of discrimination, namely “direct” or “disparate treatment” discrimination and “indirect” or “adverse impact” discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
In Australian Iron & Steel Pty. Ltd. v. Banovic [(1989) 168 CLR 165 at 184], Dawson J. expressed the view that ss. 24(1) and 24(3) of the Anti-Discrimination Act 1977 (N.S.W.), which are to some extent comparable with ss. 17(1) and 17(5) of the [EOA (Vic)] in this case, dealt with direct discrimination and indirect discrimination respectively in a mutually exclusive way. This was because if s. 24(1) (the equivalent of s. 17(1)) embraced indirect as well as direct discrimination, then s. 24(3) (the equivalent of s. 17(5)) would be superfluous. Thus Brennan J. in Australian Iron & Steel Pty. Ltd. v. Banovic held that treatment which was facially neutral would not fall within s. 24(1) (the equivalent of s. 17(1)). Subject to the effect (if any) of the opening words of s. 17(5), which are referred to below, this reasoning leads equally to the conclusion that discrimination within s. 17(5) cannot be discrimination within s. 17(1). Conversely, it is clear that discrimination within s. 17(1) cannot be discrimination within s. 17(5) because otherwise the anomalous situation would result whereby a requirement or condition which would not constitute discrimination under s. 17(5) unless it was unreasonable could constitute discrimination under s. 17(1) even if it was reasonable. In this case s.17(5) is prefaced by the words “For the purposes of sub-section (1)”. The precise effect of those words is far from clear, but there are strong reasons for nevertheless concluding that s. 17(1) and s. 17(5) deal separately with direct and indirect discrimination and do so in a manner which is mutually exclusive. …
(Emphasis added and footnotes omitted.)
94 The MFESB submitted that I should follow the recent decision in National Retail Association (No 2) at [52]-[58] that the word “discriminate” did not extend to “indirect discrimination”. I reject that contention. National Retail Association (No 2) considered s 153(1) of the FW Act and the phrase “discriminate against”. One of the issues was whether s 153(1) could be contravened by “indirect discrimination”. The Court held that it could not. The decision dealt with a different provision in the FW Act. To that extent, it does not bind me.
95 Further, even if the decision did bind me, I would decline to follow it. In considering the phrase “discriminate against” and whether it extends to “indirect discrimination” the trial judge referred at [54] to the High Court decision in Waters. With great respect, I do not agree with his Honour’s analysis. After noting that typically Federal and State anti-discrimination legislation defines discrimination so that it covers both direct and indirect discrimination, the trial judge said that the reason that was considered necessary was that, as pointed out by Dawson and Toohey JJ in Waters at 392-3 (see [93] above), “the proscription of discrimination, without more, is not apt to pick up ‘facially neutral’ discrimination which is otherwise known as indirect discrimination”. A number of points need to be made. First, the analysis of Mason CJ and Gaudron J (with which Deane J agreed) (see [91]-[92] above) is to the opposite effect. The trial judge did not refer to this analysis. Second, such a view is contrary to the historical source of the concept of “indirect discrimination” and, third, as the trial judge himself recognised, the question is ultimately one of statutory construction. Dawson and Toohey JJ’s analysis of whether conduct which was “facially neutral” would fall within one section or another was ultimately resolved by construction of the statute. With respect, I do not consider that the extracted passage is authority for the proposition advanced by the trial judge that “the proscription of discrimination, without more, is not apt to pick up ‘facially neutral’ discrimination which is otherwise known as indirect discrimination”.
96 What then is the proper construction of Item 1(d) of s 342(1) of the FW Act? Section 342 is concerned with “adverse action”. Item 1 of s 342(1) provides that adverse action is taken by an employer against an employee if the employer, relevantly:
(d) discriminates between the employee and other employees of the employer.
97 The definition of “adverse action” limits the action that will give rise to liability in relation to workplace rights to specified action taken by specified persons against other specified persons: see also Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1384]. The specified action is action taken by the employer against an employee. “Employee” and “employer” have their ordinary meanings: s 335 of the FW Act. That limitation is important in the context of the possible exposure to a civil penalty: see Div 2 of Pt 4-1 of the FW Act. The limitation is important because the section requires that the parties are in an existing and identifiable relationship. There can be and is no risk of discrimination against someone that the employer did not know existed and with whom they had not contractual or other relationship: cf Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [29]. This suggested dichotomy or division between “direct” and “indirect” discrimination in the construction of Item 1(b) of s 342(1) of the FW Act is to be rejected. It adopts a too narrow construction of the provision which is contrary to the objects of the FW Act and, in particular, Pt 3-1.
98 The MFESB submitted that other provisions of Pt 3-1 of the FW Act preclude the word “discriminate” from including “indirect discrimination”. In particular, the MFESB submitted that the statutory context within which s 342 of the FW Act operates is one which directs attention to the state of mind of the decision maker and the state of mind of the decision maker is irrelevant to the question of indirect discrimination. Two sections in particular were relied upon by the MFESB – ss 346 and s 361 of the FW Act.
99 Section 346 in Div 4 of the FW Act is entitled “Protection”. It relevantly provides that:
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
…
(Emphasis added.)
100 The state of mind of the decision maker is a central ingredient or element: see also s 361(1) of the FW Act and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [42]-[45], [121] and [126]-[129]. In Barclay, the Court held that:
1. the test of whether action was because of a proscribed reason was neither a subjective nor an objective test: at [46]-[58], [126], [129] and [149];
2. direct evidence of the decision maker as to state of mind, intent or purpose, will bear upon the question of why adverse action was taken: at [44]-[45]. So, it is appropriate for the decision maker to give evidence comparing the position of the employee affected by the adverse action with an employee who has, for example, no union involvement: at [63];
3. direct evidence from the decision maker which is accepted as reliable is capable of discharging the burden on the employer even though the employee may be an officer of an industrial association and engaged in industrial activity: at [45], [128]-[132] and [141];
4. it is wrong to inquire into the “unconscious” state of mind of the decision maker: at [54], [124], [134] and [144]-[147]; and
5. the question is whether the asserted proscribed reason is a “substantial and operative” reason for taking the adverse action: at [46]-[58], [102]-[103] and [127].
101 But that analysis does not, of itself, preclude “discrimination” on the broadest of grounds. As we have seen (see [91] above), Mason CJ and Gaudron JJ (with whom Deane J agreed) said in Waters at 358:
A person discriminates in the described sense “if on the ground of the status or by reason of the private life of the other person the first-mentioned person treats the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. The sub-section is expressed in general terms apt to apply to both direct and indirect (“adverse effect”) discrimination. Conduct which is “facially neutral” may nevertheless amount to, or result in, “less favourable” treatment.
One rhetorically asks – what is the difference here?
102 The MFESB’s submission proceeds upon a fundamental misconception of what may constitute indirect discrimination. It is now recognised that an employer’s particular reason for choosing a “facially neutral” criterion may in fact be its adverse impact on a protected group. In another words, although the employer chose a seemingly innocent or innocuous criterion, the employer did so for a prohibited reason or basis. There is nothing in the language of Pt 3-1 of the FW Act that would support limiting “discrimination” for the purposes of Item 1(d) of the definition of “adverse action” in s 342 so as to exclude “facially neutral” or indirect discrimination of that kind. As Mason J said in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 in relation to the predecessor of s 361 of the FW Act:
… the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
See also Barclay at [50].
(4) Conduct
103 As we have just seen, adverse action (Item 1, s 342(1) of the FW Act) is taken by an employer against an employee if the employer:
…
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
104 Any allegation of adverse action requires consideration of “conduct” alleged to constitute the adverse action by the employer against the employee. The conduct relied upon by Mr Klein may be divided into two categories. The first category comprises claims that arise from the MFESB’s agreement to the consultative provisions in the 2010 Agreement including Mr Klein’s exclusion from consultation, his nomination for the Consultative Committee (see [109.2] below), the discriminatory consultative process, the Multicultural Liaison Officer (MLO) position description and what was described as the Structural Firefighting Protective (FFP) Clothing issue. Mr Klein submitted that the act of agreeing to the consultative process constituted injury to him in his employment, alteration of his position to his prejudice and discrimination between Mr Klein and other employees of the MFESB who are members of the UFU.
105 The second category comprises specific events including Mr Klein’s exclusion from negotiation of the 2010 Agreement, his grievance about the Acting Up Guidelines (see [170] below), a lack of consultation about the Realignment Project (see [183]-[184] below) and the discriminatory selection process for acting ACFOs.
106 It is appropriate to deal in turn with each category of claims.
(a) First Category of claims – Arising from the MFESB’s agreement to consultative provisions in the 2010 Agreement
107 Mr Klein pleads, as a single act of adverse action, the MFESB’s agreement to cll 13 and 15 of the 2010 Agreement (the Consultative Provisions).
108 The Consultative Provisions are set out in Annexure A to these reasons for judgment.
109 The act of agreeing to the Consultative Provisions was alleged by Mr Klein to contravene each limb of “adverse action” in s 342(1): see [82] and [103] above. Mr Klein provided five examples or particulars of this alleged conduct, namely:
1. exclusion from consultation;
2. the nomination for the consultative committee established under the 2010 Agreement (the Consultative Committee);
3. the discriminatory consultation processes;
4. the MLO position description; and
5. the Structural FFP Clothing technical specification changes.
