Mr Greg McConville v Finance Sector Union of Australia

[2015] FWC 3224

[2015] FWC 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Greg McConville
v
Finance Sector Union of Australia
(C2015/2427)

COMMISSIONER ROE MELBOURNE, 13 MAY 2015

Resolution of dispute in accordance with the dispute resolution procedure of the Finance Sector Union Staff Collective Agreement 2013 - Dispute concerning procedure for handling a bullying complaint pursuant to Clause 53.3 of the Agreement.

Introduction

[1] This dispute is about the process to be followed in dealing with a bullying complaint made by Mr McConville who is a salaried senior industrial officer of the Finance Sector Union (FSU). The complaint relates to the alleged conduct of an elected official and member of the National Executive of the FSU, Mr Derrick. Mr Derrick is the National Assistant Secretary of the FSU. Mr McConville made his complaint to the National Secretary of the FSU. The National Secretary advised Mr McConville that she had commenced action to appoint an independent external investigator to consider and report on the complaint. The National Executive intervened and determined that the investigation should be conducted by a three person subcommittee of the National Executive and also required the National Secretary and then later Mr McConville to provide the National Executive with a copy of the complaint with the names of the parties redacted.

[2] The dispute arose because Mr McConville contended that it was inappropriate that the investigation be conducted by a sub-committee of the National Executive, that the complaint should not be provided to the National Executive, and that the process proposed by the National Executive undermined his confidentiality and privacy and may damage his future employment. Mr McConville argued that there should be an independent investigator appointed and that he should be consulted about the selection of the investigator.

[3] The disputes resolution process of the Finance Sector Union Staff Collective Agreement 2013 (the Agreement) is at Clause 15 of the Agreement. The Clause applies to “grievances and disputes within the union” and where an employee “has a problem or concern in relation to a matter arising from this Agreement and its application” the procedure is to be used. The matter is to be first raised with the relevant manager and if it remains unresolved at the workplace it may be referred to the Fair Work Commission (the Commission) for resolution by conciliation and, if the dispute remains unresolved, arbitration.

[4] I am satisfied, and it is not disputed, that the disputes resolution procedure has been followed. The matter was the subject of two conciliation conferences at the Fair Work Commission and I am satisfied, and it was not disputed, that conciliation was exhausted. I am also satisfied and it is not in contention that a dispute over the process to be followed in handling a bullying complaint made by an employee covered by the Agreement is a dispute in relation to a matter arising from the Agreement. This is because Clause 53 of Appendix 1 (FSU Terms and Conditions) of the Agreement deals with workplace behaviour including bullying and the procedures for dealing with complaints about bullying. The Agreement at Clause 5 makes it clear that the Appendix is part of the Agreement and that the disputes resolution procedure applies to a dispute arising from a matter in the Appendix.

[5] Mr McConville seeks a determination as the resolution of the dispute as follows:

1. That the Commission find that the Agreement provides that the matter can only be investigated by an impartial person and that the proposal of the FSU for a sub-committee of the Executive to investigate one of the members of the Executive does not satisfy that criterion.

2. That the parties be given an opportunity to agree on an independent person to investigate the complaint and failing such an agreement the Commission appoint such a person.

3. That the Commission find that only the National Secretary, being the person to whom the Applicant made his complaint, can explain to the Applicant the matters set out at the bottom of page 78 of the Agreement (i.e. the third paragraph of Clause 53.3 of the Agreement).

[6] It is necessary to consider Clause 53.3 “Reporting and Dealing with incidents of sexual harassment, workplace bullying and or workplace violence” in the context of Clause 53.2 “Bullying”.

“53.2 Bullying

a. The Finance Sector Union is a bullying free workplace. The FSU is committed to providing all employees with a health and safe workplace free from bullying and intimidation. Bullying is not an acceptable part of our work culture. Bullying can harm a person’s health and well being.

b. Bullying is repeated and unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety.

c. Anyone who experiences or witnesses bullying should report it as soon as possible. When bullying is reported, it will be investigated quickly and in accordance with the procedure outlined in Clause 54.3 of the FSU Terms and Conditions document. Where necessary, a formal investigation will be undertaken and disciplinary action may result.

d. Every official and employee has a responsibility to comply with this policy and to treat everyone who works here with dignity and respect.

