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

[2013] FWC 4758

[2013] FWC 4758

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
(C2013/2832)

COMMISSIONER ROE SYDNEY, 17 JULY 2013

Alleged dispute regarding failure to consult on the introduction of limit on personal internet use - pursuant to Clause 13 of the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2010 - Clause 19 Dispute Resolution of the Agreement.

[1] On 24 January 2013 the United Firefighters’ Union of Australia (UFU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure (Clause 19) of the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operational Staff Agreement 2010 (the Agreement).

[2] I conducted a conference of the parties on 6 February 2013. A Recommendation was issued with the aim of assisting the UFU and the Metropolitan Fire and Emergency Services Board (MFB) to resolve the dispute.

[3] The Recommendation was as follows:

“Arising from a conference at FWA on 6 February 2013 the parties agreed to the following Recommendation in respect to the dispute about consultation concerning implementation of restrictions on staff access to the internet. The Recommendation is made without prejudice to the position of the MFB that this is not a matter which is subject to consultation and to the position of the UFU that it is.

1. The UFU is to advise in 7 days if they accept the principle that existing IT and workplace behaviour policies limit use of the internet for private purposes and that the MFB can implement reasonable time limit restrictions on private use subject to consultation on implementation process and details.

2. If the UFU advise in the affirmative the matter will be considered at the March consultative committee meeting. In preparation for that meeting the MFB will provide a proposal paper by 20 February and the UFU will provide a paper raising issues and draft proposals by 27 February. In the event that the matter is not finalised or is delayed through this process then either party can relist the matter.

3. If the UFU advises in the negative the matter can be relisted.”

[4] By May 2013 the UFU were of the view that the MFB failed to respond to reasonable questions raised at the Consultative Committee meeting and sought that the matter be relisted.

[5] A further conference was held at FWC on 17 May 2013. Arising from that conference I issued a Statement on 20 May 2013 that the recommendation of 6 February 2013 had not produced a resolution to the dispute and setting out a timetable to have the matter concerning the alleged failure to consult arbitrated.

[6] The MFB proposes to introduce a 60 minute per day personal internet use restriction which will be enforced through the implementation of limited access rights to various sites such as Facebook, Twitter, YouTube and internet banking portals. When an employee attempts to access such a site, a new screen will appear notifying the user of the restriction applying to the site and requesting confirmation to proceed on that basis. The UFU submit that this involves a change, modification and addition to existing policy and work practice and, accordingly, is subject to consultation under the Agreement.

[7] The clauses of the Agreement most relevant to the dispute are at Attachment 1 to this decision.

[8] It is not in dispute, and I accept, that the relevant steps of the disputes settlement procedure, Clause 19, have been followed and that FWC is empowered to now arbitrate the dispute. I am satisfied that consultation about changes to personal internet usage at work is a matter which falls within the scope of the disputes settlement procedure of the Agreement (Clause 19.1).

[9] At the commencement of the arbitration proceedings the parties agreed with my assessment that in resolution of the dispute I was required to:

• Make a finding as to whether or not the MFB had an obligation under the Agreement to consult;
• If there was an obligation to consult make a finding as to whether or not the MFB had effectively discharged that obligation; and
• In the event that the MFB had not discharged their obligation determine what was now required in resolution of the dispute.

[10] Although the UFU make reference to Clauses 16 and 17 of the Agreement it made no specific submissions concerning those clauses. The UFU suggested that the existence of Clause 17 was supportive of an interpretation that matters of technological change were within the scope of change matters which were covered by Clause 13. I do not consider that this particular consultation dispute concerns an issue of technological change.

[11] The primary argument of the UFU is that the introduction of the 60 minute restriction is a change to both policy and work practice and Clause 30 requires as follows:

“Should the MFESB elect to modify, delete or add to existing policy that affects employees then any change or addition will be subject of consultation pursuant to clause 13.”

The UFU then point to the following particular requirements of Clause 13.

“13.1. Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

...

13.3.5. The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No proposals for change arising from this agreement shall be implemented without referral to the MFB UFU Consultation Committee.”

[12] The parties agree that clause 10 of the Workplace Behaviour Policy (WBP) of the MFB is relevant. It provides as follows:

“The MFB Information Technology Systems are business tools which support MFB organisational objectives and purposes. Limited personal use is permitted provided that it does not impact on an employee’s work performance or breach MFB policies.” 1

[13] The policy provides that MFB systems must not be used for any inappropriate purpose and states that this includes:

“Any material which causes disruption to the workplace environment, such as excessive personal use during work hours which interrupts work, mass mailing of jokes, chain letters and other frivolous communications, or could constitute a criminal offence...” 2

[14] The policy also provides for “access and monitoring” including:

“In accordance with this policy, the MFB reserves the right, at any time, without the need for first giving notice to staff to:

• Monitor, access and copy emails, internet usage and general computer usage;

...

• Censor and screen offensive or non-business related internet material

...