110 The MFESB’s position was that its agreement to the Consultative Provisions could not itself constitute adverse action. The MFESB submitted that by reason of the scheme of the FW Act dealing with enterprise agreements, agreement by the MFESB did not itself have any impact on Mr Klein. Alternatively, the MFESB submitted that if the action of the MFESB agreeing to the Consultative Provision had the effect alleged, there was no injury to Mr Klein or prejudicial alteration or discrimination. Rather, the Consultative Provisions merely replicated those that existed under the 2005 Staff Agreement.
111 Before dealing with the specific allegations in turn, it is necessary to address the MFESB’s contention that its agreement to the Consultative Provisions could not itself constitute adverse action.
112 Part 2-4 of the FW Act provides for the making of enterprise agreements. An enterprise agreement is a collective agreement, not an individual agreement: cf ss 144 and 202 of the FW Act. Sections 144 and 202 of the FW Act provide for the making of an individual flexibility agreement to vary the terms of a Modern Award or an enterprise agreement, but they operate with limitations on their scope. Those provisions are not relevant to the current dispute.
113 Section 172 of the FW Act provides that an employer may make an enterprise agreement with its employees. An enterprise agreement is made when a majority of employees, who cast a valid vote, approve the agreement: s 182(1) of the FW Act. Before the employees vote on the agreement, the employer must give the employees a copy of the agreement and take all reasonable steps to ensure the employees are aware of the voting process and explain the terms of the agreement to the employees: s 181 of the FW Act.
114 After the enterprise agreement is made:
1. the relevant union can apply to be a party to the agreement: s 183 of the FW Act; and
2. application can be made to FWA for approval of the agreement: s 185 of the FW Act.
An enterprise agreement does not commence operation until seven days after the agreement is approved by FWA: s 54(1) of the FW Act.
115 FWA must be satisfied that a number of formal and content requirements are met. These are set out in ss 186, 187 and 188 of the FW Act. Grounds for refusal to approve the enterprise agreement are set out in s 192. One of the content requirements is that the agreement includes a consultation term in accordance with s 205 of the FW Act. If it does not do so, the model consultation term is taken to be a term of the agreement: s 205(2) of the FW Act. One of the formal requirements is that the group of employees covered by the agreement was fairly chosen. In determining whether the employees covered were fairly chosen, FWA must take into account whether the group is geographically, operationally or organisationally distinct: s 186(3A) of the FW Act. The FW Act does not provide for the making of an enterprise agreement with an individual.
116 In the present case, the 2010 Agreement was relevant. On 20 August 2010, the MFESB and the UFU issued a joint statement to employees in which they confirmed that negotiations had concluded and that the 2010 Agreement would be voted on by employees on 1 September 2010. The joint statement also confirmed that the proposed agreement would be available on the MFESB’s intranet by close of business on 23 August 2010. The enterprise agreement that became the 2010 Agreement was voted on by operational employees on 1 September 2010. Morning and evening meetings were held at Trades Hall Council at 10:00am and 7:00pm and the vote was conducted by a show of hands. Alternative arrangements were also made for employees who were not members of the UFU. Non-UFU employees could vote at Level 2 of the MFESB’s Eastern Hill building between 9:00am and 5:30pm. The show hands meetings at Trades Hall were attended by 291 of 1719 operational employees. Each meeting carried a unanimous vote in support of the 2010 Agreement. Twenty-nine employees voted at Eastern Hill, 27 of which voted in support. Mr Klein did not attend any of the meetings and did not vote.
117 On 15 September 2010, the MFESB lodged with FWA an Application for Approval of the 2010 Agreement. The Application identified Mr Klein as a bargaining representative. On about 21 September 2010, FWA issued a Notice of Listing for the approval of the enterprise agreement. Commissioner Roe notified all persons identified in the Application for Approval as a bargaining representative (including Mr Klein) that if they wished to be heard in the matter, they should contact Commissioner Roe’s chambers at least one hour prior to the listing date (being 3:00pm, 23 September 2010). On 23 September 2010, the 2010 Agreement was approved by FWA. Mr Klein did not attend the hearing before FWA.
118 Finally, as noted at [60] above, Mr Klein’s evidence was that:
[He] was aware that the [FW] Act provided avenues to appeal and object to a lack of good faith bargaining on the part of an employer, but [he] decided not to go down that path. [He] felt physically sick at the MFESB’s betrayal of [him] and the other non-[UFU] Commanders. [He] also felt that any action taken by [him] to object to the new agreement would almost certainly have exposed [him] to further victimisation and abuse.
119 Could the MFESB’s agreement to the Consultative Provisions constitute adverse action? The answer is no. First, the scheme of the FW Act dealing with enterprise agreements provides a procedure for enterprise agreements to be negotiated and then approved. The system is far from perfect. The FW Act does however provide some failsafe mechanisms – the need for any enterprise agreement to be approved by FWA by reference to identified criteria (see [115] above), prior notice of approval hearings to be given to all bargaining representatives and an opportunity for those bargaining representatives to attend the approval hearing (see [117] above) and rights of appeal and rights to object to a lack of good faith bargaining on the part of an employer (see ss 228-233 of the FW Act).
120 In the present case, Mr Klein could not have negotiated his own enterprise agreement. Regardless of his views of the 2010 Agreement, it would always have been the subject of a vote of the employees to be covered by the agreement. When making the 2010 Agreement with the MFESB, the employees to be covered by the 2010 Agreement chose to be represented in the consultative process in the manner prescribed in the Consultative Provisions. All but two of the employees who voted, voted in favour of the agreement. Therefore, the only available inference is that despite his best wishes and endeavours, Mr Klein could not have achieved a result where the Consultative Provisions were in any terms different from those that are now contained in the agreement.
121 The 2010 Agreement:
1. was not made until it was approved by the employees covered by the agreement; and
2. did not commence operation until 7 days after approval by FWA.
122 Absent the approval by the employees covered by the agreement, and the subsequent FWA approval, the act of the MFESB agreeing to the Consultative Provisions had no impact on Mr Klein.
123 If, contrary to the views formed, responsibility for the impact of the Consultative Provisions on Mr Klein can be attached to an act of the MFESB, that act did not constitute any injury to Mr Klein in his employment or alteration to his position to his prejudice or requisite discriminatory conduct because, at the time MFESB agreed to the Consultative Provisions, there were already in place equivalent consultative provisions in the 2005 Staff Agreement: see cl 9 and 11 of the 2005 Staff Agreement reproduced in Annexure A. By cl 2(2) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act), the 2005 Staff Agreement is a “WR Act instrument” and, as a result, a “transitional instrument” (cl 2(3), Sch 3, TPCA Act) and a “collective agreement based transitional instrument” (cl 2(5), Sch 3, TPCA Act). Although the WR Act was repealed, the 2005 Staff Agreement continued in operation by Item 2(1) of Sch 3 of the TPCA Act. By Item 38(2) of Sch 3 to the TPCA Act, the 2005 Staff Agreement ceased to cover employees and the MFESB only upon the commencement of operation of the 2010 Agreement. If the 2010 Agreement did not commence, the 2005 Staff Agreement would have continued in operation to the same effect.
124 Finally, subject to the contention that the Consultative Provisions are objectionable (see [215]-[225] below), it is central to an understanding of this aspect of Mr Klein’s case that, in relation to the instances in [127]-[158] below, the MFESB contended that the reason Mr Klein had to submit the various matters to the Consultative Committee was because that was what the Consultative Provisions required. That submission should be accepted. Indeed, the requirement to comply with the 2010 Agreement and, in particular, the Consultative Provisions is prescribed by statute: see ss 50 and 342(3) of the FW Act. Section 50 is a civil remedy provision: see Pt 4-1 of the FW Act.
125 Despite the views formed about the MFESB’s entry into the 2010 Agreement, it is necessary to address the specific instances of adverse action which Mr Klein alleged had an impact on him. In respect of each of these instances, Mr Klein relied on the presumption in s 361 of the FW Act: see [13] above.
I Exclusion from consultation
126 As mentioned above, Mr Klein’s principal complaint was that the act of the MFESB, in agreeing with the UFU that employee representatives on the Consultative Committee and various sub-committees all be nominated by the UFU, constituted adverse action. For the reasons set out at [119]-[123] above, this aspect of the claim fails.
II Nomination for the Consultative Committee
127 On 20 October 2011, Mr Klein was given notice of the terms of reference for the Consultative Committee. The next day, Mr Klein nominated himself for consideration as an employee representative on the Consultative Committee. Mr Klein did not receive a response to his nomination. He was not selected as an employee representative on the Consultative Committee. Mr Klein submitted that his non-selection as an employee representative on the Consultative Committee constituted adverse action.
128 The MFESB had no role to play. The MFESB does not appoint members of the Consultative Committee: see cl 13.3.2 of the 2010 Agreement and cl 1.1 of the Terms of Reference. The relevant action was action of the UFU, not the MFESB.
129 Mr Klein further submitted that the only reason that the MFESB had no role to play was because it had agreed to the consultative structure and process under the 2010 Agreement that gave the UFU the exclusive right to nominate employee representatives, without having made any provision for consultation with and representation of employees who are not UFU members. For the reasons explained earlier, that contention must fail. First, the fact that the MFESB agreed to the 2010 Agreement cannot itself constitute adverse action: see [119]-[123] above. Secondly, Mr Klein failed to adopt or access any of the mechanisms contained within the FW Act to protect himself: see [118]-[119] above. Thirdly, the need to refer the membership of the Consultative Committee to the UFU was because that was what the 2010 Agreement required: see s 50 and Pt 4-1 of the FWA and [124] above. Fourthly, the exclusion did not impact negatively upon him. There was no evidence of any prejudicial alteration to his position or injury in his employment, or the requisite discrimination as a result of the exclusion: see [120]-[123] above.