53.3 Reporting and Dealing With Incidents of Sexual Harassment, Workplace Bullying and/or Workplace Violence

a. An employee or official, who believes that they have been sexually harassed, bullied or the victim of violence whilst at work shall as soon as possible report the incident to their immediate manager.

b. Should the incident involve their immediate manager the employee or official shall report the incident to the National Secretary. Where the incident involves the National Secretary the employee or official shall report the incident to the Employee Relations Manager.

c. The person receiving the report will take the matter seriously and follow the following steps:

• Where necessary intervene to remove an immediate threat of a further incident(s);



• Discuss the allegation with the employee or official;



• Inform the employee or official of the support mechanisms available.



• Explain to the employee or official:



• That the matter will be investigated;



• Who will conduct the investigation;



• Who will be spoken to during the investigation;



• The timetable within which the investigation will occur;



• That they will receive the report prepared following the investigation; and



• That should any of the above matters change they will be informed.

d. The person who undertakes the investigation must not have been involved in the alleged incident and:

• must be capable of being impartial;



• must ensure he/she affords natural justice to the parties involved in the incident;



• must make a record of their investigation;



• must investigate the matter in a confidential manner,(where appropriate);



• must prepare a report regarding the alleged incident(s) being investigated, including recommendations;



• must provide a copy of that report to all of the parties involved in the alleged incident, the relevant manager and the National Secretary.

e. The Union may engage an external party to undertake the investigation.

f. A person making a report of an incident, or subject to a report, may have a third party present at any or all of the meetings or discussions held in relation to the report.

g. Nothing in this clause shall stop the person making a report of an incident or the person subject to the report, from being able to exercise any or all of their rights in relation to the reported matter.

h. The report prepared following the investigation may recommend any or all of the following actions:

• requirement to provide a public written or verbal apology to the complainant;



• warning and counselling on misconduct;



• downgrading of job status and responsibilities;



• transfer to another position;



• suspension;



• dismissal.

(NOTE: I have added the paragraph numbering to assist referencing in this decision)”

[7] I am satisfied, and the parties agree, that the reference to Clause 54.3 in Clause 53.2 is a cross reference error and it is in fact a reference to Clause 53.3.

[8] I am dealing with a dispute about the application and interpretation of Clause 53 of the Agreement. The dispute involves an employee of the FSU covered by the Agreement who is not a member of the FSU or an officer of the FSU. The application and interpretation of Clause 53 is not subject to the rules of the FSU in the circumstances of this case. The rules of the FSU cannot alter any rights which Mr McConville may have under Clause 53 of the Agreement.

[9] The following questions need to be answered in order to resolve the dispute:

1. Can anyone other than the person receiving the report carry out the steps of advising who will conduct the investigation, the timetable and who will be spoken to in the investigation?

2. Should there be restrictions on the circulation of the complaint?

3. Does the Agreement determine who makes the decision about who undertakes the investigation? Can the union be required to engage an external party to undertake the investigation as part of the resolution of this dispute?

4. Does the Agreement limit who can carry out the investigation to a natural person and does the Agreement otherwise limit the person or persons who can carry out the investigation?

5. Could a member of the executive or members of the executive carry out the investigation in the circumstances of this case? Is a member of the executive capable of being impartial in the circumstances of this case?

6. Are there other relevant limitations on the resolution to the dispute which can be determined through arbitration?

7. To the extent that the terms of the Agreement permit them, are the outcomes sought by the Applicant an appropriate resolution to the dispute?

Can anyone other than the person receiving the report carry out the steps of advising who will conduct the investigation, the timetable and who will be spoken to in the investigation?

[10] The answer to this question is apparent from the plain meaning of the words of the Agreement. The Agreement requires that: “the person receiving the report will take the matter seriously and follow the following steps”. I am satisfied that there is a requirement that these actions be undertaken by the person who receives the report or complaint and not by any other person. This is reinforced by Clause 53.2 which states: “When bullying is reported, it will be investigated quickly and in accordance with the procedure outlined in Clause 54.3 of the FSU Terms and Conditions document.” There is an obvious purpose, consistent with the provisions considered as a whole, in the requirement that these actions be the responsibility of the person receiving the report or complaint. It assists in dealing with the matter quickly and also in protecting the privacy of the complainant and also in ensuring that the matter is dealt with efficiently and fairly in that the complainant has a consistent and known contact point for the progress of their complaint.