It is a condition of the use of the MFB System that an employee complies with this policy and agrees to the terms of the policy including those related to the MFB’s right to monitor and access computer usage.” 3

[15] The WBP has been in place since around 2010. There is a separate policy which is from 2006 which is a stand-alone policy entitled “Inappropriate Use of MFB Information Technology Systems” which has largely the same content as Section 10 of the Workplace Behaviour Policy. However, the 2006 policy includes the following in the specific examples of inappropriate use: “is use of the computer system for excessive personal use, particularly during work time.” 4

[16] The UFU argue that Clause 10.1 of the WBP whilst envisaging limited personal use does not envisage finite temporal restrictions on employees’ daily use. Nor, it is submitted, does the WBP envisage the imposition of such a restriction on particular sites such as Facebook, Twitter, YouTube and Internet banking portals.

[17] The UFU also argue that the introduction of the 60 minute restriction is a change “in matters relating to (the) employment relationship” and that Clause 15 requires any such matter to be subject to consultation pursuant to Clause 13. Clause 15 provides:

“Where the employer wishes to implement change in matters pertaining to employment relationship in any of the workplaces covered by this agreement, the provisions of clause 13 will apply.”

[18] The UFU argues that reliance on a broad, permissive policy such as that reflected in the WBP, cannot be used to justify the implementation of an explicit, prohibitive policy, which will mean real and immediate changes for employees.

[19] Mr Ward, a leading fire fighter, gave evidence that the introduction of a time limit on personal internet use would be a change to how he has always worked as a firefighter.

[20] He also gave evidence that personal use of the internet is an invaluable source of support and escape for firefighters who are experiencing difficulties, for example trauma following a disturbing fire incident or death.

[21] Mr Ward in his role as a member of the MFB peer support team and in his role as a Health and Safety Representative assists employees to access various websites that promote health and well being and provide important information relating to workplace injuries.

[22] Mr Ward believes that a 1 hour time limit per day may not always be sufficient. Mr Ward gave evidence of successful programs introduced into the MFB through the consultative committee process.

[23] Mr Hunter, a senior station officer, gave evidence that the introduction of a time limit on personal internet use would be a change to how he has always worked as a firefighter and to the way in which he, as a supervisor, manages his colleagues.

[24] Mr Drury, a Station officer, gave similar evidence to Mr Hunter but also pointed to the role of personal use of the internet in skill development. Mr Hunter pointed to his need to access various websites to research matters as part of his role in implementing EMR (Emergency Medical Response). He believed that his role requires access to multiple and varied websites which could inadvertently be perceived as personal use by the MFB.

[25] Mr Russell Eddington, Executive Director Corporate Services for the MFB gave evidence of the Workplace Behaviour Policy of the MFB and the Inappropriate Use of MFB Information Technology Systems Policy and its requirements in respect to internet usage. Mr Eddington also gave evidence of the business reasons why MFB decided to introduce a time quota system for access to certain non-business related websites to reduce non-business internet traffic. Mr Eddington gave evidence of the arrangements put in place to ensure that staff members can get approval for additional access to non-business related websites where they believe that there are good business reasons for access to those sites.

[26] Mr Eddington gave evidence that Mr Lloyd, the MFB Chief Information Officer, reviewed internet usage across the entire MFB and identified that “there was a significant amount of internet traffic into the organisation and a large proportion of internet traffic was related to non-business use.” Mr Lloyd also informed Mr Eddington that the 10 most visited sites across the entire MFB were all sites such as Facebook, YouTube, and eBay which are sites generally used for non-business purposes. 5

[27] Mr David Bruce, Assistant Chief Fire Officer for the MFB, gave evidence concerning the duties firefighters may be required to perform during periods when they are not responding to emergency call outs. He also gave evidence of the ability of firefighters to rest and recline during the night when not required to perform other duties. He gave evidence of the rationale for introduction of internet access for firefighters at fire stations in or around 2003. The internet access was designed to ensure a better informed workforce and access to business processes. The business case for the extension of the internet access to fire stations noted as an issue “equity of access, misuse of site selection and time on line.” 6 The MFB argue that this is the origin of the provisions in the later policies requiring that personal access be limited and also limiting access to inappropriate sites. Mr Bruce gave evidence that many firefighters access policies and procedures which are relevant to their work through the internet. Mr Bruce gave evidence of the dissemination of the Workplace Behaviour Policy and the “Inappropriate Use of MFB Information Technology Systems” Policy to firefighters.

[28] Ms Janette Pearce, Principal Industrial Relations Officer for the MFB gave evidence of the history of the dispute concerning consultation about the introduction of time quotas on access to certain sites.

[29] Ms Pearce gave evidence that the MFB acted in accordance with the FWC Recommendation of 6 February 2013. In particular Ms Pearce gave evidence of delays in the response of the UFU confirming their acceptance of “the principle that existing IT and workplace behaviour policies limit use of the internet for private purposes and that the MFB can implement reasonable time limit restrictions on private use subject to consultation on implementation process and details”.

[30] Ms Pearce gave evidence that upon receipt of the UFU confirmation the MFB did provide a proposal paper but that despite attempts by the MFB to elicit a response the UFU did not “provide a paper raising issues and draft proposals by 27 February” as required by the Recommendation. The UFU finally responded on 4 March 2013 to advise that they had been delayed in providing a response and would endeavour to do so by close of business that day. No response was received prior to the consultative committee meeting on 6 March 2013.