III Discriminatory consultation processes
130 The third specific instance relied upon by Mr Klein was that as a manager in the MFESB, he had to work through the consultative process in order to implement any initiative, big or small.
131 As Mr Klein submitted, in general terms, the consultation process under the 2005 Staff Agreement was that any change, or proposal for change, arising from or relating to matters dealt with in the 2005 Staff Agreement, or pertaining to the employment relationship or the way work is carried out, was required to be referred to the EBIC for consultation: see [34] above. Decision making at the EBIC was by consensus. As a result, Mr Klein submitted that this effectively gave the UFU the ability to delay or veto any proposal for change within the MFESB.
132 In relation to the presumption in s 361 of the FW Act, Mr Klein submitted that the MFESB had not attempted to explain its reasons for agreeing to consultative processes that enabled the UFU to obstruct, delay or veto any proposal for change.
133 It was common ground that the MFESB sought to change the consultation process during negotiations for the 2010 Agreement. Those attempts failed. It ultimately agreed to a consultation process in the form set out in the Consultative Provisions: see Annexure A. Decision-making is by consensus with an elaborate sub-committee structure and with procedures enabling the referral of matters between the Consultative Committee and any of the many sub-committees. Mr Klein submitted that the UFU retained its ability to delay or veto any proposal for change “in matters pertaining to [the] employment relationship” in the workplaces covered by the 2010 Agreement.
134 Mr Klein’s complaint was that:
The requirement to work through the consultative processes under both agreements was imposed on Mr Klein by his employer’s agreement to them. It was not imposed on the MFESB against its will, but was agreed to by it.
…
The requirement to work through the consultative processes under both agreements has a disparate impact on Mr Klein, because of his industrial activities surrounding his application for promotion to Inspector in late 2001, contrary to the UFU ban. As a result of those events Mr Klein ceased to be a member of the UFU when he was expelled in February 2002, and is not now a member of the UFU. The events in late 2001 and early 2002 gave rise to a legacy of hostility between the UFU and Mr Klein and his cohort, which persists today. To require Mr Klein to work through consultative processes that give the UFU a right of veto over any proposal for change discriminates between Mr Klein and managers who are members of the UFU and are not burdened by this history of hostility from the UFU. The discrimination is indirect – although the requirement to work through the agreed consultative process is apparently neutral, it has a disparate impact on Mr Klein because he is not a UFU member and because of his past industrial activities.
135 Again, this specific instance fails. The fact that the MFESB agreed to the 2010 Agreement cannot itself constitute adverse action: see [119]-[123] above. Mr Klein failed to adopt or access any of the mechanisms contained within the FW Act to protect himself: see [118]-[119] above. The need to refer any proposal for change to the Consultative Committee is because that is what the 2010 Agreement requires: see s 50 and Pt 4-1 of the FW Act and [124] above.
136 Mr Klein did not assert that the manner in which the Consultative Provisions operate has caused any prejudicial alteration to his position or injury in his employment. Instead, Mr Klein submitted that he was the victim of indirect discrimination. That is, although the process appears to be apparently or facially neutral, it has a disparate impact on him because he is not a UFU member and because of his past industrial activities. That contention fails. The history of the 2010 Agreement (set out at [31]-[63] above) necessarily leads to one conclusion – it cannot be said that the MFESB agreed to or selected the Consultative Provisions because of their adverse impact on Mr Klein or non-UFU members.
IV MLO position description
137 MLOs were first appointed in 2007. The establishment of the positions and the process taken to formalise their positions can only be described as tortuous.
138 Mr Klein submitted that his attempt in 2010 to steer the MLO position description (MLO PD) through the consultative processes under the 2005 Staff Agreement was a specific example of how the MFESB’s consultative processes discriminated between him and other employees who were UFU members. Mr Klein further submitted that the tortuous progress of this proposal provided an illustration of the ability of UFU representatives to delay and obstruct the implementation of change.
139 Mr Klein’s complaint was that the MFESB’s requirement that Mr Klein, in order to discharge his responsibilities as Commander, Community Safety Liaison, follow the consultative process in the 2005 Staff Agreement and obtain EBIC endorsement for the MLO PD was in contravention of s 346 of the FW Act because the MFESB:
1. discriminated between Mr Klein and other MFESB employees who were UFU members; and
2. did so because Mr Klein was not a member of the UFU, and because of the industrial activity in which Mr Klein had engaged (and not engaged) in late 2001 and early 2002.
140 In relation to the presumption in s 361 of the FW Act, Mr Klein submitted that the MFESB had not put in evidence its reasons for requiring its managers, including Mr Klein, to work through a consultative process in which the UFU could block, indefinitely delay and effectively veto a proposal for change.
141 Mr Klein’s evidence was as follows:
1. the MLOs’ appointment in 2007 was for a 12 month trial period with an evaluation of the program to be undertaken. Two evaluation reports were produced and in August 2008 EBIC referred the development of a position description for MLOs to the Community Safety Working Party, which in tum referred the position description to the Community Safety Working Party/Diversity stream, which in turn organised two workshops resulting in a draft position description being circulated to MLOs. A further six meetings were conducted from January 2009 to March 2010 to progress the development of the MLO PD;
2. he became Commander, Community Liaison, in March 2010 and inherited the problem that four operational firefighters were carrying out duties as MLOs but were still waiting for endorsement of their position description by EBIC;
3. when he assumed the position of Commander, Community Liaison in March 2010, he became a member of the Community Safety Working Party, a sub-committee of EBIC which also had a UFU nominated employee representative on it;
4. on 22 April 2010, a Community Safety Working Party meeting was held. There had been a disagreement about whether the MLO PD should be referred back to EBIC or whether it should be the subject of enterprise bargaining;
5. on 27 May 2010, he presented the MLO PD consultation process and final draft position description to a meeting of the Community Safety Working Party. The minutes of that meeting record:
P Klein sent paper along with [MLO PD] to EBIC Manager Aaron Hogan. P Klein has notified MLO’s that the [MLO PD] is going to EBIC and has included the issue as an Agenda item for a meeting on Monday 31 May, and invited them to the meeting as observers.
P Klein suggested waiting until the [MLO PD] goes through EBIC to see what results are, to then forward to the EB Team with result.
[Casey] Lee: Requested the [MLO PD] is to be sent to both EB Team and EBIC ASAP.
ACTION: P Klein to send the [MLO PD] to EB notification team today 27 May 2010, and then EBIC on Monday 31 May 2010. He will then provide outcomes of EBIC meeting at the next Community Safety Working Party Meeting.
Mr Lee was the UFU representative;
6. on 27 May 2010, he forwarded the MLO PD to Mr Hocking, Mr Hogan and Mr Garcia. Mr Garcia responded to the effect that it was an EBIC matter for consultation and should be progressed through the change process.
142 Further, Mr Klein gave evidence that, on 4 June 2010, he attended the EBIC meeting. In attendance were three MFESB management representatives: Mr Wright, then the Human Resources Director, Mr Garcia (then the Industrial Officer) and Mr Hogan (then the Employee Relations Officer). Also in attendance were eight employee and UFU representatives: Mr Marshall, David Hamilton (then the UFU President), Mr Lee and other UFU nominees – Glen Cavanaugh, Ken Brown, Michael Tisbury, Danny Ward and Brendan Angwin. The minutes of the 4 June 2010 meeting record:
Status report on [MLO PD].
MLO program referred by EBIC to [Community Safety] sub committee. 15 March referred the [position description] back to EBIC.
[Casey Lee] – completely incorrect. At the last meeting it was referred to EBA process.
[Philip Klein] – it was to refer back to EBIC. I was to forward to EBA team.
“As advised its an EBIC matter …” 27 May.
Forwarded that on 27 May after the [Community Safety Working Party].
[Philip Klein] there are two pathways.
[Peter Marshall] – requested to send [MLO PD] back to sub committee. “You can just take it back to sub committee and I’ll attend with Chris Cleary”.
ACTION:
Unresolved.
[Philip Klein] will provide a response back to [Community Safety Working Party].
143 There was some dispute about what transpired at the meeting on 4 June 2010. Mr Klein’s sworn evidence was that:
At the commencement of the EBIC meeting UFU President David Hamilton objected to any person other than official EBIC members remaining in the meeting room whilst other items were discussed. I voluntarily left the meeting room and was the only person to do so. After being summoned back to the room a considerable time later, I sat quietly at the table whilst (Ex UFU President) Commander David Youssef completed presentation of his project the “Ready to Go” strategy. This project was subsequently endorsed by EBIC for trial. Also now present in the room was Leading Firefighter Danny Jacka, an MLO from Northern Zone, who was attending at my invitation.
I commenced my presentation, providing EBIC with a history of the MLO [PD] consultation process. I was then questioned by Casey Lee as to the referral of the position description to EBIC instead of the MFESB negotiating team. I explained the compromise reached by the Community Safety Working Party and the response I had received from the negotiating team when I had referred it to them.