[11] Of course it is true that in certain contexts the singular of a word can be read as also including the plural. It was suggested that the Acts Interpretation Act requires such an approach. However, enterprise agreements must be interpreted without recourse to the Acts Interpretation Act. 1 In the circumstances of this case I am satisfied that there is no basis to stray from the actual words of the Agreement.

[12] The FSU also argued that because the Agreement provision does not interfere with managerial prerogative to determine what to do with the outcome of an investigation, or the selection of the investigator, or how the investigation should proceed, the provisions should not be interpreted strictly. The FSU argues that it is open to them at any stage to change the person or body undertaking various tasks.

[13] In my view the opposite is the case. The Agreement is designed to protect those who make a complaint from unfair or arbitrary use of managerial authority. Under the rules of a union, authority may exist over elected officials beyond that which may apply in an employer/employee relationship. The Agreement applies to employees and regulates the employer/employee relationship and is not, in respect to employees and non-members of the FSU, subject to some additional authority under union rules. The purpose of the regulation and procedure which exists in Clause 53.3 is clearly set out in Clause 53.2. It is true that certain matters are not specifically regulated by the procedure and this includes the decisions which may be made upon receipt of the report of the investigator provided they are otherwise consistent with Clause 53.3(h) of the Agreement. I am satisfied that those things which are regulated by the procedure are designed to protect those making a complaint and in that context should not be read down.

Should there be restrictions on the circulation of the complaint?

[14] A further issue arises from consideration of that part of the procedure which regulates who receives the complaint and who communicates with the complainant about the progress in dealing with the complaint. I am satisfied that a clear purpose of this provision is to limit the circulation of the actual complaint to the person to whom the complaint is required to be made and the investigator. The subsequent part of Clause 53.3 provides that the investigator is then responsible for meeting necessary natural justice requirements in informing the person complained about of the matters to which they may be required to respond and also deciding what is appropriate, having regard to the need for confidentiality. It would directly and indirectly undermine the duties placed on the investigator by Clause 53.3(d) for there to be a requirement to provide the complaint to others prior to the investigation.

[15] There is no denial of natural justice or fairness to the person about whom the complaint is made in restricting circulation and access to the complaint in this manner. Both the complainant and the person against whom the complaint is made are protected by limiting the risk of public discussion prior to a proper investigation.

[16] The National Executive passed resolutions requiring Mr McConville and the National Secretary to provide a copy of the complaint to members of the National Executive including Mr Derrick. This was a matter which was the subject of considerable controversy during proceedings in respect to this dispute. The FSU undertook not to press this matter during the proceedings and pending this decision. It is clear from the statement of Mr Martin that all members of the National Executive are aware of Mr McConville’s complaint so redacting his name in the complaint offers no protection. Mr Martin is the Victorian/Tasmania Secretary of the FSU and a member of the National Executive. I am also satisfied that given the controversy and these proceedings, many members of the National Executive would now be aware of or could reasonably assume Mr Derrick’s involvement.

[17] Notwithstanding the decisions I might make in respect to the other aspects of the dispute I consider that the dispute will not be settled unless this aspect is resolved. Following the hearing I provided the parties and Mr Derrick with the opportunity to make further written submissions about this matter. I have considered those submissions. The FSU in their supplementary submission on this point said:

“If the Commission is concerned to limit the risk of public discussion about the Complaint “prior to a proper investigation”, the Respondent agrees to limit the circulation of the Complaint to the National Secretary (being the person who has already received the Complaint) and those person/s conducting the investigation.”

[18] The FSU also accepted that to the extent that it was possible and consistent with making an effective report, confidential information should be protected in the reporting by the investigator.

[19] Mr McConville agreed that:

“The Commission’s decision in respect of this matter should be to limit the publication of the complaint or its provision only to the investigator or investigators selected to deal with it.”