[31] At the consultative committee on 6 March 2013 the UFU representatives advised that they wanted to better understand what the proposal was trying to achieve and set out a list of questions that they wished the MFB to respond to. The questions were listed in the consultative committee meeting minutes but were not responded to at the meeting itself because the responsible manager, Mr Lloyd, was not present.

[32] On 21 March 2013 the MFB provided a response to the UFU questions. That response expressed frustration that the UFU had failed to exchange information in accordance with the FWC recommendation and advised that the questions were not related to the MFB proposal paper but related to the MFB’s internet resource capabilities and costs and that on that basis the MFB would not answer the questions. The MFB again requested feedback on the proposal paper and advised that if feedback was not received the MFB would conclude that the UFU did not have any objection to the proposed implementation. No response was received. A further request was sent on 19 April 2013. No response was received. The matter was discussed again at the May Consultative Committee meeting but the matter did not progress beyond the UFU asking for response to the questions and the MFB explaining why they did not consider them relevant or consistent with the recommendation.

[33] I am satisfied that the MFB are correct that the questions asked by the UFU, considered as a whole, are not relevant to consultation about the “implementation process and details” in an environment where it is accepted that “existing IT and workplace behaviour policies limit use of the internet for private purposes and that the MFB can implement reasonable time limit restrictions on private use subject to consultation on implementation process and details.”

[34] However, the UFU correctly points out that the concession limiting the scope of the consultation made was without prejudice to the position of the parties concerning consultation. Any rights the UFU has under the Agreement in respect to consultation are not restricted to consultation about the implementation process and details.

[35] The UFU argue that the stated reason for the introduction of time limits on certain personal use is “to properly manage the volume and cost of internet services and impacts non-business use has on our networks”. 7 The UFU argues that this is not about the effect personal internet use is having on work or work performance but is about costs and network efficiency. The UFU argue that the policy only limits personal internet use where it affects work performance or involves access to inappropriate sites.

[36] The MFB argue Clause 13 in itself does not require consultation unless the obligation is triggered by another clause of the agreement. This is not conceded by the UFU as they point to provisions such as Clause 13.3.1 and 13.3.3 and the requirement for consultation “to facilitate the implementation of this agreement and ongoing workplace reform”.

[37] The MFB argue that Clause 30 does not trigger a requirement to consult because:

• Clause 30 applies where MFB "elect to modify, delete or add to existing policy that affects employees”;
• The existing policy on internet use at clause 10.1 of the Workplace Behaviour Policy refers to “limited personal use”;
• The MFB has not elected to make any modification, deletion or addition to that policy; and
• The non-work usage time limit is within the parameters of existing policy.

[38] The MFB argue that Clause 15 of the Agreement does not trigger any obligation on the MFB to consult given that:

• Clause 15 is concerned with “change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement…”;
• Understood in the context of the Agreement this is concerned with workplace change in the sense of a change to work practice;
• The computer equipment and the access to the internet, as provided by the MFB at its expense, is a work tool;
• An employer’s right to exercise control over its own information technology systems is undoubted. The MFB refer to the decision in Queensland Rail v Wake in support of this proposition; 8

• That right extends to deciding how work-provided internet will be used by its employees, including any tolerance limit for usage by employees of a work tool for a purpose other than for which it is provided; and

• For these reasons the MFB argue that this is not a change of the kind referred to in clause 15.

[39] The MFB argues that even if the non-work usage time limit constitutes a relevant change under clause 15 or 30 thereby triggering the consultation obligations under clause 13 of the Agreement, they have met those obligations.

[40] ‘Consultation’ is relevantly defined in clause 13.1 of the EA to mean “the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision.”

[41] In this respect the MFB argue as follows:

“On 6 February 2013, there was a conciliation conference in relation to this matter. With the assistance of the Commission, the outcome arrived at following that conference involved a practical solution. It provided a means by which the UFU could avail itself of the consultative process without prejudice to the position of either party to the dispute. This was reflected in a recommendation of the Commission which in substance was as follows:

(a) the UFU was to advise the MFB within 7 days if it accepted the principle that MFB’s existing policies limit usage of internet for private purposes and that MFB can implement reasonable time restrictions on private use subject to consultation on implementation process and details;

(b) if the UFU did this, then the matter would be considered at the March Consultative Committee meeting;

(c) in preparation for that meeting, the MFB would provide the UFU by 20 February 2013 a proposal paper and the UFU would respond to that with any issues and draft proposals by 27 February 2013.

As is clear from the witness statement of Ms Janette Pearce, MFB’s Principal Industrial Relations Officer, the UFU did not follow that recommendation. In particular:

(a) the UFU did not deal with the first step of the recommendation until 18 February 2013, when it sent an email to MFB accepting in somewhat elliptical terms that “some limitation is applicable” under the policies, and agreeing that the MFB could implement reasonable time limits on private use subject to consultation on implementation process and details;

(b) despite the MFB providing the UFU with its proposal on 20 February 2013, and despite numerous requests by the MFB, the UFU did not respond to that proposal, either before the March, April or May Consultative Committee meetings;

(c) instead, the UFU in the March meeting raised a long list of questions that were not responsive to MFB’s proposal, but rather sought to probe into MFB’s internet resource capabilities and costs.

