[2017] FWC 3274

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Metropolitan Fire and Emergency Services Board
(C2016/6286)

COMMISSIONER WILSON

MELBOURNE, 21 JUNE 2017

Alleged dispute involving compliance with policies, procedures and practices in the investigation of conduct allegations.

[1] This decision concerns an application by the United Firefighters’ Union (UFU) pursuant to the provisions of s.739 of the Fair Work Act 2009 (the Act). The alleged dispute involves an endeavour by the Metropolitan Fire and Emergency Services Board (the MFB) to investigate the conduct of a particular firefighting employee, with a view to consideration of disciplinary action against him, with the dispute being raised as one within the dispute resolution term within the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 1 (the Operational Staff Agreement).

[2] The UFU seeks the Commission determine in its favour the following, referred to as the Propositions for Determination;

“(1) By its conduct, in dealing with the allegations against Employee A, the Metropolitan Fire and Emergency Services Board (the MFB) failed to comply with its policies, procedures and practices by:

(a) failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to informally counsel Employee A under its Operations Work Instruction, Counselling Procedures; and/or

(b) failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to formally counsel Employee A under its Operations Work Instruction, Counselling Procedures; and/or

(2) Alternatively, if by its conduct, in dealing with the allegations against Employee A, the MFB intended to change or amend its policies and procedures, it did so without engaging in any consultative process.”

[3] This matter was first dealt with by me in November and December 2016 by way of conciliation and was then the subject of a decision by me refusing ongoing confidentiality in the matter. 2 That decision was the subject of an application to appeal to the Full Bench, which was refused.3

[4] This decision concerns the merits of the UFU’s application.

[5] In or around February 2016 David Youssef, at that time the Deputy Chief Officer of the MFB, became aware of allegedly offensive Facebook posts alleged to have been made by one of the MFB’s firefighting employees, some of which appear to be directed at other Facebook users.

[6] Mr Youssef’s evidence does not directly address how he became aware of the posts, although his witness statement refers to him becoming aware in February 2016 of a first tranche made between December 2015 and February 2016 and secondly becoming aware of another tranche in March 2016. His witness statement also refers to the MFB being contacted about the matter by a journalist.

[7] The precise mechanism by which the MFB formed the view that the posts had been made by one of its employees, as well as how it formed a view about the identity of that employee, is not disclosed in Mr Youssef’s evidence.

The First Allegations Letter

[8] Having decided to commence an investigation into the employee’s conduct, Mr Youssef wrote to him on 22 April 2016 advising that “an investigation into alleged disciplinary offences committed” by him had been commenced; and that the offences related to his alleged use of Facebook and in particular that he had “made 6 posts on Facebook that may contravene your obligations pursuant to the Metropolitan Fire Brigades Act 1958 (MFB Act)”. The first allegations letter particularised the allegations and that;

“…It is alleged that, of these posts, those on;

● the MFB and CFA Facebook pages were able to be viewed by the public; and
● your personal Facebook page were able to be viewed by your Facebook 'friends' (a significant number of which are MFB employees) as well as the general public.

I have been appointed by the Chief Officer as the Investigating Officer in relation to this matter. I have been appointed to consider whether these posts were made by you and, if so, whether your conduct in this respect constitutes a breach of the MFB Act, or MFB policies.

If substantiated, the above allegations may constitute a breach of:

● the Metropolitan Fire Brigades (General) Regulations 2005 (MFB Regulations) (pursuant to section 78A(a) of the MFB Act) and, in particular acting in a manner likely to bring discredit on the reputation of the Board or diminish public confidence in it (see regulation 12(f) of the MFB Regulations);
● section 78(b) of the MFB Act (relating to misconduct);
● section 78(e) of the MFB Act (relating to disgraceful or improper conduct);
● clauses 3.5, 3.9 and 6.1 of the Code of Conduct for Public Sector Employees;
● General Order 3.2(i).

You will be provided with an opportunity to respond to the allegations outlined above during a meeting with me at 10:00am on 2 May 2016 at Eastern Hill. Erin Rice, Manager, Ethical Standards Unit, will also attend this meeting.

The interview will be recorded on a digital recording device. You will be provided with a copy of the digital recording and transcript of the interview.

At the interview you can suggest names of witnesses who you believe have information relevant to the investigation, for my consideration.

You may bring a support person to the interview if you wish. The role of a support person is not to advocate on your behalf but to provide you with support and to observe the interview.

If you intend to bring a support person to the interview please advise me of their name by no later than 5:00pm, 28 April 2016.

Potential outcomes

At the conclusion of the investigation, I will prepare a report for the Chief Officer. The report will include my findings and recommendations.

You should note that, if any of the allegations are substantiated, disciplinary action may be taken against you. This action may include formal counselling, an adverse report, or formal charges being laid against you pursuant to section 78A of the MFB Act.” 4

[9] The Facebook posts referred to in the first tranche of allegations were made, according to the MFB’s evidence, between December 2015 and February 2016 and are said to be the Facebook page of a user with the same name as the employee in question. Many of the posts express an interest in Victorian firefighting issues. Some of them appear to respond to posts from the official MFB Facebook account;

● The first allegation, from 22 January 2016, relates to a post alleged to have been made by the employee concerned on his own Facebook page, and is apparently about a post on the CFA page, and says;

“Did you know the Volunteer Fire Brigade Association of Victoria is made up of bitter and twisted old charwomen who are terrified they're going to lose their little empires because of urban sprawl, when an area becomes so densely populated it is no longer viable or feasible to have it protected by a volunteer fire brigade alone? So they produce things like this video, and deliberately mention the term "metropolitan Melbourne" in a feeble attempt at a slap in the face to the firefighters of the Melbourne Metropolitan Fire Brigade. Stupid old bastards: retire and fuck off. Keep your runny noses out of my job.”

● The second, from 19 December 2015, is also alleged to be on the employee’s own Facebook page and, apparently within a chain of discussion about the media, says;

“Fuck the [media organisation]. Fuck [journalist’s name]. Your day in court is coming, pal. Filthy, lying little cunt.”

● A further post from late January or early February 2016, also alleged to be from the employee’s own Facebook page, remarks;

“Well, having a durrie out the front of the fire station on Melbourne Rd, Newport, watching a remarkable number of dickheaded twats on bikes wearing next to no protective gear ...... keep it up, you fuckwits. You pay my mortgage.”