[20] Mr Derrick did not agree that the Agreement restricted the distribution of the complaint. Mr Derrick suggests that there needs to be a bridge between the person to whom the complaint is made and the decision as to who should investigate the complaint and that bridge is either the National Secretary or the National Executive. They need access to the complaint to be able to make the correct judgement about who should investigate the complaint. Mr Derrick refers to the union rules and the powers of the National Executive to direct the National Secretary.

[21] If the complaint in this case had been forwarded to the National Executive it is likely that Mr Derrick would have received a copy. This would have been inappropriate prior to the resolution of the dispute about the appointment of an appropriate investigator. I see no reason why the person to whom the complaint is made is not in a position to make an appropriate recommendation or provide appropriate information, which protects confidentiality, to enable a decision concerning the investigator to be made by the FSU.

[22] I am satisfied that, consistent with purpose of the provisions dealing with bullying in the Agreement and the provisions specifying the duties of the investigator and the person to whom the complaint is made, the circulation of Mr McConville’s actual complaint should be restricted to the person to whom the complaint was required to be made (the National Secretary in this case) and to the investigator. The investigator will determine what is necessary to meet natural justice requirements in informing the person complained about of the matters to which they may be required to respond and also deciding what is appropriate, having regard to the need for confidentiality. The investigator is then required to make a report and provide it to certain persons as set out in Clause 53.3 of the Agreement.

[23] I am satisfied that any requirement for the complainant or the person to whom the complaint has been made as required under the Agreement to provide the complaint to persons other than the investigator would not be consistent with the Agreement. Even if I am wrong about that matter I consider that it is both necessary and appropriate in resolving this dispute to determine that the National Secretary and Mr McConville are not required to provide the complaint to anyone other than the investigator. In circumstances where Mr McConville believes that his complaint cannot be fairly dealt with or where he believes that making a complaint is likely to harm his future health and employment prospects, there is a risk that he may not proceed with his complaint. I consider that ensuring that the distribution of the complaint is restricted will assist in the resolution of the dispute by reducing these concerns in a manner which is consistent with the purpose of the provisions as set out in Clause 53.2 of the Agreement.

[24] There is nothing in the Agreement which specifically regulates the circulation of the complaint but the Agreement does deal with processes and procedures in respect to the handling of complaints. It would not be contrary to the terms of the Agreement to determine how a complaint should be circulated as part of the resolution of a dispute and about the process and procedure to be followed under the Agreement. Clause 15.6 of the disputes resolution procedure of the Agreement provides that the Fair Work Commission shall “have the power to determine appropriate remedies to resolve the dispute” and may “exercise all substantive and procedural powers necessary or convenient for the just resolution of the dispute.”

[25] Mr Martin considered it inappropriate to contact those members of the National Executive who had received a copy of the complaint when compiling his evidence that members of the executive were capable of hearing the complaint with an open mind. It is evident that Mr Martin understood that the circulation of copies of the complaint to members of the Executive was potentially problematic.

Does the Agreement determine who makes the decision about who undertakes the investigation? Can the union be required to engage an external party to undertake the investigation as part of the resolution of this dispute?

[26] A plain reading of the Agreement does not reveal who makes the decision about who undertakes the investigation. The person receiving the complaint is required to explain this matter to the employee who will conduct the investigation. However, this is not the same thing as deciding who will conduct the investigation.

[27] The provision has to be read in context. Considered in context the purpose of the provision is to ensure that employees are dealt with fairly and with dignity and respect and that bullying behaviours are discouraged. Consistent with this, bullying complaints are to be investigated quickly and in accordance with the procedure outlined in Clause 53.3 which is to ensure transparency, confidentiality (where appropriate), natural justice and impartiality. The provision is about fair process but it is about a process to be managed by the FSU. Read in context I am satisfied that the selection of the investigator is a matter for the union. The complainant has a right to be informed about the selection but there is no requirement for the complainant to approve the selection.