Consultation is a process which affords the UFU an opportunity to engage with the MFB about the proposed decision, an opportunity to influence MFB in determining how to limit non work related internet use. 9

The consultation process is not to be used to delay and thwart the implementation of a decision. The onus was on the UFU to take the opportunity to respond to the MFB proposal in a timely way by identifying any particular issue and/or putting an alternative proposal in relation to the implementation of a limit on non-work related internet use. This is particularly so given the acknowledgement of the UFU in its 18 February 2013 email that the MFB could implement reasonable time limits on non-work related internet use subject to consultation on implementation process and details.

The UFU wasted the consultation opportunity that the Commission’s recommendation provided.” 10

[42] Finally, the MFB argue that if I was to find that there is an obligation to consult and that that obligation has not been implementedthere is no industrial merit in the Commission determining this dispute in a way that requires the MFB to engage in any further consultation.

[43] The MFB refer to the XPT case as authority for the position that the subject matter is one properly within the purview of the employer and the Tribunal should not intervene unless there is something demonstrably unreasonable about it. 11 The MFB argue that the UFU has not pointed to anything that suggests the 60 minute time limit on non-work related internet use would adversely impact on any employee, let alone impact in an unreasonable way.

[44] The MFB also argue that, a dispute over consultation is not to be confused with a dispute over the substance of the MFB decision to implement a 60 minute time limit. In this sense the MFB argue that the time for consultation has long passed and accordingly, the Commission should dismiss the application, resolving the dispute by determining that the MFB is not required to consult any further with the UFU before implementing its proposal to implement a 60 minute time limit on non-work related internet use.

[45] The UFU argue that, read in context, the Workplace Behaviour Policy is primarily about the regulation of inappropriate behaviour. In this context the policy in respect to personal use of the internet should be seen as a permissive policy and the only restrictions, apart from the natural restrictions created by the need to complete work tasks successfully are the restrictions specified in the policy (i.e. interference with work performance and inappropriate content).

[46] The UFU argue that the imposition of the time limit is a change to policy and consultation is therefore required by Clause 30. The UFU also argue that consultation is required because the imposition of a time limit is a change which requires consultation by virtue of Clause 15.

[47] The UFU argue that it is admitted that there was no consultation before initial implementation and therefore the MFB have not discharged their obligation. The process under the FWC Recommendation was without prejudice and even if implemented did not constitute the consultation required by the Agreement. In any case the consultation did not occur in a manner which satisfied the Agreement.

[48] The UFU submit that the resolution of the dispute should be that the MFB is required to provide the information sought by the UFU and genuinely consult in accordance with the requirements of the Agreement prior to implementing any time limit.

Is the MFB required to consult by virtue of Clause 13 consultation alone?

[49] Although there may be some matters which are required to be subject to consultation by virtue of the general operation of Clause 13, there is no basis for concluding that the matter which is the subject of this dispute is required to be a subject of consultation by virtue of the statements about the purpose and scope of consultation contained in Clause 13. The plain words read in context do not create any such obligation.

Is the MFB required to consult because the introduction of the time limit is a proposal to “modify, delete or add to existing policy that affects employees”?

[50] I am satisfied that the proposed time limit does affect employees.

[51] I am satisfied that the MFB is not seeking to modify or delete existing policy. What the MFB say they are doing is implementing the requirement that: “limited personal use is permitted provided that it does not impact on an employee’s work performance or breach MFB policies.” The proposal to put a time limit on access to certain sites during work time is consistent with the policy that “limited personal use is permitted provided that it does not impact on an employee’s work.” I do not accept the submission of the UFU that the policy does not envisage finite temporal restrictions on employees’ daily use. The policy does not exclude such a method of administratively implementing the policy in respect to limited personal use.

[52] The effect of the UFU’s submission that the policy is permissive not restrictive is that the words “limited personal use is permitted provided that it does not impact on an employee’s work performance or breach MFB policies” should be read as meaning “personal use is permitted unless personal use will impact on an employee’s work performance or breach MFB policies.” I am not satisfied that this is a correct reading. In my view any use of the internet during work time for personal purposes interferes with work. There is a general presumption that a person is engaged in work during working time. In my view the proper reading of the policy is that it is only limited personal use which is permitted and that the requirements to not interfere with work performance or breach MFB policies are additional restrictions. Considered in context, I do not read the policy as requiring actual evidence of failure to perform required duties to demonstrate that there has been a breach of the policy on limited personal use.

[53] I am satisfied that the policy permits the MFB to monitor usage and to censor and screen offensive or non-business related internet material. I consider that it is implied in the policy that usage can be restricted. Compliance with the policy is a condition of use.

