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

[2019] FWC 3389

[2019] FWC 3389

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Firefighters’ Union of Australia
v
Metropolitan Fire and Emergency Services Board (MFB)
(C2019/1939)

COMMISSIONER WILSON MELBOURNE, 16 MAY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 26 March 2019 the United Firefighters' Union of Australia (UFU) made an application to the Fair Work Commission pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute alleged under an enterprise agreement. The alleged dispute is with the Metropolitan Fire and Emergency Services Board (MFB) and is made under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016 (the 2016 Agreement). 1 Attached to the application was a further Application for an Order for the Production of Documents by the MFB which was the subject of a hearing before me on 14 May 2019.

[2] At the conclusion of the hearing I undertook to advise the parties of my decision at the earliest opportunity and subsequently provide them with my reasons for decision, which are set out below. On 15 May 2019 the parties were advised of my decision to refuse the application with me indicating the following to them:

“Please be advised that I have decided not to issue an order for the production of documents. My written reasons for decision will be issued in due course, and include a number of considerations about which I now provide a summary of.

While noting the MFB’s argument that the Commission does not have jurisdiction to deal with the substantive dispute, there is insufficient material before me to determine that objection.

In relation to the proposed order, the breadth of the classes of documents sought creates several concerns; first, that the request is oppressive, potentially capturing many, if not thousands, of documents created by or exchanged between dozens of actors; second, that the application does not adequately deal with matters of confidentiality and especially the likelihood that the request will capture documents otherwise covered by Cabinet confidentiality; and third that the application is “fishing”, in the sense of being designed to establish whether the UFU has a case, rather than to support its case. My decision is that the application is both oppressive as well as a fishing expedition.

A narrower request with supporting material from the UFU in a more detailed and evidenced form than now before me has some likelihood of future success. However, the supporting material would need to move beyond the very basic and unsubstantiated chatter referred to so far in the UFU’s material. There would need to be evidence from nominated individuals capable of being tested.

I note that the MFB argues the application is premature, given that it comes before the conciliation listed for Thursday, 16 May 2019 which potentially may resolve or at least narrow the substantive dispute. I also note the submission from the MFB that it has already provided information of substance to the UFU. I have some attraction to each argument, especially given that the MFB provided a significant response to the UFU in February. At the least, the MFB’s response is a firm rebuttal of the UFU’s presently unsubstantiated assertions that it “has been advised by its members that the MFB has made a decision to cut the budget in various areas”, with there being a change in the workplace with negative impact on employees since it would “result in no upgrades or replacements for desperately needed equipment and infrastructure”. Even so, that is not to say that the response given so far comprehensively answers the questions of what are the current budgets and how do they compare with prior years?

The question of prematurity of the UFU’s application will likely be put to the test in the conciliation on Thursday with this question - what further substance addressing the UFU’s identified concerns will the MFB provide in the conference?

If Thursday’s conciliation conference makes progress with the matters of information exchange there will likely be no need for a further consideration of the UFU’s application for an order for the production of documents.

If the need for an application of this type survives the conference I would be disinclined to reconsider an application of this type until determination of the MFB’s jurisdictional argument, if that was pressed, and certainly would be disinclined to favourably consider an order without the matters of oppression, confidentiality and fishing and further evidence on the part of the UFU being positively addressed.

…”

[3] The subject matter of the UFU’s alleged dispute deals with matters relating to what are said to be decisions of the MFB about various budget allocations. In an attachment to the dispute notification explaining the matters in dispute, the UFU stated that it “has been advised by its members that the MFB has made a decision to cut the budget in various areas” 2 and that the “budget cuts are a change in the workplace and will negatively impact on employees in MFB Operational areas, including matters pertaining to their employment relationship”.

[4] The alleged dispute was notified to the Commission pursuant to clause 21 of the 2016 Agreement. There had been an earlier dispute on the same subject dealt with by me in January 2019. 3 Those dealings had proceeded so far as a single conciliation conference held on 15 January 2019 with certain indications being given by me to the parties about desirable action to be taken by them. The application was discontinued after a jurisdictional objection was made by the MFB that since the application had been made under the precursor to the 2016 Agreement that the UFU’s rights in respect of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 20104 (the 2010 Agreement) had been extinguished with the making of the 2016 Agreement.