The UFU Secretary Peter Marshall then said “Stop making speeches and take it back to the Community Safety Working Party and I’ll be attending the next meeting”. I attempted to question this ruling and there was an exchange between me and Peter Marshall which was a bit heated. I said “Who’s making speeches now?” Shane Wright called for order and I was dismissed from the meeting. It was simply Peter Marshall’s ruling. There was no discussion as to whether this course of action (sending the [MLO PD] to the negotiating team or back to the Community Safety Working Party) was appropriate or not, or if appropriate consultation had been completed.
144 The MLO PD was an outstanding issue when Mr Klein left the position of Commander, Community Safety Liaison in November 2011. Mr Klein stated:
… The matter simply stalled without any definitive result. On 23 May 2011 I sent an email to the chair of the Community Safety Working Party, Assistant Chief Officer Rob Taylor, confirming that all actions allotted to me has been completed. … In a follow up telephone conversation with Mr Taylor on 1 July 2011 I requested that he note for the minutes that the project had not progressed.
I found this process to be enormously frustrating and discouraging. Finalising the MLO [PD] was a straightforward matter that should have been completed within a month. Although I diligently pursued the matter I was unable to bring it to a close during my time as Commander, Community Safety Liaison. UFU nominated representatives on the Community Safety Working Party and EBIC were able to refer the issue to and fro, delay, defer, and simply obstruct its finalisation without ever addressing the content of the position description. …
145 Mr Wright accepted that the MLO PD had been an issue for consideration since about 2007. Mr Wright’s evidence was that in the context of the negotiation of the 2010 Agreement, the UFU wrote to the MFESB on 6 May 2009 advising that the UFU considered it more appropriate that the MLOs’ terms and conditions be discussed through the enterprise bargaining negotiations. At the time Mr Klein took over responsibility for the MLO PD when he was appointed Commander, Community Safety Liaison in March 2010, bargaining negotiations for an enterprise agreement (the 2010 Agreement) were still in progress.
146 Mr Wright’s evidence was that the MLO role had become a relatively complex issue and although the development of a position description may seem to be a relatively simple matter, that was not the case with the MLO PD. What was complex was never truly explained. The process had been on foot since 2007 and there was little doubt that the negotiations surrounding the 2010 Agreement added some complexity. However, there was one further matter that may explain at least part of the delay and complexity. Mr Wright’s uncontroverted evidence was that it was generally not the practice of the MFESB to have position descriptions other than for specialist roles. In that sense, the development of the MLO PDs was not usual practice.
147 Was Mr Klein subject to adverse action in relation to the MLO PD? The answer is no. The relevant conduct – the MFESB’s agreement to the consultative processes in the 2005 Staff Agreement – occurred prior to the enactment of the FW Act. Any cause of action should have been brought under the equivalent provisions of the former WR Act, which provisions continued to apply: Sch 3, Item 11 of the TPCA Act. Any such cause of action is now statute barred.
148 Moreover, even if the cause of action was properly commenced under the FW Act, the action would fail. The frustrations experienced by Mr Klein were real. That the possibility of change within the MFESB was (and remains in 2012) subject to such consultative provisions is surprising. However, Mr Wright’s evidence revealed that Mr Klein’s frustrations were not unique – they were similar to those suffered by others (including Mr Wright and UFU members). Secondly, the example relied upon by Mr Klein as the comparator in his claim for discrimination (the “Ready to Go” strategy) does not assist him. The circumstances of the two matters were different.
149 Mr Wright’s evidence (which I accept) was that the “Ready to Go” strategy presented by Mr Youssef was aimed at reducing the time it took firefighters to leave a station in response to an incident, known as a turnout time. Apparently, the MFESB’s turnout times had been getting progressively worse due to a number of factors such as increased traffic and changes to personal protective equipment. The MFESB was looking at ways of dealing with the issue including: (1) for the MFESB to merely increase the turnout time which may have led to additional resources being required to be allocated but also the potential to impact on the public perception of firefighters or (2) adopting measures that encouraged firefighters to comply with current turnout times within current staffing and appliance levels. The second was attractive to the UFU. At the EBIC meeting on 4 June 2010, the UFU indicated their full support for the strategy. The minutes of that meeting recorded that the UFU fully endorsed the “Ready to Go” strategy because it was important for a professional service.
150 What then were the differences between the two proposals put before EBIC? Mr Wright’s evidence (which I accept) was that Mr Klein’s experience at EBIC in relation to the MLO PD was the result of two matters which did not affect the “Ready to Go” strategy. First, the fact that prior to Mr Klein having responsibility for the MLO PD issue, his predecessor had been unsuccessful in securing the agreement of the UFU to endorse the MLO PD and, secondly, the MLO PD was put forward prior to completion of negotiations for the 2010 Agreement. Mr Wright’s evidence was that he did not consider anyone would have achieved a different outcome because the matter simply had too much history and was destined to be resolved through the enterprise bargaining process. The “Ready to Go” strategy did not suffer from these problems.
151 For those reasons, this aspect of Mr Klein’s complaint is dismissed.
V Structural FFP Clothing technical specification changes
152 Mr Klein was appointed Commander, Research and Development in November 2011. Since that appointment, he has been responsible for implementing changes to uniform and equipment used by operational firefighters. Any change to uniform and equipment is also subject to the Consultative Provisions and must be endorsed by the Consultative Committee, after consideration by the Uniform Sub-Committee, before being implemented. Mr Klein is chair of the Uniform Sub-Committee. In that role, he is required to have ongoing interaction with the Consultative Committee in relation to the projects for which he has responsibility.
153 Mr Klein gave evidence of the strategies he has adopted:
… In light of my experience with the MLO [PD], to help to ensure that initiatives have a chance to progress through the consultative process I now attempt to arrange for a UFU affiliated staff member to progress items on my behalf through the Consultative Committee. Failing that, I offer succinct papers to the Consultative Committee in lieu of attending in person. I have had mixed but limited success with this strategy, as illustrated by my attempts to steer through changes to the technical specification for structural firefighting protective clothing earlier this year.
154 Mr Klein then outlined the steps he had taken in relation to the specification changes.
To provide background, changes to the MFESB’s Personal Protective Clothing (PPC) Specification [MFESB Structural Firefighting Protective Clothing, General Performance and Specific Design requirements] were enacted in August 2011. The changes related to:
(a) amendments or updates made by Standards Australia to AS/NZS AS4697:2009 – Protective clothing for firefighters – Requirements and test methods for protective clothing used for structural firefighting; and
(b) new knee pad material to address a shrinkage problem with the existing foam knee pads.
In other words, the label inside the garment had been altered from “AS4697:2006” to “AS4697:2009” and, due to shrinkage of the knee pads sewn into the PPC over trousers, garments are now assessed during the cleaning process and where necessary, the polyethylene foam knee pad material is replaced with a more suitable compressed blend of fire resistant silicon fibre material.
David Falla, the Uniform Procurement Manager, reported these changes to the Uniform Sub-Committee meeting on 22 February 2012. There was discussion about whether such minor changes had to be referred to the Consultative Committee. A UFU nominated employee representative on the Uniform Sub-Committee, Chris Cleary, insisted that “all items have to be (re)presented to the CC for endorsement on the basis of AS Label change only”. The Sub-Committee therefore asked Mr Falla to provide [a] copy of the Specification and to follow up with a paper to the Consultative Committee.
…
MFESB process requires a Director’s signature to all proposed Consultative Committee papers, with Executive Leadership Team (ELT) endorsement prior to inclusion of items on the Consultative Committee agenda. David Falla’s Director objected to document progression through his Directorate and requested through David that I progress it. As a consequence I was sent the appropriate documentation for progression through my Director to ELT for endorsement to the Consultative Committee. The item was progressed in my name.
…
The report had a single recommendation: “It is recommended that the OCC note the changes to the Technical Specification attached”. It had two attachments: the minutes of the Uniform Sub-Committee meeting on 22 February 2012 and the “Structural Firefighting Protective Clothing - General Performance and Specific Design Requirements” document with the changes tracked in the document.
(Emphasis in original.)
155 Mr Klein did not attend the Consultative Committee meeting on 4 April 2012. The next day, Mr Klein received a copy of the draft minutes of the meeting. His recommendation had not been accepted. Instead he received a covering email requesting that he action the following items noted in the minutes in relation to his proposal:
MFESB Structural Firefighting Protective Clothing – Technical Specification Changes – Phil Klein (did not attend)
Paper received – YES
Action items:
1. UFU requesting whether structural firefighting protective clothing document is an agreed document.
2. Any amendments as indicated in the report are to be marked up with tracked changes to reconcile the current with the replacement.
Supplementary action – MFB to provide UFU with a list of members of the uniform sub-committee.
(Emphasis in original.)
The items were addressed by Mr Klein in a further paper forwarded by him to his director and the changes to the specification were noted at the next Consultative Committee.
156 Mr Klein submitted that the requirement that he follow the consultative process agreed by the MFESB in order to discharge his responsibilities as Commander, Research and Development exposed him to the UFU nominated representatives obstructing and delaying the implementation of change for which he was responsible. Mr Klein submitted that the requirement was in contravention of s 346 of the FW Act because it discriminated between him and other MFESB employees who were UFU members and that the MFESB did so because of his industrial activity.