[54] I am satisfied that the introduction of the 60 minute time limit on access to certain non-business related sites is not solely about costs and network issues. The evidence of Mr Eddington which was supported by Mr Bruce is that the finding that a large proportion of internet traffic was related to non-business use and that the most visited sites were all sites generally related to non-business use indicated that the limited personal use policy was not being understood and or observed. This is why the introduction of a time limit was seen as the appropriate approach to deal with the cost and network issues associated with the significant amount of internet traffic into the organisation.

[55] I was impressed by the evidence of Mr Bruce that firefighters have a wide range of duties and responsibilities to carry out when at a fire station and not engaged in responding to an emergency call. I am confident that the UFU and its members would agree and that they would be rightly offended by any suggestion that they have time during working hours to spend significant time browsing the internet for private personal purposes.

[56] It is possible that I may have been forced to a different conclusion if the MFB was proposing to implement a total ban on access to sites such as Facebook or if the daily time restriction on such sites was only a few minutes. However, a mechanism which restricts access to such sites to 60 minutes per day could hardly be described as an additional restriction beyond a policy which requires that personal use be limited. In this regard I also note that the MFB have modified their proposal to exclude from restriction a wide range of government and external business sites.

[57] Given that I am satisfied that the MFB is not seeking to modify or delete existing policy, Clause 30 is only relevant if I am satisfied that the MFB is seeking to add to the existing policy. It is conceivable that the proposed work instruction and work method the MFB proposes to use to implement the limited personal use policy could be considered to be an addition to the policy. It would be a narrow and pedantic approach to Clause 30 to suggest that a change can never be a proposal to add to a policy unless the MFB actually propose to change its policy document.

[58] However, given my findings as to the correct construction of the policy and the nature of the restrictions proposed, on balance I am satisfied that the MFB proposal is not one which modifies, deletes or adds to existing policy. The administrative arrangements proposed are also within the scope and spirit of the existing policy.

[59] There is no requirement to consult pursuant to Clause 30 of the Agreement.

Is the MFB required to consult because the introduction of the time limit is a proposal to implement change in matters pertaining to (the) employment relationship in any of the workplaces covered by the agreement?

[60] There is nothing in the words of Clause 15, read in context, which suggest that the word “change” should be qualified by anything other than the qualification included; namely the requirement that the matter pertain to the employment relationship in any of the workplaces covered by the agreement. Often the changes referred to will be changes in work practices but the clause is not strictly limited to this.

[61] I accept that computer equipment provided by the MFB for internet access is a work tool. I also accept that generally tribunals have found that the employer has a right to control their own information technology systems. However, this does not constrain or limit the scope of the matters which the parties determined to provide for the operation of Clause 13. There is no ambiguity or uncertainty about the scope of Clause 13. It relates to any proposal to implement change in matters pertaining to the employment relationship in any of the workplaces covered by the agreement. It is not limited to significant matters or to matters which may have an impact on employees’ jobs or conditions let alone a significant effect upon them.

[62] Limitations on what an employee can or cannot do whilst at work will often be a matter which pertains to the employment relationship. The access to the internet which is the subject of the dispute clearly takes place in workplaces covered by the Agreement. Firefighters work at all times and are permitted by the Agreement to rest and recline. These factors will influence the need for and the incidence of personal access to the internet during work time. The right to limited access for personal use is a service the MFB is providing to employees. A material change to that right is a change that pertains to the employment relationship. The evidence of the UFU witnesses establishes that there has been a long established custom and practice concerning access to the internet. That evidence established the benefits of that access to firefighters. The evidence also established that the change proposed by the MFB was a material change to that existing custom and practice.

[63] The UFU suggested that the new requirement to approach a relevant manager to seek exemption from the time limit or to seek that certain sites be generally removed from monitoring (matters which are part of the proposed procedure to accommodate special cases and to ensure that inadvertent limitation on use for business purposes can be avoided) was a change to work practices which also required consultation under Clause 15. Although Clause 15 does not refer to “significant change” and such words cannot be read into the agreement, if the word change is understood as meaning any new instruction or direction issued by management it would be clearly absurd and unworkable. Read in an industrial context the word change does not generally include directions which are part of the normal management of work consistent with policy and work practice. I am not satisfied that advice to employees that they may request through an appropriate manager that certain sites be removed from monitoring is a change within the proper meaning of the clause.

[64] However, although I am satisfied that employees understood that in accordance with policy personal internet use was limited, the introduction of a daily time limit on such use is a change to the way in which employees are able to access the internet for personal purposes. It is designed to change the pattern of internet usage within the MFB and it is designed to change the behaviour of employees when they are in the workplaces covered by the Agreement. The evidence of Mr Eddington establishes that the MFB believes that there is excessive use of the internet for non-business purposes. The MFB is concerned that non-business sites such as Facebook are the most visited sites using the MFB internet. Ms Pearce gave evidence that the MFB believed that some employees were not complying with the limited personal use policy because there was too much traffic to sites such as social media sites. Mr Bruce said that he would be concerned that work would be interfered with if employees were spending more than 15 minutes in work time in personal internet access. He gave evidence that some workers had been counselled about excessive personal internet usage. The purpose of the introduction of the time limit is to change this situation and to create a material change in the pattern of usage of the internet by employees whilst at MFB workplaces.