[5] While the UFU has not specifically identified to the Commission the part of clause 21 which authorises the commencement and agitation of the alleged dispute now before the Commission, it is noted that clause 21 is in broad terms, including having application to matters arising under the 2016 Agreement; matters pertaining to the employment relationship; and matters pertaining to the relationship between the MFB and the UFU. The UFU separately assert that the MFB has failed to consult with its obligations under clauses 16 and 17 of the 2016 Agreement. The UFU’s dispute application sets out the steps it says it has taken to progress the dispute to the point of being able to make this application, which are said to be in compliance with the requirements of the dispute resolution procedure before a dispute may be referred to the Commission. In this regard, I note the dispute application form, refers incorrectly in item 3.1, dealing with relief, to clause 19.2.6, when the reference should be to clause 21.2.6.

[6] At this stage of dealing with the application, I have made no findings about whether the dispute is properly before the Commission, whether for reason of compliance with the stages set out in the dispute resolution clause, nor for reason of the Commission’s jurisdiction.

[7] As presently notified, the relief sought by the UFU in its dispute application is for “a determination from the Commission to resolve the dispute regarding the obligation to consult in accordance with clause 16 and 17 of the Agreement and that the MFB provide all relevant material to the UFU regarding the budget allocations and cuts to specific areas, including a copy of nominated cost centre budgets and CAPEX budgets from the previous and current financial years”.

[8] Filed by the UFU at the same time as the dispute notification form was an Application made under s.590(2)(c) of the Act for an Order for the Production of Documents against the MFB. The UFU seeks details of the MFB’s past and current financial year expenditure on operational training; promotion and skills maintenance; heavy and light vehicles and equipment; and community education programs. In particular, the UFU seeks documents showing the MFB’s cost centre budgets, and capital expenditure (CAPEX) budgets for each of these categories for each of the 2017/18 and 2018/19 financial years.

[9] The MFB argue against the making of the order as sought by the UFU. In particular, it argues that an order should not be made for reasons that jurisdiction is contested; that the categories of documents sought by the UFU lack relevance to the proceedings before the Commission; that there would be oppression associated with ordering provision of the documents given the breadth and lack of precision of the categories sought as well as the confidential nature of the materials being sought including but not limited to matters of Cabinet confidentiality; and finally that an order for the documents would be premature given that there has been a conciliation conference listed in this matter for Thursday, 16 May 2019.

[10] In relation to jurisdiction the MFB argues that clause 16 of the 2016 Agreement which deals with consultation does not impose an obligation on the MFB to consult in a freestanding way. Instead, the obligation to consult in accordance with the process in clause 16 is triggered by clause 17, with it being said that “[u]nder the latter clause, clause 16 is engaged where the MFB “wishes to implement a change in matters affecting the application or operation of the Agreement or pertaining to the relevant employment relationship.”” 5 It is further argued by the MFB that the UFU has not pointed to a change the MFB wishes to implement which would trigger the operation of clause 17. The fact that there has been a reduction in budgetary items one financial year to another is insufficient to trigger the clause. In this regard the MFB sees the UFU as having proffered no more than broad-ranging assumptions about the alleged budget cuts.6

[11] In relation to the matter of apparent relevance, the MFB contends that the production of the document categories in question would be unlikely to shed much light on whether the MFB wishes to implement a change of the relevant kind, or on the nature or extent of any such change. It says that comparing budget line items between financial years is “a very weak proxy indicator” of change, with the production of the documents likely to confuse and distract from resolution. 7

[12] During the hearing the UFU confirmed that it seeks 16 categories of documents from the MFB. In particular, it seeks documents of two types of budget, namely operating expenditure and capital expenditure budgets, each for two years and each for the four categories set out within the application, namely operational training, promotion and skills maintenance, heavy and light vehicles and equipment and community education programs. The union confirmed its intention is to seek a wide-ranging set of documents, including copies of draft and final budgets on the subject matters set out within its application, internal memoranda and emails and working papers. The union considers that internal discussions within the MFB about what the budgets should be are plainly relevant to the dispute it seeks to agitate before the Commission.