157 This aspect of the claim fails. The fact that the MFESB agreed to the 2010 Agreement cannot itself constitute adverse action: see [119]-[123] above. Mr Klein failed to adopt or access any of the mechanisms contained within the FW Act to protect himself: see [118]-[119] above. The need to refer any proposal for change to the Consultative Committee is because that is what the 2010 Agreement requires: see s 50 and Pt 4-1 of the FW Act and [124] above.
158 Mr Klein did not assert that the manner in which the Consultative Provisions operated have caused any prejudicial alteration to his position or injury in his employment. Instead, Mr Klein submitted that he was the victim of discrimination. That contention fails. The history of the 2010 Agreement (set out at [31]-[63] above) necessarily leads to one conclusion – it cannot be said that the MFESB agreed to or selected the Consultative Provisions because of its adverse impact on Mr Klein or non-UFU members.
(b) Second category of claims
159 There are four separate claims to be considered:
1. exclusion from negotiations of the 2010 Agreement;
2. Acting Up Guidelines grievance and the failure to maintain status quo;
3. lack of consultation about the Realignment Project; and
4. the discriminatory selection process for acting ACFOs.
160 In respect of each of these claims, Mr Klein relied on the presumption in s 361 of the FW Act: see [13] above. The MFESB disputed that any of these events constituted adverse action of the nature alleged but that even if the Court formed a contrary view, the MFESB had discharged the onus under s 361 of the FW Act. I will deal with each in turn.
I. Exclusion From Negotiations of the 2010 Agreement
161 In about May 2009, the MFESB commenced negotiations for a proposed new enterprise agreement, to replace the then expired 2005 Staff Agreement: see [31]-[63] above.
162 Under Pt 2-4 of the FW Act, the new enterprise agreement was to be made between the MFESB and its employees who would be covered by the agreement: s 172(2) of the FW Act. The UFU’s role in bargaining was as bargaining representative for its members; it was not bargaining on its own behalf: see Pt 2-4 of Div 3 of the FW Act, in particular s 176(1)(b).
163 Section 176 of the FW Act enables an employee to appoint any person, including him or herself, as bargaining representative. In September 2009 Mr Klein appointed himself as his own bargaining agent under s 176 of the FW Act: see [40] above. He participated in a number of negotiating meetings between September 2009 and January or February 2010: see [41]-[43] above. His objectives for the new agreement included changes to the consultation process, to achieve fair and equitable consultation and engagement for non-UFU members: see [43] above.
164 The MFESB sought and, on 14 April 2010, obtained a scope order from FWA, under s 238 of the FW Act, excluding Commanders from the scope of the proposed agreement for operational staff: see [44] above. Mr Klein assumed that the MFESB would seek to negotiate a separate agreement to cover Commanders: see [45] above. However, in late July to August 2010, the MFESB concluded an agreement with the UFU that covered operational staff up to the rank of Commander: see [55] and [61] above.
165 Mr Klein submitted that the evidence establishes that between April 2010 and the conclusion of the 2010 Agreement in late July to August 2010, the MFESB excluded Mr Klein from negotiations for the agreement and that the exclusion of Mr Klein included:
1. not informing him of the time and place of negotiating meetings arranged between the MFESB and the UFU;
2. not informing him of the progress of negotiations between the MFESB and the UFU;
3. not seeking or conducting separate negotiations with Mr Klein; and
4. not providing him with a copy of or access to the proposed agreement as at the end of July 2010.
By way of contrast, Mr Klein submitted that the employees who were UFU members were represented by the UFU as their bargaining agent at every stage of the negotiations.
166 Mr Klein’s submissions need to be considered by reference to two time periods. Prior to 29 July 2009, the evidence does not establish any exclusion of Mr Klein from negotiations. There was no meeting held to discuss the negotiations for an agreement with the Commanders from which he had been excluded: see [52]-[54] above.
167 The only meeting at which the UFU and the MFESB dealt with the Commander rank was on 29 July 2010. Mr Klein did not attend. He was not asked to attend. That meeting was between the UFU and Mr Fountain: see [54]-[55] above. However, it must be recalled that at the end of June 2010, Mr Wright was called into Mr Fountain’s office and directed to resume negotiations and to make two enterprise agreements – one for the ACFOs and one for all other ranks (recruit to Commander). At around this time, Mr Wright asked Mr Fountain whether he should negotiate with the other bargaining representatives. Mr Fountain’s response was that Mr Wright did not need to “as he would deal with them”: see [50]-[51] above. Mr Fountain only dealt with Mr Klein on 28 July 2010: see [57] above. The way in which he dealt with Mr Klein was less than satisfactory. It was not a negotiation. The evidence establishes that on and from 28 July 2010, Mr Klein was excluded from the negotiations. The MFESB submitted that the substance of the allegation put against it was that it failed to discharge its good faith bargaining obligation under s 228 of the FW Act. That was not the pleaded allegation, but it was the substance of the allegation and the allegation was established. It must be recalled that Mr Fountain was not called to give evidence. The MFESB accepted that it did not call Mr Fountain to give evidence that Mr Klein’s exclusion from the meeting on 29 July 2012 was for reasons other than the alleged proscribed reasons. That being the case, s 361(1) of the FW Act operates in Mr Klein’s favour and, in the absence of Mr Fountain’s evidence, I reject the MFESB’s assertion that it excluded Mr Klein from the negotiations for any other reason.
168 However, that of course is not the end of the analysis. The MFESB submitted that even if, as I have found, Mr Klein was excluded, it did not impact negatively upon him. The MFESB submitted that there was no evidence of any prejudicial alteration to his position or injury in his employment, or the requisite discrimination as a result of the exclusion. The evidence was that Mr Klein did not seek to challenge his exclusion from the negotiations by way of an application under s 230 of the FW Act: cf Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58. That he suffered no prejudicial alteration to his position or injury in his employment, or the requisite discrimination as a result of the exclusion, is the only conclusion to be drawn: see [120]-[123] above.
169 In other words, it cannot be said that Mr Klein’s desire to negotiate some form of alternative wording for the Consultative Provisions in the 2010 Agreement would have had any prospect of success. Further, there was no evidence to suggest that the Consultative Provisions would have been any more beneficial to Mr Klein in the event that he was given the opportunity to participate in the negotiations.
II Acting Up Guidelines grievance and the failure to maintain status quo
170 On 13 October 2010, Mr Klein submitted a grievance about the Acting Up Guidelines, a document agreed between the MFESB and the UFU which contained guidelines and principles relating to longer term opportunities for operational employees. His grievance was lodged under cl 19 of the 2010 Agreement which prescribes a procedure to be followed for the resolution of any dispute or grievance.
171 Clause 19 of the 2010 Agreement, entitled “Dispute Resolution, stated:
19.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:
19.1.1. all matters for which express provision is made in this agreement; and
19.1.2 all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and
19.1.3 all matters pertaining to the relationship between the MFESB and UFU, whether or not express provision for any such matter is made in this agreement.
The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.
19.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:
19.2.1 Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee’s immediate supervisor.
19.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.
19.2.3. 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.
19.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.
19.2.5. 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 employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.
19.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge
19.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply 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.
…
As is apparent, cl 19.4 of the 2010 Agreement required the pre-existing status quo to be maintained while the dispute resolution procedure was being followed.
172 Mr Klein’s grievance arose as follows:
1. on 12 October 2010, Mr Klein received a broadcast email from Ms Schroder which attached the Acting Up Guidelines;
2. Mr Klein read the Acting Up Guidelines and formed the view that they contemplated that the Rostering Committee would establish an order of merit for those who expressed interest in acting up opportunities;
3. Mr Klein understood that the Rostering Committee was another committee established under the 2010 Agreement on which the employee representatives were all nominated by the UFU and he was concerned that this would effectively give the UFU, through its nominated representatives, the capacity to prefer its own members in the allocation of acting up opportunities; and
4. Mr Klein was also concerned that the Acting Up Guidelines had been agreed between the MFESB and the UFU without reference to non-UFU employees.
173 On 13 October 2010, Mr Klein sent an email to Aaron Hogan, the MFESB Industrial Officer, which contained his grievance about the Acting Up Guidelines. The next day, 14 October 2010, Mr Klein sent a further email to Mr Hogan seeking reassurance that the status quo provisions in the 2010 Agreement would apply while the grievance was being resolved.
174 Mr Hogan responded on 22 November 2010. Mr Hogan stated that:
… Having reviewed the Acting Up [G]uidelines I concede that it appears the matter was settled directly between the [MFESB] and UFU without reference to other parties.
The FW Act provides for agreements to be made between organisations, employees and their representatives. The Operational Staff Agreement contains consultative provisions which only provide for a dichotomy of Management and Union representation. In that sense I believe it is deficient because there is no explicit provision for representation of non-union members.
In my view this is indicative of the misapplication of the consultative provisions where they are used as a union veto of management decisions rather than, more appropriately, a means to mitigate the negative effects of significant change.
The issue for the [MFESB] to carefully consider will be how to engage all employees in matters affecting them regardless of their status as a union or non-union member.
There is scope under the consultative provisions for the parties to negotiate about the Consultative Committees [sic] “terms of reference, membership and working arrangements”. With that in mind I believe you have raised a valid point in relation to the Organisation’s need to consider broader employee representation in the consultative forum.
(Emphasis in original.)
Mr Hogan referred the issue to Mr Fountain, then the CEO of the MFESB.