● A further post, alleged to be from early February 2016 and from the employee’s own Facebook page, apparently comments about an article entitled “safety fears as MFB overhaul of recruitment process to ‘increase diversity’”;

“Who says the job has to "reflect our society"? Fuck is wrong with these people?”

● Alleged to be from 29 January 2016, the comment “[l]ying bastards”, apparently in response to a post on the MFB Facebook page which said “Every single person who applies to join the MFB as a recruit will have to pass the same bar. No exceptions” and “MFB responds to media reports about diversity campaign The MFB is an organisation with a strong commitment to diversity and inclusion but at present, that commitment is not being reflected i..” [remainder omitted in original]
● Alleged to be comments made on the CFA Facebook page on 9 March 2016, in response to a post by the CFA Chief Officer referring to organisational and cultural issues within the CFA. The alleged conduct relates to a number of posts responding to comments by other users, addressing matters of the firefighter selection process and taking issue with claims of sexism and racism.

The Second Tranche of Allegations

[10] After sending this correspondence, Mr Youssef had cause to write to the employee concerned again on 17 June 2016 regarding what the MFB alleges are further comments made “on a public Facebook page which were derogatory of one of the CFA’s personnel.”

[11] The second allegations letter set out that it was alleged that at the time the posts were made the page was able to be viewed by the public and informed the employee that the allegations may constitute a breach of the same instruments as referred to in the earlier correspondence. The letter then set out the following further information;

“Opportunity to respond to allegations

I note that you have previously declined the opportunities that have been provided for you to respond to the allegations set out in my letter dated 22 April 2016.

If you wish to have the opportunity to respond to the further allegations set out above, then please let me know by 5.00pm on Wednesday 22 June 2016 and I will set up a meeting with you to allow you to provide me with these responses.

If you again choose not to participate in the investigation, or I do not receive a response from you by 22 June 2016, I will proceed to finalise the investigation without further notice to you.” 5

[12] Those allegations concerned posts alleged to have been made by the employee “on a Facebook page entitled ‘100% behind the UFU’ or similar on or around 8 June 2016” and included posts in these terms made by a user with the same name as the employee;

● “Who’s the admin on that page now that [name 1 redacted] got the arse from the CFA for being a complete tool?
● After a response referring to a person, “He was suspended from the CFA for cyber-bullying of career and vol firefighters. Weak as fucking piss.”
● Apparently after a further response, “Put that on the Voluneer Protectors page. I've been blocked from it for months, courtesy of [name 1 redacted]. He's a cunt, by the way.”

The Third Tranche of Allegations

[13] A third tranche of allegations were made by Mr Youssef to the employee concerned on 2 September 2016.

[14] The alleged conduct in the third tranche of allegations relates to posts said to have been made on 25 August 2016 on the Facebook page of a Victorian Member of Parliament as well as posts made on 26 August 2016 on the Facebook page of a group entitled “100% behind the UFU”. Those allegations included posts in these terms made by a user with the same name as the employee;

Alleged to be on the MP’s Facebook page, on or about 25 August 2016;

“I'd like to take this opportunity to thank the CFA volunteer firefighter that reported me to my employer for social media posts, resulting in threatening phonecalls at home from senior management, an investigation with a view to internal charges and a heap of angst for my family. All the meanwhile this vol and his mates was free to call career firefighters whatever he wanted, free of sanction from the CFA or the VFBV. Now you want to scream "censorship"'?!”

● Following on from this post, there are alleged to have been a series of responses from the employee to comments by other users of the page, with the employee’s comments alleged to be considered to be derogatory.
● There are alleged to be a further comments by the employee, on another Facebook page entitled “100% behind the UFU”, which are allegedly threatening and derogatory comments about a user. The user has a female name and features in the dialogue referred to in the exchange summarised in the bullet-point immediately preceding this one. In this case, the allegation is that the employee posted the following;

“I'm going to visit [name 2 redacted] in the wee small hours and put a bat up her nightdress.

“If I had known I could report you for your disgusting posts I would have done it myself. Karma finally catches up.”

I reckon she'd have a voice like a knife that's been left stuck in a lemon too long.”

● Later comments in the same string are also alleged by the MFB to be derogatory of the same user and MFB management.
● A fifth allegation is that the employee made further comments on 29 August 2016, also on the “100% behind the UFU” Facebook page, which may be considered threatening towards as well as derogatory of another user, with the initial post containing the following;

“The latest from [name 3 redacted]:

“I can't believe [Employee name redacted] thinks he can post vile crap and then sobs about how hard it is for his family when he is reported for it! Perhaps [Employee name redacted] should think about his actions and how he brought himself to that outcome I would be embarrassed to be a family member given some of the things he writes.”

It would be one of the understatements of the year for me to say I want this bastard's testicles. I think this is crossing the line”

● The sixth and final allegation is that other posts on the same page on 29 August 2016 by the employee concerned may be considered derogatory toward women.

[15] The third allegations letter again sets out the views of the MFB about what may occur in the event that the alleged conduct is substantiated as being conduct of the employee and gives him an opportunity to respond. The correspondence also advises the employee that at the conclusion of Mr Youssef’s investigation he will prepare a report for the Chief Officer which will set out his findings and recommendations and that if any of the allegations are substantiated, disciplinary action may be taken against him. Specifically the correspondence indicates;

“This action may include formal counselling, an adverse report, or formal charges being laid against you pursuant to section 78B of the MFB Act.” 6

[16] Mr Youssef’s evidence includes that he was aware the employee concerned had been ordered to remove a Facebook post in 2014 that the MFB considered inappropriate and which had been made on the Facebook page of another MFB employee. Mr Youssef’s evidence also includes how the matters were first drawn to his attention and his view that neither formal nor informal counselling might be appropriate in this particular circumstance (noting the reference to ‘Leading Firefighter A’ throughout this decision is to the employee concerned);

“22. The 2015 and 2016 posts were drawn to my attention in my role as Deputy Chief Officer. Investigation of these matters would normally be conducted by Commanders or Assistant Chief Officers. Due to these officers being engaged in protected industrial action prohibiting them from conducting disciplinary investigations it was necessary for a more senior officer, being me, to consider the conduct engaged in by Leading Firefighter A and determine what action if any was required to address the posts.

23. In making this assessment I considered whether informal counselling would be an appropriate way for the MFB to deal with this behaviour. I also considered whether formal counselling would be an appropriate way for the MFB to deal with the conduct.