[13] The MFB contends that these matters, flowing from the phrasing of the order sought by the UFU, employing the words “all documents held by the MFB … comprising, recording or relating to” the categories in question may conceivably involve thousands of documents, both in hard and electronic forms. It also argued that some of the documents within the categories in question are likely to be confidential communications to the Victorian Cabinet, Ministers and their departments.

[14] In terms of prematurity, the MFB argues that an order for the compulsory production of documents is unnecessary to facilitate conciliation, being the purpose nominated by the UFU for which the documents are sought.

[15] The Full Bench in Re Penelope Vickers usefully summarised the principles to be used in dealing with applications for orders for the production of documents under s.590(2)(c):

“[8] The principles applying to the issue of orders for production by the Commission under s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. 8 Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced.9 The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.10”11 (references in original)

[16] Even though in Kennedy v Qantas Ground Services the Full Bench confirmed that there is no obligation on the part of the Commission to publish written reasons for decision in relation to applications for an order for the production of documents for reason of the provisions of s.601(1) of the Act, I consider it to be appropriate to provide my written reasons for decision. 12

[17] In considering these matters, I note the MFB’s objection that the application from the UFU is made without jurisdiction meaning the Commission has no jurisdiction either to determine the Application for the Order for Production of Documents or the substantive alleged dispute.

[18] The argument advanced by the MFB is based upon the construction of clause 16 and clause 17 of the 2016 Agreement. Clause 16 deals with the subject of consultation and clause 17 the introduction of change. The MFB’s argument is to the effect that the terms of clause 17 act to limit the operation of clause 16, with it being said that the obligation to consult is subject to an activation for one of two reasons provided within clause 17; the employer either must wish to implement change in matters affecting the application or operation of the Agreement or it must wish to implement change pertaining to the employment relationship. It is argued that absent a desire to effect change there is no obligation to consult in the manner set out within clause 16. The UFU strenuously resists these contentions putting forward that clause 16 is an independent head of power requiring consultation because of the things said within clause 16 and in particular 16.4, which extend, amongst other matters, to there being a requirement for consultation on matters pertaining to the employment relationship. It submitted there is a long line of authority to the effect that many disputes about management decisions directly affect the employment relationship and constituted “industrial matters”, or matters pertaining to the employment relationship; see for example, Re Cram and Others (1987) 163 CLR 117, pp.132 – 136.

[19] Notwithstanding these submissions from each party, there is insufficient material before the Commission for determination of the matter of jurisdiction; that subject will need to be determined at a later time if the MFB chooses to press the argument.

[20] The scope of the alleged dispute to which I refer is the UFU’s apprehension that the MFB has made a decision to cut the budget in various areas, with those cuts being a change in the workplace, with the potential for a negative impact on employees.

[21] Assessment of apparent relevance invites consideration not only of the document’s relevance in a descriptive or adjectival sense, rather than a substantive sense, but also the possibility that the  material sought may reasonably be expected to throw light on some of the issues in the principal proceeding. 13

[22] In the UFU’s supporting material for the proposed order, it notes that one of the responses it received from the MFB stated its total budgeted income for 2018/2019 had increased by $15.6 million to $429.7 million with the union then being unclear why there may be budget cuts in the areas it nominates. 14 The MFB submits in relation to the utility of an Order for the Production of Documents that it has already provided certain information to the UFU about its concerns. The information was provided following a conciliation before me on 15 January 2019 under an earlier application from the UFU. The union considered the MFB’s 6 February 2019 response given in relation to the now closed matter C2018/6891, to be inadequate with it failing to assist the UFU to understand the budget allocations or cuts to specific areas. In a detailed response the UFU argued inadequacy for several reasons, largely associated with a lack of clarity either about the MFBs decision making or the sufficiency of the information provided by the fire service to the union.15

[23] A dispute characterised as being about budget reductions is likely to require being tested against whether such cuts actually have taken place or are proposed. Even so, in a financial environment as obviously large and complex as the MFB’s, an examination of budget line items alone may not throw the assumed light sought. One may have a budget target, but there is no iron law of finance or management that a budgeted target must be met or may not be exceeded. The inertia of organisations, the need to consult with employees, or unanticipated delays in decision making may each conspire against the achievement of an otherwise scheduled budget.