175 Mr Klein’s evidence was that Mr Hogan’s response encouraged him to submit his views on how the MFESB might include alternative representation in the consultative forums. Mr Klein did so in writing and during a meeting he attended on 6 December 2010 with Elaine Stewart, Corporate Secretary of the MFESB, and Dominic Lallo, a contractor assisting KPMG, an external consultant engaged by the MFESB, with an investigation it was undertaking. Mr Klein’s uncontradicted evidence was that he was told at that meeting that the findings of his submissions to the KPMG investigation were scheduled to be considered by the MFESB Board on 25 January 2011, that his grievance about the Acting Up Guidelines needed to be considered in conjunction with those issues raised in the KPMG investigation and that he was requested to temporarily suspend the grievance. Mr Klein agreed to do so and sent an email on 6 December 2010 confirming that fact.
176 On 16 December 2010, Mr Klein attended a Commanders forum. At the forum, Commander Ken Brown, a UFU affiliated Commander, told the group that the new Acting Up Guidelines had been implemented. Mr Klein immediately wrote to Mr Hogan seeking clarification that the status quo provisions had been initiated in relation to his grievance about the Acting Up Guidelines. Mr Klein also stated that his temporary suspension of his grievance did not alter the maintenance of the status quo request. On the next day, 17 December 2010, Mr Hogan responded stating that he had referred to the matter to the CEO for determination and, in light of Mr Fountain’s resignation, had forwarded Mr Klein’s email to the acting CEO, Mr Wright. Mr Wright became acting CEO in December 2010. He had no recollection of Mr Klein’s grievance.
177 Mr Klein did not receive any further correspondence from the MFESB about his grievance. On 3 February 2011, Mr Klein received an email from Shane Rhodes, the Acting Commander, Rostering, enclosing an earlier email to operational Commanders dated 28 January 2011 advising that the Acting Up Guidelines agreed between the MFESB and the UFU were to be adhered to all times when “acting up” opportunities arose.
178 On 11 February 2011, Mr Klein received a broadcast email from the UFU containing a joint statement from the MFESB and the UFU to all operational staff. It stated that the CEO had over the past six weeks facilitated meetings between the MFESB and the UFU in line with enterprise bargaining commitments to review any key inputs into rostering with the aim of maximising rostering efficiency. The joint statement also said that high level MFESB personnel had met weekly with the UFU to discuss a range of rostering and staffing issues. Of course, these meetings and discussions had taken place after Mr Klein had lodged his grievance about the Acting Up Guidelines and requested the maintenance of the status quo procedure.
179 By way of contrast, Mr Klein referred to a grievance submitted by the UFU in April 2011 in relation to ACFO and Commander roles under the Realignment Project and the expression of interest process. Mr Klein’s evidence was that the expression of interest process was suspended pending the resolution of the grievance.
180 Mr Klein submitted that the MFESB’s failure or refusal to maintain the status quo while his grievance about the Acting Up Guidelines remained unresolved was a breach of cl 19.4 of the 2010 Agreement and therefore a breach of s 50 of the FW Act. This submission is addressed at [209]-[214] below. Further, Mr Klein submitted it was adverse action against him in that:
1. it injured him in his employment and altered his position to his prejudice, by failing to observe the grievance procedure in cl 19 of the 2010 Agreement in relation to the grievance; and
2. it discriminated between Mr Klein and other MFESB employees who were members of the UFU, by not maintaining the status quo in relation to Mr Klein’s grievance while doing so in relation to the grievance submitted by the UFU on behalf of its members.
181 Mr Klein submitted that the status quo was not maintained in relation to his Acting Up Guidelines grievance, in contravention of s 346 of the FW Act, because he was not a member of the UFU and because had engaged in industrial activity by ceasing to be a member of the UFU.
182 There are a number of insurmountable hurdles to Mr Klein’s claim. First, the Acting Up Guidelines did not apply to Mr Klein. The Acting Up Guidelines were directed at operational staff – that was not Mr Klein. Mr Klein accepted that the Acting Up Guidelines did not concern the ability of Commanders to “act up” in the next rank in seniority, the rank of ACFO. Mr Klein suggested during his cross-examination that the Acting Up Guidelines affected him because, in his view, a number of staff who had assumed the role of acting Commander since the implementation of the guidelines did not “seem to have the merit to turn out operationally”. The result was that, in Mr Klein’s view, he was included in the list of Commanders required for after hours work more often than he might otherwise have been. The difficulty with that evidence was that it proceeded with the benefit of hindsight. If that was the effect of the proposed Acting Up Guidelines, it could not have been known by Mr Klein, the MFESB or the UFU at the time they were adopted. That leads to the second and third hurdles. Mr Klein cannot establish any prejudicial alteration to his position, injury in his employment or relevant discriminatory treatment as a result of the failure or refusal by the MFESB to deal with his grievance. Third, because the grievance did not have anything to do with him personally, he could have had no influence on the outcome of the Acting Up Guidelines in any way which would impact on his own position. His views on the issue were no doubt interesting but irrelevant.
III No Consultation About The Realignment Project
183 The Realignment Project was announced by the MFESB’s then CEO Mr Fountain in mid 2010. The Realignment Project was and remains a project with important consequences for the MFESB.
184 The Realignment Project involved realignment of the MFESB’s administrative boundaries with the Victorian Government’s “Fairer Victoria” regional boundaries. It also made changes to employees’ roles and the creation of new positions. It included a transition to a new ACFO and Commander structure, with new roles for ACFOs and Commanders. The Realignment Project involved increasing the total number of Commanders from the existing 58 to 63 including by the abolition of 12 existing positions and the creation of 17 new positions.
185 A steering committee was established for the Realignment Project. While there was a Commander on the steering committee, he was appointed to the committee by the MFESB and was not a representative of MFESB employees holding the rank of Commander. Part of the steering committee’s role was to coordinate the realignment, disseminate information concerning the realignment and consult with employees throughout the organisation. As part of that process, the MFESB:
1. established an open forum for submission of ideas;
2. created a Realignment Project email address as a central email address for employees to make contact in relation to the project;
3. interviewed employees;
4. consulted with KPMG;
5. developed employee and leadership group workshops;
6. conducted CEO forums at major MFESB workplaces;
7. presented to employee representative groups;
8. held focus groups; and
9. provided regular updates from the CEO and the project team.
Those steps were undertaken between June 2010 and March 2011. A list of “stakeholder” engagement in the course of the Realignment Project was in evidence. There was no evidence that Mr Klein participated in any aspect of this broader organisational consultation process.
186 Consistent with cl 21 of the 2010 Agreement, the MFESB also consulted with the UFU about the new ACFO and Commander structure and the process for transition to that structure. Mr Wright’s uncontroverted evidence was that consultation with the UFU was an ongoing process and did not detract from the broader organisational consultation process. The UFU consultation took place through existing committees involving UFU representation, as contemplated by cl 21 of the 2010 Agreement.
187 Consultation also took place in response to a dispute notified by the UFU about the new structure for ACFOs and Commanders and the process for filling the new structure. On 30 March 2011, the UFU notified a dispute alleging a failure by the MFESB to consult with it about the realigned roles for ACFOs and Commanders. The UFU alleged that the MFESB had failed to comply with cl 21 of the 2010 Agreement. The UFU dispute was referred to FWA. Following the dispute at FWA, the MFESB and the UFU agreed to a process for the ACFOs and the Commanders. In relation to the Commanders, the MFESB agreed to consult with the UFU as to the proposed roles for up to 28 days.
188 Ultimately, a structure for ACFOs and Commanders and an agreed expression of interest process for transition to that structure was agreed.
189 On 9 September 2011, Mr Wright notified all Commanders that the new Commander structure had been finalised and an expression of interest process had been developed. He invited them to attend a meeting on 12 September 2011 for an overview of the proposed realigned structure and roles and an explanation of the process going forward.
190 The meeting was held on 12 September 2011. A copy of the overhead presented at the meeting was in evidence. The overhead was entitled “Commander Briefing”. The agenda for the briefing included “background”, “realigned structure for commanders”, “role statements”, “EOI process” and “group discussion and feedback”. Mr Wright’s evidence was that in response to the feedback at the meeting, Paul Stacchino, Deputy Chief Fire Officer, who had made the presentation on 12 September 2011, put a sheet together of frequently asked questions and provided answers to those questions.
191 Mr Klein attended the briefing. As part of the briefing, the Commanders were asked to break into four separate groups and to discuss and record any questions and issues they had regarding the Realignment Project. Mr Klein gave evidence that, as a result of that process, he specifically raised a question about when consultation would occur with non-UFU members. He submitted that the meeting on 12 September 2011 was a briefing or information session about a structure and a process that had already been agreed between the MFESB and the UFU and was not “consultation” in the sense described in cl 13.1 of the 2010 Agreement: “the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision”.
192 On 14 September 2011, Commanders were invited to express interest in a preferred position within the realigned structure. Mr Klein’s existing position, Commander, Community Safety Liaison, did not exist under the realigned structure. The MFESB decided which role each Commander was appointed. A panel was set up. Mr Klein nominated for four roles in order of preference:
1. Commander, Emergency Management Reform;
2. Commander, Emergency Management Liaison;
3. Commander, Research and Development; and
4. Operations Commander (Reliever) working across platoons.
193 Mr Klein was appointed to his third preference. The role was not nominated by anyone as a first or second preference. Mr Wright’s uncontroverted evidence was that it was the MFESB’s desire to put the best person in the role who had listed it as a preference and that, in his view, out of the people who had listed this role as a preference, Mr Klein was the best person.