[65] It is of course possible that the incidence of personal use of the internet is concentrated in meal breaks and other times when employees are not required to work and it is also possible that the introduction of the one hour per day limit on certain sites will not have the desired effect of reducing internet costs and network issues for the MFB. It is possible the MFB are wrong in their assessment of the extent of personal use of the internet during working time. However, this is not a relevant consideration in determining whether or not a proposed change is required to be the subject of consultation under the Agreement.

[66] An examination of the minutes of the consultative committee meetings which were attached to the Statement of Ms Pearce shows that many changes which might in some other workplaces be regarded as matters for management prerogative are on the agenda pursuant to Clauses 15 and 30 and other clauses of the Agreement. 12 These agendas illustrate that the parties understand the wide scope of change which is the subject of consultation under Clause 15. I am aware through my involvement with many disputes involving the MFB that this wide scope has been accepted practice for many years including prior to the making of the current Agreement. I do not say that this is evidence of the mutual intention of the parties in making the agreement and it is not an aide to the interpretation of the agreement. The meaning of Clause 15 can be ascertained from a plain reading of the words understood in the context of the Agreement as a whole and the general industrial context.

[67] I am satisfied that a plain reading of Clause 15 in context results in a conclusion that the change in this case is within the scope of Clause 15. It is also a matter which pertains to the employment relationship in workplaces covered by the Agreement. I am therefore satisfied that the introduction of a time limit on personal internet usage is a change about which the MFB is required to consult pursuant to clause 15.

Has the MFB met its obligations to consult as set out in Clause 13?

[68] It is accepted that the MFB did not consult the UFU about the change prior to implementing it in December 2012. The change was only in place for approximately one day before it was suspended for technical reasons. It was later further suspended due to the disputes settlement process.

[69] The consultation the parties agreed to as a result of my Recommendation was limited to consultation on implementation process and details. The UFU had a right to consultation about the change and has a right to an opportunity to genuinely influence the decision maker pursuant to Clause 15. The UFU was denied that right initially because the MFB implemented the policy and only delayed implementation as part of the disputes settlement procedure after the UFU raised a grievance. The consultation process pursuant to the Recommendation was limited to consultation on implementation process and details and there is no such limitation in Clause 15.

[70] Both the UFU and the MFB accepted the Recommendation. The Recommendation provided the UFU with the opportunity to say within 7 days that they did not accept the compromise approach of more limited consultation but rather wanted the matter of whether or not there was a requirement to consult arbitrated. The UFU did not take that option and in doing so agreed to genuinely see if the compromise approach of more limited consultation would resolve the dispute. I agree with the submission of the MFB that based upon an examination of the evidence and documented materials provided by Ms Pearce the UFU failed to take the opportunity offered by the Recommendation to undertake the limited consultation about implementation process and details. They failed to provide a position paper outlining what changes to the proposal they were seeking. They demanded answers to a series of questions which were generally about the rationale for the proposal to implement a time limit rather than about the implementation process and details or any alternative proposals in respect to them. The MFB persisted in offering to consult within the framework of the Recommendation for a number of months. The UFU did not take that opportunity.

[71] The Recommendation was without prejudice to the position of the MFB that this is not a matter which is subject to consultation and to the position of the UFU that it is. The Recommendation did not resolve the dispute and the parties have sought as part of the resolution of the original dispute by arbitration a finding as to whether or not consultation was required by the Agreement and whether or not that requirement has been met.

[72] The circumstances surrounding the implementation of the Recommendation I have described do not alter the fact that the consultation required by Clause 15 did not take place. The MFB have not effectively discharged their obligation to consult under the Agreement.

What action should be taken to resolve the dispute?

[73] The disputes settlement powers of the Commission in the present circumstances are set out in Section 739 of the Act as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[74] The disputes settlement clause of the Agreement provides wide discretion to the Commission. The scope of matters which can be determined is 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.”

[75] The role of FWC at step 5 of the procedure is as follows:

“19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.”

[76] The Act in combination with the terms of this Agreement empowers FWC to resolve disputes arising under the Agreement. I am not confined to disputes about the implementation or interpretation of the Agreement. In the current situation I am not confined to making findings about the obligations or rights of parties under the Agreement. I can also consider what is fair and reasonable to resolve the dispute arising from the Agreement. In doing so I have regard to what has happened during the dispute and as a consequence of that dispute.

[77] The implementation of the change has been delayed for six months because of the dispute. Some of the delays may have been due to technical problems with the monitoring software. The obligation to consult should not generally result in such significant delays to the implementation of change. I accept that neither party is solely responsible for the delay. The failure of the MFB to initially consult is the major cause of the delay but the failure of the UFU to implement the Recommendation for a practical compromise approach to the consultation to which both parties agreed also contributed to the delay.