[28] The Agreement provides that: “The Union may engage an external party to undertake the investigation.” A plain reading of these words is that the selection of the investigator is not restricted to an internal person. Whether or not the investigator is an external party is at the discretion of the Union. However, this provision must be read in the context of what is said earlier about the selection of the investigator. The immediately preceding paragraph specifies a number of requirements to be complied with by the investigator and a number of conditions which relate to the selection of the investigator. The conditions which could relate to the selection of the investigator include:

“the person .... must not have been involved in the alleged incident”

“must be capable of being impartial”

“must investigate the matter in a confidential manner, (where appropriate)”

[29] I am satisfied that in resolving a dispute about the management of a bullying complaint it would be possible for the Fair Work Commission to determine the matter of the identity of the investigator if there was a dispute that the investigator selected did not meet or was unable to meet these requirements. Mr McConville submits that it would only be possible for the Commission to require the appointment of an external person if the union was unable or unwilling to appoint someone who can satisfy the relevant criteria. I agree with that submission.

[30] I am satisfied that in settling a dispute about a bullying complaint under the Agreement the Fair Work Commission could only interfere in the selection of the investigator where the selection or selection process was not consistent with the requirements of the Agreement. That is the Commission could, in order to resolve a dispute, interfere in the selection of the investigator following a finding that the selection or selection process was inconsistent with the paragraph I have marked (d) in Clause 53.3 or inconsistent with other requirements in Clause 53.2 and 53.3.

Does the Agreement limit who can carry out the investigation to a natural person and does the Agreement otherwise limit the person or persons who can carry out the investigation?

[31] The Agreement refers to “the person who undertakes the investigation” in what I have marked as paragraph (d) of Clause 53.3. A plain reading of these words suggests that the investigator is a natural person and not a committee or a sub-committee. However, the parties agree that considered in context the words should be read liberally and could include a company or a group of persons.

[32] For the reasons discussed earlier I am satisfied that the person(s) selected must meet or be capable of meeting the qualifications in what I have marked as paragraph (d) of Clause 53.3. The selection is not otherwise limited.

Could a member of the executive or members of the executive carry out the investigation in the circumstances of this case? Is a member of the executive capable of being impartial in the circumstances of this case?

[33] For the reasons discussed earlier a member or members of the executive could carry out the investigation. However, it is necessary to consider whether or not, in the circumstances of this case, a member or members of the executive can meet the tests of:

● Not having been involved in the alleged incident.

● Capable of being impartial.

● Investigating in a confidential manner where appropriate.

[34] Mr McConville argues that it is not possible for a member of the executive to be impartial in the circumstances of this case.

[35] The election to office by the National Secretary in July 2014 was opposed by all except two of the current members of the National Executive. Mr Derrick is a part of that majority. Mr Derrick was re-elected as the National Assistant Secretary unopposed. A significant number of the members of the National Executive, including Mr Derrick, actively supported the election campaign of Mr Carter, who was then the incumbent National Secretary, against Ms Jordan who was successful in the election. The composition of the National Executive was largely unchanged as a result of the election, there is only one new member.

[36] Mr McConville gave evidence that Mr Derrick is a leading member of the majority “camp” on the National Executive. The minority “camp” includes the National Secretary and up to two other National Executive members. Mr McConville gave evidence that the basis for his conclusions is the voting pattern of the members of the National Executive and what he has been told by others. Mr McConville gave evidence of a number of decisions which had been determined against the wishes of the National Secretary and that the voting pattern had been similar in each of these cases.

[37] Mr Martin, the Secretary for Victoria/Tasmania and a member of the National Executive, gave evidence that Mr Derrick did not generally determine how others voted on the National Executive.

[38] Mr McConville provided evidence that he has provided advice on matters relating to the FSU and its staff to previous senior officials of the union and that this has included advice on the negotiation, making and approval of the enterprise agreements applying to the staff. In recent times the National Secretary has sought Mr McConville’s advice on staff related matters before the National Executive.

[39] Mr McConville submits that external investigators have traditionally been used in cases of bullying and harassment complaints. Mr Martin agreed that external investigators have been used in respect to past complaints but also said that some complaints have been dealt with internally. Mr McConville accepted that the National Executive has determined that some recent complaints be dealt with internally.

[40] Mr McConville submits that Mr Derrick failed to recues himself from the resolution of 4 March 2015 which effectively prevented the National Secretary from appointing external investigators for complaints. Mr Derrick had been advised by the National Secretary of the existence of Mr McConville’s complaint on 19 February 2015. The FSU submitted that Mr McConville and the National Secretary had some doubts about whether or not the resolution applied to Mr McConville’s complaint. The FSU submitted that the resolution was not made in response to Mr McConville’s complaint but rather focused on some Brisbane complaints. Having considered the witness evidence and the plain words of the resolution in context I am satisfied that the resolution was not made in response to Mr McConville’s complaint but that it did apply, at least in part, to Mr McConville’s complaint. So much was clarified by subsequent resolutions of the National Executive. I am satisfied that if Mr McConville had any doubt that the resolution applied to his complaint it was only for a brief period of time.