24. I determined that neither form of counselling would be appropriate, for a number of reasons.” 7

[17] In relation to his reasons for considering that neither form of counselling might be appropriate, Mr Youssef’s evidence was that neither form was likely to have the desired effect of changing the concerned employee’s behaviour who “had previously been put on notice that such conduct was unacceptable by way of the letter of Acting DCO Zammit. Receiving this letter had not changed his behaviour”. 8

[18] In relation to the first tranche of allegations, Mr Youssef recommended to the Chief Officer that a formal investigation be conducted with the recommendation being accepted on 8 April 2016.

[19] Mr Youssef’s evidence in relation to the general processes of the MFB about disciplinary matters includes;

“11. Matters relating to employee conduct and performance can arise in a number of ways. Most minor matters are raised and dealt with at a station level by the Officer in Charge (OIC) of the station and platoon. More serious matters may come to the attention either of the Commander or a more Senior Officer. It is common for issues and complaints raised by members of the public to be raised directly with MFB Headquarters (Senior Command).

12. When a potential disciplinary matter comes to the attention of the MFB Senior Command, ordinarily, a Senior Officer will review information available relevant to the matter and make a recommendation to the Chief Officer about how the matter should be addressed.

13. This assessment would usually consider the full range of actions available from least to most severe as follows:

(a) a conversation with, email to or letter to the employee noting the behaviour and requesting that they not engage in that behaviour again;

(b) informal counselling;

(d) an adverse report; and

(e) a disciplinary investigation being conducted into the matter.

14. Once the Senior Officer has made a recommendation, the Chief Officer considers the recommendation and makes a final determination. This is based on, and usually adopts, the recommendation of the Senior Officer.” 9

[20] The first of the allegations letters indicated the employee would be provided with an opportunity to respond to the allegations at a specified meeting, the discourse of which would be recorded with the employee being provided with a copy of both the digital recording and transcript. The same letter advised that the employee could suggest names of witnesses who he believed had information relevant to the investigation, and that he may bring a support person to the meeting.

[21] The second of the allegations letters, on 17 June 2016, noted that the employee had previously declined the opportunities that had been provided to him to respond to the previous allegations, and that if he wished to respond to the second set of allegations then he should let Mr Youssef know by a specified date and a meeting would be set up to allow him to respond. In the absence of a response Mr Youssef indicated he would proceed to finalise the investigation without further notice to the employee.

[22] The third allegations letter, on 2 September 2016, confirmed that the employee was suspended from duty with pay and that he was not to attend for work until further notice from the MFB. Each of the three letters sent by the MFB to the employee concerned set out the allegations made against him and advised him of the fact that those allegations were being investigated. The first and third allegations letters advised that at the conclusion of the investigation a report would be prepared for the Chief Officer and that if any of the allegations were substantiated, disciplinary action may be taken against him which “may include formal counselling, an adverse report, or formal charges being laid against you pursuant to section 78B of the MFB Act”.

[23] The Propositions for Determination by the Commission are set out above. Propositions 1(a) and (b) relate to whether there should have been formal or informal counselling of the employee before the commencement of an investigation. Proposition 1(c) alleges a failure on the part of the MFB to comply with relevant policies, procedures and practices before it suspended the employee. Proposition 2 addresses the question of whether the MFB failed to undertake required consultation.

[24] The arguments advanced by the UFU in relation to Propositions 1(a) and (b) relate to the counselling and discipline procedures set out in clause 26 of the Operational Staff Agreement. The UFU argues that clause 26, reproduced in full later in this decision, “consistently identifies ‘counselling’ in contradistinction to ‘discipline’. That contradistinction is consistent with an approach and practice of the MFB that involves a consideration and determination of whether counselling (informal or formal) is an appropriate way in order to deal with allegations made against operational firefighters, prior to the commencement of formal investigative and disciplinary processes.” 10

[25] The UFU also puts forward that an internal MFB Operations Work Instruction dealing with counselling procedures is still in force, with it not being restricted in its application to the outcome of a formal investigative process and being consistent with the MFB’s practice to require an assessment of informal or formal counselling prior to the commencement of a formal investigation or disciplinary process, 11 with evidence led by the UFU to the effect that it is the practice of the MFB to consider and determine the propriety of informal or formal counselling prior to the commencement of an investigation.12

[26] The argument put forward by the UFU about the propriety of the stand-down decision points to advice provided to the employee on 6 May 2016 that the investigation would be conducted in accordance with the “MFB disciplinary investigation guidelines” which include a provision dealing with suspension;

“7. SUSPENSION

The only time the Chief Executive Officer has the power to suspend a member is following the laying of a charge under the disciplinary processes. Section 78B(2) provides:

(2) Chief Executive Officer may suspend from duty with pay any person charged under subsection (1) until the charge is dealt with under section 78D.

If there are urgent reasons to remove a member from duty following an incident that could result in disciplinary charges, the Chief Fire Officer/Director Operations may require an urgent investigation so that charges can be laid and an instrument of suspension can be prepared. The charge document and the instrument of suspension are then served together.

It has been recent policy in serious cases where the likely penalty to be sought is dismissal. to utilise s78B(2) to suspend with pay the member pending the hearing.

The Chief Fire Officer/ Director Operations or the Director Corporate Governance will notify all staff (usually by e-mail) of the name of any member who has been suspended.” 13

[27] The UFU also contends in relation to these matters;

“22. There is no dispute in the present circumstances that the MFB has not, to date, laid a charge under the disciplinary process against Leading Firefighter A.

23. In those circumstances, it is clear that the MFB has not complied with the ‘MFB disciplinary investigation guidelines’ and has suspended Leading Firefighter A prior to the laying of the charge under the disciplinary process.” 14

[28] More generally, the UFU submits that the disciplinary provisions of the MFB Act in ss.78A to 78E amount to a code which forms the extent of the way in which disciplinary matters are dealt with and further that the amendments made to the MFB Act inserting these provisions put in place a situation in which the general power of suspension of an employer was to be removed, with the only power for suspension thereafter being within the terms set out within the MFB Act.

[29] The MFB argues that it did not suspend the employee pursuant to s.78B of the MFB Act and that instead the action of the MFB to suspend the employee was pursuant to s.25B and the common law. The MFB argued that s.78B is to be understood as providing that once charges have been laid as part of the disciplinary process then suspension of an employee may take place, as part of that process. The argument is put by the MFB that the inclusion of a stand-down provision within s.78B of the MFB Act merely sets out a right to do so once there has been the laying of the disciplinary charge and in no way precludes what may take place as part of other processes, including the ones in relation to this employee.