[78] In some cases it will be apparent that a party has deliberately failed to carry out its obligations under the Agreement. There is no reason to reach such a conclusion in this matter. The nature of the change proposed by the MFB in this case was such that it believed that it was not required by the Agreement to consult. The position of the MFB was not fanciful; there was some basis for their belief. There is no reason to believe that the UFU sought to delay this matter, however, I consider that some of the delay in this matter is attributable to the UFU. If the UFU had said, as they were entitled to do, that they were not prepared to genuinely attempt to resolve the dispute through the path of limited consultation in my February Recommendation then this matter would have been arbitrated and determined by March 2013. The UFU agreed to genuinely attempt to resolve the dispute through the limited consultation in the Recommendation. Of course if the parties had implemented that process in accordance with the Recommendation then we would have known sometime in March 2013 if it was successful and if not the dispute would have been determined at that time.

[79] I am not critical of the UFU for abandoning attempts to resolve the issue through the narrower approach to consultation in the Recommendation. They had an entitlement to pursue their rights under the Agreement. I assume that they hoped that by agreeing to the narrower consultation path they would be able to make greater progress in resolving their concerns than eventuated. All I am suggesting is that by not advising the MFB and FWC until June 2013 that the path proposed by the Recommendation was not going to produce a solution, the UFU contributed to the delay in determining this matter.

[80] Once the UFU advised that they wished to proceed to arbitration FWC has heard and determined the dispute without delay.

[81] Through the disputes process, including at FWC, the UFU have obtained a significant amount of information about the proposed change and the reasons for it and the MFB have modified the proposal to reduce potential negative impacts and to provide for access to appropriate changes and exemptions in the future. The UFU have had an opportunity to influence the decision maker even if more limited than might otherwise have occurred.

[82] The change is within the scope of existing policy. Employees will retain significant access for personal use of the internet. There is a mechanism to deal with any unintended consequences and the ability under the Agreement to utilise the disputes settlement procedure to resolve any outstanding implementation issues which might arise.

[83] I accept that there is no evidence that personal use of the internet has negatively impacted on the performance of required duties by firefighters. Mr Bruce gave evidence that there have been limits on email download size in the MFB system for some time. This creates some inconvenience as will a time limit on access to certain sites. There is no evidence that has satisfied me that the time limit on personal internet access will have a major negative impact. That said I understand that all relevant evidence in respect to this may not have been before me. It is a change which should have been subject to consultation under the Agreement but it is not a significant change or a change likely to have significant impact on employees.

[84] It is of course important that negotiating parties implement their agreements. Sometimes there are disputes over alleged failure to implement an agreement. It is not always obvious what the obligations under an agreement are which is why a disputes settlement clause exists to help parties resolve those issues. Hopefully this decision will assist parties to implement their agreements in the future.

[85] It is open to me to adopt the course proposed by the UFU and determine that the appropriate resolution to the dispute is to require the MFB to take certain specified steps to consult including by providing certain specified information and to not take steps to implement the change until the conclusion of this process. I cannot make a determination that is inconsistent with the Agreement. For this reason it is not open to me, given the findings I have made, to direct that the MFB not implement its consultation obligations under the Agreement. It is however open to me to determine that the appropriate resolution to the dispute is to decline to require further action be taken in this matter. I have decided that this is the appropriate resolution.

[86] I consider that there is no useful purpose to be served by determining as a resolution to the dispute that the MFB take further specified steps to consult about this matter.

[87] Given the information provided and the long history of this matter and the extensive delays which have occurred, there is in my assessment no reasonable prospect that further consultation will lead to a change in the action proposed by the MFB. I do not consider that further consultation would lead to any material benefit to the employees represented by the UFU.

[88] Consultation is never to be treated as a mere formality and it is no perfunctory advice on what is about to happen. It is to provide the relevant persons with a bone fide opportunity to influence the decision maker. However, as then Commissioner Smith stated in CEPU v Optus Administration Pty Ltd: 13

“Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions.”

[89] I am concerned that in the particular circumstances of this case if I were to resolve the dispute by requiring further specified steps to be taken it would have the effect of further significant delay which could be seen as a frustrating barrier to decision making. Of course the actions of an employer in failing to provide a genuine opportunity to consult can in some cases lead to significant delay. It is also true in some cases that the significant nature of change proposed necessitates that significant time is required for genuine consultation. However, the delay in this case would not be simply attributable to such considerations.

[90] My assessment that there is no useful purpose to be served by requiring further consultation in this matter is in no way to be understood as condoning or encouraging non-observance of the obligations under the Agreement. Nor does it remove any rights the UFU might have to enforcement action. It is a practical assessment, based purely on the particular facts and circumstances of this matter, about what would be a fair and equitable way to resolve the dispute.

[91] In all of the circumstances I consider that the dispute has been resolved by the findings made concerning the obligations of the MFB and the UFU under the Agreement and that it is not appropriate in the circumstances that I take any further action.

COMMISSIONER

Appearances:

Ms A Forsyth appeared for the UFU.

Mr R Dalton appeared for the MFB.