[24] At one level, the prospect that a relatively confined set of information about cost centre and capital expenditure budgets for the two years in question have adjectival or apparent relevance to the alleged dispute is capable of being made out. However, that prospect ends when the full range of documents sought by the UFU is taken into account. The union does not seek merely a confined set of information about cost centre and capital expenditure budgets for two financial years in question, but instead seeks documents in a very wide-ranging and far from confined set of classes. In particular, it seeks copies of draft and final budgets, internal memoranda and emails and working papers. Such allure as may come from the requirement to produce a somewhat confined data set for 16 classes of document pales with the need to also produce any and all documents which touch on every stage of the preparation, development, finalisation and adoption of those 16 classes. There ceases to be apparent relevance for the production of such a wide-ranging set of documents because of the breadth of the request. I do not consider that such a broad range of documents and their likely deliberative content will have apparent relevance to the matters to be determined. I agree that such an unfiltered and imprecise range of documents is likely to confuse and distract from resolution of the substantive dispute.

[25] Further, I consider that the order should not be made in the form presently advanced to the Commission for reason of it being a fishing expedition and likely to have oppressive effect on the MFB. A long-standing principle of the Commission and its predecessors, based upon the procedures in courts is that:

“A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.” 16

[26] The context of the matter presently before me is that I only have for consideration the applications made by the UFU, the exchanges between both parties, and the submissions made by each. The UFU’s application has some supporting material however, that material essentially comprises generalised assertions of things that have come to the union’s attention. In particular, the application refers to the following:

“1. The UFU has been advised by its members that the MFB has made a decision to cut the budget in various areas.

2. Budget cuts include the following:

•  $12 million cut to Heavy Fleet

•  $1 million cut to Light Fleet

•  $200,000 cut to Equipment Resources Management

•  57% cut to Operational Training

•  50% cut to Community Education

•  20% cut to Property Services affecting building and infrastructure projects, such as, Fire Station rebuilds and refurbishments

•  90% cut to InFlames Project

•  No funding for new Teleboom and new generation Pumpers

…

12. These budget cuts are a change in the workplace and will negatively impact on employees in MFB Operational areas, including matters pertaining to their employment relationship. For example, a 57% cut to Operational Training will mean that current courses, such as Promotional Courses, may not be able to be conducted having a detrimental effect on the promotional opportunities of the workforce.

…

18. The budget cuts that result in no upgrades or replacements for desperately needed equipment and infrastructure and cuts to necessary firefighter training and community fire safety education ultimately impact on UFU members with more health problems, more job stress, and fewer job opportunities. These are matters that affect terms and conditions of employment.

19. They also affect the safety of employees and the community” 17

[27] Those matters are not presently supported with any verification either of the origins of the information or their accuracy. Given the MFB’s rebuttal in February of the UFU’s generalisations, and given that the basis of the statements has not been appreciably added to by the UFU since that rebuttal, the statements fall far short of establishing a case to be determined by the Commission, were it to be within jurisdiction. Without evidence of an acceptable threshold level being provided to the Commission on these and other matters of concern to the UFU, it is difficult to see how the MFB is being asked to respond to a case of substance held by the UFU. In contrast to the indication given by me above to the effect that a relatively confined set of information about cost centre and capital expenditure budgets for the two years in question may have adjectival or apparent relevance to the alleged dispute, the union seeks documents in a very wide-ranging and far from confined set of classes. As indicated above, the scope of what is sought ceases to have apparent relevance to the dispute as presently characterised.