[30] In relation to Proposition 2, the argument is put by the UFU that the MFB failed to consult with it in the matter required by clauses 13, 15 and 30 of the Operational Staff Agreement since;

“29. If, by its conduct, in dealing with the allegations against Leading Firefighter A, the MFB intended to change or amend its policies and procedures, it did so without engaging in any consultative process.” 15

[31] In relation to the question of whether it was obliged to consult with the UFU, the MFB concedes that there was no relevant consultative process, but that there is no intention on the part of the MFB to change or amend its policies and procedures, and in particular its Operations Work Instruction Counselling Procedures or the Disciplinary Guidelines. 16 The MFB then submits that if the Commission found the MFB had failed to comply with either of those policies then it “accepts that that would be a breach of the relevant policy, but there was never any intention on the part of the MFB to amend or to change those policies”.17

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[32] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 18 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.19

[33] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 20 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”21

[34] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 22 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.23 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.24 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.25 However, the relief sought may cast light on the true nature of the dispute in some cases.26

[35] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 27 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.28

[36] In Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 29 the Full Court of the Federal Court of Australia considered in detail the Commission’s role under s.739. The Full Court’s judgment in that matter held the following matters of relevance;

“29. Turning to s 739 of the FW Act, it would be a mistake to seek to identify its purpose solely through the prism of s 186(6): the section applies to other situations as well. But s 739 is concerned with the role of the Commission under a dispute-settling term in an enterprise agreement. Although the grammatical reading of subs (3) presents difficulties, the Explanatory Memorandum to the relevant Bill makes the meaning clear:

Where such a term requires or allows [the Commission] to deal with a dispute, it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 (see subclause 595(4)), unless those powers are limited by the term (subclause 739(3)).

That is to say, if the term places limits on the powers that may be exercised by the Commission in settling disputes, the Commission must remain within those limits.

30. Critical to the significance of subs (3) and (4) of s 739 is the circumstance that, under the FW Act, the Commission has no general power of arbitration. By s 595(1), the Commission may deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of the FW Act. Then s 595(2) does provide such an express authorisation in relation to disputes, but arbitration is excluded. To put the matter completely beyond doubt, s 595(3) provides that the Commission may deal with a dispute by arbitration only if it is expressly authorised to do so under or in accordance with another provision of the FW Act.

31. Section 739(4) is such a provision. But it is limited in two ways. First, the parties must, by the relevant term in the agreement, have agreed that the Commission may arbitrate. And secondly, by subs (5), in the arbitration the Commission must not make a decision that is inconsistent with the FW Act or a fair work instrument that applies to the parties.

32. In the light of this understanding of the relevant provisions of the FW Act in the context of the history of broadly corresponding provisions since 1992, does the introduction of s 739(5) into the analysis warrant the conclusion that the Full Court in ALS 30 was plainly wrong in its characterisation of the Commission’s relevant role as that of private arbitration?

33. We would hold not. Section 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement in the terms of the Agreement. It merely places a limit on the range of arbitrated (but not conciliated, it may be noted) outcomes available to the Commission in those cases in which the parties have agreed that the Commission may arbitrate (using, in this respect, the same formula as appears as subs (4) of s 740, on any view a private arbitration provision). In our view, the more likely explanation of the absence of any reference to s 739(5) in the reasoning of the Full Court in ALS is that their Honours considered it to make no more than an inconsequential contribution to the disposition of the issue on which they ruled. With respect, we would agree with that assessment of the situation.

34. There may be a question as to how a party to an arbitrated outcome in a dispute-setting process of the kind contemplated in s 739 of the FW Act might go about alleging that the Commission had overstepped the limitations for which subs (5) provides. In the present case, the applicant does allege that the Full Bench decision was inconsistent with a fair work instrument, namely, the Agreement. But the inconsistency is said to reside wholly in the circumstance that the decision was wrong; that is to say, the Full Bench reached the wrong conclusion on the very matter which was given to it for arbitration. Whatever else s 739(5) means, it does not, in our view, produce an outcome of the kind sought by the applicant. Otherwise, we had the benefit of no more than the most tangential of references to the matter in the submissions made in the present case.” 31

[37] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 32 setting out the principles for such task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way;

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 33

RELEVANT AGREEMENT AND LEGISLATIVE PROVISIONS

[38] The MFB Act, so far as is relevant to this decision, includes the following;

“25B Employees of Board

(1) The Board may from time to time—

(a) employ any persons that it considers necessary to assist it in carrying out its functions under this Act or any other Act; and

(b) transfer, promote, suspend or remove any employee.

(2) Every appointment or promotion of a member of the operational staff is to be on 3 months' probation.”

“ Discipline

78A Offences by officers or members

A member of the operational staff who is—

(a) guilty of any breach of the regulations;

(b) guilty of any misconduct;

(d) inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or

(e) guilty of any disgraceful or improper conduct—

shall be guilty of an offence.

78B Laying of charges

(1) A member of the senior operational staff may, after an investigation, lay a charge for an offence under section 78A.

(2) The Chief Executive Officer may suspend from duty with pay any person charged under subsection (1) until the charge is dealt with under section 78D.

78C Hearing of charges

(1) The Chief Executive Officer must hear a charge laid under section 78B.

(2) A member of the operational staff and any other party to the hearing is entitled to be represented at the hearing of the charge by an Australian legal practitioner or other person.

(3) The representative of a party may examine witnesses and address the Chief Executive Officer on behalf of the party.

(4) If the member of the operational staff does not attend in person or by a representative at the time and place fixed for the hearing, the Chief Executive Officer may proceed in his or her absence.

78D Decision of Chief Executive Officer

(1) If, after hearing the charge, the Chief Executive Officer is satisfied that the offence was committed, he or she may do any one or more of the following—

(a) reprimand the member concerned; or

(b) reduce the position of the member concerned for such period as the Chief Executive Officer thinks fit; or

(d) suspend the member from duty with or without pay for a period not exceeding 6 months; or

(e) dismiss the member concerned.

(2) If a fine is imposed under this section, the amount of the fine may be deducted from the pay of the member fined but not more than ½ of a penalty unit may be deducted from the pay attributable to any one week.

78E Pay while suspended

(1) A member of the operational staff who has been suspended from duty without pay under section 78D may engage in paid employment during the term of the suspension.

(2) All pay which accrues to a member during any period of suspension without pay must be withheld.