[41] The resolution stated that: “no further or other internal or external investigation is commenced or conducted by or on behalf of the union relating to any complaints as to the alleged conduct of union staff and or officials in any office of the union, without the express prior authorisation of the National Executive.” The investigator of Mr McConville’s complaint had not been appointed at the time of the 4 March 2015 resolution and therefore the National Secretary was instructed by this resolution not to commence or conduct any further investigation of Mr McConville’s complaint without express authorisation of the National Executive. It is not clear that Mr McConville’s complaint was referred to the National Executive sub-committee by the resolution of 4 March 2015. However, subsequent resolution of the National Executive clarified that the matter was referred to a sub-committee of the National Executive.

[42] I am satisfied by the evidence of Mr Martin that Mr Derrick did participate in the resolution of 4 March 2015 and also that the resolution directly affected the investigation of the complaint made against him. I accept the evidence of Mr Martin that Mr Derrick has not involved himself in subsequent relevant resolutions. However, there is no evidence to establish that Mr Derrick was the initiator of the 4 March 2015 resolution or that he influenced the votes of others in respect to the resolution. There is also insufficient basis to draw an inference that this is what occurred.

[43] The evidence is sufficient for me to conclude that the members of the National Executive including Mr Derrick were generally part of the campaign team which was opposed to the election of the current National Secretary and that they generally remain opposed to the National Secretary. The resolutions of the National Executive which prevent the National Secretary from obtaining legal advice or from dealing with internal staff matters including complaints about bullying are clear examples of this. I of course make no comment on the appropriateness of these decisions. However, they are decisions which are out of the ordinary in the management of a union and are clearly reflective of a continuing sharp difference between the majority of the National Executive and the National Secretary. Mr Martin confirmed that the previous National Secretary was not subject to such restrictions.

[44] It is reasonable to infer that Mr Derrick as the most senior elected officer other than the National Secretary and a significant figure in the election team against the current National Secretary (this is clear from the election pamphlet in evidence in the proceedings) has a leading role amongst the members of the National Executive. However, I am not satisfied on the basis of the evidence before me that Mr Derrick is the leader of the group or that I could conclude that Mr Derrick is able to or does direct the votes, actions or views of other members of the National Executive.

[45] I understand that Mr McConville has an apprehension that he may be seen by the members of the National Executive as aligned to the National Secretary because of his complaint against Mr Derrick and because he has provided advice including about staffing matters to the National Secretary.

[46] I am not satisfied that this is sufficient to infer that the members of the National Executive would perceive Mr McConville as aligned to the National Secretary for these reasons. Firstly, Mr McConville is the most senior and experienced national industrial officer in the FSU. It is part of his job to provide advice to the officials of the union when requested. Secondly, there is no reason to assume that the members of the National Executive would believe that a bullying complaint made against Mr Derrick was made at the behest of or to advance the interests of the National Secretary. There is no evidence before me that would suggest that Mr McConville has been or is an active participant in the division within the leadership of the union or that he is perceived as being aligned to any particular group.

[47] There is no direct evidence that any of the members of the National Executive would be actually biased against Mr McConville. The FSU rely upon the hearsay evidence of Mr Martin that he spoke to most of the members of the National Executive and they all said that to the extent that they had a relationship with Mr McConville it was a professional one, no problems in the relationship were identified and they all said they could act impartially in respect to a complaint made by Mr McConville against another member of the National Executive. A number of the members of the National Executive told Mr Martin of their qualifications and experience in dealing with complaints fairly and impartially.

[48] It is perfectly understandable that Mr McConville apprehends that the members of the National Executive would not be impartial in dealing with his complaint against a leading member of the majority group on the National Executive. I am satisfied that there is some basis for this perception in circumstances where the National Secretary had advised Mr McConville that she was intending to engage an independent investigator to deal with the complaint and this action was stopped by the National Executive and the National Executive then determined to conduct the investigation itself through a sub-committee.