Hearing details:

2013

Melbourne

July 10

ATTACHMENT 1

Relevant clauses of the Agreement

13. CONSULTATIVE PROCESS

13.1. Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party's views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

13.2. MFB / UFU Consultative Committee

The parties agree to establish a MFB/UFU Consultative Committee comprising people involved in the decision making processes of both organisations. The Committee's terms of reference, membership and working arrangements will be negotiated by the parties within six months of this agreement being lodged.

13.3. MFB UFU Consultation Committee

13.3.1. The parties are committed to effective consultation and communication throughout the MFB. As a demonstration of that commitment, the parties have undertaken to establish an MFB UFU Consultation Committee to facilitate the implementation of this agreement and ongoing workplace reform.

13.3.2. The Committee comprises equal numbers of management and employee representatives as determined by the respective parties, and decision-making will be by consensus.

13.3.3. There is an obligation on Committee members to cooperate positively to consider matters that will increase efficiency, productivity, competitiveness, training, career opportunities and job security.

13.3.4. The Committee will program meetings on a regular basis and communicate the outcomes of meetings to employees covered by this agreement.

13.3.5. The respective parties, at their own initiative, may require the endorsement of their constituents in relation to proposals for change. No proposals for change arising from this agreement shall be implemented without referral to the MFB UFU Consultation Committee.

13.3.6. The aims of the MFB UFU Consultation Committee will be to:

13.3.6.1. consult where provisions in this agreement require consultation

13.3.6.2. monitor the implementation of this agreement

13.3.6.3. consider and make recommendations regarding issues arising under this agreement

13.3.6.4. provide a mechanism for employee input into the implementation of this agreement. Thus providing an opportunity to utilise employee knowledge and experience to provide a mechanism for improving communication and cooperation between the MFB and its employees.

13.3.7. The Committee may, by agreement, alter its size and/or composition or establish working parties to research and make recommendations on specific issues for determination by MFB UFU Consultation Committee at a later date.

15. INTRODUCTION OF CHANGE

Where the employer wishes to implement change in matters pertaining to employment relationship in any of the workplaces covered by this agreement, the provisions of clause 13 will apply.

16. CONTINUOUS IMPROVEMENT

Subject to this agreement, the parties agree to continue to work towards making improvements in efficiency and productivity and providing safe, satisfying and rewarding employment for employees covered by this agreement. Such improvements will not be at the expense of maintaining a safe working environment or reducing public safety in any way.

17. TECHNOLOGICAL CHANGE

The parties recognise the speed and diversity of changes to technology and that the best results for the MFESB and its employees are achieved when technological change occurs through a cooperative and consultative process subject to this Agreement.

19. DISPUTE RESOLUTION

19.1. This dispute resolution process applies to all matters arising under this agreement, which the parties have agreed includes:

19.1.1. all matters for which express provision is made in this agreement; and

19.1.2. all matters pertaining to the employment relationship, whether or not express provision for any such matter is made in this agreement; and

19.1.3. all matters pertaining to the relationship between the MFESB and UFU, whether or not express provision for any such matter is made in this agreement.

The parties agree that disputes about any such matters shall be dealt with by using the provisions in this clause.

19.2. To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:

19.2.1. Step 1 The dispute shall be submitted by the union and/or employee(s) to the employee's immediate supervisor.

19.2.2. Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.

19.2.3. Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.

19.2.4. Steps 1 - 3 Must be concluded within a period of ten (10) consecutive days. Disputes are to be resolved at a local level wherever possible.

19.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.

19.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.

19.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge

19.4. While the above procedures are being followed, including the resolution of any dispute by FWA pursuant to clause 19.2.6, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.

19.5. This clause shall not apply to a dispute on a Health and Safety issue.

19.6. A dispute may be submitted, notified or referred under this clause by the UFU.

19.7. A decision of FWA under this clause may be appealed. A dispute is not resolved until any such appeal is determined.

30. MFESB POLICIES

The MFESB currently has a range of policies that affect employees covered by this agreement. Policy that is dealt with elsewhere in the agreement may only be varied by agreement. Should the MFESB elect to modify, delete or add to existing policy that affects employees then any change or addition will be subject of consultation pursuant to clause 13 of this agreement. Should any policy be inconsistent with a term of this Agreement, then it will be invalid to the extent of any inconsistency.

 1   Exhibit MFB 3, Attachment DAB3 - Clause 10.1.

 2   Exhibit MFB 3, Attachment DAB3 - Clause 10.2.

 3   Exhibit MFB 3, Attachment DAB3 - Clause 10.3.

 4   Exhibit MFB 3, Attachment DAB2.

 5   Exhibit MFB 2 at paragraph 12 and 13.

 6   Exhibit MFB 3, Attachment DAB1.

 7   Exhibit MFB 2, Attachment RE email of 10 December 2013.

 8   Queensland Rail v Wake (2006) 156 IR 393 at [11].

 9   CEPU v Optus Administration Pty Ltd [PR912122] 4 December 2001; and CFMEU & Ors v BHP Coal Pty Ltd[2012] FWA 3945 at [54].

 10   Exhibit MFB 1.

 11   Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188.

 12   Exhibit MFB 4, Attachments JP 18 and JP 21.

 13   [PR912122] 4 December 2001.

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