(3) If the Appeals Commission upholds an appeal by the member in respect of the charge for which he or she has been suspended, all pay withheld under subsection (2) must be immediately paid to the member, less any earnings received by the member during the period of suspension.

(4) If an appeal by the member is not upheld by the Appeals Commission in respect of the charge for which he or she has been suspended or no appeal is lodged within the prescribed time, all pay withheld under subsection (2) is forfeited unless the Appeals Commission orders otherwise.”

[39] It is uncontested that the Operational Staff Agreement has application to the employment in question and that the Agreement’s dispute resolution clause, clause 19, has application to the dispute. It is also uncontested that the subject matter of the alleged dispute is one that is authorised to be dealt with by the Commission pursuant to the provisions of s.739 of the Act.

[40] Several clauses of the Operational Staff Agreement are relevant to resolution of the matter, however not all of them are reproduced in full in this decision. In this regard it is noted the following clauses have relevance to determination of this matter;

The disputes to which the dispute resolution clause applies are set out in clause 19.1 as follows;

“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.”

Clause 19.2.6 permits unresolved disputes to be referred to the Commission, at which time “FWA may utilise all its powers in conciliation and arbitration to settle the dispute”.

Consultation provisions are provided in several parts of the Operational Staff Agreement at clauses 13, 15 and 30.

[41] Clause 26 of the Agreement sets out a detailed counselling and discipline provision in the following terms;

“26. COUNSELLING AND DISCPLINE

26.1. This agreement applies to matters relating to the counselling, discipline and termination of employees, whether or not any other instrument (including State legislation) also purports to apply to counselling and discipline outcomes.

26.2. Within the first 6 months of this agreement, the parties will develop an Employee Code of Conduct that deals with counselling and discipline outcomes. Until that Code of Conduct is agreed, any counselling or discipline shall be in accordance with the Metropolitan Fire Brigades Act 1958 and the terms of this agreement.

26.3. Once the Code of Conduct has been developed and agreed, any counselling or discipline of an employee shall be dealt with in accordance with the Employee Code of Conduct. No counselling or discipline of an employee, including an adverse report, and whether for reasons to do with conduct or performance, may occur until the Code of Conduct has been followed and been complied with.

26.4. The reference to counselling or discipline outcomes of employees in this clause includes the counselling and discipline outcomes for a specific employee.

26.5. To avoid doubt nothing in this clause or in the code of conduct shall have the effect of altering the minimum employment period for access to unfair dismissal protection or reduce in any way the rights of an employee to unfair dismissal protection contrary to Section 194(c) and (d) of the Fair Work Act 2009.

26.6. Adverse Reports

26.6.1. No adverse report about an employee shall be placed amongst the records (including electronic records) or papers relating to an employee nor shall be noted thereupon unless the employee concerned has been shown the report, which shall be evidenced by his/her signature thereupon. If he she refuses to sign the report the UFU shall be notified by the employer in writing within seven days of such refusal, and shall be given the opportunity of replying to the report. If the employee so desires, his / her reply shall be in writing which, together with the adverse report, shall be placed amongst the records or papers relating to the employee thereon. An adverse report will contain a date, no longer than 12 months, after which the adverse report will cease to be relevant. At that time, the report and all copies shall be removed and destroyed in accordance with records disposal requirements.

26.6.2. An adverse report means a report in writing which is placed in an employee's records, file or papers and which has been sent to the appropriate Officer alleging serious misconduct or a serious breach of discipline or a series of less serious acts of misconduct or breaches of discipline and which are likely to detrimentally affect an employee in his/her career in the service.

26.6.3. It may also include a report in writing alleging inefficiency in the service or a lack of diligence to discharge the responsibilities of the office held by an employee but shall not include:

26.6.4. Examination and marks given by a person appointed to conduct and or mark such examination for the Board.

26.6.5. Failure in writing to recommend an employee for promotion by a person whose duty it is to make a general recommendation or otherwise for a determination on promotion.

26.6.6. No adverse report may be placed on an employee’s file about or in relation to:

26.6.6.1. activities of the employee in their capacity as an accredited representative pursuant to this agreement;

26.6.6.2. activities of the employee pursuant to the dispute resolution

procedures of this agreement;

26.6.6.3. their status or activities as an accredited representative of the UFU or

26.6.6.4. their membership of, or participation in the activities of the UFU, or

26.6.6.5. their participation in or any proposal to participate in, or their refusal to participate in or any proposal to refuse to participate in, proceedings to which the UFU or a UFU member is a party, or

26.6.6.6. their giving evidence in or any proposal to give evidence in, or their refusal to give evidence in or any proposal to refuse to give evidence in, proceedings to which the UFU or a UFU member is a party, or

26.6.6.7. their participation in, or any proposal to participate in, any activity of the UFU where the UFU is seeking better industrial conditions.”

[42] I am satisfied that the dispute as notified to the Commission, and the character of the dispute now before the Commission, is within the scope of disputes contemplated by clause 19, which clause authorises disputes to be “referred by the union or the employer to FWA”, and about which “FWA may utilise all its powers in conciliation and arbitration to settle the dispute”.

CONSIDERATION

[43] As referred to earlier, it is the UFU’s submission that the provisions of ss.78A – 78B of the MFB Act amount to a code that defines the manner in which disciplinary issues are dealt with as well as the provisions effectively removing a general power of suspension, with the only power of suspension thereafter being within the terms set out within the MFB Act.

[44] The UFU tabled within the hearing of this matter extracts of the Parliamentary debates in the Victorian Legislative Assembly and Legislative Council from 1997 when the relevant provisions of the MFB Act were introduced and debated. In tabling this material, the UFU submitted that there was nothing in the Parliamentary debates that would inform the meaning of the relevant provisions, with it being the case that each of sections 78A and 78B were the subject of amendment in 1997 by Bill Number 24/1997. Section 25B was also the subject of amendments by the same Bill.

[45] That being so, s.25B, with its reference to the Board being empowered to “from time to time— … transfer, promote, suspend or remove any employee”, plainly and unambiguously maintains a right to the Board of a power to suspend employees separate and distinct to that within s.78B. Consideration of the terms of s.25B, as well as all of the sections within a Part of the Act entitled “Discipline”, namely ss.78A – 78E, leads to the conclusion that the provision within s.78B, entitled “Laying of Charges” to the effect that the “Chief Executive Officer may suspend from duty with pay any person charged under subsection (1) until the charge is dealt with under section 78D” is not intended to create an exclusive power of suspension which then replaces or extinguishes any other such right.