[49] In the circumstances Mr McConville perceives that his complaint is unlikely to be dealt with by an open mind. This is important when considering the purpose of the provision in the Agreement which is to ensure that employees are dealt with fairly and with dignity and respect and that bullying behaviours are discouraged. Consistent with this, bullying complaints are to be investigated quickly and in accordance with the procedure outlined in Clause 54.3 which is to ensure transparency, confidentiality (where appropriate), natural justice and impartiality. If complainants do not have confidence that an open mind will be brought to bear on their complaint they, and perhaps others, will be discouraged from proceeding with their complaint and this would be contrary to the purpose of the provision. I am satisfied that this is one reason why the Agreement allows for the use of external investigators and why it may be prudent for the FSU to consider that option in this case.

[50] In this context I am satisfied that the words “capable of being impartial” should not be read narrowly. The FSU argue that the words are directed at the capacity of the person to act and not at any apprehension about how the person may act. No assumption should be made that those who negotiated the Agreement considered that complaints would be investigated by a tribunal such as the national executive or a part of it. Many of those covered by the Agreement, including Mr McConville are not members or officers of the FSU and their conduct is not in that respect regulated by the union rules. I am satisfied that the words, considered in context of Clause 53.2, are designed to ensure that complainants have confidence that matters will be investigated fairly and with an open mind. I am satisfied that the words should be read as a reference to apprehended bias not actual bias. However, even allowing for a beneficial reading of the words, I have to be satisfied that a fair minded observer might reasonably apprehend that the members of the executive are not capable of bringing an impartial mind to the investigation of Mr McConville’s complaint against another member of the National Executive, Mr Derrick.

[51] Mr McConville argues that the nature of the association between members of the National Executive and Mr Derrick might lead a fair minded observer to be reasonably concerned that they might not investigate the matter fairly or impartially.

[52] It is common for unions to conduct internal inquiries and to deal with complaints. This is no different from the situation in other workplaces. The situation in which many bullying complaints are made often involves different groups in the workplace and related issues of controversy which involve a number of other employees. Often members of the management team or management committees are associated with different groups in the workplace and have been active players in the issues of controversy. Members of the management team selected to undertake investigations will often be in the same position as the members of the National Executive in the present case.

[53] I am not satisfied that the existence of groups or factions on a board of management or management group is in itself sufficient to lead to a reasonable apprehension that the members of that management board or group could not fairly consider a complaint raised against one of their number. The evidence to support a reasonable apprehension of bias because of the association between the interests of Mr Derrick and the other members of the National Executive is not strong. There is a lack of evidence establishing Mr McConville’s association with a particular faction or group or which establishes that members of the National Executive have a negative perception of Mr McConville or a perception that he is in some way aligned. There is insufficient evidence to establish that Mr Derrick has an inappropriate degree of influence or control over each of the other members of the National Executive.

[54] I cannot make a finding of apprehended bias against any member of the National Executive based upon what was before me. There is insufficient basis to conclude that there is no member of the National Executive who is capable of being impartial in investigating the complaint. Having made this finding, for the reasons discussed earlier, I cannot require the appointment of an external investigator. I note that the members of the sub-committee will be selected by decision of the majority of the National Executive (not including Mr Derrick). There is also insufficient basis to conclude that all the members of the National Executive so selected would be incapable of being impartial in investigating the complaint.

Are there other relevant limitations on the resolution to the dispute which can be determined through arbitration?

[55] Any determination of the dispute must be consistent with the terms of the Agreement. There are no other relevant limitations.

[56] I am satisfied that if I found that the FSU had failed to comply with provisions of the Agreement and that the person the FSU sought to appoint did not or could not meet the necessary criteria then it would not be contrary to the disputes settlement procedure for the Commission to determine the identity of the investigator. To not do so may mean that the dispute is not effectively resolved. I accept that the Agreement does provide that the decision to use an external investigator is a matter for the union. However, a decision that the members of the executive do not or cannot meet the requirements of the Agreement in the circumstances of this case would not be a decision to use an external investigator even though that might be a natural consequence. The decision would not be contrary to the Agreement terms.