194 Mr Klein submitted that he was not consulted about the new ACFO and Commander structure or the process for filling it. He submitted that he was not consulted about the abolition of his existing position and had no opportunity to have input into the new structure and roles. He submitted that he was merely told of the new structure and roles and the process for filling the roles at the meeting on 12 September 2011. By way of contrast, Mr Klein submitted that Commanders who were members of the UFU were represented in consultations about the structure, roles and processes and, through the UFU, had the opportunity to influence those matters. Mr Klein submitted that by failing to consult him in relation to a change that abolished his existing position, and saw him appointed to a position that no other Commander wanted, the MFESB:
1. injured him in his employment and altered his position to his prejudice; and
2. discriminated between him and other MFESB employees – Commanders who were UFU members – and who were consulted extensively through their union.
195 Mr Klein also submitted that the MFESB’s failure to consult him in relation to the Realignment Project was because he was not a member of the UFU and because he engaged in industrial activity by ceasing to be a member of the UFU, and therefore in contravention of s 346 of the FW Act.
196 Contrary to Mr Klein’s submissions, there were opportunities for consultation. That consultation took a variety of forms: see [185] above. The MFESB provided Mr Klein with numerous possibilities for him to participate in consultation in relation to the Realignment Project. There was no evidence that Mr Klein participated in any aspect of the broader organisational consultation process. One cannot subsequently complain about not being consulted in relation to a project if one does not participate in what is offered to all employees. Mr Klein’s complaint in relation to this matter is not established on the evidence.
IV The Discriminatory Selection Process For Acting ACFOs
197 Mr Klein submitted that he was the victim of adverse action by way of direct discriminatory treatment when his position was compared with that of other MFESB employees. Mr Klein sought to compare the processes adopted by the MFESB for filling the position of Director, Regional Fire Safety, North West Metro Region on both an acting and permanent basis, with the process of appointment of an acting ACFO for the Marine Project.
198 The uncontroverted evidence was that:
1. on about 23 September 2011, Mr Klein received a memorandum from Mr Stacchino inviting expressions of interest from Commanders to “act up” in the position of Director, Regional Fire Safety, North West Metro Region (the Director, Regional Fire Safety, NWMR position) as an acting ACFO until a permanent appointment was made;
2. on 28 September 2011, Mr Klein expressed interest in acting up in the Director, Regional Fire Safety, NWMR position and, on 30 September 2011, he was appointed to “act up” in the position from 3 October to 31 October 2011. At the same time, another Commander, Adam Dalrymple, was appointed to “act up” in the Director, Regional Fire Safety, NWMR position from 1 November to 30 November 2011;
3. on about 25 November 2011, Mr Klein received a further memorandum from Mr Stacchino, inviting applications for permanent appointment to the Director, Regional Fire Safety, NWMR position. Mr Klein applied for permanent appointment to the Director, Regional Fire Safety, NWMR position on about 9 December 2011;
4. as a result of a UFU grievance, the MFESB readvertised the Director, Regional Fire Safety, NWMR position as an ACFO position on 28 December 2011. Applications were invited from suitably qualified personnel to fill the position of ACFO. The memorandum stated that, upon promotion, the ACFO would be assigned to the Director, Regional Fire Safety, NWMR position;
5. on 12 January 2012, Mr Klein applied for the position of ACFO assigned to the Director, Regional Fire Safety, NWMR position. He attended an interview on 31 January 2012. In early February 2012 he was notified by Mr Stacchino by telephone that he had been unsuccessful in his application. Mr Dalrymple was appointed as ACFO assigned to the Director, Regional Fire Safety, NWMR position;
6. although Mr Klein was disappointed, his evidence was that he considered the process was robust and fair and he therefore accepted the panel’s decision.
199 By way of contrast, Mr Klein gave evidence about the manner in which another Commander, Mr Brown, was appointed to the position of acting ACFO for the Marine Project. In about December 2011, Mr Brown was appointed to “act up” in the position of ACFO, Marine Project. Mr Klein’s evidence was that he did not know exactly when Mr Brown was appointed to the position because it was not formally announced and he saw no invitation for expressions of interest to “act up” in that position. Mr Klein also complains that he had no opportunity to apply for the position. Mr Klein did not know the duration of Mr Brown’s acting appointment. Mr Klein also gave evidence that he had not seen any advertisement for permanent appointment to the position of ACFO for the Marine Project.
200 Mr Brown is an active UFU member, sitting on the UFU’s Victorian Branch Committee of Management and on the Consultative Committee as a UFU nominated employee representative. It was not disputed by the MFESB that it appointed Mr Brown to “act up” in the position of ACFO for the Marine Project without inviting expressions of interest for that position and without conducting any formal selection process.
201 The MFESB accepted that there were differences in the processes adopted.
202 Mr Klein submitted that, by adopting different processes to fill the two positions, the MFESB discriminated between him and Mr Brown. Mr Klein alleged Mr Brown received favourable treatment not afforded to Mr Klein – Mr Brown was appointed to an acting ACFO position without having to go through a competitive selection process. Mr Klein, on the other hand, had no opportunity to apply for that position, and was limited to applying for positions that were advertised and for which he had to undergo a competitive selection process.
203 Mr Klein submitted that this differential treatment constituted adverse action for the purposes of s 346 of the FW Act. Mr Klein submitted that the adverse action was taken because he was not a member of the UFU, and because he engaged in industrial activity by ceasing to be a member of the UFU.
204 As noted earlier, there was no dispute that different processes were adopted by the MFESB when making acting up appointments to the Director, Regional Fire Safety, NWMR position and the acting ACFO, Marine Project position. However, the two positions are not comparable. The acting ACFO for the Marine Project position was not a permanent role. The appointment of an ACFO assigned to the Director, Regional Fire Safety, NWMR position was a permanent role. Mr Wright’s evidence was that ultimately, as Chief Officer, he was responsible for allocating resources and delivering operational projects and that there were a multitude of factors that he took into account when determining who was the best fit to undertake a particular role including acting ACFO roles.
205 In relation to the Marine Project, Mr Wright’s evidence was that this was an important project for the MFESB and that, by late 2011, the project was heading into a critical stage at which time he brought in a Project Manager and other additional staff. The evidence was that MFESB’s marine firefighting ability had previously received negative publicity and Mr Wright considered it important to throw the best resources he could find at the project to achieve the project’s objectives which included the purchase of two vessels to be used as marine firefighting facilities and the development of training materials to be rolled out once the new facilities were available and operative. Mr Wright’s evidence was that the resources did not then exist in Australia.
206 Mr Wright’s evidence was that for those reasons he considered that the person appointed as the acting ACFO for the Marine Project had to be someone with a high level of operational and training experience. Mr Wright’s evidence was that training formed a significant aspect of the Marine Project, as marine resources did not presently exist and therefore a significant component included the development of new training materials. In Mr Wright’s view, Mr Brown was appointed because:
1. he had considerable experience in the MFESB’s training processes;
2. he had the ability to cut across the training layer and explain complex and technical matters in a manner that was understood by operational employees of all ranks;
3. he was a problem solver; and
4. Mr Wright was confident that Mr Brown’s approach would get the job done.
207 Mr Wright denied that any decision made by the MFESB concerning its selection processes, including his decision to appoint Mr Brown to the role of acting ACFO for the Marine Project, had the effect of discriminating between Mr Klein and other employees of the MFESB who were members of the UFU. Mr Wright further denied that any decision made by the MFESB concerning its selection processes was made because Mr Klein was not a member of the UFU or had ceased to be a member of the UFU or because Mr Klein applied for and was appointed to a vacant Inspector (now Commander) position in December 2001.
208 For those reasons, I reject Mr Klein’s allegation that he was of a victim of adverse action by way of direct discriminatory treatment. The mere fact that someone is appointed to an acting position which is not advertised does not of itself establish discrimination. Indeed, Mr Klein was appointed to the Enterprise Bargaining team in 2009 and did not go through an expression of interest process. As Mr Wright said in evidence, sometimes it is not necessary or appropriate to adopt an expression of interest process for an acting up appointment or project-specific roles.
D STATUS QUO CLAIM
209 Mr Klein submitted that the failure of the MFESB to maintain the status quo for the duration of his grievance in relation to the Acting Up Guidelines was a contravention of s 50 of the FW Act. That allegation fails.
210 Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. It is a civil remedy provision enforceable under Pt 4-1 of the FW Act. It was common ground that Mr Klein has standing to bring a claim: Item 4 of s 539(2) of the FW Act.
211 The scope of the disputes procedure is set out at cl 19.1 of the 2010 Agreement: see [171] above.
212 The dispute concerns the reach of the phrase “matters pertaining to the employment relationship”. The MFESB submitted that it is limited to matters pertaining to the employment relationship between the employee bringing the grievance and the MFESB. Mr Klein submitted that it is sufficiently broad to include his grievance in relation to the Acting Up Guidelines.
213 The Acting Up Guidelines had no application to Mr Klein: see [182] above. They applied to Leading Firefighters, Station Officers and Senior Station Officers only. That conclusion is important. There was no relevant “dispute” for the purposes of the operation of cl 19 of the 2010 Agreement. As a result, it cannot be said that cl 19.4 operated to impose an obligation upon the MFESB to maintain the status quo.