[28] The fact that the UFU seeks copies of draft and final budgets on the subject matters set out within its application, internal memoranda and emails and working papers across 16 classes of documents leads to the probability that satisfaction of an order on the terms sought by the union would require significant and likely unreasonable work on the part of the MFB as well as potentially others within the Victorian Government to locate and provide the indicated documents to the Commission. There is no question that satisfaction of an order made in these terms would deliver potentially thousands of documents from dozens of actors. In a strict reading of the s.739 Application Form and the characterisation given by the union of the alleged dispute, the utility of such a library of documents for the resolution of the dispute as presently articulated is questionable. The likelihood that there would need to be produced thousands of documents from every single stage of a rather complex budget development process inexorably leads to the view that the Application for an Order for the Production of Documents on the part of the UFU is not so much a desire on the part of the union to bolster a case that it already has, but rather to establish whether there is a case at all.

[29] The MFB has provided information of some substance to the union, capable of rebuttal if the assertions made in the s.739 Application Form have substance. There would be nothing untoward with the UFU seeking through targeted information to skewer what it regards as erroneous or misleading statements by the MFB in its material, however that is not what is now before the Commission. By seeking the deliberative documents as well as the final budgets, there is no avoiding the probability that the UFU seeks to peel back the curtain on the whole budget development process and take the opportunity to dispute not only whether there have there been cuts, and by how much, but why the decisions were made in the first place, what arguments may have been presented for or against initial proposals and the final decision, and who made those arguments. Inevitably that is a far wider dispute than that asserted within the s.739 Application Form to the effect that it seeks consultation over budget cuts it already knows. Equally inevitably it leads to the finding that the application is for the purposes of a fishing expedition and that upon compliance with the order, the breadth of what is revealed broadens, rather than narrows the dispute, for the simple reason it exposes differences of opinion.

[30] While the statements within the s.739 Application Form may be sufficient to legitimately refer to a dispute to the Commission they fall far short of being a sufficient support for the Commission to burden the MFB with what will likely be a significant document gathering exercise, as well as an invitation to have a debate with the UFU not only about budget cuts, if there are any, but also about the basis upon which the budgets were set in the first place, and even presumably the pre-existing unreduced budget.

[31] In summary, I am not satisfied that there is apparent relevance for the full range of documents sought by the UFU, as confirmed by it in the hearing. My findings about fishing and oppression also lead to my refusal of the application. Further, I confirm my advice to the parties on 15 May 2019 that if the need for an application of this type survives the forthcoming conciliation conference I would be disinclined to reconsider an application of this type until determination of the MFB’s jurisdictional argument, if that were further pressed, and would be disinclined to favourably consider an order without the matters of oppression, confidentiality and fishing and further evidence on the part of the UFU being positively addressed.

COMMISSIONER

Appearances:

M. Pearce SC and D. Langmead of Counsel, for the Applicant.

R. Dalton QC, instructed by Corrs Chambers Westgarth for the Respondent.

Hearing details:

2019.

Melbourne;

14 May.

Printed by authority of the Commonwealth Government Printer

<PR708367>

 1   AE501845.

 2   Form F10, UFU Originating Application, dated 26 March 2019, Attachment 3, Q2.1.

 3   See matter number C2019/6891.

 4   AE881005.

 5   MFB Outline of Submissions, dated 14 May 2019, [17].

 6 Ibid, [18] – [19].

 7   Ibid, [23].

 8   Clermont Coal Operations Pty Ltd v Brown & Dews and Others[2015] FWCFB 2460 at [19].

 9   Kirkman v DP World Melbourne Limited[2015] FWCFB 3995 at [19].

 10   Esso Australia Pty Ltd v AWU and ors[2017] FWCFB 2200 at [6].

 11   [2017] FWCFB 3131; affirmed in Kennedy v Qantas Ground Services [2018] FWCFB 3847.

 12   [2018] FWCFB 3847, [19] – [20].

 13   ANF v VHIA[2011] FWA 8756, at [13]; see also Trade Practices Commission v Arnotts Limited [1989] FCA 248, at [44].

 14   Form F10, Attachment 3.

 15   UFU Outline of Submissions, dated 3 March 2019.

 16   Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985, (1988) AIRC, unreported, Print H2892 at p 2; cited with approval in ANF v VHIA[2011] FWA 8756, at [12];

 17   Form F10, Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, Attachment 3.