[46] On its plain language the “Discipline” Part of the MFB Act establishes a process by which charges for certain specified offences may be laid and heard and then dealt with in various ways by the Chief Executive Officer.

[47] Section 78A defines the scope of discipline “offences”, namely a breach of the regulations, misconduct, negligence or carelessness in the discharge of one’s duties; inefficiency or incompetence; or disgraceful or improper conduct. Section 78B allows for the laying of charges “for an offence under section 78A” and then gives the right of suspension already referred to. Section 78C provides for the hearing of charges “laid under section 78B” and sets out processes associated with such a hearing. Section 78D provides for things that may be done “if after hearing the charge, the Chief Executive Officer is satisfied that the offence was committed” with it being plain that “after hearing the charge” is a reference to charges laid under s.78B which in turn is a reference to “a charge for an offence under section 78A”.

[48] The plain language of these provisions is for a scheme for discipline associated with allegations that may be made about certain and defined serious matters arising from or associated with employment.

[49] The language of s.78A, together with the other provisions of the Part, is to establish a process by which certain categories of conduct can be the subject of charges, hearings and determinations. When s.78B provides that a person may be suspended with pay, the language employed by the section is that a suspension may occur in relation to “any person charged under subsection (1)”. The language of the section read in its proper context of the Discipline Part of the MFB Act does not provide that “the Chief Executive Officer may suspend from duty with pay only those persons charged under subsection (1)”, which is the interpretation favoured by the UFU.

[50] That being so, the question then turns to the construction of the Operational Staff Agreement and in particular clause 26, Counselling and Discipline.

[51] Clause 26.1 provides, pertinently, that the “agreement applies to matters relating to the counselling, discipline and termination of employees, whether or not any other instrument (including State legislation) also purports to apply to counselling and discipline outcomes” (underlining added). There is nothing before me that would lead to the view that this clause is to be interpreted in any way other than with regard to the plain meaning of its language. The clause is not ambiguous.

[52] While clauses 26.2 to 26.3 refer to the development of a Code of Conduct that deals with counselling and discipline outcomes, none such has been developed.

[53] Clause 26.2 also provides that “[u]ntil that Code of Conduct is agreed, any counselling or discipline shall be in accordance with the Metropolitan Fire Brigades Act 1958 and the terms of this agreement.” The clause is not ambiguous. The plain meaning of clause 26.2 is that counselling or discipline of an employee is to be carried out in accordance with the MFB Act and the terms of the Operational Staff Agreement. Other than the whole of clause 26, no specific provision in the Operational Staff Agreement impacts upon the MFB’s endeavour to discipline the employee.

[54] Clause 26.4 clarifies that references within the whole of clause 26 to “counselling or discipline outcomes of employees” includes the counselling and discipline of a specific employee. There is nothing before me that would lead to the view that this clause is to be interpreted in any way other than with regard to the plain meaning of its language. The clause is not ambiguous.

[55] While containing important rights and obligations, the remainder of clause 26, namely clauses 26.5 – 26.6, do not have direct relevance to the determination of this dispute. In forming that view, I note that there is nothing before me that would lead to the view that these clauses are to be interpreted in any way other than with regard to the plain meaning of their language. The clauses are not ambiguous.

[56] The UFU also submits that two MFB policies require consideration in this matter, namely the MFB’s Operations Work Instruction, Counselling Procedures (the Counselling Document), which provides for informal and formal counselling, and the MFB Disciplinary Investigation Guidelines (the Guidelines Document) which sets out a process for consideration of disciplinary investigations.

[57] Both documents are referred to within Senior Station Officer and Commanders’ training materials and participants in the Commanders’ training course are advised both informal and formal counselling are available as options. 34

[58] Ultimately the Counselling Document has limited utility in the resolution of this particular matter, with the document being a compilation of various forms to be used, together with some reminders about how the process at any given stage should be expected to be undertaken. The document does not set out mandated stages or processes or decision points.

[59] Notwithstanding, it provides some guidance about when informal counselling might be used and fails to give any guidance about when formal counselling should be employed. In particular the Counselling Document says that an informal counselling note may be used to record “brief details of an informal, on the job discussion the supervisor has with an employee about minor work related incidents (late arrival, absenteeism, leaving the workplace without permission etc)”. 35 While the question may then be begged as to when a formal counselling note may be used there is no specification of such within the document.

[60] While failing to address when formal counselling should be employed, the Counselling Document provides the following in relation to circumstances where formal counselling may not have been successful;

“PROCEDURE SHOULD FORMAL COUNSELLING NOT ACHIEVE

DESIRED RESULT

1. An officer who was not involved in the previous counseling should be called on to investigate and proceed under disciplinary code if necessary.

2. The formal counseling report form is not to be introduced as evidence although persons involved may be called as witnesses.” 36

[61] Reference is made by the UFU to the Counselling Document for the reason that it argues there was an obligation on Mr Youssef to first do something other than commence an investigation into the employee’s conduct. In this regard, the proposition is put forward by the UFU that the MFB is acting contrary to its consistent practice and that, in accordance with its past practice the MFB should have first dealt with the allegations through a process of counselling. 37

[62] Evidence was given for the UFU maintaining that the allegations regarding the inappropriateness for counselling “appear to rely upon the alleged seriousness of the quote taken from the comedy television show Fawlty Towers”. 38 I understand the Fawlty Towers reference to be connected with a matter included in the third tranche of allegations, in which the allegation is made that a post was made in relation to another person active on a particular site that “I'm going to visit [name 2 redacted] in the wee small hours and put a bat up her nightdress”.

[63] The UFU argues in regard to its preference for counselling that “the allegations relate to a private Facebook page. His private Facebook page does not identify him as a firefighter or an MFB employee”. 39

[64] Coupled with the arguments of past practice and the overall appropriateness of counselling, the UFU argue that the MFB has failed to apply the procedures set out in the counselling document referred to above.