The submissions of Mr Derrick

[57] Before turning to the conclusion concerning the appropriateness of the outcomes sought by the Applicant I wish to refer to the submissions of Mr Derrick. I allowed Mr Derrick to intervene in the proceedings. Mr Derrick supports the decisions of the National Executive in respect to the process for handling the complaint. Mr Derrick argues that the failure to provide him with the particulars of the allegations for reasons of confidentiality is manifestly unjust. I accept that the delay in this matter is unfortunate. However, it was the decision of the National Executive to take the matter out of the hands of the National Secretary which has been the primary cause of the delay. For reasons discussed earlier I consider that it is essential that the circulation of the complaint be restricted and that the investigator have the responsibility to provide information to others, including Mr Derrick, which is necessary to meet natural justice and procedural fairness requirements consistent with the purpose and procedure in Clauses 53.2 and 53.3.

[58] Mr Derrick submits that the investigation should be tailored to the allegations. I accept that the investigator needs some latitude in this regard, however, there are some general principles which are applicable and these include restrictions on the circulation of the complaint and the selection of an investigator that meets the necessary criteria. Mr McConville is entitled to raise a dispute about those matters and have them determined in accordance with the disputes settlement procedure. This does not mean that Mr McConville selects the investigator of his complaints or has some sort of veto over the investigator of his complaints.

To the extent that the terms of the agreement permit them, are the outcomes sought by the Applicant an appropriate resolution to the dispute?

[59] I am satisfied that clarifying the requirements of the parties in managing this bullying complaint under the Agreement is desirable and appropriate and will assist in the resolution of the dispute.

[60] For the reasons discussed earlier, I determine that the Fair Work Commission finds that only the National Secretary, being the person to whom Mr McConville made the complaint, can explain to Mr McConville the matters set out at the bottom of page 78 of the Agreement (i.e. the third paragraph of Clause 53.3 of the Agreement and which is marked 53.3(c) above).

[61] The Fair Work Commission rejects the contention that there are no members of the National Executive who are capable of being impartial in investigating the complaint. I determine that, in the circumstances of this case, the decision of the National Executive that a sub-committee of the National Executive is to conduct the investigation of the complaint is not inconsistent with the Agreement.

[62] For the reasons discussed earlier, I determine that the National Secretary and Mr McConville are not required to provide the complaint to anyone other than the investigator(s).

[63] I consider that some procedural steps are necessary and/or appropriate to resolve the dispute and to implement these findings. To be consistent with the provisions of Clause 53.2 of the Agreement it is necessary that these steps be completed quickly and therefore it is appropriate that timelines be imposed. I determine that the National Executive, the National Secretary and Mr McConville shall follow these steps:

● The National Secretary shall advise Mr McConville of the identity of those whom the FSU proposes to conduct the investigation within twenty four hours of any decision of the National Executive or person or persons delegated by the National Executive. The FSU shall make a decision about the identity of the investigator(s) within ten days of this decision.

● Mr McConville shall advise the National Secretary within seventy two hours of being advised of the identity of the investigator(s) whether or not he wishes to proceed to have his complaint investigated by the FSU. Mr McConville retains any rights he may have pursuant to that part of Clause 53.3 of the Agreement I have earlier identified as (g).

● If he decides to proceed, either the National Secretary or Mr McConville shall provide a copy of the complaint to the investigator(s) within twenty four hours.

● There shall be no other requirement for Mr McConville or the National Secretary to provide a copy of the complaint to any other member of the National Executive or any other person.

● The investigator(s) shall respect the confidentiality of the complaint as far as possible during the investigation whilst observing principles of natural justice and procedural fairness and shall conduct the investigation and report its outcomes in accordance with Clauses 53.2 and 53.3 of the Agreement. This should include protection, to the extent it is practical, of confidential information when reporting on the outcome of the investigation

[64] These determinations are made to resolve the dispute and they finalise the dispute. However, should further dispute arise over the implementation of this decision either party can seek to have the matter relisted for further conciliation conference.

COMMISSIONER

Appearances:

Mr W Friend and Ms S Bingham appeared for the Applicant.

Mr C Dowling appeared for the Respondent.

Hearing details:

2015

Melbourne

May 4

Final written submissions:

11 May 2015

 1   AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at para 40.

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