214 As the MFESB submitted, it cannot be the intention of the disputes procedure in cl 19 of the 2010 Agreement to allow an employee who is disinterested in the subject matter of an issue to prevent progress in relation to other employees.
E OBJECTIONABLE TERMS CLAIM
215 The parties’ positions were diametrically opposed. Mr Klein submitted that the Consultative Provisions in the 2010 Agreement (see Annexure A) constituted objectionable terms. The MFESB (and the UFU) submitted that they did not.
216 Mr Klein submitted that the Consultative Provisions are objectionable terms because they require or permit the MFESB to contravene Pt 3-1 of the FW Act in respect of “Exclusion from consultation” (see [126] above) and “Discriminatory consultation processes” (see [130]-[136] above).
217 Clause 15 of the 2010 Agreement requires the MFESB to apply the provisions of cl 13 of the 2010 Agreement where it “wishes to implement change in matters pertaining to [the] employment relationship in any of the workplaces covered by this agreement”. Mr Klein submitted that cl 13 provides for a consultative structure and process that excludes employees who are not members of the UFU and that together, the Consultative Provisions confer a benefit on one class of employees, UFU members, that is not available to another class, those who are not members of the UFU. The UFU submitted that cl 13 does not prescribe UFU membership or affiliation as a prerequisite for membership of the Consultative Committee. Rather, in the UFU’s submission, the mechanism of allowing employee representatives to be appointed by the UFU is simply an “obvious choice” given that the UFU was appointed as bargaining agent for the majority of employees during the negotiation of the 2010 Agreement.
218 As a result, Mr Klein submitted that the exclusion of non-UFU members from the consultative process under the 2010 Agreement requires or permits a contravention of s 346 and Pt 3-1 of the FW Act and on that basis it is an objectionable term. By way of analogy, Mr Klein submitted that a term that provided for an allowance to be paid only to union members, or for a particular form of leave to be available only to union members, would plainly require or permit discrimination between employees based on union membership, and would therefore contravene s 346 and Pt 3-1 of the FW Act.
219 Further, Mr Klein submitted that the Consultative Provisions require Mr Klein, as a manager employed by the MFESB, to follow a consultative process which enables the UFU to obstruct, delay and ultimately veto any proposal for change and that this requirement has a disparate impact on Mr Klein, because of his particular history of industrial activity, which resulted in him ceasing to be a member of the UFU, and has been the cause of ongoing animosity from the UFU towards Mr Klein and his cohort.
220 A term of an enterprise agreement has no effect to the extent that it is an “objectionable term”: s 356 of the FW Act. “Objectionable term” is defined in s 12 of the FW Act to mean a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.
221 “Permit” in the definition of “objectionable term” has been construed to mean “authorise”, rather than “afford the possibility”: Australian Industry Group v Fair Work Australia (2012) 205 FCR 339 at [18] and [66]. A clause may require or permit conduct in contravention of Pt 3-1 of the FW Act “ether directly or by necessary implication: Australian Industry Group at [17]-[19] and [66].
222 What then is the position here? The scheme of the FW Act enterprise agreement provisions allows for the employees covered by the agreement to choose who represents them: s 176 of the FW Act. The Consultative Provisions are consistent with that scheme. Second, the clauses stipulate that the UFU can select members of the Consultative Committee. The clauses do not require or permit discrimination between UFU members and non-UFU members. Third, cl 19 of the 2010 Agreement provides for a disputes procedure by which a dispute can be submitted by an employee under cl 19.2.1 and the subsequent procedures to be applied: see [171] above. That disputes procedure can be accessed to deal with grievances, including consultation concerning workplace change: see McDonald’s Australia Limited v Shop Distributive and Allied Employees Association (2004) 132 IR 162 at [24]-[29] and [33].
223 Fourth, the position would be substantially no different under the model consultation term provided for in the FW Act. The model term differs from that provided for in the Consultative Provisions by reason of the nature of the change that is subject to the Consultative Committee. Under the model term, the change must be a “major change”. That difference, however, does not alter the nature and operation of the clause. Further, it is to be presumed that the inclusion of the model term would be lawful: cf s 15A of the Acts Interpretation Act 1901 (Cth).
224 The fact that the Consultative Provisions are not unlawful is not surprising. There is nothing to suggest that Mr Klein is prevented from raising any issue through the consultative processes or the grievance procedures. There is nothing to suggest that any body subject to the model term is prevented from raising any issue through the consultative processes. Indeed, Mr Klein’s own evidence was that he had adopted a strategy of offering succinct papers to the Consultative Committee in lieu of attending in person and had “mixed but limited success with this strategy”: see [153] above. Moreover, there was evidence before the Court that UFU representatives had agitated issues on behalf of non-UFU members.
225 For those reasons, I do not consider that the Consultative Provisions were objectionable terms. Mr Klein submitted that the Terms of Reference agreed between the MFESB and the UFU under cl 13 of the 2010 Agreement, suffered from the same vices. Putting to one side the question of whether the Terms of Reference are in fact part of the 2010 Agreement in the relevant sense, and given that I have concluded that the Consultative Provisions are not objectionable terms, Mr Klein’s application in respect of the Terms of Reference also fails.
F RELIEF
226 Given the views formed, no question of relief arises. However, even if one or more of Mr Klein’s claims was successful, the question of appropriate relief would have remained an issue. He abandoned his application for injunctions. His claim for economic and non economic loss was not developed in any detailed way. He adduced no evidence of any economic loss and his other claims were not readily quantifiable. In the end, the Court would have been faced with the difficult task of considering and, in exercising the relevant discretion, framing appropriate declarations. That task would not have been straightforward. But, as has already been explained, these questions do not arise.
227 The proceeding is dismissed.
I certify that the preceding two hundred and twenty seven (227) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. |
Associate:
ANNEXURE A
1. Cll 13-15 of the 2010 Agreement:
13. CONSULTATIVE PROCESS
13.1. Consultation
Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.
13.2. MFB / UFU Consultative Committee
The parties agree to establish a MFB/UFU Consultative Committee comprising people involved in the decision making processes of both organisations.
The Committee’s terms of reference, membership and working arrangements will be negotiated by the parties within six months of this agreement being lodged.
13.3. MFB UFU Consultation Committee
13.3.1. The parties are committed to effective consultation and communication throughout the MFB. As a demonstration of that commitment, the parties have undertaken to establish an MFB UFU Consultation Committee to facilitate the implementation of this agreement and ongoing workplace reform.
13.3.2. The Committee comprises equal numbers of management and employee representatives as determined by the respective parties, and decision-making will be by consensus.
13.3.3. There is an obligation on Committee members to cooperate positively to consider matters that will increase efficiency, productivity, competitiveness, training, career opportunities and job security.
13.3.4. The Committee will program meetings on a regular basis and communicate the outcomes of meetings to employees covered by this agreement.
13.3.5. The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No proposals for change arising from this agreement shall be implemented without referral to the MFB UFU Consultation Committee.
13.3.6. The aims of the MFB UFU Consultation Committee will be to:
13.3.6.1. consult where provisions in this agreement require consultation
13.3.6.2. monitor the implementation of this agreement
13.3.6.3. consider and make recommendations regarding issues arising under this agreement
13.3.6.4. provide a mechanism for employee input into the implementation of this agreement. Thus providing an opportunity to utilise employee knowledge and experience to provide a mechanism for improving communication and cooperation between the MFB and its employees.
13.3.7. The Committee may, by agreement, alter its size and/or composition or establish working parties to research and make recommendations on specific issues for determination by MFB UFU Consultation Committee at a later date.
14. OPERATION OF CONSULTATIVE COMMITTEES
14.1. Consultative Committees convened under this agreement will meet at times and localities which cause the least disruption to the operations of the MFB.
14.2. All Committees established under this agreement are recommendatory in nature and will operate on the basis of consensus when developing recommendations.
15. INTRODUCTION OF CHANGE
Where the employer wishes to implement change in matters pertaining to employment relationship in any of the workplaces covered by this agreement, the provisions of clause 13 will apply.
2. Cll 9 and 11 of the 2005 Staff Agreement:
9 CONSULTATIVE PROCESS
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.
9.2.6 The functions of the Enterprise Bargaining Implementation Committee will be to
9.2.6.1 monitor the implementation of this agreement
9.2.6.2 consider and determine recommendations for MFESB Board and UFU Branch Committee of Management, issues arising under this agreement and other change matters including any claim in relation to any matter contained in Appendix B
9.2.6.3 provide a mechanism for employee input into the implementation of this agreement thus providing an opportunity to utilise employee knowledge and experience
9.2.6.4 provide a mechanism for improving communication and cooperation between the MFESB and its employees.
9.2.7 EBIC may, by agreement, alter its size and/or composition. EBIC may establish sub committees and/or working parties to research and make recommendations to EBIC on specific issues, for determination by EBIC at a later date.
9.2.8 Where UFU nominees are participating on EBIC or any sub-committee established by the Committee the following will apply:
9.2.8.1 When the employee is on duty arrangements will be made to facilitate his/her attendance at meetings without loss of pay.
9.2.8.2 When a meeting occurs while the employee is off duty, the employee will be paid at normal rates for the time involved with a minimum of 4 hours, or an equivalent allocation of accrued leave.
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.
9.3.4 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.
11. INTRODUCTION OF CHANGE
Where the employer proposes to introduce or implement any change as defined in clause 9.1 the provisions of clause 9 will apply.