[65] In respect of that argument, Mr Youssef’s evidence is that he did in fact give consideration to whether or not counselling was appropriate and that he determined it would not be appropriate for a number of reasons. Those reasons included that the employee had not permanently changed his behaviour despite having been formally directed to remove a post on a previous occasion and having drawn to his attention that the MFB considered his post at that time to be in breach of the MFB Act, its Workplace Behaviour Policy and the Victorian Public Sector Code of Conduct. He also took into account the potential impact of the employee’s alleged posts;

“26. I also considered that Leading Firefighter A's posts had the potential to damage the MFB's reputation and relationships with third parties. In particular, I considered that the posts amounted to the vilification of members of the CFA, another emergency organisation. I considered this a very serious matter. The MFB has worked incredibly hard to ensure that there are strong relationships between it and the CFA. Conduct that undermines this relationship has the potential to impact negatively on operational matters, as the MFB and CFA often need to work together to fight fires. For this reason, I determined that counselling, either formal or informal, was not appropriate to address the serious nature of the conduct.

27. I also considered the fact that Leading Firefighter A's posts had vilified [journalist’s name] of the [media organisation], who often reported on the MFB. The posts therefore had the potential to have an impact on the MFB's reputation in the wider community. I was also concerned that that these type of posts had potential to cause real harm to individuals.

28. Finally, based on the repeated and inappropriate nature of these posts, I considered that informal or formal counselling would not be in line with community expectations as to how the MFB should deal with firefighters engaging in this type of conduct.” 40

[66] The evidence before the Commission demonstrates that consideration was given to whether informal or formal counselling should be used on this occasion and that the consideration given by Mr Youssef was not inconsistent with any obligations upon him or the MFB from any of the documents considered by the Commission in this matter.

[67] As referred to above, the Guidelines Document includes a provision in clause 7 that “The only time the Chief Executive Officer has the power to suspend a member is following the laying of a charge under the disciplinary process”. While that is so, Clause 1 of the same document provides specifically that;

“1. INTRODUCTION.

The Metropolitan Fire Brigades Act (the Act) establishes an internal scheme to deal with disciplinary offences by members of the Operational Staff. [See extracts in Attachment A.)

All alleged offences which

● could result in charges being laid, or
● the Chief Fire Officer/ Director Operations( or relevant Director) believes warrant a full investigation

will have the benefit of a formal investigation.

The investigation of other alleged offences (in particular offences where ultimately the relevant senior operational staff member determines that the member be counselled or given an adverse report) may also follow the following these guidelines. (sic)

These Guidelines have been developed to assist Investigating Officers. They are to be read in conjunction with:

● the Act,
● MFB General Regulations,
● Standard Operating Procedures (SOPs).
● General Orders, and
● the sections of the Operational Staff Agreement 2002 (Enterprise Agreement) that relate to disciplinary matters (ie counselling and adverse reports).

The Guidelines are not intended to replace or override any of the source documents.” 41 (footnote omitted)

[68] In its closing submissions the UFU submitted the following about clause 7 of the Guidelines Document;

“The words of clause 7

29. The Courts have repeatedly urged that construction tasks should begin with a consideration of the text. In Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (2009) 239 CLR 27 the High Court said (at [47]) that:

The task of statutory construction must begin with the consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.

The meaning of the text may require consideration of the context. Which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

30. An examination of the 'text itself’ of the MFB Disciplinary Investigation Guidelines leave little doubt over the meaning of clause 7. The relevant words provide: 'the only time the Chief Executive Officer has the power to suspend a member is following the laying of a charge under the disciplinary processes'.

31. When those words are considered as 'the surest guide' to the intention of the parties there can be no doubt of their intention.

32. The words of clause 7 are clear.

33. There is no dispute that Leading Firefighter A was suspended prior to the laying of a charge under the disciplinary processes. The MFB has not complied with its own guidelines.” 42

[69] Having put forward the foregoing submission, the UFU put forward the following as an alternative;

“Alternatively, the words of clause 7 are consistent with the MFB Act

34. The MFB, by its submissions, chooses not to read the words themselves on their face but rather urges a reading that requires the insertion of the words 'under/or pursuant to s.78B' of the Metropolitan Fire Brigades Act 1958 (Vic) (the MFB Act).

35. The MFB asserts that without the insertion of the above words clause 7 would be inconsistent with the MFB Act. That submission should not be accepted.

36. With or without the insertion of the words ‘under/or pursuant to s.78B’ the words of clause 7 of the MFB Disciplinary Guideline are consistent with the MFB Act.

37. The MFB asserts that the words are inconsistent because there is a power elsewhere in the Act to stand down. The MFB points to s.25B. Section 25B does not empower the MFB to stand down a firefighter in the circumstances of disciplinary allegations. That is because the disciplinary provisions, in and following s.78B of the MFB Act, are a code and prevail over s.25B.

38. Read in that way, clause 7 is not inconsistent with the MFB Act. Set out below is further detail of the explanation that the disciplinary provisions in the MFB Act establish a code.” 43

[70] In relation to the overall construction of the MFB Act the UFU seeks to rely upon written legal advice provided to the MFB in 1998 which it submits advised;

“ … relevantly, s.25B of the MFB Act did not permit the MFB to suspend for conduct which could be the subject of proceedings under the disciplinary proceeding. The MFB provided that advice to the Secretary of the Union in 1998. It should sensibly be understood to have adopted the advice. Elsewise why would it provide it to the UFU.

Since that time, the UFU have conducted itself on the basis that s.25B did not permit the MFB to suspend for conduct which could be the subject of proceedings under the disciplinary provisions.” 44

[71] The MFB objects to the legal advice being relied upon by the UFU and argues that notwithstanding it has been provided at some stage through some unknown mechanism to the UFU, the advice itself remains subject to legal professional privilege which it does not waive.

[72] The matter of the legal advice is referred to within a reply witness statement provided by the UFU’s Industrial Officer, Rini Krouskos, in which she says;

“It is my understanding that the Union have conducted themselves on the basis that s 25B does not provide the right to stand down a firefighter in circumstances where disciplinary allegations have been made. That understanding is based, in part, upon advice given to the MFB and provided by it to the Secretary of the Union. That advice provides that the disciplinary provisions in the MFB Act constitute a code with respect to the matters with which they deal. In those circumstances s 25B does not permit a suspension for conduct which is the subject of proceedings under the disciplinary provisions.” 45

[73] This evidence was not the subject of cross-examination. There is no disclosure within Ms Krouskos’ witness statement or elsewhere as to all the circumstances by which the UFU came to be aware of the advice, other than the reference above that it was provided at some stage to the union secretary. It is unknown whether there were conditions upon which it was provided or more pertinently whether the MFB waived or maintained its legal professional privilege.

[74] In submissions on the matter of the status of the advice document, Counsel for the MFB refer the Commission to the principles relating to the waiver of legal professional privilege set out by the High Court in Mann v Carnell 46 in which it was held that what brings about a waiver of legal professional privilege is inconsistency between the conduct of the person entitled to the benefit of confidentiality of communication between lawyer and client and maintenance of the confidentiality;

“At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

In Goldberg v Ng this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made to the statement of Jordan CJ in Thomason v The Council of The Municipality of Campbelltown:

"The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client".” 47 (references omitted)

[75] In the absence of greater evidence regarding the circumstances of the disclosure of advice by the MFB to the UFU it is not considered that legal professional privilege has been waived. The Commission therefore has had no regard to the content of the advice document.

[76] Determination of the Propositions for Determination requires a construction of the Operational Staff Agreement, which, for reason of the requirement in clause 26.2 that until a Code of Conduct is agreed, any counselling or discipline shall be in accordance with the MFB Act and the terms of the agreement, in turn requires consideration of the meaning of the MFB Act as well as the agreement. The plain reading of the relevant provisions of the MFB Act as well as the Guidelines Document leads to the conclusion that there is or can be a distinction between offences which might result in charges being laid and those which the Chief Fire Officer or other senior people believe warrant a full investigation; and that the guidelines are not intended to replace or override the specified legislation or other instruments. On the one hand the MFB Act sets out in the Discipline Part that certain categories of offences may be the subject of charges under that Act and if proven the subject of certain sanctions, however language of that Part of the MFB Act is by no means exclusive. At the very least there are circumstances in which the Board may be empowered under s.25B to suspend an employee separately to the powers within the Discipline Part.

[77] The Guidelines Document reinforces that construction by saying that the benefits of a formal investigation will apply to three separately identified circumstances, namely;

● alleged offences which “could result in charges being laid”; or
● alleged offences which “the Chief Fire Officer/Director Operations (or relevant Director) believe warrant a full investigation”; or
● “other alleged offences (in particular offences where ultimately the relevant senior operational staff member determines that the member be counselled or given an adverse report) may also follow the following these guidelines” (sic).

[78] Whereas the first two of these categories are expressed as mandating a “formal investigation”, the third of the categories appears to allow a discretion to the effect that an investigation of the matters expressed in that third category may also follow these guidelines.

[79] The Guidelines Document itself states that its contents “are not intended to replace or override any of the source documents”, with the MFB Act being one of the source documents.

[80] For the purposes of determining the MFB’s obligation under clause 26.2 that ““[u]ntil that Code of Conduct is agreed, any counselling or discipline shall be in accordance with the Metropolitan Fire Brigades Act 1958 and the terms of this agreement”, I find that nothing within the Guidelines Document displaces the construction of the MFB Act already referred to in relation to suspension of an employee.

[81] In relation to the question of whether or not there was a requirement for consultation over any aspects of the MFB’s decision-making, I consider there was not. There is insufficient evidence before me to form the view that at any time the MFB desired to change either the Counselling or Guidelines Documents and it is Mr Youssef’s specific evidence that he had no intention of making a change or amendment to those documents. 48

[82] As a result of the analysis set out above, all of the Propositions for Determination posed in this matter by the UFU should be determined in the negative.

CONCLUSION

[83] As a result of the foregoing findings;

● in relation to Proposition 1(a), I do not find that the MFB failed to comply with its policies, procedures and practices by failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to informally counsel Employee A under its Operations Work Instruction, Counselling Procedures;
● in relation to Proposition 1(b) I do not find that the MFB failed to comply with its policies, procedures and practices by failing, prior to the commencement of its formal investigation, to consider and/or determine whether it was appropriate to formally counsel Employee A under its Operations Work Instruction, Counselling Procedures;
● in relation to Proposition 1(c) I do not find that the MFB failed to comply with its policies, procedures and practices by suspending Employee A prior to the laying of any charges, contrary to its Disciplinary Investigation Guidelines; and
● in relation to Proposition 2 I do not find that the MFB failed to comply with its policies, procedures and practices and if by its conduct, in dealing with the allegations against Employee A, the MFB intended to change or amend its policies and procedures, it did so without engaging in any consultative process.

[84] Accordingly, the UFU’s application is dismissed.

COMMISSIONER

Appearances:

Mr C Dowling, of counsel, for the UFU.

Mr J Tracey, of counsel, instructed by K&L Gates, for the MFB.

Hearing details:

2017.

Melbourne:

27 March.

1 AE881005.

2 [2017] FWC 1708.

3 [2017] FWCFB 2500.

4 Exhibit R2, Witness Statement of David Youssef, Attachment DY-4.

5 Exhibit A7, Witness Statement of Dimitra Krouskos, Attachment DESK-2.

6 Ibid.

7 Exhibit R2 [22]-[24].

8 Ibid [25].

9 Ibid [11]-[14].

10 Exhibit A3, Applicant’s Outline of Submissions, [15].

11 Ibid [16].

12 Ibid [17]; Exhibit A4, Witness Statement of Brendan Angwin, [13]–[19].

13 Exhibit A4 Attachment BJA-2

14 Exhibit A3 [22]-[23].

15 Ibid [29].

16 Exhibit R3, Respondent’s Outline of Submissions, [35]; Exhibit R2 [30].

17 Exhibit R3 [36].

18 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

19 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

20 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

21 SDA v Big W Discount Department Stores PR924554 at [23].

22 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

23 Ibid.

24 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

25 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

26 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

27 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

28 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

29 [2016] FCAFC 82.

30 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 [85]

31 [2016] FCAFC 82 [29]-[34].

32 [2017] FWCFB 3005.

33 Ibid [114].

34 Exhibit A6, Witness Statement of Mark Lyons, [8]–[11]; Exhibit A4 [12]–[19]; Exhibit A5, Witness Statement of Brian Whitaker, [7]–[12].

35 Exhibit A4 Attachment BJA-3.

36 Ibid.

37 Exhibit A7 [17].

38 Ibid [19].

39 Ibid [18].

40 Exhibit R2 [26]-[28] as corrected in oral evidence.

41 Exhibit A4 Attachment BJA-2.

42 Exhibit A9, Closing Submissions of the Applicant, [29]-[33].

43 Ibid [34]-[38].

44 Ibid [60]–[61].

45 Reply Statement of Dimitra Krouskos [10].

46 [1999] HCA 66; 201 CLR 1.

47 Ibid [28]–[30].

48 Exhibit R2 [30].

Printed by authority of the Commonwealth Government Printer

United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board